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R v W HC Auckland CRI 2010-092-012897 [2011] NZHC 2074 (11 November 2011)

Last Updated: 19 February 2012

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES) OR IDENTIFYING PARTICULARS OF THE ACCUSED.

ORDER PROHIBITING PUBLICATION OF THE UNDERCOVER WITNESS' TRUE NAME OR OF ANY DETAILS WHICH COULD LEAD TO HIS IDENTIFICATION.

FURTHER ORDER THAT MEDIA ARE NOT TO TAKE ANY VIDEO, TELEVISION FOOTAGE OR STILL PICTURES OF THE UNDERCOVER OFFICER. NOR ARE THEY TO TAKE ANY AUDIO RECORDING OF HIS VOICE WHILE HE GIVES EVIDENCE.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CRI 2010-092-012897}

THE QUEEN

v

W

Hearing: 31 October, 1 - 3, 7 - 11 November 2011

Counsel: N Walker and E Toner for the Crown

C Wilkinson-Smith and R Rowsell for the Prisoner

Judgment: 11 November 2011

_{REASONS FOR VERDICT OF WYLIE J}

Distribution:

N Walker: Natalie.walker@meredithconnell.co.nz

_{C Wilkinson-Smith:} chris@defence.co.nz

R V W HC AK CRI 2010-092-012897 11 November 2011

Introduction

[1] The accused, Mr W, is charged with two counts – both laid under s 144C of the Crimes Act 1961. First, he is charged with making travel arrangements for a man known as Michael Gray with the intention of facilitating the commission by Michael Gray of an offence against s 144A of the Act. Secondly, he is charged with publishing information intended to promote conduct that would constitute an offence against s 144A of the Act.

[2] Sections 144A and C were introduced into the Crimes Act as from

1 September 1995 by s 2 of the Crimes Amendment Act 1995. They honour New Zealand‘s commitment under article 10 of the Optional Protocol to the Convention on the Rights of the Child, the Sale of Children, Child Prostitution and Child Pornography.

The Trial

[3] This matter has proceeded as a Judge alone trial.

[4] A Judge hearing a criminal trial without a jury is required to deliver: 1

...a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge's essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it will almost always be advisable to say so explicitly.

[5] While it has been queried whether or not this approach remains appropriate, especially in fraud cases,2 the obligations of a trial Judge as noted above have

_{recently been endorsed by the Court of Appeal.}3

1 _{R v Connell [1985] 2 NZLR 233 (CA) at 237–238.}

2 _{R v Eide [2005] 2 NZLR 505.}

3 Wenzel v R [2010] NZCA 501 at 39–40.

[6] Earlier today, I found Mr W guilty on count 1 in the indictment, and I entered a conviction on that charge. I found Mr W not guilty in relation to count 2, and I discharged him in relation to that charge.

[7] I now set out my reasons for returning those verdicts.

Chronology

[8] The accused is gay. He described his sexuality as ephebephilia – which he explained means that he has a sexual predisposition to teenage boys.

[9] The accused visited Thailand in 2005, 2007, 2008, and 2009. The initial trips were made in the company of his father, who was involved in humanitarian work in Thailand. The later trips were made by the accused alone. He accepted in cross- examination that he discovered the gay sex scene in Thailand during his 2008 and

2009 trips.

[10] In late 2007, the accused set up a website – Over the Rainbow. The website offered personally escorted tours to Thailand, in small groups of five to ten people, over the winter period.

[11] On 16 December 2009, the accused was returning to New Zealand from Thailand. He was stopped by custom officers and his baggage was searched. Image files were taken from a SanDisc USB thumb drive found in his luggage. A phrase card translating English words and phrases into phonetic Thai was also found in the accused‘s possession. The phrase card dealt with a number of sexual matters, and contained a Thai translation for a number of sexually explicit acts.

[12] It was later ascertained that the image files found on the thumb drive included photographs showing the accused in the company of a number of young Thai males.

[13] On 21 June 2010 an undercover officer using the assumed name Michael Gray contacted the accused through the Over the Rainbow website. He asked the accused if he had a 2010 Special Winter Holiday Package available. The

accused replied and told Mr Gray that his 2010 tour was oversubscribed. Mr Gray then expressed interest in a personal tour. There was a subsequent exchange of emails, telephone calls and text messages.

[14] Mr Gray met with the accused in Auckland on 30 June 2010. They discussed the prospective trip to Thailand. In the course of the meeting, Mr Gray made it clear that he was gay. He explained that he had attractions, and that he had a “real strong attraction for no hair”. The accused advised Mr Gray that he could probably point him in the right direction.

