SEYMOUR v NEW ZEALAND POLICE [2021] NZCA 637

SEYMOUR v NEW ZEALAND POLICE [2021] NZCA 637 [30 November 2021]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.NOTE: PUBLICATION OF NAMES, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF ANY PERSON UNDER THE AGE OF18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA573/2021[2021] NZCA 637BETWEEN JOHN NORRIE SEYMOURAppellantAND NEW ZEALAND POLICERespondentHearing: 9 November 2021Court: Collins, Duffy and Dunningham JJCounsel: T Epati for AppellantJ E L Carruthers for RespondentJudgment: 30 November 2021 at 10.30 amJUDGMENT OF THE COURTA The application for leave to bring a second appeal against conviction isgranted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Following a Judge-alone trial in the District Court at Gisborne, Mr Seymourwas found guilty of breaching s 132(3) of the Crimes Act 1961,1 which makes it anoffence to do an indecent act on a child.[2] Mr Seymour's offending involved him taking two photographs of K, a10-year-old girl, while she was sleeping in his caravan. He altered the young girl'sclothing while she slept by folding her t-shirt to just below her nipple line. The firstphotograph that he took was from the top of her jeans up to her chin, including herexposed abdomen. The other photograph was a close up of K's crotch area andencompassed the top of the girl's jeans and the lower part of her exposed abdomen.[3] Mr Seymour, who was 66 years old at the time of the offending, was sentencedby Judge Cathcart to six months' supervision.2 The Judge did not consider it necessaryto place Mr Seymour's name on the Child Sex Offender Register.[4] In his appeal against conviction to the High Court, Mr Seymour argued theoffence provision applies only to acts that are inherently indecent as opposed to actsthat are rendered indecent by the surrounding circumstances. Mallon J rejected thatsubmission. She concluded the photographs were sexually suggestive and thatMr Seymour had been properly convicted.3[5] Mr Seymour's proposed appeal asks whether Mallon J erred when she held thatsurrounding circumstances may be taken into account when determining whether ornot conduct constitutes an indecent act on a child for the purposes of s 132(3) of theCrimes Act.1 R v Seymour [2020] NZDC 21006 [District Court judgment].2 R v Seymour [2021] NZDC 5963.3 Seymour v R [2021] NZHC 2322 [High Court judgment].[6] Section 239 of the Criminal Procedure Act 2011 requires Mr Seymour to seekleave to pursue a second appeal against his conviction. We grant his application forleave to appeal against conviction because the issues raised by the proposed appealmerit consideration by this Court.Background[7] Mr Seymour was a close friend of K's family. He would frequently have dinnerwith them. Mr Seymour was entrusted by K's parents to take her and her twin brother,B, on outings. Mr Seymour would also give K and B pocket money each week andon occasions the children were allowed to stay with him in his caravan, which theydid on the night of 18 July 2019. At 3.14 am B was pretending to be asleep when hesaw Mr Seymour adjusting K's t-shirt. B saw Mr Seymour take the photographs thatwe have described at [2].[8] The police became involved after B told his father that he had seenMr Seymour taking pictures of K using the camera on his cellphone. This led to thepolice conducting evidential interviews with K and B on 25 July 2019. Thoseinterviews were produced as exhibits by consent in the District Court trial.[9] The police conducted a search of Mr Seymour's caravan on 12 August 2019,where they located his cellphone and found the two photographs of K. After beingcautioned, Mr Seymour told the arresting officer that he had not wanted K and B tostay at his caravan because he "just knew something would go wrong". He elaboratedon this by saying "I'd start abusing them I never abused the boy, but I did thegirl. I only touched her puku". He said that he and K "would joke about her pukubeing like Māori bread".[10] Mr Seymour was originally charged with offences under s 216H of the CrimesAct, which makes it an offence to intentionally make an intimate visual recording.When prosecuting authorities realised that the photographs taken by Mr Seymour didnot fall within the definition of an "intimate visual recording",4 the charges werechanged to two charges of doing an indecent act on a child. One of those charges4 Crimes Act 1961, s 216G.related to an allegation that Mr Seymour had rubbed K's stomach when adjusting hert-shirt. That charge was ultimately dismissed by Judge Cathcart because the evidencedid not establish that Mr Seymour had rubbed K's stomach.5 The Judge was, however,satisfied that Mr Seymour had committed an indecent act on a child when hephotographed K.6[11] Following his conviction, Mr Seymour was interviewed by Dr Dillon, a clinicalpsychologist. She said in her report:Mr Seymour denied any intent to cause harm to [K] and said he had no sexualinterest in children and had never sexually harmed anyone in his life. When Iquestioned him as to why he said he "abused the girl" when interviewed bythe police, Mr Seymour said he did not know what else to say because if hehad touched her whilst pulling up her shirt, and the police said that was abuse,then he believed he must have abused her.