Justin Ames Johnston v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeO'Regan J
Judgment Date06 July 2016
Neutral Citation[2016] NZSC 83
Date06 July 2016
Docket NumberSC 61/2015

[2016] NZSC 83



Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ

SC 61/2015

Justin Ames Johnston
The Queen

R M Lithgow QC and N Levy for the Appellant

A Markham for the Respondent

Appeal against the Court of Appeal's decision that evidence of intent could be taken into account in determining whether the acts of the appellant had proceeded past the point of preparation so as to constitute an attempt under s72 Crimes Act 1961 (Attempts) — the appellant was on one count of attempted sexual violation by unlawful sexual connection — appellant had been discovered outside a sleepout in which a 16 year old girl was sleeping — evidence of statements he had made about his intention to rape a teenage girl had been introduced by the Crown at trial — appellant argued that it was wrong to take into account evidence of intent when determining whether his acts had proceeded past the point of preparation so as to constitute an attempt under s72(2) (question [of] whether … act …. is … only preparation … and too remote to constitute an attempt … is a question of law) — whether the intent of the defendant was a relevant matter in the determination made by a judge under s72(2) — whether the conduct of the actor could be considered cumulatively when determining whether his or her actions had gone beyond the point of preparation.

Held: Section 72 required both an intention to commit an offence and an act or omission giving effect to that intention. However, in many cases, it was only the actor's intention which indicated that an apparently (or possibly) innocent act or omission was criminal in nature. Given the language of s72(2) and (3), the act or omission relied on had to be “immediately or proximately connected with the intended offence” – it could not be “only preparation” and therefore “too remote”. On the other hand, it did not need to be an act or omission which showed, unequivocally, an intent to commit the offence (s72(3)). These factors provided the parameters for the actus reus of attempt.

An approach of considering whether a defendant's acts amounted to more than preparation without reference to the evidence before the Court as to intention was unworkable. If the maker of the “more than preparation” decision ignored evidence of intention, he or she would have to decide that question without considering what the defendant's actions were aimed at, that is, what offence the defendant intended to commit. That would mean that the acts of a defendant would fall short of an attempt unless:

(a) the defendant had actually done everything required to commit the offence but failed to achieve his or her aim (such as swinging a fist at the intended victim but missing because the victim evaded the punch); or

(b) the defendant's acts were so close to achieving the completion of the offence that they could only be explained as an attempt.

Requiring intent to be put to one side when making the determination required by s72(2) would have the effect of reviving the unequivocality rule abolished by s72(3).

There were three elements to an attempt under s72. First, there was the intention to commit an offence. Second, there was the act or acts committed for the purpose of committing the offence. Third, there was the question as to whether those acts amounted to more than preparation. Intention was relevant to all three. It was obviously relevant to the first. It was relevant to the second because the acts of the defendant had to have been done for the purpose of committing the offence specified in the indictment. And it was relevant to the third because, without knowing what the defendant planned to do, it was hard to evaluate the nature of his or her acts.

Where there was clear intent to commit the completed offence, the maker of the “more than preparation” decision had available to him or her information about what the defendant's ultimate plan was, which enabled him or her to assess more accurately whether the defendant's acts amounted to an attempt to commit the planned offence. Without that information, the acts might be seen as equivocal, and the decision-maker could not be confident that they amounted to an attempt to commit a particular offence. This did not turn mere preparation into an attempt. Rather, it was recognising that where clear intent was shown, the decision-maker had a basis to determine whether the conduct was more than mere preparation.

Even in a case of clear intent, a merely preparatory act would not be an attempt. But an act that was done in the context of a known plan could be classified as preparation or proximate with greater certainty than when the plan was unknown (or was excluded from consideration). The determination as to whether acts had gone beyond mere preparation could not be decided in the abstract without consideration of the evidence of intent ( Harpur). To the extent that Wilcox said the contrary (and this was not entirely clear), this was wrong.

In the present case, the presence of the appellant on the property and his movement towards the sleepout could not be assessed in terms of s72(2) without considering the evidence of his intent to sexually violate a teenage girl.

Harpur did not change the law; it was consistent with earlier authorities, other than Wilcox. Whether or not there was an attempt to commit a crime had to always involve two questions: first did the evidence establish an intent to commit the crime? If so, then was the conduct of the accused sufficient in law to amount to an attempt? The first of those two questions would often be answered by the same evidence as enabled an affirmative decision to be made concerning the second.

If the appellant had actually entered the sleepout or tried to do so, the case against him would have been clearer and more conclusive. The fact that he had not yet done this when Mr A intervened left opened the possibility that something might have happened on the night in question that would have caused him to abandon or defer the intended sexual violation of Ms A. However, an intent that was qualified, in the sense that the proposed offending might be abandoned should circumstances become unfavourable, was still sufficient ( Wylie). It would be artificial to hold that the necessary criminal intent had not been established merely because it was associated with the recognition that change of circumstances might require a change of plan. The finding in Harpur that the intent of the defendant was a relevant matter in the determination made by a judge under s72(2) was correct.

Section 72(2) allowed consideration of a defendant's conduct to be considered in its entirety ( Harpur, Wylie). The reference to “act” in s72(2) could be interpreted as “acts” on the basis that references to the singular included the plural. Both Harpur and the present case were examples of the obvious relevance of earlier conduct to the decision under s72(2). If a cumulative approach were not taken, the presence of the appellant on the property on the night in question would have to have been considered in isolation in a way that would have been artificial. That approach would have required the Judge to determine the s72(2) issue without reference to the evidence of the extensive earlier surveillance of the property, which was information that provided a context and insight into the acts of the appellant on the night in question.

Appeal dismissed.


The appeal is dismissed.


(Given by O'Regan J)


The appellant was convicted following a trial by jury on one count of attempted sexual violation by unlawful sexual connection. He was sentenced to preventive detention. The trial was a re-trial: he had earlier been convicted but his conviction had been set aside by the Court of Appeal [ Johnston (CA 2012)]. 1 He appealed against conviction after the re-trial but his appeal was dismissed by the Court of Appeal [ Johnston (CA 2015)]. 2


The appellant applied for leave to appeal against the Court of Appeal's decision in Johnston (CA 2015). Leave was granted on one issue only: 3

The approved question is whether the trial Judge was wrong to conclude that the actions of the applicant on the night of the alleged offending were sufficiently proximate to constitute the actus reus of an attempt.


The granting of leave on that issue was not opposed by the Crown. The appellant sought leave to raise two other issues on appeal but leave was declined on those issues. 4


The events leading to the charge faced by the appellant occurred at a residential property. The property comprised a family home, a separate garage at the front of the property and a separate sleepout at the rear of the property. The home was at the end of a long driveway. A 16 year old girl (whom we will call Ms A), used the sleepout as her bedroom.


On the night in question, 19 July 2010, Ms A went from the family home to the sleepout at about 7 pm. About 30 minutes later, her father (Mr A) went out of the house to get firewood and discovered the appellant crouched on the back lawn in dark clothing, wearing a beanie and gloves and carrying a torch. There was evidence from which it could be inferred that he had armed himself with a garden fork. Mr A chased the appellant on to a neighbour's property. The appellant escaped after threatening Mr A. He was subsequently apprehended by the police. His car was located nearby.


There was evidence that the appellant had observed the property and Ms A's family on several occasions prior to the night in question. The evidence relied on by

the Crown to show that the appellant had taken an interest in the property for some time prior to the offending was:
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