Rowe v R

• Jurisdiction: New Zealand
• Judge: Elias CJ,Glazebrook,O'Regan,Ellen France JJ,Ellen France J,William Young J
• Judgment Date: 21 June 2018
• Neutral Citation: [2018] NZSC 55
• Docket Number: SC 86/2017
• Court: Supreme Court
• Date: 21 June 2018

Between

Graham Thomas Rowe

Appellant

and

The Queen

Respondent

[2018] NZSC 55

Court:

Elias CJ, William Young, Glazebrook, O'Regan and Ellen France JJ

SC 86/2017

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Criminal — Appeal against a Court of Appeal decision which upheld the appellant's conviction under s126 Crimes Act 1961 (“CA”) (doing an indecent act with intent to insult) — the appellant had been discovered at a beach taking photographs of bikini-clad teenage girls with a zoom lens — whether the conduct comprised an indecent act with intent to insult.

Counsel:

S J Zindel and H Cuthill for Appellant

B J Horsley and P D Marshall for Respondent

• A The appeal is allowed. The appellant's conviction is quashed.

• B There is no order for retrial.

JUDGMENT OF THE COURT

REASONS

	Para No.
Elias CJ, Glazebrook, O'Regan and Ellen France JJ	[1]
William Young J	[70]

Elias CJ, Glazebrook, O'Regan AND Ellen France JJ

(Given by Ellen France J)

Table of Contents

	Para No.
Introduction	[1]
Background	[3]
The factual narrative	[4]
The trial process	[8]
The statutory scheme	[13]
The judgment of the Court of Appeal	[23]
The submissions on appeal	[26]
Discussion	[31]
Textual considerations	[32]
Was the Court of Appeal correct to apply Annas?	[36]
The overseas authorities	[47]
England and Wales	[48]
Canada	[55]
Australia	[57]
Conclusion	[62]
Intention to insult	[66]
Effect of the police website	[67]
Result	[69]

Introduction

1 Following a trial by jury in the Nelson District Court, Mr Rowe was found guilty of a charge of doing an indecent act with intent to insult contrary to s 126 of the Crimes Act 1961. The charge arose out of an incident at Kaiteriteri beach near Nelson. On the morning of 23 January 2016, Mr Rowe was discovered by an off-duty police officer taking photographs with a zoom lens. The subjects of the photographs were three bikini-clad teenage girls some distance away from Mr Rowe on the beach. They were unaware Mr Rowe was taking photographs of them.

2 Mr Rowe appealed unsuccessfully against his conviction to the Court of Appeal. 1 His further appeal to this Court 2 raises the question as to whether the evidence was sufficient to support the conclusion that Mr Rowe's conduct comprised

an indecent act with intent to insult. I address this question after setting out the background, the statutory scheme and the approach of the Court of Appeal

Background

3 The relevant facts can be stated shortly.

The factual narrative

4 On the morning of 23 January 2016, Sergeant Daniel Isherwood was visiting Kaiteriteri beach whilst on holiday. At about 9.40 am, whilst walking along the beach, Sergeant Isherwood saw a man bending down or crouching by a campervan. The man was holding a camera with the zoom lens extended pointing towards three girls whom the officer estimated were aged about 12–15 years. Sergeant Isherwood said he did not think the girls were aware of the man, identified as Mr Rowe who, at that point, was about 30 metres away.

5 Sergeant Isherwood returned to his car in the nearby carpark but continued to watch Mr Rowe for about five minutes. His evidence was that Mr Rowe walked to a concrete seat and bench area and continued to take photographs. The Sergeant approached Mr Rowe and said he wanted to talk to him about the photographs. Mr Rowe accepted he had been taking photographs and told the officer that there was nothing wrong with that. Mr Rowe also accepted he did not have permission to take the photographs. Mr Rowe said he would show the photographs to the officer and offered to delete them. Sergeant Isherwood took the camera from Mr Rowe and went and called the Nelson police.

6 After making this phone call, Sergeant Isherwood returned to Mr Rowe in his campervan. He saw that Mr Rowe was using three electronic devices. Mr Rowe confirmed he had images of young girls downloaded on the devices. These photographs were in a folder marked “Girls”. No objectionable material was found in the extensive number of photographs of young women on the devices.

7 The police officer who spoke to the adults with the girls after the local police arrived on the scene described one parent as “a little” upset and the other “particularly” upset on learning the photographs had been taken.

