R v Rowe [2016] NZDC 19786 (6 October 2016)

Last Updated: 11 December 2017

IN THE DISTRICT COURT AT NELSON

CRI 2016-042-000149 [2016] NZDC 19786

THE QUEEN

v

_{GRAHAM THOMAS ROWE}

Hearing:	5 October 2016
Appearances:	SJ Revell for the Crown KW Jones for the Defendant
Judgment:	6 October 2016

RESERVED JUDGMENT OF JUDGE S M HARROP

AS TO DEFENDANT'S S 147 APPLICATION AND CROWN'S

_{APPLICATION FOR ADMISSION OF PROPENSITY EVIDENCE}

Introduction

[1] Mr Rowe faces a charge under s 126 of the Crimes Act 1961 of doing an indecent act with intent to insult. The allegation is that on 23 January 2016 at Kaiteriteri Beach he took photos of teenaged girls dressed in bikinis. There are two pre-trial applications.

[2] Mr Rowe has applied for a discharge under s 147 of the Criminal Procedure Act 2011 on the basis that what he did, which is not disputed, did not or could not amount to doing an indecent act; accordingly a properly-directed jury could not reasonably find the charge proved. The Crown opposes the application.

[3] In the second application, which need not be considered if the first is successful, the Crown applies for admission of propensity evidence at Mr Rowe’s trial. Mr Rowe was spoken to at the same beach on 19 December 2012 about very similar conduct. He was told by the Police that his conduct was inappropriate and he was trespassed from the beach for two years. The Crown says this evidence is admissible to assist with proving that Mr Rowe could not have had an honest belief that what he did in 2016 did not have potential to insult or cause offence. Mr Rowe opposes this application.

The s 147 application

[4] The offence under s 126 consists of two distinct elements. The first is whether what was done is an indecent act. That is a purely objective question to be answered by what the jury assesses to be the standards of the right-thinking members of the community. The second is whether the defendant intended to insult or offend which is an entirely subjective question.1

[5] Mr Jones submits, and indeed Mr Rowe himself asserted when spoken to by the Police, that taking photographs from some distance of young girls on a public beach dressed in bikinis could not be considered an indecent act. The girls can have had no expectation of privacy which was contravened by taking photographs in these circumstances. There is no suggestion that any of the photographs depicted anything less than the whole of a girl’s body. I was not shown the photographs but proceed on that basis.

[6] Whether an act is indecent or not must of course be judged in context having regard to the place, the time and the overall circumstances. An act may be indecent in some circumstances but not in others.

[7] The particular facts alleged by the Crown here are that about 9:40 am on Saturday 23 January 2016 Mr Rowe was seen crouching down hiding behind his “Wicked” campervan. He was holding a camera which had a fully-extended zoom

_{lens. It was being pointed towards three girls, around 15 to 16 years old, who were}

1 See R v Annas [2008] NZCA 534 at [56].

wearing bikinis. Mr Rowe was about 30 metres away. He then moved to a concrete seat and bench area and continued to take photographs. This was observed for about five minutes by an off-duty police constable to whom it appeared that in the second phase of the incident Mr Rowe was taking photographs of the same three girls. By then they had crossed the estuary and were standing on the far side.

[8] Constable Littlewood approached Mr Rowe and identified himself saying that he wanted to talk to him in relation to taking photographs of the young girls. Mr Rowe in turn identified himself and immediately acknowledged that he had been taking photographs of the girls and stated that there was nothing wrong with doing so. He did not reply when asked why he was taking photographs while hiding around vehicles if as he suggested there was nothing wrong with what he was doing. He accepted that he had not obtained the permission of either the girls or their parents to take photographs. He agreed to show the officer the photographs and said that he would delete them. The camera was seized to prevent images from being deleted.