[12] Dr Dillon said she was "perplexed" by Mr Seymour's offending as: there is no past history of sexual offending, and nor is there any evidencein his past which might suggest he is a sophisticated man, who has investedtime in grooming adults and children during his life. There is no evidence thatduring his life he has deliberately sought out the company of children to theexclusion of adult relationships. There is no evidence that he has accessedchild pornography [13] Mr Seymour was assessed using two well-recognised psychologicalinstruments. The results of those assessments led Dr Dillon to the view that there wasa low likelihood of Mr Seymour recommitting a sexual offence.Legislation[14] Before briefly summarising the judgments in the courts below, we shall explainthe relevant provisions of the Crimes Act and the relevant case law.[15] Section 132 of the Crimes Act provides:132 Sexual conduct with child under 12(1) Every one who has sexual connection with a child is liable toimprisonment for a term not exceeding 14 years.5 District Court judgment, above n 1, at [37]–[38].6 At [73]–[74].(2) Every one who attempts to have sexual connection with a child isliable to imprisonment for a term not exceeding 10 years.(3) Every one who does an indecent act on a child is liable toimprisonment for a term not exceeding 10 years.(4) It is not a defence to a charge under this section that the person chargedbelieved that the child was of or over the age of 12 years.(5) It is not a defence to a charge under this section that the childconsented.(6) In this section,—(a) child means a person under the age of 12 years; and(b) doing an indecent act on a child includes indecently assaultingthe child.[16] Section 132 is, for present purposes, almost identical to s 134, which deals withsexual conduct with a young person between 12 and 16 years of age.[17] Those sections can be traced to ss 188 and 194–196 of the Criminal Code Act1893, as amended in 1896, which created the offence of indecent assault on "anyfemale" and the offences of defiling children under 12 and girls aged between 12 and16.7[18] When Parliament passed the Crimes Act, it addressed concerns that sexualoffences against children and young persons did not include "indecent acts that [did]not come within the definition of assault".8 As a consequence, the concept of"indecent act" was introduced into what is now ss 132 and 134 of the Crimes Act.[19] The current manifestations of ss 132 and 134 were enacted as part of a suite oflegislative changes made in 2005 that aimed "to modernise the law relating to sexualoffences".9[20] Sections 132 and 134 of the Crimes Act can be compared with ss 125 and 126which provide:7 Criminal Code Act Amendment Act 1896, ss 3 and 5.8 (3 October 1961) 328 NZPD 2679–2680 (Crimes Bill – Second Reading, Josiah Hanan).9 Crimes Amendment Bill (No 2) (104-2) (select committee report) at 2.125 Indecent act in public place(1) Every one is liable to imprisonment for a term not exceeding 2 yearswho wilfully does any indecent act in any place to which the publichave 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 chargedproves that he or she had reasonable grounds for believing that he orshe would not be observed.126 Indecent act with intent to insult or offendEvery one is liable to imprisonment for a term not exceeding 2 yearswho with intent to insult or offend any person does any indecent actin any place.Evolving case law[21] In order to fully understand the issues before us, it is also necessary to explainhow case law concerning the meaning of indecency has evolved.What constitutes indecency?[22] The question as to what constitutes "indecent" was considered by this Court inR v Dunn,10 when considering an appeal against conviction brought by persons whohad arranged an "indecent show or performance" at a strip club contrary to s 124(1)(c)of the Crimes Act. Writing for the Court, McCarthy J said that the test as to whatconstitutes an indecent act was objective and that the purpose of the law was to punishconduct that offended against "a reasonable and recognised standard of decency which ordinary and reasonable members of the community ought to impose andobserve".11 In applying this test the trier of fact would need to consider both theintrinsic nature of the act itself and the accompanying context of "time, place andcircumstances" in which the conduct had occurred.1210 R v Dunn [1973] 2 NZLR 481 (CA).11 At 484.12 At 484–485.Surrounding circumstances[23] In R v S,13 this Court examined the requirements of what constituted anindecent act under s 134(2)(b) of the Crimes Act. That provision was, in all materialrespects, the same as s 132(3) of the current Act.