Diffin v Police [2012] NZHC 2283 (5 September 2012)

Last Updated: 12 September 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-470-11 [2012] NZHC 2283

BETWEEN LEONARD GEORGE DIFFIN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 20 July 2012

Counsel: N Dutch for Appellant

N G Belton for Respondent

Judgment: 5 September 2012

_{JUDGMENT OF HEATH J}

This judgment was delivered by me on 5 September 2012 at 4.00pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Tauranga

Counsel:

_{N Dutch, Tauranga}

DIFFIN V NEW ZEALAND POLICE HC TAU CRI 2012-470-11 [5 September 2012]

Introduction

[1] Following a defended hearing in the District Court at Tauranga, Mr Diffin was found guilty on two charges of making an intimate visual recording and not guilty on two others.1 He was sentenced to 200 hours community work.2

[2] The two charges on which Mr Diffin was found guilty related, respectively, to

video recordings made at Mr Diffin’s home that depicted:

(a) a form of intimate physical activity being undertaken between Mr

Diffin and his then partner, and

(b) an elderly lady’s breasts, albeit substantially covered by clothing. [3] Mr Diffin appeals against conviction and sentence.

Grounds of appeal

[4] On the conviction appeal, Mr Dutch, for Mr Diffin, advanced three grounds: (a) In relation to the charge involving Mr Diffin’s former partner:

(i) The Judge erred in finding that the prosecution had proved beyond reasonable doubt that the activity was filmed deliberately, rather than accidentally. Accidental filming is not an offence.

(ii) The Judge was wrong to find that the recording had not been

_{“manipulated” in some way by police officers so as to make}

1. Police v Diffin DC Tauranga CRI 2011-070-2390, 16 February 2012 (Judge Wolff). The charges were laid under s 216H of the Crimes Act 1961; set out at para [27] below.

2 Police v Diffin DC Tauranga CRI 2011-070-2390, 27 February 2012 (Judge Wolff).

the recording appear to have been made deliberately, when it was not.3

(b) In relation, to the charge involving the elderly lady, as a matter of statutory construction, s 216G(1)(b)(i) of the Crimes Act 1961 (the Act) only prohibits video images that are taken from a position below the area of the breasts. This point has its genesis in the statutory expression that the subject of the recording must be “from beneath or

under”.4

[5] Before the appeal was heard, Mr Diffin sought an adjournment to enable further inquiries to be undertaken into the alleged manipulation of the videotape. He had, earlier, been granted an adjournment for that purpose. At that time the hearing scheduled for 27 April 2012 was vacated and the appeal adjourned to 20 July 2012.

[6] Mr Diffin maintains that he has not had sufficient time to undertake necessary inquiries; he had just located an expert who, he suggested, was able to ascertain whether there had been any manipulation of the videotape. His views, in that regard, were set out in an affidavit that he swore in support of his application for an adjournment. At the hearing of the appeal, I heard evidence from Mr Diffin on the issue whether further evidence could be adduced on appeal, in any event. I then reserved that question. I said that if I were to find that such evidence could be adduced and it could have a material bearing on the outcome of the appeal, I would allocate a further hearing for those issues to be explored. That has not proved to be

necessary.5

[7] Subsequent to the hearing Mr Diffin sent to the Registrar a lengthy letter in which he complained that his counsel had not put matters before the Court on appeal that he wished to raise.6 He indicated that he did not hear or see well and, for that reason, did not appreciate that all points he wished to put forward had not been

_{advanced. I responded by forwarding a copy of his letter to counsel and indicating}

3 _{This point was raised at the defended hearing but the Judge found against Mr Diffin on it.}

4 _{Section 216G(1)(b)(i) is set out at para [28] below.}

5 _{See para [40] below.}

6 See paras [38] and [41] below.

that I would deal in this judgment with any issues arising out of Mr Diffin’s letter

that should properly be the subject of comment.

The District Court judgment

[8] The hearing of the charges took place over two sitting days on 20 January and

15 February 2012, before Judge Wolff. On 16 February 2012, His Honour gave an oral judgment.7 His Honour found that two charges had been proved beyond reasonable doubt. Two other charges were dismissed.

[9] The four charges with which Judge Wolff dealt all arose out of the filming of moving images. Two were taken on a video camera; the other two had been recorded on a cellphone. The Judge found that the prosecution had not proved beyond reasonable doubt that the photographs taken on the cellphone infringed against s 216H.

