LM v R

• Jurisdiction: New Zealand
• Court: Supreme Court
• Judge: McGrath,William Young,Arnold JJ
• Judgment Date: 20 February 2014
• Neutral Citation: [2014] NZSC 9
• Date: 20 February 2014
• Docket Number: SC 143/2013

[2014] NZSC 9

IN THE SUPREME COURT OF NEW ZEALAND

Court:

McGrath, William Young and Arnold JJ

SC 143/2013

BETWEEN

LM

Applicant

and

The Queen

Respondent

Counsel:

Applicant (in person)

G H Vear for Respondent

Application for leave to appeal convictions under (1) s144A Crimes Act 1961 (“CA”) (Sexual conduct with children and young people outside New Zealand) and (2) s131A (Offences relating to possession of objectionable publications and involving knowledge) and s145A (Extraterritorial jurisdiction for certain offences) Films, Videos and Publications Classification Act 1993 (“FVPCA”), of knowingly possessing, in Russia and elsewhere overseas, objectionable publications — offences related to the taking of a photo of a child under 12 performing a sexual act on another and possession of objectionable material — whether the taking of a photo did not amount to an offensive act— whether s144A CA only covered principal offending and did not cover party offending — whether the applicant had a lawful authority or excuse defence under s131 FVPCA.

The issues were: whether the taking of a photo did not amount to an offensive act; whether s144A CA only covered principal offending and did not cover party offending; and whether the applicant had a lawful authority or excuse defence under s131 FVPCA.

Held: The applicant raise three points in his application, none of which was argued before the Court of Appeal (“CA”) or the trial Judge. The Supreme Court (“SC”) would rarely grant leave to appeal on grounds not raised in the CA. As an appeal to the SC was concerned with clarification and development of the law, it was critical that the SC could consider the judgments of the CA. If a point on which leave was sought was not addressed in the CA, the SC would usually only grant leave where the applicant satisfied it that there was a real possibility that there had been a miscarriage of justice.

Taking of photo not an offensive act: This point was misconceived as the applicant was convicted of offending as a party to the indecent act that was the subject of the photo. The Judge found that the photograph was posed at the applicant's direction. Leave on this ground was declined.

Application of s66 CA to s144A CA: If the applicant was correct that s144A CA only applied to principal offending, he had been convicted of an offence that did not exist, which raised the possibility of a miscarriage of justice if the applicant could not argue the point before the SC. In these circumstances, leave to appeal should be given on this ground.

Lawful excuse under FVPCA: The applicant pleaded guilty to this charge and he did so on an informed basis. There was proper basis for allowing him to change his plea. Nor was there and tenable basis for the argument that “lawful authority and lawful excuse” was to be interpreted by reference to Russian law, having regard to the purpose of the legislation criminalising conduct overseas.

Application for leave to appeal granted on ground of whether s144A CA criminalised offending as a party under s66 CA.

JUDGMENT OF THE COURT

• A Leave to appeal against conviction on the charge under s 144A of the Crimes Act 1961 is granted.

• B The approved ground of appeal...