ROWE v R [2017] NZCA 316

ROWE v R [2017] NZCA 316 [25 July 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA113/2017[2017] NZCA 316BETWEEN GRAHAM THOMAS ROWEAppellantAND THE QUEENRespondentHearing: 21 June 2017Court: Clifford, Lang and Mander JJCounsel: H Cuthill and S J Zindel for AppellantP D Marshall for RespondentJudgment: 25 July 2017 at 4 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr Rowe was found guilty by a jury in the District Court at Nelson on a charge of doing an indecent act with intent to insult.1 He now appeals against conviction.1 Crimes Act 1961, s 126.Background[2] The charge was laid as a result of an incident that occurred at Kaiteriteri beach near Nelson on 23 January 2016. On that day an off-duty police officer, Sergeant Isherwood, was visiting the beach whilst on holiday. At about 9.40 am whilst walking on the beach he saw a person crouching down behind a campervan. This person was holding a camera that had a fully extended zoom lens. He was pointing the camera towards three teenage girls on the beach near the water's edge. The girls were wearing bikini swimwear. At this point the person with the camera was about 30 metres away from the girls.[3] Sergeant Isherwood then walked to where his car was parked and continued to observe the person with the camera. He saw this person move to a concrete seat and bench, where he appeared to continue taking photographs of the girls. By this stage the girls had crossed the estuary and were on the beach on the far side of the estuary. The sergeant continued to observe this person for about five minutes. He then approached the person and showed him his police identification. The person was Mr Rowe, and he introduced himself to the sergeant by his first name. The sergeant told Mr Rowe that he wanted to talk to him about the fact that he had been taking photographs of the young girls. Mr Rowe immediately acknowledged that hehad been taking photographs, and said there was nothing wrong in him doing so. Heagreed, however, that he had not obtained the permission of either the girls or theirparents to take the photographs. He said he would show the officer the photographshe had taken and would delete them. The officer then seized the camera andcontacted the Nelson police from a nearby cafe.[4] After asking the police to attend the scene the sergeant returned to speak to Mr Rowe in his campervan. When he entered the campervan, the officer noted that Mr Rowe had three electronic devices that he was using. When the officer asked him whether he had any images downloaded onto his devices of young girls, Mr Rowe confirmed that he did and that he had listed these alphabetically under afolder labelled "Girls". The officer was able to observe that this folder contained numerous images of pre-teen and teenage girls, all of which appeared to have been taken without their knowledge. Mr Rowe said he had taken these photographs "allover New Zealand". At that point the sergeant arrested Mr Rowe for taking objectionable images.[5] Constable Colville of the Motueka police arrived a short time later and took possession of the camera and a notebook computer Sergeant Isherwood had removed from the campervan. After obtaining details of what had happened from Sergeant Isherwood the constable entered the campervan and spoke to Mr Rowe. Sergeant Isherwood then left.[6] Mr Rowe told Constable Colville he had taken photographs of the girls and said that if he had believed it was an offence to do so he would not have done it. He told the constable that he took some photographs for use in a travel book he had been working on since 2002, and on other occasions he took photographs for his own enjoyment. When the constable asked Mr Rowe whether he had obtained consent to take the photographs from either the girls or their parents, Mr Rowe said he did not think this was required because people take photographs at the beach all the time without asking for consent to do so. When the constable suggested it was a matter of common decency to ask people whether they consented to be photographed, Mr Rowe said he did not think that was required because there was nothing sinister in what he was doing.[7] After speaking to Mr Rowe Constable Colville issued him with a summons and directed him to leave the beach.Issues[8] The appeal raises the following issues:1. Did Sergeant Isherwood seize Mr Rowe's camera unlawfully?2. Can the act of taking a photograph constitute an indecent act for the purposes of s 126 of the Crimes Act 1961?3. Was there evidence to support the jury's conclusion that in taking thephotographs Mr Rowe committed an indecent act?4. Was there evidence to support the jury's conclusion that Mr Rowe intended to insult in terms of s 126?Did Sergeant Isherwood seize Mr Rowe's camera unlawfully?