[10] The Judge dealt first with the allegation that Mr Diffin had deliberately made a visual recording of his intimate contact with his former partner, without her knowledge or consent. The Judge held that it was necessary for the prosecution to prove that Mr Diffin made the recording intentionally, in a place at which the complainant would reasonably be expected to believe was private and that the images involved intimate sexual activity.8 The critical issue was whether the recording had been made intentionally.

[11] Mr Diffin claimed that the image had been recorded unintentionally while he was operating a concealed recording system in his lounge to capture his son’s behaviour. Mr Diffin contended that was done on the advice of a psychologist “who had told him that that would be helpful and if it were done in a way that no-one realised the video was being taken”.9 The psychologist was not called to give

_evidence.

7 _{Police v Diffin DC Tauranga CRI 2011-070-2390, 16 February 2012 (Judge Wolff).}

8 _{Ibid, at para [6].}

9 Ibid, para [7].

[12] The Judge found that the images had been recorded deliberately. After rejecting any suggestion of misconduct on the part of the Police,10 the Judge expressed his reasons for holding that an intentional act had been proved beyond reasonable doubt. Judge Wolff said:

[14] The only element that requires then to be resolved is the first element, namely whether this was intentionally recorded by Mr Diffin. The video shows Mr Diffin starting the video and staging the furniture – moving the couch for it to be in the centre of the picture. The video camera is concealed in a stereo cabinet. Each of the two lights which would, if the video were recording, be lit and would betray its existence, has been covered with black masking tape.

[15] I infer that both pieces of black masking tape were placed on the video camera by Mr Diffin. His explanation is that the camera was bought second hand and that the front piece of masking tape, that faced out of the cabinet, had always been on the camera and he had not moved it. He said the second piece of tape, that covered the upward facing light, must have been placed there by the police.

[16] I am satisfied that the photographs show, and that the police officers correctly record, how the video camera was found at the time it was found at his address. Both those lights were covered and that it was designed to be a surreptitious videoing.

[17] That does not resolve the issue, of course, because Mr Diffin says that he did in fact intend to surreptitiously video the behaviour of his son. That the purpose of having the lights covered and the video concealed was so that his son would not play up on the video. He did not tell any of the other persons, who inadvertently appear in the various videos, about the fact because he did not want them to know either in case their behaviour was altered and that effected the son’s behaviour.

[18] I reject that and I form the view that the reasons for concealment of the video, the hiding of the lights and the other matters I have mentioned, was to enable this present video, that I am discussing, to be taken.

...

[20] Having objectively considered the evidence I am satisfied, beyond reasonable doubt, that Mr Diffin deliberately made the recording without [his former partner’s] consent of an intimate act which she had reason to expect her privacy to be preserved. I am, accordingly, satisfied that the first information relating to her has been proved and on that charge a conviction will be entered.

_{[13] On the charge involving the elderly lady, the Judge said:}

10 Ibid, at para [10].

[37] To prove these charges the police must establish, beyond reasonable doubt, that the camera photos were taken deliberately without [her] knowledge; that they show female breasts and that the breasts are shown, under or beneath a person’s clothing, in circumstances where that person might expect a degree of privacy.

[38] I am satisfied that the expression in the Act which defines the type of image, and for relevant purposes I summarise: “A visual recording that is made in any medium using any device without the knowledge or consent of the person who is the subject of the recording and the recording is of breasts, which is made from beneath or under a person’s clothing or through a person’s outer clothing in circumstances where it is unreasonable to do so”. [Section 216G(1)(b)(i) of the Act] is plainly the one that relates to “or beneath or under” a person’s clothing.

[39] That expression “or beneath or under” relates to the clothing and not the photographer or the camera. I raise this because these photos were taken from above and downwards. Plainly the Act would have no meaning if privacy was not protected, for instance, from above and only pictures taken from below fell within the ambit of the Act.

[40] Whilst the section is not easy, initially, to understand plainly the “beneath and under” relates to the clothing in the section and I am satisfied that these photographs taken from above do meet the criteria.

Conviction appeal: Analysis

(a) The charge involving Mr Diffin’s former partner

[14] At the District Court hearing, a disk was played in which the Police had compiled relevant images. I had the advantage of seeing another recording, dubbed “Oasis”, in which the visual image appears.

[15] It is clear that what occurred before and after the relatively short recording of activity on the couch, in which Mr Diffin places his hand inside the thigh of his former partner’s exposed legs, represents by far the most extensive part of the recording. There are different types of images either side of the intimate activity. Although the one before shows Mr Diffin setting up the camera in a concealed place, the clothing that he is wearing is different to that shown in the recording of the activity with his former partner.