[24] The indecency charge arose when S asked the 12-year-old daughter of hispartner if she wanted to pose for some photographs. She agreed to do so. S thenretrieved from a bedroom two "flimsy and revealing" garments similar to negligeesand photographed the girl wearing those garments. One of the garments had a torncrotch that S pinned for the purposes of the photograph. The photograph of the girl inthat garment revealed a small part of her genital area. The second garment had nocrotch and S had the girl pose in a manner that exposed her genital area.[25] The issue on appeal was whether the trial Judge had erred when directing thejury to consider whether the taking of the photographs was an indecent act with thegirl for the purposes of s 134(2)(b) of the Crimes Act.[26] When considering whether or not the taking of photographs could be anindecent act, this Court drew a distinction between an indecent assault and an indecentact:14In the case of an indecent assault, it has long been recognised that the adjective"indecent" need not apply to the act itself; it is sufficient if it applies to thecircumstances accompanying the assault. An indecent assault is thus anassault accompanied with circumstances of indecency. The Judge's ruling andsubsequent direction suggest that he adopted a broadly similar approach to themeaning of "indecent act". But in doing so we think with respect he did notappreciate that it is the quality of the act itself that is significant rather thanthe general circumstances in which it is committed an act that is not itselfindecent will not constitute the offence even if the purpose is indecent [27] The Court concluded the taking of the photographs could not itself be anindecent act, as it was "no more than a manner of recording what is there to be seen".15There were, however, aspects of S's conduct that could comprise an indecent act,particularly in relation to the way S pinned the crotch of one of the garments and13 R v S CA273/91, 20 December 1991.14 At 5–6.15 At 6.assisted with the girl's posing. Accordingly, although the Court allowed the appeal, italso directed a new trial.16[28] Any lingering doubts about whether taking an indecent photograph of a childcould be an indecent act for the purposes of s 132(3) of the Crimes Act appear to havebeen answered in the affirmative by the Supreme Court in LM v R.17 That caseconcerned the prosecution of a New Zealander, LM, who was living in Russia at thetime of his offending, which involved him taking photographs of a seven-year-old girlmasturbating an adult man. LM had directed the positioning of the participants.The issues in that case primarily concerned the extraterritorial effect of ss 144A and66(1) of the Crimes Act. Nevertheless, it was accepted that LM's conduct couldcomprise an indecent act under s 132(3) of the Crimes Act and the Court appears tohave been satisfied to follow that approach.[29] The approach taken in LM v R was consistent with what this Court hadpreviously said in R v Annas:18[57] Whether the photographing of a naked child is objectively indecentwill depend upon the circumstances. One extreme is a photograph taken ingood faith in the course of a medical examination, or by loving parents of achild playing in a pool or at the beach. Neither will satisfy the objective test.The same photograph taken for obviously pornographic purposes could.[30] The Supreme Court next considered whether taking photographs was indecentin Rowe v R,19 which was of critical importance in the Courts below and in thesubmissions presented to us.[31] Mr Rowe was prosecuted for doing an indecent act with intent to insult unders 126 of the Crimes Act after he was discovered by an off-duty police officer taking anumber of photographs with a zoom lens of three bikini-clad teenage girls at a beach.The girls were some distance away and not aware that Mr Rowe was photographingthem.16 At 6–7.17 LM v R [2014] NZSC 110, [2015] 1 NZLR 23.18 R v Annas [2008] NZCA 534. see also R v Rudiger 2011 BCSC 1397, (2011) 278 CCC (3d) 524;and R v Hamilton [2007] EWCA Crim 2062, [2008] QB 224.19 Rowe v R [2018] NZSC 55, [2018] 1 NZLR 875 [Supreme Court judgment].