[15] On 1 July 2010, the accused sent an email to Mr Gray advising that he would not assist Mr Gray to do anything illegal.

[16] There was a further email exchange between Mr Gray and the accused. On

17 July 2010, the accused sent Mr Gray an email containing information about go-go bars in Thailand. On 20 July 2010, Mr Gray replied, advising the accused that he really liked the boys without the tattoos, that they seemed so beautiful to him, and

“well the less hair the better”.

[17] The accused and Mr Gray met again on 26 July 2010. They discussed Mr Gray‘s proposed trip to Thailand. Mr Gray paid the accused $6,500 in cash on account of the proposed travel arrangements.

[18] On 27 July 2010, the accused made airline bookings for himself and Mr Gray to travel to Thailand. Mr Gray was to depart New Zealand on 26 August 2010, and to leave Thailand on 11 September 2010. The accused was to travel to Thailand a few days earlier.

[19] Mr Gray and the accused met again on 5 August 2010. They had further discussions regarding the proposed trip to Thailand, and Mr Gray paid the accused a further $6,000 in cash on account of the travel arrangements being made by the accused.

[20] On 11 August 2010, the accused sent Mr Gray a number of Internet articles relating to the arrest in Thailand of tourists who had become involved in underage sex with prostitutes.

[21] Each of the meetings on 30 June 2010, 26 July 2010 and 5 August 2010 were covertly recorded by Mr Gray.

[22] On 20 August 2010, the accused and Mr Gray met again, albeit briefly. The accused gave Mr Gray an itinerary for the trip. The police then arrested the accused, and subsequently interviewed him. The interview was recorded on DVD.

[23] The police also executed search warrants at the accused‘s residential and business addresses. A number of items were seized including a computer disc tower, a silver coloured Wintech external hard drive, an Acer laptop and a USB pen drive. Each of those articles was owned by the accused. A number of emails and other documents were found on the computer and other electronic equipment.

[24] The tour booked by Mr Gray was the first and only tour arranged by the accused.

Relevant Rules of Law or Practice

[25] Both Ms Walker for the Crown and Mr Wilkinson-Smith for the accused referred to the onus and the burden of proof.

[26] I remind myself that the Crown must prove each essential ingredient or element of each count beyond reasonable doubt before I may bring in a verdict of guilty on that count.

[27] The starting point is the presumption of innocence. The onus is on the Crown. It must prove that the accused, Mr W, is guilty beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof, which the Crown will have met only if I am sure that the accused is guilty. It is not enough for the Crown to persuade me that Mr W is probably guilty or even that he is very likely

guilty. A reasonable doubt is an honest and reasonable uncertainty left in my mind about the guilt of the accused, after I have given careful and impartial consideration to all of the evidence.4

[28] Mr Wilkinson-Smith preferred that I should give myself a “lies direction”.

[29] Mr W accepted that he had lied to Mr Gray when he told the undercover officer that he had previously arranged trips to Thailand. He justified this lie by saying that he was trying to show Mr Gray that he was a competent and experienced tour organiser. This lie was not about the alleged offending. Mr W gave evidence before me and he endeavoured to explain the alleged offending. I do not consider that his evidence, particularly in relation to count 1, was truthful. It seemed to me that his evidence was in very many respects inconsistent with the recorded conversations and other contemporaneous documentation. It was self-justificatory and Mr W sought to downplay and excuse his involvement. I did not consider the accused to be a reliable witness, particularly in his explanations for count 1, and I have largely rejected his evidence.

[30] I remind myself that just because the accused lied, it does not mean that he is necessarily guilty. People can lie for a variety of reasons. The lie is simply a piece of circumstantial evidence to be added to the mix when determining whether or not the Crown has discharged its burden.

[31] Finally in this regard, the accused gave evidence. He also called evidence from a Mr Burford, an expert, about the nuanced meaning given to certain expressions by people involved in the gay culture.

[32] Mr Wilkinson-Smith reminded me of the standard tripartite direction.

[33] The fact that Mr W gave and called evidence does not change the burden of proof. He does not have to establish his innocence. The question remains whether the Crown has proved his guilt beyond reasonable doubt. If I accept what the

_{accused says, then obviously, the proper verdict is acquittal. If what he says leaves}

4 R v Wanhalla [2007] 2 NZLR 573.

me unsure, then again, the proper verdict is acquittal, because I would have been left with a reasonable doubt. If what the accused says seems a reasonable possibility, then again, the Crown will not have discharged its task, and I must acquit. If I do not believe the accused‘s evidence, particularly about his intentions in relation to both counts 1 and 2, then I must not leap from that assessment to findings of guilt, because if I were to do that, I would be forgetting who has to prove the case. Rather, I must assess all of the evidence I accept is reliable, and ask myself whether that evidence satisfies me of Mr W‘s guilt on the counts to the required standard.