[9] This issue arose during the course of trial when counsel then acting for Mr Rowe objected to the admissibility of photographs downloaded from Mr Rowe'scamera. The photographs in question depicted the three girls in their bikini swimwear. Counsel based the objection on an assertion that Sergeant Isherwood had seized the camera unlawfully. Remarkably, the objection was not raised until after the photographs had already been produced as an exhibit and shown to the jury. The jury had by that stage also learned that Mr Rowe held a large number of photographs of girls on a notebook computer found in his campervan. In addition, and no doubt on the basis that the defence had not signalled any challenge to what he was going to say, Sergeant Isherwood's evidence-in-chief had been read to the jury.[10] The lateness of the objection obviously left the trial Judge, Judge Zohrab, in a difficult position. If he upheld the objection he would have had little option but to declare a mistrial. It goes without saying that defence counsel ought to have signalled the challenge at a far earlier stage than he did. In fairness to counsel, however, the Judge noted that he had only been instructed the previous week.[11] The Judge determined the admissibility of the evidence following a hearing held in the absence of the jury at which both Sergeant Isherwood and Mr Rowe gave evidence. The Judge ruled the evidence admissible, and then gave his reasons for doing so after the trial had concluded.2[12] The Judge generally preferred the evidence given by Sergeant Isherwood to that given by Mr Rowe. He noted that the sergeant had the benefit of notes he had dictated a short time after the incident, and his evidence was more coherent and plausible than that given by Mr Rowe. By way of contrast, the Judge considered Mr Rowe was very vague and unsure in his evidence.32 R v Rowe [2016] NZDC 3358.3 At [43].[13] Sergeant Isherwood said he showed Mr Rowe his police identification when he first approached him, and that he had given Mr Rowe his rights under the New Zealand Bill of Rights Act 1990 (NZBORA). He also said that after he had arrested Mr Rowe he told him he was seizing the camera under the Search and Surveillance Act 2012 (SSA) to prevent the images on it from being deleted. He said he did so under s 123 of the SSA, which relates to the seizure of items in plain view. Mr Rowe said that the sergeant did not show him any identification and did not mention either the SSA or NZBORA.[14] The Judge held that although Sergeant Isherwood was off duty and onholiday, he did not accept that the sergeant "completely ignored all of the legal formalities".4 He determined that the exchange that led to the sergeant seizing the camera was all part of a single transaction that occurred over the space of about a minute. He held it involved the sergeant giving Mr Rowe his NZBORA rights and telling him the camera was being seized under the SSA.5[15] Although the Judge made no express finding on the point, it is implicit from his decision that he considered the camera to have been seized lawfully. He also observed that exclusion of the photographs would not amount to a "king hit" in any event because the Crown could still rely on the evidence given by Sergeant Isherwood as to his observations of Mr Rowe using the zoom lens to take photographs of the three girls.6 Finally, the Judge observed that exclusion of the photographs would be a disproportionate response to any illegality relating to the seizure of the camera. This was because the sergeant was acting at all times in good faith, the quality of the evidence was good, the offence was moderately serious and there were no other investigative techniques the sergeant could have used to prevent Mr Rowe from deleting the images from the camera.7[16] As we have already observed, Sergeant Isherwood maintained that he seized the camera under s 123 of the SSA. Section 123 relevantly provides as follows:4 At [42].5 At [44].6 At [52].7 At [53].123 Seizure of items in plain view(1) This section applies to an enforcement officer who, as part of his or her duties,—(a) exercises a search power; or(b) is lawfully in any place or in or on a vehicle; or(c) is conducting a lawful search of a person.(2) An enforcement officer to whom this section applies may seize any item or items that he or she, or any person assisting him or her, finds in the course of carrying out the search or as a result of observations at the place or in or on the vehicle, if the enforcement officer has reasonable grounds to believe that he or she could have seized the item or items under—(a) any search warrant that could have been obtained by him or her under this Act or any other enactment; or(b) any other search power exercisable by him or her under this Act or any other enactment.[17] In her written submissions Ms Cuthill on behalf of Mr Rowe contended that s 123 only applies where a police officer is validly exercising a power of search and then encounters other material during the course of the search. The wording of s 123 makes it clear that this is not the case. The section may also apply in any situation where a police officer is lawfully in a place and sees potential items of evidence as part of his or her duties.[18] Ms Cuthill quite properly did not place any emphasis on the fact that Sergeant Isherwood was off duty when he first saw Mr Rowe. Once the sergeantbecame concerned about Mr Rowe's conduct he clearly began to act not as a member of the public but in his capacity as a police officer. This is demonstrated by the fact that, as the Judge found, he showed Mr Rowe his police identification.