[9] Constable Littlewood went to a nearby café, contacted Police currently on shift, then returned to speak to Mr Rowe who was waiting in his campervan parked in the carpark near the estuary. He invited the officer inside. The constable noted that Mr Rowe had three electronic devices including a notebook which he was using. He was asked whether he had any images downloaded onto his device of young girls. Mr Rowe said that he did and had listed these alphabetically under a folder labelled “Girls”. The officer noticed there were several images of pre-teen and teenage girls, all apparently taken without their knowledge. Mr Rowe said he had taken these all over New Zealand. The notebook was also seized but ultimately no other charges have arisen from an examination of it.

[10] When Mr Rowe was spoken to by Constable Colville later that morning he said after cautioning that he did not deny that he takes photographs of girls and that if he thought it was an offence he would not do it. He said that he takes some of the shots for use in a travel book that he has been working on since 2002 but sometimes they were simply taken for his enjoyment. He accepted he had been in trouble with the Police over this sort of thing, including being arrested in 2003 in Dunedin.

[11] On the question of obtaining consent from the girls or their parents Mr Rowe said he did not think it was required as people take photographs at the beach all the time without asking. When it was suggested it was common decency to ask people you wish to photograph and the parents of young children for permission, Mr Rowe said he did not think it was required as there was nothing sinister.

[12] Mr Rowe also acknowledged that he had been trespassed from Kaiteriteri Beach previously for the same conduct which he said was very inconvenient for his book.

[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. 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 publically 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.

[14] Mr Jones referred me to a recent decision of Judge Ruth in R v Hapakuku [2016] NZDC 14353 given in the Blenheim District Court. Mr Hapakuku, aged 34, had prevailed upon two school girls, aged around 17 and 13 respectively, to allow him to photograph their feet. Judge Ruth discharged the defendant on four charges alleging an indecent act under s 134(3) of the Crimes Act. The first two charges related to the photographing, the other two to touching of the feet in question.

[15] His Honour upheld the defence submission that the act of photographing a girl’s feet could not in the circumstances be said to be indecent. After reviewing relevant authorities Judge Ruth concluded that it needed to be determined first

whether the act took place and second whether it was “accompanied by circumstances of indecency”. The evidence there did not extend to proof that photographs had actually been taken, merely that a cellphone capable of taking photographs had been present. The Judge accepted however that there was at least a possibility that photography of the young girls’ feet had occurred.

[16] As Judge Ruth noted, the closer to any erogenous zone the act is carried out the easier it is likely to be to infer indecency. Ultimately Judge Ruth concluded that there was no evidence of any accompanying act indicating circumstances of indecency, even if it was possible that the photographs if taken might have been used later for a nefarious purpose.

[17] Mr Jones urges me to take a similar approach in this case and to discharge Mr

Rowe.

[18] Mr Revell submits that Hapakuku is distinguishable particularly because taking photographs of young girls in their bikinis arguably involves a more obvious sexual element than does photographing only a girl’s feet. Further, whereas there was consent from the girls in Hapakuku, here Mr Rowe took photographs without the knowledge and therefore without the consent of the girls and at least initially in a covert manner.

Discussion

[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.

[24] While Mr Rowe denies any intention to insult or offend, Mr Jones did not suggest there was insufficient evidence for a jury to find that was present; the application was based on proof of the first element being absent.

[25] For these reasons I dismiss Mr Rowe’s s 147 application.

The Crown’s Propensity Application

[26] On 19 December 2012 Sergeant Crawford and Constable Bower were called to an incident at Kaiteriteri Beach. Mr Rowe was spoken to and freely admitted that he had been taking photographs of females on the beach but said that he was doing nothing wrong. He admitted that he took numerous photos of young girls and said that they were in a public place and that there was no expectation of privacy. When his history was checked he admitted that he had been arrested for doing the same thing outside a school in Dunedin. I note at this point that the Crown does not seek to lead that aspect of Sergeant Crawford’s evidence, fairly acknowledging that the prejudice associated with evidence being adduced of offending outside a school would exceed any probative value.

[27] Sergeant Crawford looked at the photographs on the camera but was unable to match any of them with anyone on the beach at the time. Mr Rowe told the officers he had an anxiety disorder and that when he gets anxious he does this sort of thing and only takes pictures of young, slim females.

