LM v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,McGrath,William Young,Glazebrook,Arnold JJ
Judgment Date13 August 2014
Neutral Citation[2014] NZSC 110
Docket NumberSC 143/2013
Date13 August 2014

[2014] NZSC 110

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ

SC 143/2013

Between
Lm
Appellant
and
The Queen
Respondent
Counsel:

C T Patterson for Appellant

M D Downs and K A Courteney for Respondent

Appeal from conviction as a party under s144A Crimes Act 1961 (“CA”) (sexual conduct with children and young people outside New Zealand), s132 CA (sexual conduct with child under 12) and s66 CA (parties to offences) — appellant was a New Zealander — at time of offending he was living in Russia—complainant was his step-daughter—appellant had taken the photographs of the complainant and another man and directed the poses—Crown's case at trial was that the appellant was a party to the offending of the man depicted in the photograph — whether s144A provided for conviction of someone who was a party to the offending and not a principal offender.

The issue was whether s144A CA provided for conviction of a New Zealander, on the basis of party liability, for offending where the principal offender was not a New Zealander.

Held: V was not a New Zealander so his conduct in respect of the complainant did not amount to an offence under s144A(1) CA. Because the actions to which LM was a “party” did not amount to an offence under NZ law, there was no easy mechanism to apply s66(1)(b) CA (did or omits an act for the purpose of aiding any person), s66(1)(c) CA (abets any person) and s66(1)((d) CA (incites, counsels, or procures any person) to LM in order to find him liable as a “party” to the “offending” by V.

The words “with or on” appeared in both s144A CA and the definition of the substantive offence. That meant that conduct of the kind which might usually involve party liability could also amount to the substantive offence. The problem, however, would be more significant in the case of offending in respect of which the words “with or on” did not form part of the definition of the substantive offence.

The repeated use of the words “with or on” in s144A CA were awkward and of uncertain purpose and effect. Construing those words as generally encompassing party liability would require a far from natural application of the words. Conduct which triggered party liability did not necessarily have to be “with or on” the victim. If the purpose of the legislature was to provide for party liability, different language would have been chosen.

An approach to the statute which excluded party liability where the principal “offender” was not a New Zealander (and there was thus no substantive offence under s144A(1)(a)) might result in s144A having less reach than was appropriate. But, s144A and s66(1) could not be construed as imposing liability on someone as a party to a substantive “offence” which occurred overseas and was not an offence under New Zealand law. In light of this, legislative reconsideration of s144A was warranted.

It had not been open to the Judge to hold that LM was liable as a party to the offending by V. On the other hand, given the findings of fact made by the Judge and which were no longer in issue, LM was nonetheless liable as a principal.

LM's appeal had to be assessed under s385(1) CA (determination of appeals in ordinary cases—Supreme Court must allow the appeal if the judgment of set aside on the ground of a wrong decision on any question of law) and s386(2) CA (powers of appellate courts in special cases—SC may substitute for the verdict). If the count was to be regarded as alleging liability as a party only, the SC could, under s386(2) CA, substitute a conviction for the principal offence.

However, there was no need to resort to s386(2). The appeal should be dismissed on the basis that: the “wrong decision on a question of law” as to party liability did not warrant the allowing of the appeal and there had not been a miscarriage of justice.

The minority held that LM had been been properly convicted as a party to the offending under s144A CA. LM's acts (the photography and the directing of the pose) could not be considered in isolation from what LM was photographing and directing. If those acts had been done in NZ by LM then, by virtue of a combination of s132(1) CA and s66(1) CA he would have committed an offence. LM was NZ citizen. He had done acts to which s144A(2) CA applied. He was therefore properly convicted under s144A(1) CA of the offending.

On this analysis, it was of no moment that V was Russian or that his actions took place in Russia and that therefore V committed no offence in New Zealand by virtue of s6 CA (Persons not to be tried in respect of things done outside New Zealand). It was the acts of LM that were at issue and these, by virtue of s144A(2), were assessed as if they took place in New Zealand.

Appeal dismissed.