[19] In Duley v Police, Venning J canvassed numerous authorities that discuss the rights and obligations of police officers who are not on duty.8 Venning J concluded that an off-duty police officer may not be obliged to intervene in every situation to8 Duley v Police HC Auckland CRI-2007-404-90, 6 July 2007 at [13]–[31].which police who are on duty might be called.9 Where an off-duty police officer does intervene, however, he or she may exercise those powers that a constable is authorised to exercise.10 The fact that the sergeant was off duty when he first observed Mr Rowe therefore did not prevent him from subsequently exercising the powers vested in police officers by s 123.[20] We accept the Crown's submission that Sergeant Isherwood was entitled torely upon s 123 in the circumstances of the present case. The sergeant observed Mr Rowe using the camera in a manner that suggested he was committing an offence by using his zoom lens to take photographs of the three girls on the beach over an extended period. Mr Rowe acknowledged taking photographs of the girls when the sergeant first approached him. Mr Rowe also offered to delete the photographs. In those circumstances the sergeant obviously had reasonable grounds to believe he could have seized the camera under the authority of a search warrant. The camera was likely to contain evidence of offending by Mr Rowe in the form of photographsthat were stored within the camera's memory. If the sergeant had left the scene to obtain a search warrant, however, Mr Rowe would be free to destroy the evidence by deleting the photographs. For that reason we consider s 123 permitted Sergeant Isherwood to seize the camera. This ground of appeal fails as a result.Can the act of taking a photograph constitute an indecent act for the purposes of s 126 of the Crimes Act 1961?[21] Prior to trial Mr Rowe applied for an order that he be discharged under s 147 of the Criminal Procedure Act 2011 on the basis that no reasonably directed jury could properly convict him.11 Judge Harrop rejected this argument for the following reasons:12[13] I accept Mr Revell's submission for the Crown that the taking of photographs may amount to an indecent act, depending on the circumstances. The leading case of R v Annas mentioned earlier is an example. There is no need for physical contact. I also accept Mr Revell's submission that taking a photograph of a person may be an indecent act even though looking at the same person in the same circumstances would not be.9 At [31], citing Peat v Lin [2004] QSC 219, [2005] 1 Qd R 40; Re Mullen [1995] 2 Qd R 608 (SC); and R v Dytham [1979] QB 722 (CA).10 Duley v Police, above n 8, at [31], citing Shepherd v Martin (1991) 55 SASR 367 (SASCFC).11 R v Flyger [2001] 2 NZLR 721 (CA).12 R v Rowe [2016] NZDC 19786.The reason for this is that a photograph is a record which may be used by the photographer in a number of ways including dissemination on the internet, something which is very quickly and easily done with modern digital technology. However there is no indication of an intention to publicly disseminate any images relevant to this case. The issue is whether, by the mere fact of taking photographs in the particular circumstances, Mr Rowe committed an indecent act or, more accurately whether a jury looking at the matter objectively in accordance with community standards could properly be sure that he did.[19] Having reflected on the Crown case, I consider there is sufficient evidence on which a properly-directed jury could find the first element of the charge, the carrying out of an indecent act, proved beyond reasonable doubt. Obviously that would require reasoning by inference and an assessment by the jury, on what is quintessentially a jury issue, of whether taking photographs in these circumstances was contrary to the standards of right-thinking members of the community.[20] A jury might well decide that because of the public situation, the choice of attire the girls made and the distance involved, the act of photographing them was not an indecent act. But the question for present purposes is whether or not there is sufficient evidence on which the opposite conclusion could properly be reached. I am satisfied there is and that it is properly a matter for a jury to decide. I consider Hapakuku is distinguishable for the reasons advanced by Mr Revell and that there are, to adopt Judge Ruth's phrase, "circumstances of indecency", such as to justify leaving the matter to a jury.[21] Obviously the privacy interest of the girls was lower than if they had been photographed sunbathing in bikinis on private property by a covert photographer. That must inform the question of indecency. However Mr Rowe, who was 60 at the time, was taking photographs using a telephoto lens initially at least in a covert manner, of scantily-clad teenaged girls not known to him and without their knowledge or consent. He did so for five minutes, so by inference quite a number of photographs were taken, rather than merely one or two. The conduct was of sufficient concern in the circumstances for an off-duty police officer to take steps to intervene. While I am not suggesting that one police officer's assessment is necessarily indicative of wider community standards, his reaction does provide some support for the Crown case.