R v Timothy James Dyason

• Jurisdiction: New Zealand
• Judge: S M Harrop
• Judgment Date: 05 February 2010
• Date: 05 February 2010
• Court: District Court
• Docket Number: CRI-2009-032-000929

IN THE DISTRICT COURT

AT WELLINGTON

CRI-2009-032-000929

The Queen

and

Timothy James Dyason

Accused

Appearances:

M Anderson for the Crown

JUDGMENT OF JUDGE S M Harrop

[As to reasons for discharging the accused]

Introduction

1 This morning I discharged Mr Dyason on the charge he faced under s 131B of the Crimes Act 1961 which may loosely be described as arranging for a girl to travel to meet him with the intention of committing a sexual offence in relation to her, having earlier been engaged in communications with her.

2 As I mentioned to counsel when discharging Mr Dyason, I think it is important for several reasons to set out my reasons for doing so in writing. In particular, I am conscious that it is important for the complainant and especially her family to understand the reasons. Further, I consider that this case has highlighted something of a lacuna in the law which the Crown may wish to draw to the attention of those who consider statutory amendments to criminal charges.

The Count faced by Mr Dyason

3 The indictment reads:

THE CROWN SOLICITOR AT WELLINGTON CHARGES that TIMOTHY JAMES DYASON on or about 14 February 2009, at Lower Hutt, having communicated with [the complainant to whom I shall refer as KB], a person under the age of 16 years, on an earlier occasion, namely between 9 and 14 February 2009, arranged for or persuaded KB to travel with the intention of meeting her, and, at the time of that arrangement or persuasion, did intend to take action in respect of KB that would be an offence against Part 7 of the Crimes Act 1961.

The Relevant Section

4 Section 131B of the Crimes Act 1961 provides:

131B Meeting young person under 16 following sexual grooming, etc

• (1) Every person is liable to imprisonment for a term not exceeding 7 years if,—

  • (a) having met or communicated with a person under the age of 16 years (the young person) on an earlier occasion, he or she takes one of the following actions:

    • (i) intentionally meets the young person:

    • (ii) travels with the intention of meeting the young person:

    • (iii) arranges for or persuades the young person to travel with the intention of meeting him or her; and

  • (b) at the time of taking the action, he or she intends—

    • (i) to take in respect of the young person an action that, if taken in New Zealand, would be an offence against this Part, or against any of paragraphs (a)(i), (d)(i), (e)(i), (f)(i), of section 98AA(1); or

    • (ii) that the young person should do on him or her an act the doing of which would, if he or she permitted it to be done in New Zealand, be an offence against this Part on his or her part.

• (2) It is a defence to a charge under subsection (1) if the person charged proves that,—

  • (a) before the time he or she took the action concerned, he or she had taken reasonable steps to find out whether the young person was of or over the age of 16 years: and

  • (b) at the time he or she took the action concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years.]

5 This offence was inserted in the Act by the Crimes Amendment Act 2005 and the learned authors of Adams on Criminal Law observe that it was inserted during the second reading of the Act and so did not have the benefit of consideration by the Select Committee. As far as I am aware there is only one higher Court judgment which has considered s 131B: R v S [2009] NZCA 64. However the issues addressed in that judgment are different from the one which has caused me to discharge Mr Dyason.

The Crown Case

6 My Dyason was in February 2009 aged 23 and KB was aged 13. They both had profiles on the well-known Bebo social networking site and they began communicating through that site in late 2008. There were also extensive text message exchanges and then lengthy and quite numerous discussions by telephone through landlines. The two have never met and indeed, despite there now having been a trial, that is still the case because KB gave evidence from behind a screen pursuant to a pre-trial order made under s 103 of the Evidence Act.

7 The Crown case was that on 14 February 2009 (Valentine's Day) Mr Dyason had arranged a meeting that evening intending to have sexual connection with KB which, had it occurred, would clearly have amounted to an offence against s 134 of the Crimes Act which is contained within Part 7.

8 The Crown produced extensive evidence of text message exchanges between the parties between 9 and 14 February 2009. Many of these contained sexually explicit content; those that did were by no means limited to those sent by Mr Dyason.