[16] Judge Wolff did not accept Mr Diffin’s explanation of why video recordings

were being made in the lounge area from a camera that was concealed and masked

directly opposite the couch. He characterised Mr Diffin’s evidence as “an elegant reconstruction at best”.11

[17] Other evidence was led about video recordings of other people in the lounge area. While they do not establish any propensity for Mr Diffin to record intimate activity, they do provide a solid foundation for the proposition that Mr Diffin was in the habit of using a concealed video camera, directed at a couch in his living room, to record images of people present, without their knowledge or consent. That being so, the issue is whether in respect of the particular recording in issue, the Police excluded the reasonable possibility that the recording had been made accidentally.

[18] Virtually all of the activity captured on “Oasis” is of a non-sexual character. Part depicts a children’s party, another shows Mr Diffin setting up a camera aimed at the couch in his living room, there are scenes in which Mr Diffin’s son and his partner’s daughter are in the living room and an occasion where a table was set up for Mr Diffin’s son to eat. The brief excerpt of intimate activity occurs between two discrete parts of the visual images.

[19] Mr Dutch submitted that it is not possible to conclude that the images depicting Mr Diffin setting up the camera were linked to an intention to film sexual activity with his partner. The circumstances described earlier,12 Mr Dutch submitted, do not support an inference of an intentional recording. However, that part of the Judge’s decision dealt only with an intention to conceal the camera from those who were intended to be photographed, something that is clear from a later part of the

judgment in which Judge Wolff rejected Mr Diffin’s explanation that he intended

only to film surreptitiously the behaviour of his son.13

[20] Mr Belton, for the Police, accepted that the colour of Mr Diffin’s clothing changed between the occasion on which he was setting up the camera and the intimate activity. Nevertheless, he submitted that it was open to the Judge to infer

_{from the masked camera, its concealment in the cabinet, its focus on the couch and}

11 _{Ibid, para [27], see also para [18] of Judge Wolff ’s decision at para [12] above.}

12 Police v Diffin DC Tauranga CRI 2011-070-2390, 16 February 2012 at para [14], set out at para

_{[12] above.}

13 Ibid, at para [17], set out at para [12] above.

its apparent aim at the level of a crotch to infer that the intention was not to record the behaviour of Mr Diffin’s son. Mr Belton submitted that the images on which the charges were based demonstrated voyeuristic filming, even though it is clear that Judge Wolff did not base his decision on propensity evidence.

[21] The issue is whether the prosecution has proved beyond reasonable doubt that the camera was set-up to record intimate activity of the type to which ss 216H and

216G refer.14 Even if Mr Diffin’s explanations were rejected, it would still be

necessary to prove beyond reasonable doubt, from the balance of the available evidence, that there was an intention to film this activity. An inference can only be drawn from the information gathered from the images themselves as the partner was unaware that the recording had been made and no other person could give evidence of the circumstances in which the camera was set up or used. That approach enables me to uphold Judge Wolff’s conclusion that Mr Diffin’s explanation was nothing

more than “an elegant reconstruction”15 or “fanciful”16 while requiring a focus on the

remaining pool of available evidence to determine whether the prosecution case had been proved beyond reasonable doubt. Once Mr Diffin’s evidence is rejected, I am in as good a position as was the trial Judge to determine whether the relevant inference was open.

[22] The standard of beyond reasonable doubt is a high one. In the context of jury directions, the Court of Appeal has emphasised the need to explain that it is not enough to consider that an accused person probably committed the offence.: see R v Wanhalla.17

[23] I have no doubt that Judge Wolff, a very experienced District Court Judge, was alive to the nuances of the directions set out in the judgment of the majority in Wanhalla. However, on a review of the evidence, I consider that an intention to film

_{the intimate activity with Mr Diffin’s partner cannot be inferred beyond reasonable}

14 _{Sections 216H and 216G are set out at paras [27] and [28] below.}

15 _{Police v Diffin DC Tauranga CRI 2011-070-2390, 16 February 2012 at para [27].}

16 _{Ibid, at para [29].}

17. R v Wanhalla [2007] 2 NZLR 573 (CA) at paras [48] and [49]. (William Young P, for himself, Chambers and Robertson JJ).

doubt. In that regard, the observations of the Court of Appeal, on the topic of inferences, in R v Puttick18 are instructive:

Inference is simply one of the mental processes which may be used by a jury in carrying out its primary task of assessing the evidence and deciding whether or not it establishes the guilt of the accused beyond reasonable doubt. Where the charge has several essential elements, proof of guilt necessarily involves proof of each of those elements to the same standard. It does not, however, require proof beyond reasonable doubt of every fact which may be relevant to proof of each essential element.

