R v Hapakuku [2016] NZDC 14353 (29 July 2016)

Last Updated: 5 August 2020

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF ANY COMPLAINANT(S)/ PERSON(S) UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS [OR NAMED WITNESS UNDER 18 YEARS OF AGE] PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT BLENHEIM

CRI-2015-006-001128

[2016] NZDC 14353

THE QUEEN

v

JAMES PANAPA HAPAKUKU

Date of Ruling:	29 July 2016
Appearances:	S J Revell for the Crown R A Harrison for the Defendant
Judgment:	29 July 2016

RULING OF JUDGE D C RUTH

[1] Before the Court is James Panapa Hapakuku who seeks to be discharged from charges 1 to 4 as are set out in the current charge list.

[2] Those charges are as follows:

R v JAMES PANAPA HAPAKUKU [2016] NZDC 14353 [29 July 2016]

(a) Charge 1, that the defendant did between 1 September and 6 November 2015, at Blenheim and in Picton, an indecent act contrary to the provisions of s 134(3) Crimes Act 1961 with a named complainant who was then a young person under the age of 16 by taking photographs of her feet.

(b) Charges 2, 3 and 4 related to a different named young person. Charge 2 is very much in the same terms as charge 1, but interpolating the name of a different complainant. Charges 3 and 4 allege between the same dates an indecent assault on the second named complainant. The allegation of indecent assault being centred upon the touching of her feet and this is repeated in charge 4 presumably being, however, a separate incident.

[3] There are other charges faced by this man, but it is only the charges 1 to 4 that are currently the subject of this hearing.

[4] The summary of facts which accompanies the file has to be read against the context that the Crown was originally considering a charge or charges of grooming pursuant to s 131B Crimes Act, but that no longer is the case. Rather, the charges as outlined as being charges 1 to 4 are now the focus of the Crown prosecution in this respect.

[5] Bearing that caveat in mind, I record the summary of facts as relating to incidents between Mr Hapakuku who was then a 34 year old male and one school girl who was then aged [under 18] and one perhaps aged [under 15].

[6] The overall factual basis is that in return for items the defendant prevailed upon these girls to allow him to photograph their feet. On two occasions in respect of one of the complainants he went further and positioned the feet differently to facilitate the photographs it is said he wanted to take. It is those acts which are said to be the source of the charges that I have previously referred to. Other charges in the charge list relate to at least part of the incentive, if I can put that way, offered or given to these girls to enable the photography to take place.

[7] The defence have filed an application pursuant to s 147 Criminal Procedure Act 2011. That is very much in the same terms as s 347 was previously couched in the Crimes Act. It required the Court to come to a conclusion, if it can, that no jury properly directed could convict the defendant of the charges he faces on the evidence available. It is common ground that the evidence available must be taken at the point most favourable to the Crown.

[8] Against this background Mr Harrison, on behalf of Mr Hapakuku, has submitted in written submissions upon which he has expanded today, in the following terms. He accepts that in terms of the photography itself, he accepts that that is at least capable of being an act for the purposes of the relevant legislation, but his primary submission is that taking photographs of a person’s feet, whether or not those acts are accompanied by some gratification aspect, could never be said to be indecent in themselves and that consistent with English authority, to which I will refer shortly, the fact that there has been no other identifiable accompanying circumstances of indecency on the evidence in this particular case, mean that this is not a case that should go to the jury.

[9] What he submits is to pose the rhetorical question, is the act of itself indecent? Mr Harrison submits that unlike other cases where there have been some overt acts themselves at least capable of indecent explanation, such as persons kissing or, in one case slapping the buttocks of a young girl, the taking of photographs of feet and indeed manipulating them for the purposes of photography could not be seen in the same light.

[10] Examples that have been given of cases where indecency has been inferred are, for example, Milne v Police [1990] 6 CRNZ 636. In that case two persons where there was a significant age discrepancy engaged in kissing that was non-consensual and unsurprisingly perhaps, with respect, that was considered to be indecent. In that case comparisons were drawn between kissing between persons in the index situation for that case and in the case, for example, of a close relative kissing a young child. The latter aspect without any circumstances of indecency could never be regarded as indecent. It is the case, as Mr Revell for the Crown points out, that circumstances and context no doubt are everything in these cases.