[32] This Court dismissed Mr Rowe's appeal against his conviction.20 It held thatthe following surrounding circumstances supported the allegation Mr Rowe hadcommitted an indecent act:21(a) he used a zoom lens that focused on the girls;(b) the photographs were taken over an extended period;(c) the images of the girls took up the entire photograph;(d) the photos were taken in a surreptitious manner; and(e) Mr Rowe had no legitimate reason for taking the photographs.[33] The same evidence was used to support the inference Mr Rowe intended "toinsult the dignity of the girls in the photos, [including] their right to modesty orprivacy".22[34] In its judgment, the majority of the Supreme Court in Rowe drew upon thepassage from R v S we have set out at [26] when explaining that:23[39] The risk with an approach that focuses solely on the surroundingcircumstances to show that an act is indecent under ss 125 and 126 is that theconduct in issue becomes divorced from the core concept of an indecent actcentral to both sections.[35] The majority proceeded to explain:24Mr Rowe took photographs of persons in public in the manner in which theypresented themselves. The only matters relied on to criminalise his conductin contrast with, for example, that of the parent who also took photographs ofthe girls or of a news media representative taking a similar photograph arefactors such as his motive and purpose. Those matters are treated as elevatinghis acts, which are not intrinsically indecent, to acts which are indecent.20 Rowe v R [2017] NZCA 316, [2017] NZAR 1211.21 At [28].22 At [31], [33] and [37].23 Supreme Court judgment, above n 19. See also [41]–[44].24 At [40].[36] In allowing Mr Rowe's appeal the majority said:25(a) Section 126 of the Crimes Act is primarily directed at exhibitionism.(b) The desirability of having certainty in the criminal law supports anapproach to interpreting s 126 that focuses on the quality of the act.(c) Surrounding circumstances such as motive or prurient purpose cannotmake an act that would not otherwise be indecent into an indecent actunder ss 125 and 126.(d) There must be something in the nature of the act that is an affront to thepublic so as to make it indecent under ss 125 and 126.(e) The factors relied on by the Court of Appeal were not evidence ofindecency where neither the subject-matter nor the photographs wereindecent in themselves and in the absence of any exhibitionistic typebehaviour.[37] Having concluded Mr Rowe's conduct did not constitute an indecent act, theCourt also observed that it would not be possible to prove an intention to insult wherethe images were not indecent.26[38] In a separate concurring judgment, William Young J explained that R v S waswrongly decided and that:27For the purposes of the offence of doing an indecent act on or with a child, thetaking of a photograph may be indecent and the question whether it is shouldbe determined having regard to community standards in light of all thecircumstances including: (a) its subject matter; (b) any associated posing; and(c) the purposes of the photographer.25 At [62], [63] and [65].26 At [66].27 At [88] per William Young J (footnote omitted).District Court decision[39] After reviewing these authorities, the District Court Judge reasoned that he wasnot bound by the Supreme Court's approach in Rowe. This was because he consideredthe reasoning in Rowe to be specific to ss 125 and 126, in which case it would notnecessarily be appropriate to apply it to s 132(3).28[40] The Judge further reasoned that he was not bound by the decision in R v S thattaking a photograph could not be an indecent act. This was because he considered R vS to have been overtaken by the Supreme Court's decision in LM v R.29[41] The Judge instead preferred to adopt the comments of William Young J in Rowethat we have set out above at [38], namely that whether an act is indecent will dependon all the circumstances, and that the taking of photographs could be indecent.30[42] Applying this approach to Mr Seymour's taking of photographs, the Judgefound it to be indecent in light of the following circumstances:31(a) the time of night when the events occurred;(b) the fact K was asleep;(c) the staging of the photographs by moving K's t-shirt; and(d) the focus of the photographs on K's crotch area and abdomen.