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

Para No

Elias CJ, McGrath and William Young JJ

[1]

Glazebrook and Arnold JJ

[31]

ELIAS CJ, McGRATH and WILLIAM YOUNG JJ

(Given by William Young J)

Table of Contents

Para No

A prosecution for offending which occurred in Russia

[1]

The core facts

[4]

Section 132(3) of the Crimes Act

[5]

Extraterritorial jurisdiction in respect of sexual offending against children

[7]

Section 144A and permutations of party liability

[14]

Overview

[14]

Permutation one: the alleged principal and party are both New Zealanders

[16]

Permutation two: the alleged principal is a New Zealander but not the alleged party

[19]

Permutation three: the alleged principal is not a New Zealander and the alleged party is a New Zealander

[21]

Legislative reconsideration is warranted

[25]

Determination of the appeal

[26]

Disposition

[30]

A prosecution for offending which occurred in Russia
1

The appellant stood trial before Judge Field in the Auckland District Court on a charge which alleged that he:

… on or about the 11th day of March 2007 at Moscow, Russia, being a citizen of New Zealand … did an act to a child under the age of 12 years which would, if done in New Zealand, constitute an offence against Section 132(3) of the Crimes Act 1961.

The particulars were as follows:

Taking a photograph of [the complainant], then 7 years old, whilst she is masturbating the penis of an adult male.

The indictment referred to ss 144A(1)(a) and (2)(c) and s 66 of the Crimes Act 1961.

2

Section 144A provides for the prosecution of New Zealanders 1 for conduct which, if it had occurred in New Zealand, would be contrary to specified provisions of the Crimes Act involving sexual offending against children and young people. Amongst the provisions so specified is s 132(3), which deals with indecencies

involving children under the age of 12. Although the way the count was laid was consistent with an allegation that the appellant was guilty as a principal, 2 the Crown case at trial was that the appellant was a party to the offending of the man depicted in the photograph (V). The appeal raises the issue whether s 144A permits prosecution where the defendant was a party to the alleged offending but not the principal offender
3

Both at trial 3 and on appeal to the Court of Appeal, 4 the appellant through his counsel accepted that if he could be shown to have taken the photograph in question, he was guilty as a party. On appeal to this Court, however, the appellant has put in issue the question whether s 144A provides for conviction of someone who was a party to the offending and not a principal offender. For the reasons which follow, we conclude that the basis upon which the Crown case was advanced was misconceived. But, because we are satisfied that the appellant in fact offended as a principal, we are of the view that his conviction can and should be upheld.

The core facts
4

The critical facts lie within a narrow compass. The appellant is a New Zealander. At the time of the offending he was living in Russia. The complainant is his stepdaughter. V is a Russian with no apparent connection to New Zealand but was a friend of the appellant. The photograph was taken in the apartment in which the appellant and his stepdaughter were living along with other members of the family. On the findings of fact, the appellant not only took the photograph but also directed the posing of the scene which he photographed.

Section 132(3) of the Crimes Act
5

The Crown case relied on s 132(3) of the Crimes Act. This provides:

Every one who does an indecent act on a child is liable to imprisonment for a term not exceeding 10 years.

“Child” is defined to mean a person under the age of 12 years. 5 The scope of this offence is expanded by s 2(1B) which provides:

For the purposes of this Act, one person does an indecent act on another person whether he or she–

  • (a) does an indecent act with or on the other person; or

  • (b) induces or permits the other person to do an indecent act with or on him or her.

If the incident between the appellant, the complainant and V had occurred in New Zealand, the appellant could have been found guilty as a principal if the Court was satisfied that he had induced or permitted the complainant to do “an indecent act with or on him”.

6

The Crown case was advanced on the basis that the appellant was a party and not a principal because it was thought that, in the absence of physical contact between the appellant and the complainant, the indecent act which the complainant performed was not “with or on” the appellant. It is, however, now established by the judgment of this Court in Y (SC40/2013) v R that physical contact is not fundamental to liability under's 132(3). 6 On the basis of that judgment, 7 it is clear that if the conduct had occurred in New Zealand, the appellant could have been found guilty as a...

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1 cases
  • Rowe v R
    • New Zealand
    • Supreme Court
    • 21 June 2018
    ...context of ss 132(3) and 134(3). The current versions of these provisions refer to “child” and “a young person” respectively. 42 LM v R [2014] NZSC 110, [2015] 1 NZLR 43 We accept the acts can involve the directing or staging of photographs. 44 Sexual Offences Act 2003 (UK), s 66. 45 Secti......

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