[34] There is no other matter I should refer to. Evidence was led by the Crown to the effect that the accused had objectionable images in his possession at the time his premises were searched. I asked Mr Wilkinson-Smith whether he objected to this evidence. He did not do so and I allowed the Crown to adduce it. I cannot however see that the evidence is relevant to the charges Mr W faces and I have put it out of my mind and ignored it.

[35] Against that background, I consider each of the two counts.

Count 1

[36] Count 1 in the indictment reads as follows:

Mr W between about 21 June 2010 and about 20 August 2010, at Auckland, made travel arrangements on behalf of Michael Gray, with the intention of facilitating the commission by Michael Gray of an offence against s 144A of the Crimes Act 1961.

Particulars of offence against ss 144A(1)(c) and 144A(4) Crimes Act

1961: breaching the prohibition on the use in prostitution of persons under

18 years, in ss 23(1) and 22 of the Prostitution Reform Act 2003.

[37] The count is brought pursuant to s 144C(1)(a) of the Crimes Act. That section reads as follows:

144C Organising or promoting child sex tours

(1) Everyone is liable... who—

(a) makes or organises any travel arrangements for or on behalf of any other person with the intention of facilitating the

commission by that other person of an offence against section 144A, whether or not such an offence is actually committed by that other person; or

[38] There are three elements to the charge. Relevantly, they are as follows: Between 21 June 2010 and about 20 August 2010, at Auckland,

(a) did Mr W make or organise any travel arrangements?;

(b) were any travel arrangements made or organised for or on behalf of the undercover officer, who used the assumed name of Mr Gray?, and

(c) were any travel arrangements made or organised with the intention of facilitating the commission by Mr Gray of an offence against s 144A of the Crimes Act, whether or not such an offence was actually committed by Mr Gray?

[39] Here, the Crown alleges that Mr W organised the travel arrangements for Mr Gray, with the intention of facilitating the commission by Mr Gray, of an offence against ss 144A(1)(c) and (4) of the Act. These provisions read as follows:

144A Sexual conduct with children and young people outside New

Zealand

(1) Every one commits an offence who, being a New Zealand citizen or ordinarily resident in New Zealand,—

...

(c) does outside New Zealand, with or on a person under the age of 18 years, an act to which subsection (4) applies.

...

(4) This subsection applies to an act that, if done in New Zealand, would be an offence against section 23(1) of the Prostitution Reform Act

2003 (breach of prohibitions on use in prostitution of persons under

18 years).

...

[40] Section 23(1) of the Prostitution Reform Act 2003 provides as follows:

23 Offence to breach prohibitions on use in prostitution of persons under 18 years

(1) Every person who contravenes section 20, section 21, or section 22 commits an offence and is liable on conviction on indictment to imprisonment for a term not exceeding 7 years.

It is necessary to refer to s 22 of the Prostitution Reform Act 2003. It provides as follows:

22 No person may contract for commercial sexual services from, or be client of, person under 18 years

(1) No person may enter into a contract or other arrangement under which a person under 18 years of age is to provide commercial sexual services to or for that person or another person.

(2) No person may receive commercial sexual services from a person under 18 years of age.

The words “commercial sexual services” are defined in the Act. In essence, they mean sexual services that involve physical participation by a person in sexual acts with and for the gratification of another person, and that are provided for payment or other reward.

[41] In essence, in count 1 the Crown is alleging that Mr W made or organised travel arrangements to Thailand on behalf of Mr Gray to facilitate the use by Mr Gray of a prostitute or prostitutes under the age of 18 years while in that country.

[42] I now turn to consider each of the elements of the offence.

a) Did Mr W Make or Organise any Travel Arrangements?

[43] The answer to this question is “yes”.