The Defence Case

9 Following Mr Anderson's opening address for the Crown, Mr Hard gave an opening address pursuant to s 367(1) of the Crimes Act. In this he highlighted that there would be an issue as to Mr Dyason's knowledge of the age of KB and as to whether he really intended to follow through with engaging in sexual contact; he asked the jury to consider carefully whether the text messages could really be taken seriously or literally. He also indicated that the accused would rely on the statutory defence as to the age of the complainant under s 131B(2).

The basis for possible discharge

10 Following a conclusion of the Crown case at about 5.00pm yesterday, I reflected on the evidence and raised with counsel the question of whether there was any evidence of Mr Dyason arranging for or persuading KB to travel … with the intention of meeting her. Ultimately it is the absence of any evidence as to this and any evidence from which a proper inference about that can be drawn that has led me to discharge Mr Dyason.

11 The critical text message exchanges occurred between 5.59pm and 7.38pm on 14 February 2009. The following is the sequence involved:

14/02/09	17:58:26	KB	DYASON	Ily [KB explained to the Court this is short for “I love you”]
14/02/09	17:59:23	DYASON	KB	Yeah! SO wea u stayn?
14/02/09	18:00:08	KB	DYASON	Waterl00 road
14/02/09	18:01:52	DYASON	KB	Swt az thn.
14/02/09	18:32:40	DYASON	KB	So u r goin2 meet me 2nte or u al sht?
14/02/09	18:44:31	KB	DYASON	Ima meet u
14/02/09	18:46:50	DYASON	KB	Gud az!
14/02/09	18:47:30	KB	DYASON	I wana fuk u so bad
14/02/09	18:48:22	DYASON	KB	Yeah n ur gona get tht 2nte so u beta b wet az!
14/02/09	18:53:03	KB	DYASON	Yea i wil
14/02/09	18:55:07	DYASON	KB	So u aloud 0t at 9pm?
14/02/09	18:55:41	KB	DYASON	Yup
14/02/09	18:56:59	DYASON	KB	So wea am i meetn u thn?
14/02/09	18:58:10	KB	DYASON	Wea do u wana meet
14/02/09	18:59:43	DYASON	KB	Wea is easyest 4 u?
14/02/09	19:00:08	KB	DYASON	My auntys
14/02/09	19:00:55	DYASON	KB	Yeah! Wat numba?
14/02/09	19:01:35	KB	DYASON	216 waterl00 road
14/02/09	19:02:01	DYASON	KB	Algud! U beta b thea!
14/02/09	19:02:26	KB	DYASON	I wil
14/02/09	19:07:55	DYASON	KB	K thn.
14/02/09	19:33:04	KB	DYASON	Actualy cn u make it 114 camberidge terrace coz my cuzzies bein a fag. U should come nw
14/02/09	19:34:47	DYASON	KB	Wat u mean?
14/02/09	19:35:32	KB	DYASON	Meet me at 114 camberidge terrace now
14/02/09	19:36:19	DYASON	KB	oh yup!
14/02/09	19:36:44	KB	DYASON	So cn u?
14/02/09	19:38:12	DYASON	KB	Um yeah.
14/02/09	19:38:43	KB	DYASON	Swt!
14/02/09	19:41:05	KB	DYASON	So r u realy gana come or r u jus bein a dick
14/02/09	19:41:32	DYASON	KB	Wel r u playn me?
14/02/09	19:41:51	KB	DYASON	No
14/02/09	19:47:15	DYASON	KB	K thn.
14/02/09	19:57:54	DYASON	KB	I thnk ur setn me up ay.
14/02/09	20:06:42	KB	DYASON	its her cuzin Did u knw tht shes only 13.
14/02/09	20:08:24	DYASON	KB	Wow shes got a mind of a 18 year old.
14/02/09	20:09:20	KB	DYASON	Yea well stay away

12 It is apparent from this and other evidence that at the time of these communications KB was staying with her aunt at 216 Waterloo Road in Lower Hutt. In my view the clear meaning of this exchange is that Mr Dyason does indeed arrange for and/or persuade KB to meet with him, on the face of it for the proscribed purpose namely to have sexual...