[11] Reference has been made, as I have indicated, to some English authority. In the case of R v Court [1998] All ER 221, reference was made to a case of R v George [1956] Crim LR 52, a somewhat older case. The R v George case is interesting because there there was a similar act, in one sense, where the defendant removed the shoe of a young girl. In that case he admitted that this gave him a kind of perverted sexual gratification. In that case the presiding Justice, Streatfield J, said that he would rule that an assault became indecent only if it was accompanied by circumstances of indecency towards the person alleged to have been assaulted and that in the case he was dealing with, the removal of shoes, in his view could not amount to indecent assault.

[12] This particular set of facts that I am dealing with, does not seem to me to have faced the Courts in any comprehensive way in the past. It is true that there are two cases bearing on this general area and they are found in Crime Appeal 273/91, a decision of the Court of Appeal on 20 December 1991 and the case of R v Annas [2008] NZCA 534. In the Crime Appeal decision the allegation was that the defendant wanted the complainant to pose for photographs. Those photographs involved the complainant being dressed in negligee-type garments and there was clearly a connation of some indecency there because the child’s genital area was, on some occasions, clearly visible. That is an act which unsurprisingly the Court would regard as capable of being indecent and so circumstances there are perhaps less important than they are in some cases. By that I mean the act in the Crime Appeal case has an element of being overtly indecent given that the photography was carried out in the absence of the child’s mother and in circumstances where the appellant in that case was left alone with other children including the complainant.

[13] In Crime Appeal 273/91 reference was made to the English authority referred to above and was quoted with approval. There is a later case, as I have indicated in the Court of Appeal, R v Annas, in which I think it is accepted there was no reference to English authority nor was there a reference even to Crime Appeal 273/91.

[14] The case involving Mr Annas, upon which some reliance is placed by the Crown, refers to a charge which was laid under s 126 Crime Act which requires an indecent Act but accompanied by a mental element of intending offence. At paragraph

43 of that judgment, the Court said that there was a necessity to find firstly, that the act in that case took place, again I note that that was photography of a naked complainant, and that the act occurred in circumstances of indecency in the sense that it will be so regarded generally by right thinking members of the community. I observe that definition is in accordance with the usual understanding of indecency in terms of indecent assaults and other associated criminal offending in terms of the Crimes Act in New Zealand.

[15] I accept that it would not be necessary, in this case, that the accused be proved to have believed or even aware that his act was indecent so long as there were circumstances of indecency. Other aspects of that case are unhelpful because of the accompanying intention that does not appear in the case that I have to deal with.

[16] And so the Court reviewed the directions given by the Judge in the R v Annas case and again repeated that the element that was first to be established was whether the act complained of, in other words the photography itself, took place. Secondly, that the act be proved to have been indecent as measured by reference to the members of the community represented by the jury.

[17] In the course of the argument I note that there was some reference to an English case of R v Graham-Kerr [1998] 1 WLR 1098 11. There the charge involved the indecent photography of a seven year old boy. There the focus of the case was the parents knowledge of the photography, but there again there was at least some indication, when the appellant in that case spoke to police, that he found the boy particularly attractive and received sexual gratification by taking or looking at such photographs. That was evidence that was clearly admissible and found so to be in the determination of indecency in that case.

[18] Reference was made in the same area of this decision to the case of R v Court that I have previously referred to and the Court of Appeal in the R v Annas case drew a distinction between what had happened in the R v Graham-Kerr case and the R v Court case. The R v Court case is the one where the shop assistant took a young 12 year old girl and spanked her bottom on the outside of her shorts. When he was asked by police why he had done that, he said he had “a buttock fetish”. It was that

evidence which was allowed in that enabled the Court to consider whether there were circumstances of indecency. Interestingly, there the minority decision indicated that if there was no ability for the prosecution to establish that an assault is objectively indecent, it could not fortify its case by calling evidence of a secret intent on the part of the defendant.

[19] It seems to me the test in New Zealand is firstly, whether the act took place and secondly, whether it was accompanied by circumstances of indecency.

[20] Mr Harrison points out that in this case the Crown is not assisted by there being no evidence of the photography involved. On one level it might be said there is no evidence that there was any photography except the presence of a cellphone that may have been capable of taking photographs, but unlike in other cases, there is no photograph from which it can be determined just what it was that was being photographed. Here, I think, one could go no further on the evidence that I have, than saying that there is at least a possibility that there was photography of a young girl’s feet.