[28] Sergeant Crawford orally trespassed Mr Rowe from Kaiteriteri beach for a period of two years.

[29] The Crown seeks to lead evidence of the 2012 incident and the trespassing of Mr Rowe on a limited basis. Given Mr Rowe’s reaction when apprehended in 2016 (and indeed in 2012) the issue at trial will not be identity or any dispute about the conduct itself. Mr Rowe’s defence it appears will be that he did not honestly believe his conduct had the potential to insult or offend and that therefore he lacked the intention which the Crown must establish in order to obtain a conviction.

[30] In R v Annas the Court of Appeal confirmed that it is not necessary for the Crown to prove that the defendant intended to insult or offend the complainant in the sense that he would upset her at the time. An intent to insult or offend may be inferred if the tendency of the act would be to insult or offend. What must be

established is whether the defendant intended to insult or offend the complainant’s dignity, her right to modesty or privacy by [taking photographs] in the particular circumstances. The complainant need not have been insulted or offended at the time or indeed aware of the act at all. However, the Crown must also establish beyond reasonable doubt that the defendant did not honestly believe that his conduct did not have the potential to insult or cause offence; if the jury thinks it is reasonably possible he did so believe then he must be acquitted.

[31] Mr Revell submits that it is directly relevant to the Crown’s proof of that element that whatever he may have previously thought, Mr Rowe from the time of the 2012 incident and trespassing must have known that, at least in the opinion of two Police officers this kind of conduct was objectionable i.e. that it had the potential to insult or offend.

[32] Mr Jones submitted that there was insufficient linkage or coincidence between the two incidents especially having regard to the gap of more than three years between December 2012 and January 2016.

[33] In my view the evidence of the 2012 incident and trespassing does have probative value in relation to the issue of intention which will obviously be the key issue at trial. Mr Rowe must have known as a result of that experience that, contrary to his asserted view, two responsible members of the community considered this kind of conduct inappropriate in the circumstances to the extent of trespassing him for two years from the public place where it occurred; he was not merely warned. That makes it less likely that he could honestly have believed that his conduct in

2016 did not have the potential to insult or offend.

[34] There is also limited, if any, material prejudice in the earlier incident being recounted, especially allowing for appropriate judicial directions. It was no more serious than the present incident and no charge was laid, let alone was there a conviction. Both in 2012 and in 2016 Mr Rowe is recorded as claiming that he had done nothing wrong. There is therefore no impact on his proposed defence. He will be able to say through submissions of counsel and/or in evidence that he did nothing

wrong on either occasion and was wrongly trespassed in 2012 and wrongly charged in 2016.

[35] Given the particular and limited use which the Crown wishes to make of this evidence I think it is debatable that it is properly described as propensity evidence at all. Rather, it is effectively background or narrative evidence which is relevant to show the state of mind the defendant had in 2016, as informed by his experience in

2012.

[36] The evidence is not sought to be led to show he has a tendency to act in a particular way or to have a particular state of mind. I therefore consider its admissibility is not governed by s 43 but rather by s 8 of the Evidence Act. I am satisfied in terms of that section that the probative value of the evidence is outweighed by the risk that the evidence would have an unfairly prejudicial effect on the trial. I have reached that conclusion taking into account Mr Rowe’s right to offer an effective defence. As I have said it is on analysis evidence which arguably has no material prejudice or impact on an effective defence in the particular circumstances of this case. In case I am wrong about the evidence not being propensity evidence, then I would have reached the same conclusion on the application of the test in s

43(1).

[37] This is a case where at trial I would not expect the trial Judge to be required to give a standard propensity evidence direction because the evidence is not being led on a coincidence or linkage basis as is commonly the case. However a direction as to the limited use to which the evidence may properly be put would certainly be appropriate. The content of that of course is a matter for the trial Judge in light of the evidence as given at trial.

[38] For these reasons I grant the Crown’s application for the admission, in the manner least prejudicial to Mr Rowe, of evidence relating to his similar conduct and consequent trespassing in 2012 from Kaiteriteri Beach.

S M Harrop

District Court Judge