Rowe v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,Glazebrook,O'Regan,Ellen France JJ,Ellen France J,William Young J
Judgment Date21 June 2018
Neutral Citation[2018] NZSC 55
Docket NumberSC 86/2017
Date21 June 2018

[2018] NZSC 55

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

Court:

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

SC 86/2017

Between
Graham Thomas Rowe
Appellant
and
The Queen
Respondent
Counsel:

S J Zindel and H Cuthill for Appellant

B J Horsley and P D Marshall for Respondent

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.

The Crown had to prove two elements to establish an offence under s126 CA. The doing of an indecent act and an intention to insult or offend. The test for the first element was objective and the second element raised a subjective question.

The Court held that Annas (convicted of sexual offending in relation to taking nude photographs of two complainants) was a very different case and was not a model for the present case and should not have been treated as one. In Annas the Court held that the prurient purposes of the photographer could make indecent what was otherwise not an indecent photograph. The risk with that approach was that in focusing solely on the surrounding circumstances to show that an act was indecent, the conduct in issue became divorced from the core concept of an indecent act central to s126 CA.

R had taken photographs of persons in public in the manner in which they had presented themselves. Surrounding circumstances such as motive or prurient purpose could not make an act that would not otherwise be indecent into an indecent act under s125 CA (indecent act in public place) or s126 CA. There must be something in the nature of the act that was an affront to the public so as to make it indecent under s125 CA and s126 CA. The factors relied on by the CA were not evidence of indecency where neither the subject-matter nor the photographs were indecent in themselves and in the absence of any exhibitionistic type behaviour. The Court did not consider it was possible to prove beyond reasonable doubt an intention to insult where the images themselves were not indecent.

The appeal was allowed and the conviction was quashed.

  • 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...

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1 cases
  • Harris v R
    • New Zealand
    • Court of Appeal
    • 21 December 2018
    ...it is sufficient if it applies to the circumstances accompanying the assault”: R v S CA273/91, 20 December 1991 at 5, cited with approval in Rowe v R [2018] NZSC 55, [2018] 1 NZLR 875 at 32 See for example Hessell v R, above n 28, at [73]–[75]; Regan v R [2012] NZCA 227 at [21]; and Hohipa......

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