[44] Mr W admits that he is a New Zealand citizen, ordinarily resident in New Zealand. The evidence establishes that at all relevant times he was living and working in Auckland. It also establishes that between 21 June and 20 August 2010, Mr W:

(a) prepared and obtained Mr Gray‘s signature to a tour agreement. The agreement was emailed to Mr Gray on 21 July 2010, and signed by him on 23 July 2010. It was then returned to the accused;

(b) drafted an itinerary and discussed it with Mr Gray;

(c) booked airfares for himself and Mr Gray to Thailand. The bookings were made on 27 July 2010;

(d) booked accommodation for himself and Mr Gray at the Take a Nap

Hotel in Bangkok. The accommodation was booked on 7 August

2010;

(e) enquired about accommodation for himself and Mr Gray at a hotel in Pattaya, and a lodge in the Khao San National Park. These enquiries were made in late July/early August 2010;

(f) prepared a final travel itinerary for Mr Gray. The itinerary was handed to Mr Gray on 20 August 2010, and

(g) contacted a number of accommodation providers and individuals to discuss arrangements for his and Mr Gray‘s tour of Thailand. This included making enquiries about obtaining a gay tour guide to show them the nightlife in Bangkok and contacting associates to discuss arrangements in Nakhon Phanom. Contact in regard to these matters was during July and early August 2010.

[45] I note that it is admitted in the admission of facts prepared pursuant to s 9 of the Evidence Act that Mr W made travel arrangements for Mr Gray between 21 June

2010 and 20 August 2010, including the booking of airfares.

[46] The word “travel arrangements” is defined in s 144C(2)(a). The making or organising of travel arrangements includes, but is not limited, to the purchase or reservation of tickets for travel to a country outside New Zealand. It also includes,

but is not limited, to the purchase or reservation of accommodation in a country outside New Zealand.

[47] Mr Wilkinson-Smith submitted that the definition does not include the steps that precede the purchase or reservation of tickets or accommodation. He submitted that s 144C(2)(a) should be construed narrowly, and not extended beyond the partial definition contained in the subsection.

[48] I do not accept that submission. The partial definition provides that the making or organising of travel arrangements includes, but is not limited to, the purchase or reservation of tickets and accommodation. Further, the section refers not only to travel arrangements which are made, but also to travel arrangements that are organised. In my judgment, the making or organising of travel arrangements can include the preparation of an itinerary, and steps taken to put in place arrangements for travel, albeit that those steps fall short of confirmed bookings.

[49] Here, I am satisfied beyond reasonable doubt that the accused made or organised travel arrangements between the relevant dates specified in the indictment. The Crown has proved this element of the offence.

b) Were the Travel Arrangements made for or on Behalf of the Undercover

Officer, who used the Assumed Name of Michael Gray?

[50] The answer to this question is again “yes”. The air tickets, and the accommodation in Bangkok, were booked in the name of Mr Gray and the accused. The accused referred to the undercover officer by his assumed first name “Michael” in an email to a person called Lex in Nakhon Phanom. I am satisfied beyond reasonable doubt that the travel arrangements were made or organised for or on behalf of Mr Gray.

c) Were the Arrangements Made with the Intention of Facilitating the

Commission by Mr Gray of an Offence Against s 144A of the Crimes Act?

[51] Before turning to this issue, I consider the word “facilitating” used in s 144C. The word is not defined in the Crimes Act, and its meaning in the context of s 144C

has not previously been considered by the Court‘s in this country. In other contexts, the word has been given its ordinary meaning. The Concise Oxford English Dictionary defines the verb “facilitate” as meaning to “make easy or less difficult or more easily achieved”. I accept the Crown‘s submission that this is an appropriate definition to adopt in this case.

[52] In broad terms, the accused accepts that he intended to help Mr Gray obtain sexual services from male prostitutes in Thailand. What is in dispute is whether the accused intended to facilitate Mr Gray to obtain sex from male prostitutes under 18 years of age.

[53] The Crown case is that Mr Gray made it clear to the accused when they first met, and in their subsequent dealings:

(a) that his interest was in having sex with males under 18 years of age, and

(b) that he wanted the accused‘s assistance to achieve this.

The Crown says that the accused knew that that was what Mr Gray wanted, and that Mr Gray was prepared to pay him to achieve this. The Crown contends that the accused made or organised the various travel arrangements for Mr Gray with a view to making it easier for Mr Gray to achieve what he wanted.

[54] The defence case is that notwithstanding his knowledge of what it was that Mr Gray wanted, the accused never intended to facilitate Mr Gray having sex with under 18 year-old prostitutes in Thailand. The defence points to various statements made by the accused during the period June to August 2010, both in writing, and orally, which are said to demonstrate the accused‘s intention not to assist Mr Gray in illegal activity. It submits that there were no travel arrangements made that would assist Mr Gray in finding underage prostitutes, that the accused thought that he could arrange for Mr Gray to have a good holiday in Thailand without doing anything illegal, and that the word “boy” in gay culture, and in Thai gay culture in particular, does not denote someone under 18 years old. The defence case is that the accused

intended to facilitate Mr Gray to obtain sex, but only from Thai males over the age of 18 years.