The trial process

8 The charge faced by Mr Rowe related to five photographs. In one of these photographs the girls appear to be posing. There was evidence one of the parents had also been taking photographs of the girls. The other photographs show the girls standing around on the beach.

9 Prior to trial, Mr Rowe applied for a dismissal of the charge under s 147 of the Criminal Procedure Act 2011. The application was unsuccessful. 3 Judge Harrop found that, depending on the circumstances, taking a photograph may comprise an indecent act. The Judge also considered there were various “circumstances of indecency” on the basis of which there was sufficient evidence to justify leaving the case to the jury. 4 At that point it was not contended there was insufficient evidence of an intention to insult.

10 The trial proceeded on the basis of some agreed facts. The agreed facts included a reference to Mr Rowe having been given a trespass notice from the beach at Kaiteriteri earlier, in 2012.

11 Evidence for the Crown at trial came from the two police officers who had been in contact with Mr Rowe at the beach in January 2016 and from a digital forensic analyst with the police who had analysed Mr Rowe's electronic devices. Mr Rowe gave evidence. He said in his evidence that he was preparing a travel book although he would not include photographs where (as was the case with the photographs of the three girls) the subjects were identifiable. He stated that he did not share the photographs which were for his enjoyment. Mr Rowe also said he thought he was on “solid ground” taking the photographs because he had confirmed the legality of taking

photographs on a beach by checking on the police website. Finally, Mr Rowe's evidence was that he had no “sinister” motive or intention to insult

12 Mr Rowe was convicted and sentenced to 120 hours community service and six months supervision. 5

The statutory scheme

13 Section 126 is found in Part 7 of the Crimes Act. That part is headed “Crimes against religion, morality, and public welfare”. Part 7 has a number of subparts, namely, “Crime against religion” (s 123: blasphemous libel); “Crimes against morality and decency” (ss 124–126); “Sexual crimes” (ss 127–144); “Sexual offences outside New Zealand” (ss 144A–144C); and “Crimes against public welfare” (ss 145–150 – the latter dealing with misconduct in respect of human remains).

14 The subpart in which ss 125 and 126 are found includes ss 124 and 124A. Section 124 deals with the distribution or exhibition of indecent matter. 6 Section 124A(1) makes it an offence to intentionally expose a young person “to indecent material … in communicating” with the young person. 7 Indecent material includes written, spoken and visual material.

15 Sections 125 and 126 both deal with an indecent act. Section 125 addresses an indecent act in a public place. Section 125 reads as follows:

125 Indecent act in public place

• (1) Every one is liable to imprisonment for a term not exceeding 2 years who wilfully does any indecent act in any place to which the public have or are permitted to have access, or within view of any such place.

• (2) It is a defence to a charge under this section if the person charged proves that he or she had reasonable grounds for believing that he or she would not be observed.

• (3) For the purposes of this section, the term place includes any railway carriage, and also includes any ship, aircraft, or vehicle used for the carriage of passengers for hire or reward.

16 Section 126 states:

126 Indecent act with intent to insult or offend

Every one is liable to imprisonment for a term not exceeding 2 years who with intent to insult or offend any person does any indecent act in any place.

17 Sections 125 and 126 have not substantively changed since the 1879 draft Criminal Code. The heading to s 146 of the proposed code read “Indecent acts” and the section provided as follows: 8

Every one shall be guilty of an indictable offence, and shall be liable upon conviction thereof to two years' imprisonment with hard labour, who wilfully

• (a) Does any indecent act in any place to which the public have or are permitted to have access; or

• (b) Does any indecent act in any place, intending thereby to insult or offend any person.

18 Subsequent versions of New Zealand's proposed criminal code over the 1880s did not materially alter the text of the provision. 9 Section 138 of the Criminal Code Act 1893 was in similar terms and much the same wording was used in s 156 of the Crimes Act 1908.

19 As will be apparent, the current Act made two changes from the previous provisions. The first change was that the offences were split to form two separate sections. The second alteration was the introduction of the defence to s 125 of a reasonable belief that the person would not be seen engaging in the indecent act. These

changes occurred in what became the Crimes Act 1961 without any substantive explanation

20 The Crimes Act also includes a range of other offences which involve either an indecent act or of which indecency is an element. These offences encompass sexual conduct with children and young persons, 10 and with animals 11 as well as indecent assault. 12 In addition, s 150 of the Act sets out an offence of misconduct in respect of human remains which also refers to indecency. Relevantly, it is an offence to “improperly or indecently” interfere with or offer “any indignity to any dead...