The Queen v Y

• Jurisdiction: New Zealand
• Judge: Priestley J
• Judgment Date: 05 October 2012
• Neutral Citation: [2012] NZCA 458
• Docket Number: CA321/2012
• Court: Court of Appeal
• Date: 05 October 2012

BETWEEN

The Queen

Appellant

and

Y (CA321/2012)

Respondent

[2012] NZCA 458

Court:

Arnold, Priestley and Ronald Young JJ

CA321/2012

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeal on question of law — respondent faced trial on three counts of doing an indecent act — alleged offending involved inducing or permitting a complainant (in each case a boy aged 11 or 12 years old at the time) to masturbate in the respondent's presence — no physical contact between respondent and complainants — no sexual activity on part of respondent — District Court discharged respondent as alleged indecent acts did not occur “with or on” the respondent, so criteria in s2(1B)(b) Crimes Act 1961 (interpretation) were not met — whether an indecent act could be done by a person who did not himself do an indecent act but watched another perform it.

Counsel:

M D Downs and B C L Charmley for Appellant

C B Wilkinson-Smith for Respondent

• A The appeal is allowed. The District Court Judge was incorrect to hold that the acts of the respondent could not constitute offences against ss 132(3), 134(3) and 2(1B) of the Crimes Act 1961.

• B The deemed acquittal of the respondent arising from the order discharging him under's 347 of the Crimes Act 1961 is set aside and a new trial is ordered.

• Publication of the name or identifying particulars of the respondent is prohibited.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Priestley J)

The issue

1 Section 2(1B) of the Crimes Act 1961 provides:

• (1B) For the purposes of this Act, one person does an indecent act on another person whether he or she —

  • (a) does an indecent act with or on the other person; or

  • (b) induces or permits the other person to do an indecent act with or on him or her.

2 The issue raised by the question of law referred to this Court under's 381A requires a contextual consideration of the preposition “with” and, in particular, consideration of whether an indecent act can be done by a person who does not himself do an indecent act but watches another perform it.

The question

3 The respondent faced trial on three counts of doing an indecent act. Each count related to a boy (one being the respondent's son) aged 11 or 12 at the time. Two counts under's 132(3) (covering the alleged offending against the 11 year olds) gave as particulars inducing one complainant to masturbate in the respondent's presence, and permitting the other complainant to masturbate in his presence. The third count, relating to the 12 year old, was laid under's 134(3). It similarly alleged an indecent act on a young person, its particulars being inducing the complainant to masturbate in the respondent's presence.

4 In January 2012 the respondent was discharged in the District Court under's 347 by Judge Paul on all three counts 1 Pursuant to s 381A the Crown applied for a

reference to this Court on a question of law. The question approved by the Judge was:

Was I correct to hold that the acts of the accused could not as a matter of law constitute offences against sections 132(3), 134(3), and section 2(1B) of the Crimes Act 1961?

Background

5 The three complainants were the respondent's son and two of his friends. The alleged offending took place in the respondent's garage, which housed a number of computers, a flight simulator, and numerous remote control models. A lockable door gave access to the garage from the house.

6 The Crown case was that on a number of occasions in early 2011 the respondent showed the boys pornographic movies and suggested to the boys that they should masturbate in his presence. The boys eventually did so.

7 The respondent provided lubricating gel for his son. In respect of one complainant the respondent invited him to masturbate on a number of occasions. Although the complainant thought the request was “creepy” he acquiesced twice whilst watching a pornographic movie. This complainant and the respondent's son masturbated together on one occasion, the respondent having moved a stool into position for the complainant's use. In respect of the third complainant, the respondent suggested to him his penis would get bigger if he masturbated and offered to show the complainant his own purportedly large penis if he wanted. Nothing occurred in that regard. The third complainant also masturbated during the course of which the respondent picked up the complainant's trousers and threw them across the room. He also offered to instruct the complainant how to masturbate, but did not do so.

8 On all occasions when the complainants were masturbating the respondent remained in the garage (an internal door was locked) and watched.

