ROBERT JOHN BROWN v R [2022] NZCA 94

ROBERT JOHN BROWN v R [2022] NZCA 94 [28 March 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA593/2021[2022] NZCA 94BETWEEN ROBERT JOHN BROWNAppellantAND THE QUEENRespondentHearing: 21 February 2022Court: Dobson, Brewer and Edwards JJCounsel: Applicant in PersonC R Walker for RespondentJudgment: 28 March 2022 at 10.30 amJUDGMENT OF THE COURTA An extension of time to file the application for leave to bring a second appealis granted.B The application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Edwards J)[1] Following a judge-alone trial in the District Court at Napier, Mr Brown wasconvicted of four charges of sexual connection with a young person under the age of16.1 His appeal to the High Court was dismissed on 12 August 2021.2 Mr Brownseeks leave under s 237 of the Criminal Procedure Act 2011 (CPA) to bring a secondappeal against conviction.[2] The application is filed 16 working days out of time. Mr Brown explains thatthere was a delay in receiving the High Court decision and COVID-19 hampered hisability to file the application within time. There was no opposition to an extension oftime being granted. Given the short period of delay is adequately explained, we acceptthat an extension is appropriate. We order accordingly.The offending[3] The complainant and a police officer were the only witnesses to give evidenceat trial. What follows is taken from the complainant's evidence.[4] Mr Brown met the complainant on Grindr, an R18 dating app, on 1 July 2018.At that time, Mr Brown was 56 years old, and the complainant was 13 years old. Thecomplainant had a profile on the app in which he described himself as 18 years of age.[5] Mr Brown initiated the contact, messaging the complainant and asking if hewould take money for sex. The complainant messaged Mr Brown with his phonenumber and sent him some photos. Those photos included one taken that night whichshowed the complainant's face as well as others of him in the nude. Mr Brown sentphotos, including those of him in the nude, in return. Mr Brown messaged thecomplainant asking his age, to which the complainant replied that he was 18 years old.Mr Brown responded that he was in his forties and sent a photo of four $50 notes.[6] The first occasion of sexual activity occurred on the same day after thisexchange. Mr Brown picked up the complainant from his home and the two droveback to Mr Brown's house in Hastings. During the car ride over, Mr Brown againasked the complainant his age and asked him what he did. The complainant confirmedhe was 18 years old and, at that stage, told Mr Brown that he was not doing anythingand was just staying with a friend. The complainant also accepted that he told1 R v Brown [2020] NZDC 1624 [District Court judgment].2 Brown v R [2021] NZHC 2086 [High Court judgment].Mr Brown that his car was in the "chop shop" and that he had a restricted driver'slicence.[7] Consensual sexual activity occurred at Mr Brown's house. Mr Brown paid thecomplainant $200 and then drove him home. In the car on the way back thecomplainant asked Mr Brown to buy him cigarettes. When asked why he would notgo into the shop to get them himself, the complainant replied that he suffered fromsocial anxiety. Mr Brown did not ask any further questions and bought thecomplainant tobacco for roll-your-own cigarettes.[8] There were a further nine occasions involving sexual activity. On eachoccasion, Mr Brown picked up the complainant. Sometime after the first occasion,there was another conversation in which the complainant said to Mr Brown "you thinkI'm 18, but actually I'm 17". The complainant also told Mr Brown that he wascompleting a course at a local technical institute and that he needed money to pay offhis student loan. There appears to have been some discussion about what thecomplainant was learning at this course, and, on one occasion, the complainant worefake fingernails. There were also other conversations in which the complainantdiscussed the age of his mother and brother. He accepted during cross-examinationthat these discussions were designed to make him appear older than he was.[9] The offending came to light when police received information that Mr Brownwas meeting with the complainant for sex. Mr Brown told the police he had beenreceiving text messages from a girl who was accusing him of associating with someoneunder the age of 16.[10] Two charges were laid in relation to the first occasion of sexual activity. Theremaining two charges were representative charges each relating to a type of sexualcontact and covering the other nine occasions of sexual activity.Decisions of lower courtsDistrict Court[11] The trial in the District Court took place before Judge BM Mackintosh on31 January 2020. The Judge delivered an oral judgment at the end of the trial.