[43] The Judge also inferred a sexual motive on the part of Mr Seymour when takingthe photographs. His "prurient purpose" could be deduced from the evasive answersgiven to the police and the circumstances of the photographs being taken.3228 District Court judgment, above n 1, at [60] and [64]. See Supreme Court judgment, above n 19.29 At [66]. See R v S, above n 13; and LM v R, above n 17.30 At [68] and [71]. See Supreme Court judgment, above n 19, at [88].31 At [73].32 At [54] and [73].High Court decision[44] Mallon J also analysed the Supreme Court decision in Rowe. Unlike theDistrict Court Judge, Mallon J considered that Rowe did apply to s 132(3).33[45] Mallon J interpreted the majority's judgment in Rowe as being more nuancedthan the approach taken by the District Court Judge. Mallon J said the majority of theSupreme Court warned against relying solely on surrounding circumstances todetermine indecency. The majority did not say that surrounding circumstances couldnever be considered, at least where an act was capable of being indecent depending onthe context. On the Judge's reading, the result in Rowe was attributable to the fact thephotographs taken by Mr Rowe were incapable of being indecent.34[46] Mallon J concluded that the correct approach was as follows:35 the position as it currently stands is that motive cannot turn an act thatobjectively is not indecent into an indecent act for the purposes of s 132 (ands 134) The test for whether the act is indecent is wholly objective. Thefocus is on the act but the objective circumstances of that act (the externalities)may assist with whether an act that is capable of being indecent is indecent.[47] Applying this approach to Mr Seymour, Mallon J held that taking photographsof a young girl's crotch and bare abdomen was capable of being indecent dependingon the circumstances. In the circumstances of this case, K was asleep, Mr Seymourlifted her t-shirt, and he had no legitimate reason to take the photographs. The Judgetherefore concluded that it was an indecent act.36Summary of arguments[48] Ms Epati, who appeared for Mr Seymour, argued that Mallon J erred when sheconcluded that Rowe allowed for some consideration of the surrounding circumstanceswhen determining whether or not conduct constituted an indecent act upon a child.Ms Epati submitted that Mallon J should have adhered to what she argued was theapproach taken by the majority in Rowe when determining what constitutes an33 At [63] and [65].34 At [65].35 At [71].36 At [76]–[78].indecent act on a child, namely that it is the quality of the act itself that is significantrather than the general circumstances in which it is committed.[49] Mr Carruthers, counsel for the Crown, submitted that both the District CourtJudge and Mallon J were correct to draw on the circumstances in which Mr Seymourtook the photos of K. In his submissions, those circumstances and the contents of thephotos clearly "amounted to an indecent act".Analysis[50] Although Rowe concerned s 126 of the Crimes Act, we believe the crucialreasoning of the majority of the Supreme Court applies to s 132(3).[51] However, we do not consider the reasoning in Rowe assists Mr Seymour.[52] First, although the focus is on the act, we consider the act of taking aphotograph is capable of being indecent. Whether a photograph is indecent or not willmainly hinge on the subject matter of the photograph.[53] Second, we agree with Mallon J that the majority in Rowe did not say thatsurrounding circumstances could never be considered. Our reading of Rowe is that, ifan act is incapable of being indecent, it cannot be made indecent solely by thesurrounding circumstances. If, on the other hand, an act is capable of being indecent,then the surrounding circumstances could reinforce that conclusion.[54] In Rowe, the Supreme Court held that the photographs of the three bikini-cladteenage girls were not indecent because there was nothing inherently indecent aboutthe subject matter of the photographs. They were simply three girls, dressedappropriately and normally for a beach setting. There was no posing or steps taken byMr Rowe to cause the girls to behave in a sexualised manner. The surroundingcircumstances could therefore not turn it into an indecent act.[55] Rowe is vastly different from Mr Seymour's case where the photographs takenby him were in themselves inherently indecent when judged against the objectivestandards of right-thinking members of society. The photographs taken byMr Seymour focused upon K's crotch and her exposed abdomen. The photographsinvolved the sexualisation of K and would be considered both disturbing and indecentby most members of society.[56] The surrounding circumstances reinforce this conclusion. For completeness,the additional factors were:(a) the steps taken by Mr Seymour to expose K's abdomen;(b) the steps taken by Mr Seymour to position K in a way that he couldphotograph her crotch;(c) the time when the photographs were taken;(d) the fact that K was asleep and unable to take steps to cover herself; and(e) K's age.[57] We are therefore satisfied that the High Court properly approached the task ofinterpreting and applying s 132(3) of the Crimes Act.Result[58] The application for leave to bring a second appeal against conviction isgranted.[59] The appeal is dismissed.Solicitors:Rishworth Wall & Mathieson, Gisborne for AppellantCrown Law Office, Wellington for Respondent