9 In short, the respondent was present throughout the boys' masturbation. He encouraged or persuaded them to masturbate. There was no physical contact between him and the boys, nor did he indulge in any sexual activity.

Section 347 judgment

10 The central issue of Judge Paul's decision was whether the respondent's alleged conduct constituted an offence. He correctly observed that pivotal to the application was the interpretation of the word “with” as it was used in s 2(1B) 2 The Judge referred to two decisions of this Court, R v S 3 and the recent decision of Trower v R 4 He then turned to s 2(1B)(a) and (b):

• [29] When one reads s 2(1B)(a) and (b), the use of the words “with or on” appearing in both those subsections, in my view, is significant. The elements of this offence require, first, an inducement or a permitting. The facts in this case supporting the inducement are accepted, in my view, by both counsel on the face of it. The relationship of friendship between the complainants, the setup in the garage with the playing of the pornographic videos and the encouragement by the accused for the complainants to masturbate. In terms of the indecent act, the factual basis for that is obviously the masturbation and that is clearly a jury question as to whether that behaviour in those particular circumstances would be seen by right-thinking members of the community as indecent. I am not going to indicate my view of that but it seems pretty obvious to me.

• [30] There is, however, this third element of “with or on” which has been the critical question in the argument I have heard today. If “with or on” requires involvement by the victim, then equally and logically in my view, it requires some involvement by the accused beyond the first element that I have already explained.

11 The Judge saw as a determinative factor whether the boys' masturbation was directed toward the respondent. He said:

• [31] Accordingly, if the acts of masturbation by the complainants had been directed towards the accused, [the respondent], as per the decision in R v S and Dunbier, that in my view would be sufficient to demonstrate his involvement. Here, on what could be considered a unique set of facts, that is simply not the case. The alleged indecent acts were directed towards the pornographic videos, and the accused simply remained nearby, in effect as a voyeur.

• [32] With much reluctance, given the alleged facts, I am drawn to the conclusion that where there were no facts indicating involvement by the accused as required by the words “with or on”, that is the complainants' actions were not directed at him, he simply stood by, then the conclusion I have reached is there is no evidentiary foundation for the requirement in the offence being “with or on”.

12 Whether the Judge was correct in his interpretation of s 2(1B), which led to the s 347 discharge, is now the subject of the question referred to us.

Jurisdiction and delay

13 Mr Wilkinson-Smith suggested at the outset that this Court had no jurisdiction to determine the appeal. His approach was that although Judge Paul had settled and approved the question on 3 February 2012, four months passed before the question found its way to this Court's registry. Counsel thus submitted that the appeal did not comply with the Court of Appeal (Criminal) Rules 2001, which require an appeal to be lodged within 28 days.

14 Mr Downs submitted that, although the appellant accepted responsibility for the regrettable delay in forwarding the question, there was no fatal breach of an imposed time limit. In fact s 381A(1) places the discretion to refer a question of law for this Court's opinion on the Judge. Transmission should thus be the responsibility of the registry of the relevant court.

15 There is indeed no time limit. The only temporal requirement imposed by s 381A is that an application for referral of a question of law to this Court under the provision must be made within 10 days of the s 347 discharge 5 This time limit was adhered to, the application for referral having been made on 2 February 2012, eight days after the s 347 discharge. We are therefore satisfied that we have jurisdiction. There has been no breach of any prescribed time period.

16 We agree with Mr Wilkinson-Smith, however, that it is unsatisfactory for there to be no time limit within which a s 381A question should be transmitted to this Court. The provision and the rules are silent on both whose responsibility it is to

transmit the question and the time frame. There is clearly a drafting lacuna at present, although this may be filled when the appeal provisions in the Criminal Procedure Act 2011 come into force

Discussion on s 2(1B)

17 R v S 6 relevantly involved a scrutiny of the words “does any indecent act with or upon any such girl” 7 The appellant had asked a 12 year old girl to pose for some photographs, to which she agreed. Two negligees were produced, described as “flimsy and revealing”. The child struck some poses. The appellant suggested others. She was photographed....