[55] I am satisfied beyond reasonable doubt that the accused did intend to facilitate the commission by Mr Gray of an offence against s 144A of the Crimes Act. I refer to the main pieces of evidence relied on by the Crown.

_{The First Meeting on 30 June 2010}

[56] As noted above, the accused met Mr Gray in Auckland on 30 June 2010. At that meeting, Mr Gray told the accused that he was gay, and that he would like to indulge “certain attractions” on the trip to Thailand. He said that he wanted to try to find “a young friend”. The accused replied “How young? Don‘t worry, I don‘t mind”. Mr Gray then said that he had “a really strong attraction for no hair”.

[57] In his police interview, the accused confirmed that he assumed Mr Gray was talking about prepubescent children. He confirmed in cross-examination that he understood what Mr Gray meant.

[58] The accused told Mr Gray at the meeting that he did not have a moral issue with Mr Gray wanting sex with young boys. He stated that it was not something that bothered him.

[59] Also in the course of the first meeting:

▪ Mr Gray made it clear to the accused that his reason for approaching the accused was to go to Thailand with somebody who could help keep him safe, and out of trouble.

▪ The accused warned Mr Gray that what he proposed to indulge in was illegal, and that there were significant risks involved. Nevertheless, he went on to discuss the topic with Mr Gray. He stated, “I‘m not saying those things aren‘t available”. He told Mr Gray that he “could probably point [him] in the right direction”. This offer was repeated during the course of the meeting.

▪ The accused told Mr Gray about a friend of his who had had “his share of 14, 13, 15 [year olds] – you know that sort of stuff”. The accused told Mr Gray he would be quite happy to “take [him] over there and show [him] around... and point [him] in the right direction.

▪ The accused did suggest to Mr Gray that he might find that Thai boys look a lot younger than they are; he was nevertheless prepared to point Mr Gray in the “right direction”.

▪ The accused was clearly aware of the prostitution element. He stated

that “innocence is not something you‘ll find...”. He referred to meeting

“young guys effectively to have sex with”, and stated that this was “basically a commercial venture”.

▪ The accused told Mr Gray about bars in Pattaya that were run by the police, and that they had boys in them who were 16 or 14.

▪ The accused told Mr Gray that it was not something that bothered most Thai people.

▪ When Mr Gray asked what it would cost, the accused said that it would cost probably a bit more, but not a lot more. In giving evidence, the accused accepted that he was referring to the cost Mr Gray would incur in going with a younger prostitute.

▪ The accused told Mr Gray that the tour might cost $3,000 “before you start spending money on young people”.

▪ The accused told Mr Gray that he could indicate to him which bars to go to, and who to talk to, in Pattaya, but not so much in Bangkok. He added,

“although for what you want, you‘re probably more likely to find it in Bangkok without too much, without as much drama”...”I mean the thing is, you know, like for instance you could probably take a 13, 14 year-old boy back to a hotel, but not every hotel”...”So you need to stay in a hotel where

that wasn‘t going to be a problem”...”Or somewhere where its gonna, wasn‘t

going to be a problem and you need to know where to go to find that person”.

[60] Under cross-examination, Mr W admitted that the discussions he had with Mr Gray “possibly‘ amounted to him advising Mr Gray on “how to do it” – that is indulge his attraction.

[61] The accused‘s explanation that he discussed these various matters with Mr Gray because he did not want to put him off, and as a holding pattern, seem to me to be untrue. The meeting on 30 June 2010 lasted for some time. The accused had plenty of time to gather his thoughts and to say clearly that he did not want anything to do with Mr Gray and his avowed “attraction”. He did not do so. Rather, he encouraged it by repeatedly saying that he could point him in the right direction.

_{The email of 1 July 2010 and subsequent emails}

[62] After discussing matters with his flatmate, the accused sent an email to

Mr Gray on 1 July 2010 in which he expressed concern. He stated as follows:

Michael, I just wanted to clarify with you I am happy to go with you and to organise trips to tourists sites of interest during the day and to show you around the gay nightlife in Bangkok and Pattaya during the nights.

I am sure you will have a great time and it will be a good introduction to

Thailand for you.

However the other things you asked me about you need to be very careful of. I just want to be clear with you that I will not assist you to do anything illegal.