[22] These matters are inevitably a question of degree in the prevailing circumstances. If Mr Rowe had gone right up to the girls and pointedly photographed each of their crotches then, public beach and bikinis notwithstanding, I would expect a jury to have no hesitation in finding that to be an indecent act. Even Mr Rowe might agree. On the other hand, if he had been photographing the beach scene from some distance and incidentally included these girls among other subjects, I doubt a jury would or could properly convict.[23] I think there is sufficient flavour of indecency to Mr Rowe's conduct. The combination of circumstances in my view leaves it open to a properly-directed jury to decide that his action was an indecent act.[22] Mr Rowe seeks to re-argue this issue on appeal. Ms Cuthill acknowledged that the most recent judgment of this Court in relation to s 126 is that to which the Judge referred, R v Annas.13 In that case the appellant had been convicted on seven charges of performing an indecent act with intent to offend.14 In each case the act in question was the taking of a photograph. Six of the charges related to the taking of photographs of the complainant as a child when she was naked. The remainingphotograph was taken looking up at the complainant's underwear beneath her dresswhen she was a teenager. Citing R v Stamford,15 the Court observed that the issue ofwhether an act can properly be regarded as indecent is "an objective question to beanswered by what the jury assesses to be the standards of right-thinking members ofthe community".16 The Court considered that the issue of whether the defendant intended to insult or offend the complainant was a distinct subjective question.17[23] The Court went on to observe:[57] Whether the photographing of a naked child is objectively indecent will depend upon the circumstances. One extreme is a photograph taken in good faith in the course of a medical examination, or by loving parents of a child playing in a pool or at the beach. Neither will satisfy the objective test. The same photograph taken for obviously pornographic purposes could.[24] Ms Cuthill submits that the observations in Annas need to be considered in light of those made earlier by this Court in R v S.18 In that case the appellant had been found guilty of doing an indecent act with or upon a girl aged between 12 and 16 years.19 The act in question consisted of taking photographs of a 12 year old girl who was dressed in revealing clothing and posing in a provocative fashion. One ofthe photographs clearly showed the girl's genitalia.[25] This Court considered that although the photograph itself was plainly indecent, the act of taking the photograph could not be an indecent act. The Court explained its reasons as follows:2013 R v Annas [2008] NZCA 534.14 Crimes Act 1961, s 126.15 R v Stamford [1972] 2 QB 391 (CA).16 R v Annas, above n 13 at [56].17 At [56].18 R v S CA273/91, 20 December 1991.19 Crimes Act 1961, s 134(2)(a) (now repealed).20 R v S, above n 18, at 6.An indecent assault is thus an assault accompanied with circumstances of indecency. The Judge's ruling and subsequent direction suggest that he adopted a broadly similar approach to the meaning of "indecent act". But in doing so we think with respect he did not appreciate that it is the quality of the act itself that is significant rather than the general circumstances in which it is committed. Thus it was said in Beal v Kelley (1951) 35 Cr App R 128, 130, an indecent assault case, that the indecency must be offered towards the person alleged to have been assaulted. Again, to apply the example given inR v Sutton [1977] 3 All ER 476, 478, to brush a wasp off a child's neck is not an indecent act notwithstanding that the circumstances in which it was done were generally indecent. So too an act that is not itself indecent will not constitute the offence even if the purpose is indecent: R v George [1956] Crim LR 52. Mr Squire next submitted that the taking of a photograph cannot be an indecent act. We agree. As he observed, it is no more than a manner of recording what is there to be seen. It is no more indecent than the visual observation itself. That however was the way in which the case was put to the jury, and a verdict founded on that basis plainly cannot stand. But it does not necessarily follow that what was done here was not capable of constituting the offence. It is needful to look beyond the act of photography to ascertain whether any other act of the appellant is capable of coming within the statute. While it may be possible to characterise the appellant's whole course of conduct as indecent, the statute is limited to particular acts. To widen it could be dangerous. The appellant's acts, in addition to taking the photographs, were to produce the garments, to pin the crutch of one of them, and to assist in setting the poses. The first could not be described as an indecent act, but the others could be, depending on the jury's conclusion as to what the appellant actually did in those respects, and as to his accompanying intention. Thus while the appeal against conviction on this charge must succeed, it is not a proper case for directing an acquittal.