[21] The Crown here wants to rely on some evidence that this defendant, Hapakuku, has some fetish about feet and indeed it does seem that there is some evidence in which Mr Hapakuku has engaged in some sexual activity involving the feet of females being manipulated around his genital area obviously for sexual gratification. I am unsure whether that evidence would be admissible but Mr Revell invites me to the view that whether that evidence is admissible or not, I should concentrate on whether one can really say that the acts that I have to deal with in this case could never be indecent. That is perhaps a long bow to draw. Any act, if it is accompanied by circumstances of indecency may well be rendered indecent no matter what part of the body is being spoken of.

[22] The reality remains that, of course, the closer to any accepted erogenous zone activity is carried out, the easier it may be to infer indecency. This is particularly so where the photography involved has been of a clearly naked person or where the genitalia is exposed and visible, or where the act where indecent assault is charged,

does have at least the possibility of some sexual connotation depending again on circumstances.

[23] It is apparent from the various authorities surrounding either s 147 or s 347 as it previously was, of the Crimes Act, that the Court can be faced with two separate situations. One which is perhaps easier to deal with is the situation where there is simply no evidence and so, of course, it would not be usurpation of the jury’s function for a Judge to remove that from the jury’s consideration. Indeed, it might be said that that would be expected of the judicial officer.

[24] The second circumstance, as was referred to in the case of Paris v Attorney General [2003] NZCA 400; [2004] 1 NZLR 519 is the situation where there is some evidence, but the Court becomes involved in a decision as to whether, if there was a verdict of guilty on that evidence, would that verdict sustain analysis in a different jurisdiction? In other words, is the verdict a safe verdict based upon that evidence? And that is the way in which I think I should look at this matter.

[25] Mr Revell makes the submission that acts between adults that might never be considered indecent might nonetheless take on an indecent mantle depending on the particular circumstances where they are carried out with a child and I accept that, as a general proposition, that must be so.

[26] So Mr Revell in this case invites me to look at the location, the age disparity, the fact that there was some consideration, as it were, offered to these girls for the activity that then followed. But on the other hand, Mr Harrison says, well, there is simply no evidence of any sexual connotation. That a fetish for a particular part of the body might, in some circumstances, have a sexual connotation but in others not. But his main concentration here is on the act itself. He says that in the absence of any other evidence that accompanied the acts at the time, that would indicate circumstances of indecency, that there cannot be any label of indecency attached to what the evidence discloses happened with these two girls.

[27] If I may be allowed to paraphrase that submission this way, Mr Harrison really says that while Mr Hapakuku might raise suspicions that that is the highest extent of

the current Crown evidence, and as is well-known, suspicion can never be elevated to proof beyond reasonable doubt. That, of course, can further be paraphrased by saying that a jury properly directed could not safely conclude that this man is guilty of the offences, given what has to be proved here.

[28] I am troubled, I must say, by this case and it may be that some higher authority than me needs to address all of this, but I cannot help but feel that on the bare bones of this case, that bearing in mind we have only an allegation that some photography took place, in the absence of evidence of such photography, by reason of there being no photographs available, there being no evidence that I can see of any accompanying act, which would indicate circumstances of indecency albeit that the photographs, if they were taken at all might well have been taken for some later nefarious purpose, does not seem to me to be a case where there is sufficient evidence to allow a jury directed on these various matters, to properly conclude that guilt could be inferred here. And for those reasons, both as to charges 1 and 2, and 3 and 4, although they have a slightly different flavour, I find that this case is not one that can go to a jury. I do not regard this as evidence upon which the jury could properly reach verdicts of guilty on the evidence as I understand it to be.

[29] On that basis, charges 1,2, 3 and 4, as the Crown concede, if I make this ruling, should be dismissed or discharged pursuant to s 147. In the circumstances, having discussed the matter with Mr Harrison who does not required his client to be here, my understanding being that so long as the decision is given in open Court, there is not a necessity in fact for the defendant to be present, I now rule, pursuant to s 147 Criminal Procedure Act that charges 1,2, 3, and 4 in the Crown charge list now be discharged.

D C Ruth

District Court Judge