. . .

The extent of directions on inferences, as on any topic, will vary according to the significance of that topic in the particular case. In the present case the only significant inference the jurors were called upon to consider was as to the accused's state of mind and knowledge that the goods were stolen when he received them. This being an essential element of the offence, they were correctly directed they must be able to infer that fact beyond reasonable doubt.

. . . .

[24] Mr Belton sought to support Judge Wolff’s inference of intentional filming by reference to the factors to which I have already referred.19 In my view, the images of other women recorded in different ways was not probative of whether the particular images of the intimate activity with his partner were recorded intentionally. Whatever might have been the explanation for the concealment of the video camera, the fact is that the intimate activity forms a very small part of the overall filming that was undertaken. In those circumstances, I do not consider the factors to which Mr Belton referred and on which Judge Wolff relied were sufficient to infer an intention

to film. This was a case in which the “intention” to record the visual images was an element of the offence, so that it was necessary for the Judge to be satisfied beyond reasonable doubt that the inference could be drawn.20

[25] With respect to Judge Wolff, I consider that his reliance on concealment of the video camera, the hiding of the lights and the circumstances in which the images

_{were taken}21 _{were not sufficient to form the basis of an inference that an element of}

18 _{R v Puttick (1985) 1 CRNZ 644 (CA).}

19 _{See para [20] above.}

20 _{See R v Puttick (1985) 1 CRNZ 644 (CA) at 647, set out at para [23] above.}

21 Police v Diffin DC Tauranga, CRI 2011-070-2390, 16 February 2012 at para [18], set out at para

[12] above.

the offence had been proved beyond reasonable doubt. In those circumstances, the appeal against conviction on this charge must succeed, with the consequence that the relevant information is dismissed.

(b) The images of the elderly woman

[26] In order to capture the images of the elderly woman’s breast area, it was necessary for the video camera to be pointing downwards, over the shoulder of the complainant who was either sitting in a chair or bending forward. The images depict part of her breasts, even though she was wearing a top. The legal issue is whether the capture of video images in that way offends against s 216H of the Act.

[27] Section 216H provides:

216H Prohibition on making intimate visual recording

Everyone is liable to imprisonment for a term not exceeding 3 years who intentionally or recklessly makes an intimate visual recording of another person.

[28] The term “intimate visual recording” is defined in s 216G. Relevantly, for present purposes, it provides:

216G Intimate visual recording defined

(1) In sections 216H to 216N, intimate visual recording means a visual recording (for example, a photograph, videotape, or digital image) that is made in any medium using any device without the knowledge or consent of the person who is the subject of the recording, and the recording is of—

...

(b) a person's naked or undergarment-clad genitals, pubic area, buttocks, or female breasts which is made—

(i) from beneath or under a person's clothing; or

....

[29] Mr Dutch’s argument is that the definition of “intimate visual recording” requires filming or photography of female breasts to be undertaken from “beneath or under” a complainant’s clothing before an offence is committed. This argument was also put to the District Court Judge. He rejected it, on the basis that the section is

aimed at visual recording without the knowledge or consent of a complainant of (in this case) her breasts, even when she is wearing clothing.22

[30] Mr Dutch submitted that the interpretation of s 216G(1)(b)(i) for which he contended was consistent with the policy underlying the offence. He contended that it was necessary to consider where people expect to be observed from when they go out in public. The normal place, he suggested, was from head height, as that was where people’s eyes were located. He submitted that people ought to dress in a manner appropriate for being observed from above or directly in front. As he put it, people “do not dress on the basis that others will be lying on the ground looking upwards” and “women’s clothing in particular is designed” on that basis.

[31] Mr Dutch submitted that the section was designed to make filming from underneath a woman’s skirt unlawful but was not intended to prevent filming from in front or above because that was the angle from which that people expected to be observed. He contended that filming of that type was not prohibited. In making that submission, Mr Dutch differentiated the terms “under or beneath”23 from “above or in front”.

[32] Mr Belton submitted that the section was intended to cover this type of situation. He contended that “the legislation would be illogical” if it were given the interpretation for which Mr Dutch contended. Mr Belton submitted that there was “no logical reason why voyeuristic images taken from below would be an offence, but those taken from above would not”.