(Emphasis added.)[26] In Y v R, the Supreme Court held that the Court in R v S had taken too narrow an approach to the issue of what constitutes an indecent act "with or upon" a younggirl.21 We consider the Court in R v S also took an unduly narrow approach to the issue of whether the act of taking a photograph can constitute an indecent act for the purposes of s 126. It does not correspond with the approach taken more recently inAnnas, where the Court confirmed that the surrounding circumstances will determine whether the act of taking a photograph is indecent in terms of s 126. This reflects the conventional approach taken in relation to both indecent assault and indecent acts, and we consider it to represent the current law in New Zealand.21 Y v R [2014] NZSC 34, [2014] 1 NZLR 724 at [23].Was there evidence to support the jury's conclusion that in taking thephotographs Mr Rowe committed an indecent act?[27] Given that the challenge to the sufficiency of the evidence arises post-conviction, the issue is whether the jury's verdict was supported by theevidence. In R v Owen,22 the Supreme Court endorsed several observations made by the Court of Appeal in the earlier case of R v Munro.23 These include the fact that an appellate court is performing a review function, and does not substitute its own view of the evidence. Furthermore, the review function requires the appellate court to give appropriate weight to such advantages as the jury may have had as the trier of fact. The weight to be given to individual pieces of evidence is essentially a jury function, and the jury will enjoy a particular advantage in assessing the honesty and reliability of witnesses.[28] We consider there was evidence to support the jury's conclusion, and largely for the reasons given by Judge Harrop in his pre-trial ruling. Had Mr Rowe taken photographs of the beach as a whole, the fact that the three girls were captured in it would not have given the act a sufficiently indecent flavour to justify leaving the charge to the jury. It is clear, however, from the fact that Mr Rowe used his zoom lens to focus on the three girls that they were the subject of his attention. He then took photographs of them over an extended period, and did not appear to have any interest in other persons or objects in the vicinity during that time. Although the photographs that were produced in evidence did not focus on the girls' genital regions or their breasts, nevertheless in each case the entire photograph was taken up with their image. We consider the fact that this was done from a distance using a zoom lens and in an apparently surreptitious way was sufficient to constitute an act that might be regarded as indecent. Furthermore, there was no legitimate reason for Mr Rowe to have taken the photographs other than his apparent desire to build up a collection of photographs of young girls. It was therefore for the jury to assess whether the act of taking the photographs was indecent having regard to generally accepted community standards.[29] This ground of appeal fails as a result.22 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13].23 R v Munro [2008] 2 NZLR 87 (CA).Was there evidence to permit the jury's conclusion that Mr Rowe intended to insult in terms of s 126?[30] Ms Cuthill submitted there was no evidence of any intention by Mr Rowe to insult the girls depicted in the photographs he took. She submitted that even if he harboured a questionable motive, his intentions did not relate to insulting their dignity or their rights to modesty and privacy. She pointed out that Mr Rowe had photographed the girls whilst they were standing on a public beach, and the girls'parents had also been taking photographs of them a short time earlier.[31] As with the previous ground, this ground of appeal amounts to an argumentthat the jury's verdict was not supported by the evidence. That issue needs to be considered in light of the questions contained in the question trail the Judge gave the jury to assist them in reaching their verdicts. The question trail posed the following question and directions in relation to the requirement that the Crown prove an intention to insult:Question 4Are you sure that at the time that the defendant took the photos of young girls dressed in bikinis, he also had the intention to insult? It is not necessary for the Crown to prove that the defendant intended to insult the girls in the photos in the sense that he would upset them at the time. The girls in the photos need not have been insulted at the time as a result, perhaps, of their age and the other prevailing circumstances. An intent to insult or offend can be inferred if the tendency of the act would be to insult. What must be captured is whether the defendant intended to insult the dignity of the girls in the photos, their right to modesty or privacy, by taking such photos of them at their age and in those general circumstances. If, however, you consider it possible that the defendant honestly believed that this conduct did not have the potential to insult, then or later, then this element of the offence has not been proven beyond reasonable doubt. If so, then you would find the defendant not guilty of the charge.IF NO, find the defendant NOT GUILTY.If YES, find the defendant GUILTY.