While I may understand what you spoke to me about I do not condone it. though there is no doubt that such things are available in Thailand.

There is plenty available in Thailand that‘s beyond your wildest dreams, and legal; there is no need to pursue anything else. I want to show you the Thailand that I know and I think it will be more than you desire. What you do in your own time and who you talk to is entirely up to you. I will try to keep you safe and I believe that you can have a great time without resorting to anything illegal or improper.

[63] Notwithstanding this email, the accused did not pull out of the proposed travel arrangements. Rather, he continued to progress arrangements for the trip. On

17 July 2010, he sent an article to Mr Gray on the go-go bar scene at Sunee Plaza in Pattaya. In that article, the boys who worked in the bars were described as ranging in age from about 18 to 23 years. Mr Gray in a reply email dated 20 July 2010, thanked the accused for the article, and stated “I really like the boys without the tattoos they seem so beautiful to me and well the less hair the better!!” Notwithstanding Mr Wilkinson-Smith‘s submissions to the contrary, in my view, Mr Gray was thereby reaffirming his attraction for prepubescent males. In cross- examination, it was put to Mr W that Mr Gray was indicating to him in this email that he was still interested in the sexual preference he had told him about, i.e. under

18 year olds. Mr W responded that he did not think that Mr Gray‘s sexual preference

would have changed in a week.

[64] While he asserted that he was not going to do anything illegal, the fact is that the accused continued to deal with Mr Gray and to progress the proposed travel arrangements. Moreover, their discussions after the email sent on 1 July 2010 were not confined to legitimate go-go bars or to male prostitutes over the age of 18 years.

_{The Second Meeting on 26 July 2010}

[65] At the second meeting on 26 July 2010, the accused further advised Mr Gray that he could assist him in fulfilling his desires. There were a number of references to the possibility of having illegal sex with boy prostitutes under aged 18. The accused referred to the fact that 20 years ago it was not a problem in Thailand. He referred to ECPAT, an organisation concerned with child prostitution, and to websites with names such as Boy Moments, Boy Land Online, and boylover.net. The accused referred to one of his friends (a Mr Gibbs) who was interested in 13 to 15 year-old boys, and who had been arrested some 15 to 18 months earlier on various charges in relation to that interest. There were discussions about the boys being prostitutes –

“It‘s still considered... prostitution because you‘re white, you‘ve got more money than they‘ll ever have”. At one stage in the conversation, the accused told Mr Gray that one of the things he wanted to ask one of his friends was whether there was a place in Bangkok he could find young persons. He stated that it was “a bit dodgy”. At one stage, the accused told Mr Gray that “what he was talking about, I‘ve done lots”.

[66] At no stage during the course of the second meeting did the accused indicate categorically that he was not prepared to assist Mr Gray in finding what he wanted. Rather, the accused discussed candidly how he could assist Mr Gray. He told Mr Gray about finding a hotel where they would not be charged a fee for bringing a boy back to the room, and where a Thai boy‘s ID card would not be checked. He told Mr Gray about motels he had discovered on a previous trip. He described one motel unit that had a carport attached to it. He said, “So if I was to bring a boy back and I was worried I could just get him to lie down in the car to get him through the gate anyway. Just drive straight up to the door of my unit and nobody would know the difference”. The accused said that he would fly to Thailand in advance to scope out five to seven places, to see if it was “OK” – “rather than us going there and going oh fuck no you can‘t bring somebody back here”.

[67] In the course of the meeting, the accused mentioned making enquiries about

“places to find nice people and where it‘s not going to cause any dramas”. He discussed a park where he picked up a young boy who was “fourteen maybe”, and about getting into a taxi with him. He said that when he told the taxi driver which hotel he was staying at. The taxi driver told the accused that the boy was only

14 years old. He asked which hotel the accused was staying at and said, “Oh that‘ll be alright”. He said that if he had been staying in another hotel, the taxi driver would have been saying “Oh no, I know a motel you could go to”.

[68] The accused later acknowledged that this event occurred at Saranrom Park. He denied that he had done anything inappropriate with the boy.

[69] The accused discussed going for a drive with Mr Gray, having a look out of the window, getting the taxi driver to pull over, and speaking to some of the “guys”. He then said, “We‘ll say to the taxi driver, ‗well do you know a hotel where we can go to? You know what I mean?‘“...”They all know what‘s going on. Anyway.”...”I‘m just saying, the other thing I‘m saying is with the... is near a place called Seram Ong I think, I may have spelt that wrong, Seram Ong Park, basically where all the young men hang about at night.” The accused said that he and Mr Gray could do these things together.