[33] Mr Belton referred me to the Explanatory Note to the Crimes (Intimate Covert Filming) Amendment Bill, which ultimately enacted ss 216H and 216G, in their present form.. Under the heading “General policy statement” the Explanatory

_{Note stated:}24

22. Police v Diffin DC Tauranga CRI 2011-070-2390, 16 February 2012 at paras [37]–[40], set out at para [13] above.

23 _{Crimes Act 1961, s 214G(1)(b)(i).}

24. The definition of “intimate visual recording” in s 216G has not been amended from that set out in cl 3 of the Crimes (Intimate Covert Filming) Amendment Bill.

Intimate covert filming is the making of a surreptitious visual record of another person in intimate circumstances without the person’s consent or knowledge and in circumstances that the person would reasonably expect to be private. It robs individuals of the freedom to choose how they present themselves to others. Because they do not know they are being filmed they cannot adjust their behaviour to minimise the intrusion and control how they are viewed. Surreptitious filming reduces people to the objects of another’s gaze and if the images are distributed, particularly on the Internet, the subjects become the objects of many people’s gazes. Often the filming involves parts of the body only, which intensifies the objectification of human beings for others’ gratification.

...

Intimate visual recording is defined in the Bill. It means a visual recording taken without the knowledge or consent of the person who is the subject of the recording, and the recording is of a person who is in a place which, in the circumstances, would reasonably be expected to provide privacy, and that person is –

naked, or has the sexual parts of his or her body exposed or partially exposed, or clad solely in undergarments; or

engaged in intimate sexual activity; or

engaged in showering, toileting, or other personal bodily activity that involves dressing or undressing.

Intimate visual recording is also defined to mean a visual recording taken without the knowledge or consent of the person who is the subject of the recording, and which is taken beneath or under a person’s clothing (“up- skirt” and “down-blouse” filming), or through a person’s outer clothing in circumstances where it is unreasonable to do so, for the purpose of viewing intimate areas of that person’s body or underwear.

(Emphasis added)

[34] There is no authority dealing with interpretation of this section that is binding on this Court. The particular images in question are ones that have been taken of the elderly lady seated on a couch or bending over, with the cameraman looking downwards towards her breasts. The camera captures the top of the breasts, underneath the lady’s exterior clothing.

[35] Although the wording of s 216G(1)(b)(i) is somewhat infelicitous, the overall intention of the section is to ensure that a person does not have these types of images taken in circumstances where they are in no position to consent.

[36] I agree with Judge Wolff25 that the images depict the breast area underneath the person’s clothing. In my view, the word “beneath” and the phrase “under a person’s clothing” have deliberately been expressed disjunctively to ensure that images captured from beneath, for example, a woman’s skirt, are caught by the section in the same way that an image of a female breast can be filmed to show an area under her clothing.

[37] I hold that s 216G(1)(b)(i) creates an offence that covers the images taken of the breast area. It follows that I reject Mr Dutch’s submission on this issue.

(c) Mr Diffin’s additional comments

[38] I referred earlier26 to a letter sent by Mr Diffin to the Registrar. I have read that letter. Some of the points raised by Mr Diffin go to his allegation of manipulation of the recording of the intimate activity with his partner. It is unnecessary to go further into that given that the appeal succeeds on that charge.

[39] The balance of the letter suggest other points that Mr Diffin wished to put forward that his counsel had not advanced. Mr Diffin was present during the whole of the hearing. Despite the protestations about his inability to hear what was said in Court, I was satisfied that he had every opportunity to participate. On occasion, Mr Diffin went to the back of the Court and walked around. On other occasions, he sat behind his counsel and offered comments whilst submissions were being made. From what I observed, Mr Diffin fully understood what was going on at the hearing and was not prejudiced by the way in which Mr Dutch presented his case.

[40] It is unnecessary for me to determine the adjournment question raised by Mr Diffin. I do not need to go further into his allegations of manipulation of evidence, given my conclusion on the first of the charges on which he was found guilty. I do not regard those complaints, given the way in which the issue was run at

_{trial, as relevant to the images taken of the woman’s breast area. The images of the}

25. Police v Diffin DC Tauranga CRI 2011-070-2390, 16 February 2012 at paras [37]–[40]; set out at para [13] above

26 See para [5] above.

breasts were not filmed from the covert camera. Formally, the adjournment application is dismissed.