[12] At the outset of her remarks, the Judge noted that it was not disputed that thesexual acts took place, that they were consensual, and that the complainant was underthe age of 16 years. The key issue in the case was whether Mr Brown could prove thedefence under s 134A of the Crimes Act 1961 and, in particular, whether Mr Brownhad taken reasonable steps to ascertain whether the young person concerned was of orover the age of 16 years.3[13] The Judge acknowledged that Mr Brown had relied on the fact that thecomplainant reported his age as 18 years old on his dating app profile and confirmedthe same to Mr Brown in their messages.4 However, the Judge did not consider itreasonable to place any great weight on what a person said about their age on thedating app. This conclusion was supported by the fact that Mr Brown had himselffalsely reported his age on the app.5[14] Photo evidence of the complainant was also considered by the Judge. Thephoto sent by the complainant to Mr Brown, showing the complainant's face, was notavailable for viewing, and nor were the nudes. However, based on other photos takenof the complainant around that time, the Judge considered the complainant to be aged"anywhere in and around the age of 16, above two years or below two years" and that"the look of him does not, without further inquiry, lend any comfort to an accurateassessment of his age".6[15] The Judge also referred to the complainant's discussion about holding arestricted driver's licence and owning a vehicle that was currently at the "chop shop".3 Crimes Act 1961, s 134A(1)(a).4 District Court judgment, above n 1, at [14] and [20].5 At [20(a)].6 At [20(b)].However, the Judge said there was no evidence that Mr Brown had taken the obviousstep of asking to see the licence.7[16] There were three other interactions that the Judge said should have castsuspicion as to the complainant's true age. Those included the discussion about thepurchase of cigarettes, the complainant's admission that he had lied about his age, andthe fact that the complainant said he was completing a course at a technical instituteand needed money to pay off a student loan.8[17] When all these factors were weighed together the Judge considered thatMr Brown's acceptance of the complainant's statements at face value was notreasonable, especially in light of the significant age gap and maturity differencebetween Mr Brown and the complainant.9 The Judge held that further inquiries werewarranted, and that Mr Brown should have done more than simply rely on his ownobservations of the complainant's appearance and what the complainant told him.10[18] For these reasons, the Judge held that the defendant had not taken reasonablesteps to ascertain whether the complainant was of or over 16 years of age at the timeof their sexual encounters.11 The defence was not proved, and convictions wereentered accordingly.High Court[19] On 12 August 2021 Simon France J considered an appeal brought byMr Brown against his conviction.12 Mr Brown represented himself on appeal. Herepeated the same arguments made at trial relying on the R18 rating of the dating app;the complainant's statements about his age; attendance at the technical institute; andabout having a restricted driver's licence.13 Other matters, not in evidence, were alsoreferred to by Mr Brown but were disregarded by the Judge.147 At [20(c)].8 At [23].9 At [26]–[27].10 At [28].11 At [29].12 High Court judgment, above n 2.13 At [17].14 At [18].[20] The Judge dismissed each of the points made by Mr Brown on appeal. In doingso, he referred to the photos of the complainant which the District Court Judge hadassessed as indicating the complainant's age as anywhere between 14 and 18 yearsold. The Judge considered little weight could be attached to the fact that thecomplainant had a profile on Grindr, given he was obviously a young person.15[21] As to the other matters relied on by Mr Brown, the Judge noted that they wereall statements made by the complainant. The Judge agreed with the District CourtJudge that simply relying on what the complainant said in the circumstances did notdischarge the onus under s 134A of taking reasonable steps to ascertain thecomplainant's age.16 The appeal against conviction was dismissed.17Should leave to bring a second appeal be granted?[22] Section 237(2) of the CPA provides that this Court must not give leave for asecond appeal unless satisfied that the appeal involves a matter of general or publicimportance; or a miscarriage of justice may have occurred or may occur unless theappeal is heard. Mr Brown relies on the miscarriage of justice ground in this case.[23] Mr Brown submits that a miscarriage of justice may have occurred because thelower courts erred in their interpretation of s 134A of the Crimes Act. That sectionsets out a defence to a charge under s 134, and provides:134A Defence to charge under section 134(1) It is a defence to a charge under section 134 if the personcharged proves that,—(a) before the time of the act concerned, he or she hadtaken reasonable steps to find out whether the youngperson concerned was of or over the age of 16 years;and(b) at the time of the act concerned, he or she believed onreasonable grounds that the young person was of orover the age of 16 years; and(c) the young person consented.15 At [22].16 At [23].17 At [25].