[32] The question and explanatory bullet points largely mirror those contained in the question trail used by the trial Judge in Annas.24 The fourth bullet point, which contains the essence of what the Crown is required to prove in order to establish the necessary intention to insult, was expressly endorsed by this Court in Annas.25 It required the jury in the present case to consider whether, in taking the photographs of the three girls, Mr Rowe intended to insult their dignity, including their rights to modesty and privacy, having regard to their age and the general circumstances.[33] As will often be the case when the Crown is required to prove a particular intention, it relied in the present case on the circumstances surrounding the act to prove this element. For that reason many of the factors that were relevant to thejury's assessment of whether or not the act was indecent were also relevant to theissue of whether or not Mr Rowe intended his act to insult. These included the apparently surreptitious or covert nature of the manner in which, on Sergeant Isherwood's evidence, Mr Rowe was initially taking photographs of thegirls. There was then his use of a zoom lens so that he could photograph them from a distance in a manner that could normally only be done from a very close range. There was also the fact that Mr Rowe took numerous photographs of girls who were of a comparatively young age, and for no apparent reason other than to preserve images of their bodies for his own future enjoyment.[34] Furthermore, the Crown relied upon the fact that in 2012 Mr Rowe had been banned under the Trespass Act 1980 from visiting Kaiteriteri Beach.26 This occurred after the police were called to another incident in which he had been seen taking photographs of young girls on the beach. The Crown asked the jury to infer that the 2012 incident and its consequences would have placed Mr Rowe on notice that activities of this type were not acceptable to the wider community. This negated his insistence that he did not consider he was doing anything wrong.24 In Annas, the fifth bullet point contained the words "and reasonably" after the word "honestly".This Court held that these words wrongly imported an objective element into an issue that was purely subjective: R v Annas, above n 13, at [45].25 At [59].26 This fact was placed before the jury by means of admissions of fact tendered under s 9 of the Evidence Act 2006.[35] Counsel for Mr Rowe put forward arguments, both at trial and in support of the appeal, to counter each of the factors relied upon by the Crown. The only argument it is necessary to mention in this context relates to what his counsel described on appeal as a defence based on officially induced error. The issue arises because Mr Rowe told the jury he had satisfied himself from enquiries he had made on a police website prior to 23 January 2016 that it was not illegal to take photographs of persons present in a public place such as a beach. He produced a printout of information downloaded from the website relating to the rules that apply to the taking of photographs of other persons. These confirmed that it was generally lawful to take photographs of persons in public places without their consent provided the persons being photographed did not have an expectation of privacy at the time they were photographed.[36] Ms Cuthill sought to advance this argument as a discrete ground of appeal but we do not consider it provides a separate means by which Mr Rowe can challenge his conviction. It was not advanced as an affirmative defence at trial, and counsel for Mr Rowe did not refer to it at all in his closing address. The Judge directed the jury they needed to take the enquiries Mr Rowe had made on the police website into account when considering whether the Crown had proved beyond reasonable doubt that he had the necessary intent to insult when he took the photographs of the three girls. We consider he was correct to deal with the issue in that way because it wentto Mr Rowe's state of mind at the time he took the photographs. The jury's verdictdemonstrates it was satisfied the Crown had proved the necessary intention to insult at that time notwithstanding Mr Rowe's evidence about the enquiries he had made earlier.[37] It is not necessary to refer to the other factors relied upon by Mr Rowe in relation to the issue of whether he intended to insult when he took the photographs. The question is whether the jury's conclusion was unreasonable on the basis that it was not supported by the evidence. We consider the factors on which the Crown relied were sufficient to provide an evidential basis to support the jury's verdict. This ground of appeal also fails as a result.Result[38] The appeal against conviction is dismissed.Solicitors:Zindels, Nelson for AppellantCrown Law Office, Wellington for Respondent