[41] Mr Diffin has raised a number of other points about the charge involving filming of the breasts. Many do not appear to have been raised at the District Court hearing. Or, to the extent that they were, they were rejected by the District Court Judge. It is important to realise that an appeal is a challenge against a decision made in the District Court on the basis of the evidence available to it. It is not an opportunity to re-run the case because of later concerns about the way it was tactically presented.

[42] Cross-examination of Mr Diffin is instructive on this point. After a lengthy explanation of the “video clips” in which Mr Diffin referred to the elderly complainant’s “dear love of photography” and his attempts to help her move “from analogue to digital”, the Judge specifically redirected him to the question: namely, how the images of the breast area appeared to have been recorded. After Mr Diffin’s response to the Judge, cross-examination continued:27

17. Mr Diffin if I can just jump in there please. Talking about those recordings –
    

A. Yes.

Q. - that you say are accident and you knew nothing about –

A. Yes.

17. - can you explain why they only come into focus every time it seems that [the elderly complainant] is bending over –
    

A. Is it possible –

Q. - and it focuses on her cleavage?

1. Well perhaps it’s got an auto focus and there was – I don’t know, or maybe there’s been something done to it but –
   

Q. Can you –

A. - can’t possibly do, have –

_{Q. Can you explain that or not?}

27 Notes of Evidence, pp 63 and 64.

A. No I can’t. I know how my Olympus digital camera works. I’ve

had it for a very long time.

Q. Can you then explain why those images that we’ve been talking about, those three recordings of [the elderly complainant], have found their way into three different sources –

A. Okay.

Q. - at your address?

A. First, what you’re saying is there was the same recordings on three different sources. That’s not correct.

Q. No I’m not saying –

A. If we can –

Q. - that.

A. Okay, well I’ll just correct you on that, that’s not correct. The USB recordings on those flash drives I don’t know how they got on there but it is more than likely they’ve come off [the elderly complainant’s] computer when I’ve been trying to work with things there and I’ve put something on there, tried to download them and trying to make things work. I think we come back to the same thing that if I knew –

Q. Sorry, are you saying that the police have done that?

A. No, I’m saying that those recordings on the flash drives. Let’s just focus on the one artefact. I think there was two or three in this little lady lipsticky thing I found quite convenient to carry them in. They were sitting with my keys in full view of everyone. First we’ll talk about those recordings. The only way I could explain that they got on there is through downloading of [the elderly complainant’s] computer. I guess there might be some file information on those files to suggest where they’ve come from. I can’t tell you that because I’ve asked for this information through the court several times through the year and you’ve got it, but I have no answers for you, I’m sorry, sir, but I stand by the fact that they can be seen clearly as accidental recordings. You can see they are not intentional, the way it is moving all around the place. If they were intentional, wouldn’t you expect the camera to be held firm for more than part of a second over a certain shot? Of course you would, anyone would. Wouldn’t that be the object of someone who was like minded like that. You don’t see that in these clips. You see the camera jumping all over the place.

(Emphasis added)

[43] In my view, Mr Diffin was attempting to find speculative reasons to deflect the questioner. The questions were not answered satisfactorily. Judge Wolff, having

seen the moving images, referred to “the camera [lingering] on [the complainant’s] cleavage”.28 I am satisfied, as was Judge Wolff, that there was no reasonable possibility that these images could have been taken accidentally.

Sentence appeal

[44] Both counsel agreed that if I were to allow the appeal in respect of the charge involving the filming of intimate activity between Mr Diffin and his then partner, it would be necessary to reduce the sentence imposed as that charge was more serious than the one involving filming of the other complainant’s breast area, under her clothing.

[45] Mr Diffin was sentenced to 200 hours community work. That should be reduced to one of 100 hours community work. While the most serious of the two charges has been dismissed, the original sentence was designed to reflect the totality of the offending. The substituted sentence that I impose is designed to respond to the particular charge on which Mr Diffin remains convicted.

Result

[46] For the reasons given:

(a) The appeal against conviction on the charge involving the intimate activity is allowed. The conviction and sentence imposed in consequence are both set aside.

(b) The appeal against conviction on the charge involving filming of the female’s breast area is dismissed. The sentence imposed of 200 hours community work is set aside. A sentence of 100 hours community

_{work is substituted.}

_{Delivered at 4.00pm on 5 September 2012}

P R Heath J

28 Police v Diffin DC Tauranga CRI 2011-070-2390, 16 February 2012 at paras [35] and [41].