(2) Except to the extent provided in subsection (1),—(a) it is not a defence to a charge under section 134 thatthe young person concerned consented; and(b) it is not a defence to a charge under section 134 thatthe person charged believed that the young personconcerned was of or over the age of 16 years.[24] Section 134A(1) requires a defendant to prove the three elements set out inparas (a), (b) and (c). The focus of this case was on the requirement in para (a),namely, that before the sexual activity, Mr Brown had taken reasonable steps to findout whether the complainant was of or over the age of 16 years. It was accepted thatMr Brown had taken steps, the key issue was whether those were "reasonable" in allthe circumstances.[25] Mr Brown submits that the District Court Judge misstated the appropriate legaltest and he referred to the following passage in the District Court judgment:18[9] It is not enough to believe that [the complainant] was of age, evenwhere reasonable grounds exist for that belief, this first step requiresdetermination as to what steps, if any, the defendant took to verify thecomplainant's age and whether those steps amount to reasonable verificationin the circumstances. In some circumstances this will call for active inquiryfrom the defendant, and then taking positive steps to verify age, and in others,it may be sufficient to rely on observation of the complainant's appearance,demeanour and conduct. But, basically, the legislative intent behind theprovision is intended to protect young people who may be disposed to portraythemselves as more mature than they are and suggests that it will be an unusualcase in which observation alone is enough.(Footnote omitted).[26] We see no error in this passage. The Judge was simply restating the variouslimbs in s 134A(1) and confirming that it was not enough for Mr Brown to show thathe believed on reasonable grounds that the young person was of or over the age of 16years, but he also needed to show that he had taken reasonable steps to find out whetherthe young person was of or over the age of 16 years.[27] Next, Mr Brown submits that the High Court erred by referring to a textmessage which did not exist. As the Crown accepts, it appears the Judge mistakenly18 District Court judgment, above n 1.referred to a comment by the complainant about being 17 rather than 18 years old asbeing in a text message. In fact, that statement was made in an oral conversation.Nothing turns on this error.[28] Mr Brown also submits that Simon France J erroneously referred to s 141A inhis judgment. The Judge identified the key issue on appeal as arising out of s 134Aand set out the terms of s 134A at the beginning of his judgment. We are satisfied that,read in context, the reference to s 141A was a typographical error and the correctreference was to s 134A. Nothing turns on this minor error either.[29] We are not satisfied that there is a real risk of miscarriage in this casewarranting the grant of leave to bring a second appeal. Mr Brown was aged 56 andthe complainant was 13 when they first made contact on Grindr. We have seen thephotographic evidence on file and agree with the District Court Judge that while it wasdifficult to exactly pin-point the complainant's age, he was clearly a young person.[30] In that context, it was not enough to rely on the R18 rating of the dating app,and the complainant's asserted age in his profile. There were no controls in place toensure that only those over the age of 18 were able to use the dating app, andMr Brown himself had lied about his age when making contact over the app.[31] Nor was it sufficient for Mr Brown to simply rely on the answers given by thecomplainant in response to questions about his age or what he did. It was notreasonable for Mr Brown to unquestioningly accept the complainant's statements thathe was 18 years old, or that his car was in the "chop shop" or that the reason he couldnot buy cigarettes for himself was due to social anxiety. Those were all matterstriggering the need for further enquiry and independent verification.[32] In his submissions before us Mr Brown tried to suggest that in fact thecomplainant had produced a piece of paper to verify his age as 17, rather than 18 yearsold. The suggestion that there was written verification produced at this time (or anyother) was raised for the first time in the oral hearing before us. There is simply noevidence to support this claim. As was made clear in the High Court, thedetermination of the appeal before that Court, and the application for leave in thisCourt, can only be determined on the evidence.[33] To recap, we do not consider there are errors in the lower court judgmentswhich give rise to the possibility of a miscarriage of justice. The threshold for leaveis not met and the application is accordingly declined.Result[34] An extension of time to file the application for leave to bring a second appealis granted.[35] The application for leave to bring a second appeal is declined.[36] Publication of the name, address, occupation and identifying details of thecomplainant are prohibited by ss 203 and 204 of the Criminal Procedure Act 2011.Solicitors:Crown Solicitor, Napier for Respondent