JOHN NORRIE SEYMOUR v NEW ZEALAND POLICE [2022] NZSC 38

JOHN NORRIE SEYMOUR v NEW ZEALAND POLICE [2022] NZSC 38 [4 April 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlNOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY COMPLAINANT AND ANY PERSONUNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESSPROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360352.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 159/2021[2022] NZSC 38BETWEEN JOHN NORRIE SEYMOURApplicantAND NEW ZEALAND POLICERespondentCourt: William Young, Glazebrook and Ellen France JJCounsel: T Epati for ApplicantM J Lillico for RespondentJudgment: 4 April 2022JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] After a judge-alone trial, the applicant was found guilty of doing an indecentact on a child contrary to s 132(3) of the Crimes Act 1961.1 The offending involved1 R v Seymour [2020] NZDC 21006 (Judge Cathcart).the applicant, then 66 years of age, taking two photographs of a 10-year-old girl, K,while she was asleep in his care. The applicant's appeal against conviction to theHigh Court was unsuccessful.2 The Court of Appeal granted leave to appeal butdismissed the appeal.3[2] The applicant now seeks leave to appeal to this Court on two grounds. Thefirst ground is that the Court of Appeal erred when it found that, under s 132, the actof taking a photograph is capable of being an indecent act. The second ground is thatthe Court of Appeal was wrong to find that this Court's decision in Rowe v R allowedfor consideration of surrounding circumstances in determining whether an act, capableof being indecent, is in fact indecent.4Background[3] K and her sibling, B, were staying with the applicant overnight inmid-July 2019. A little after 3am B, who was pretending to be asleep, saw theapplicant adjusting K's t-shirt, folding it to just below her nipple line. The applicanttook two photographs. The first of these was from the top of her jeans up to her chin,including her exposed abdomen. The other photograph was a close up of K's clothedcrotch area, starting from the lower part of her abdomen.[4] The police became involved after B told his father what he had seen. A searchwas conducted on the applicant's property and he told the arresting officer he had notwanted the two children to stay with him because he "just knew something would gowrong". He added to this saying "I'd start abusing them I never abused the boy,but I did the girl. I only touched her puku." He said that he and K "would joke abouther puku being like Māori bread".[5] The District Court Judge took the view the photographs were objectivelyindecent based on the circumstances, and would be considered as such by communitystandards. Relevant factors were the staging of K, the subject matter of the2 Seymour v R [2021] NZHC 2322 (Mallon J) [HC judgment].3 Seymour v New Zealand Police [2021] NZCA 637 (Collins, Duffy and Dunningham JJ)[CA judgment].4 Rowe v R [2018] NZSC 55, [2018] 1 NZLR 875.photographs and the control the applicant had over K. The Judge did not consider thedecision in Rowe was governing because it dealt with ss 125 and 126 of theCrimes Act.[6] In the High Court, Mallon J concluded Rowe was applicable but the decisiondid not preclude consideration of surrounding circumstances where the act, dependingon the context, was capable of being indecent. Relying on the circumstances of theapplicant, being an older man, taking the photographs, while K was asleep, and liftingK's shirt, the Judge concluded the taking of the photographs "would be regarded as anindecent act by right-thinking members of the community".5[7] The Court of Appeal agreed with the High Court that the reasoning in Rowewas applicable, but did not consider it assisted the applicant for the following reasons.First, while the focus was on the act itself, the act of taking a photograph was capableof being indecent. Whether it was would "mainly hinge on the subject matter of thephotograph".6 Second, the Court interpreted Rowe as authority for the proposition that"if an act is incapable of being indecent, it cannot be made indecent solely by thesurrounding circumstances".7 If the act is capable of being indecent, "the surroundingcircumstances could reinforce that conclusion".8[8] The Court found that, contrary to the position in Rowe, the taking of thephotographs here was capable of being an indecent act given the focus on K's crotchand exposed stomach, and where the photographs "involved the sexualisation of K andwould be considered both disturbing and indecent by most members of society".9 TheCourt then identified the surrounding circumstances which reinforced that conclusion,including the staging of the photographs, the time at which they were taken, and K'sage.5 HC judgment, above n 2, at [78].6 CA judgment, above n 3, at [52].7 At [53].8 At [53].9 At [55].The proposed appeal[9] In support of the first proposed ground of appeal, the applicant says thatclarification is necessary as to what will constitute an "act" for the purposes of s 132so as to avoid the risk of over-criminalisation. It is also submitted that the statutoryscheme suggests liability for the taking of such photographs is not addressed unders 132. Under the proposed second ground, it is submitted that the Court of Appeal waswrong in its interpretation of Rowe.[10] In supporting the judgment of the Court of Appeal, the respondent submits thatLM v R10 and Y v R11 rebut any suggestion that the taking of photographs of a childcannot amount to an indecent act on a child under s 132. Whether the act is indecentwill depend on factors such as the subject matter of the photographs and any associatedposing. In determining that question, the Court of Appeal was correct to conclude thatthe reasoning in Rowe did not assist the applicant.[11] As is apparent from the discussion above, the proposed appeal would reprisethe arguments made about the effect of this Court's earlier decisions in Rowe, LM v R,and Y v R, in the Court of Appeal. We see those arguments as having insufficientprospects of success. This case is accordingly not an appropriate vehicle to considerbroader questions of general or public importance that may arise for consideration atsome point about the inter-relationship between the various provisions whichcriminalise aspects of visual recording by photographs or other medium.12 It followsthat we do not see any matters raised by the applicant as giving rise to the appearanceof a miscarriage of justice.13Result[12] The application for leave to appeal is dismissed.Solicitors:Rishworth Wall & Mathieson, Gisborne for ApplicantCrown Law Office, Wellington for Respondent10 LM v R [2014] NZSC 110, [2015] 1 NZLR 23.11 Y v R [2014] NZSC 34, [2014] 1 NZLR 724.12 Senior Courts Act 2016, s 74(2)(a).13 Section 74(2)(b).