[70] The accused suggested that they would not find little 13 year-old boys to spend time with in Bangkok, and that they might be better to stay at a reasonable hotel that wasn‘t over the top. He advised Mr Gray that Pattaya was probably just as risky as Bangkok for what they wanted, but that “is probably far more common [there]”. He suggested they could take a boy or two with them from Pattaya. He showed Mr Gray photographs on his iPhone of a number of young Asian males, some of whom he said he had taken to bed.

[71] The accused raised for the first time the possibility of visiting Nakhon Phanom. Nakhon Phanom is close to the Laos border. The accused had previously visited Nakhon Phanom on the trip he had made to Thailand in 2009. Prior to that trip he had contacted Lex who lives in Nakhon Phanom. Lex had placed a message on the Internet inviting persons interested in “young – handsome boy around the Nakhon Phanom area” to contact him. The accused had responded to that message and he accepted in cross-examination that he had had sexual relations with a number of young Thai‘s while he was staying near Nakhon Phanom in 2009, although he asserted that they were all over the age of 18. When he was discussing Nakhon Phanom with Mr Gray, he told him, “you can have any boy you like”. He described a few boys he had “had” as “very green, really raw”. He described how one boy, a 13 year old, had been procured for him by a Katoey (a “lady boy” or transvestite), although he denied any inappropriate relationship with the boy. He said that the Katoey had told him that next time he came to Nakhon Phanom, she would take him to Laos, to find “the nice boys”.

[72] After the second meeting, the accused then sent an email to Mr Gibbs. He asked Mr Gibbs for advice about “places to stay etc”. He told Mr Gibbs that his customer was gay and that he liked boys. In reply, Mr Gibbs asked what Mr Gray‘s taste in boys was, and how old he liked them. Mr Gibbs stated that he would love to help Mr Gray plan the trip, and suggest places to stay. Although Mr W asserted that there were further emails from Mr Gibbs, none were produced in evidence by either the Crown or the accused.

_{The Third Meeting on 5 August 2010}

[73] There was a third meeting between the accused and Mr Gray on 5 August

2010. At this meeting, the merits of the proposed trip to Nakhon Phanom, and possibly Laos, were discussed. The parties also discussed how they would spend their evenings in Bangkok when Mr Gray first arrived in Thailand. The accused suggested that on Friday night they would go to the “standard gay bars”. On the Saturday night, they would look for something “slightly more dodgy”. The following conversation then took place:

A [W]: But the thing is that you end up going to um, if they‘re over

eighteen, you can take them to your hotel. Q [Gray]: Yeah.

A: But the people at the hotel will take their ID cards off them. Q: Yeah.

A: But that‘s fine.

Q: Yeah.

A: Um, if they‘re not...

Q: Yeah.

A...you probably...certainly where I‘m suggesting, you‘re probably not

gonna find anything under sixteen which is the age of consent there.

Q: Yeah.

A: Um but you won't be able to get them back to your hotel room. Q: Oh okay.

A: So they will suggest, short time rooms (laughs). Q: Yeah.

A:...um which I‘ve never liked but you know such is life. Um through most of this you're probably not gonna...unless we go into Nakhon Phanom and actually find some um something of interest, you may need to assume that through this period you may not end up going to bed with anybody.

Q: That could be our actual sight seeing part? A: Yeah.

[74] The accused then went on to say that Mr Gray would certainly find

“somebody” in Pattaya. He also suggested that they might take a 22 year-old friend of his on the trip. He said that the friend had himself been picked up by an older European male when he was 13 years old, that he was aware of “keeping his mouth shut”, and that they could use him to find them “good boys” and to “help us out” should they “get into any drama”.

[75] Given the discussions in both the second and third meetings about “motels” and “short time rooms”, the submission made by Mr Wilkinson-Smith that the accused booked accommodation in Bangkok and Pattaya that would not allow

“joiners” seems to me to be of little weight. Clearly, alternatives were available to

Mr Gray and the accused advised him of those opportunities.

_{Emails to Lex}

[76] The accused‘s understanding of Mr Gray‘s interest in under 18 year-old boys is clear from emails he sent to Lex in Nakhon Phanom.

