R v Timothy James Dyason

 
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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?

...

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