[77] On 10 August 2010, the accused sent an email to Lex. He said that it would be great if they could meet a few boys there as the Katoey friend of Lex‘s had previously suggested. Lex asked about Mr Gray‘s preference in boys. The accused replied, “He likes them without hair. I have told him this is extremely dodgy and that he will undoubtedly be happy with 18 year olds in Thailand”. Lex replied, stating that he agreed with the accused that “we should be looking for “+ 15 (> 18) OK”. Lex then sent a further email attaching pictures of some of his son‘s friends. He stated, “The yellow one is 14 and the other two are 16. The yellow is cute ha”. The accused replied saying that he had not received the attached photographs, but that “Yellow sounds good”.

_{The Itinerary}

[78] The itinerary prepared by the accused included visits to Saranrom Park and Saphan Kwai. The evidence suggested that both are gay areas where gay sex is readily available.

[79] The accused asserted that many of the male prostitutes at Saranrom Park were over 18, but acknowledged that “you may be able to find somebody who‘s perhaps 16, 15 maybe, 14”. On 29 July 2010, the accused sent an email to Thailand seeking a gay guide with a particular knowledge of Saranrom Park. The accused accepted that it is a place where young Thai males can be readily picked up, that he had previously been there, and that he had met a 14 year-old male at the park who he had taken back to his hotel, albeit, he asserted, only for a meal.

[80] Nakhon Phanom and Thakhek in Laos were on the itinerary. While it seems that Nakhon Phanom may have some tourist attractions, they seem relatively limited, and it is not a popular tourist destination. The accused acknowledged that there was a gay sex scene there and that one could get gay sex there if one wanted it. Although the accused denied it, it seems much more likely that Nakhon Phanom was included in the itinerary because the accused anticipated from his earlier trip in 2009, from his email contact with Lex, and from his discussion with the Katoey in 2009, that it would be easier and less risky to procure younger boys in rural Thailand, or perhaps in Thakhek in Laos, than in Bangkok or Pattaya.

_{Sex Phrase Card}

[81] The accused sent Mr Gray a sex phrase card by email on 10 August 2010, which he intended would be used on the trip. The sex phrase card translated a number of sexually explicit phrases and words from English in phonetic Thai. It included phrases making it clear that what was proposed was prostitution, for example, “how much for overnight”, “too much”, and “how about... baht”. It included phrases dealing with venues, for example, “where can I rent a room” and

“let‘s go to my hotel”. Notably there was no phrase on the card asking how old a boy was. The card had “Copyright OTR © 2010” on it. OTR was a reference to Over the Rainbow.

Verdict on Count 1

[82] Standing back and looking at all of this evidence in the round, I am satisfied beyond reasonable doubt that the accused made or organised travel arrangements for

Mr Gray to go to Thailand, and that they were made with the intention of facilitating the commission by Mr Gray of an offence against s 144A of the Crimes Act. I accept that the accused sent Mr Gray the email dated 1 July 2010. He also expressed concern to Mr Gray orally on a number of occasions and warned him of the risks and dangers associated with his proposed actions. He sent Mr Gray by email details of persons who had got into serious trouble with the authorities in Thailand as a result of engaging in sex with underage prostitutes in Thailand. Nevertheless, the reality is that the accused continued on with the arrangements. At no stage did he pull out or refuse to have any involvement. I am satisfied beyond reasonable doubt that the accused was intending to facilitate the use by Mr Gray of a prostitute under the age of 18 years.

[83] Accordingly, I was satisfied that the Crown had proved beyond reasonable doubt each of the three elements making up the charge detailed in count 1. I found the accused guilty of the charge in count 1, and entered a conviction against him.

Count 2

[84] Count 2 in the indictment reads as follows:

Mr W between about 12 March 2008 and about 20 August 2010, at Auckland, published information intended to promote conduct that would constitute an offence against s 144A of the Crimes Act 1961, or intended to assist any other person to engage in such conduct.

Particulars of publication of information:

▪ Creating and maintaining the “Over the Rainbow” website which offered “guided tours of Thailand catering to your interests and desires”.

▪ Writing into the meta data of the “Over the Rainbow” website, keywords including: “gay”, “Thailand”, “tour”, “gay sex” and

“boy”.

Particulars of offence against ss 144A(1)(c) and 144A(4) of the Crimes Act 1961: breaching the prohibition on the use in prostitution of persons under 18 years, in ss 23(1) and 22 of the Prostitution Reform Act 2003.

[85] This charge is laid under s 144C(1)(c) of the Act. It reads as follows:

144 Organising or promoting child sex tours

(1) Every one is liable... who—

...

(c) prints or publishes any information that is intended to promote conduct that would constitute an offence against section 144A, or to assist any other person to engage in such conduct.

[86] As can be seen from the wording of the section above, there are two alternative intentions detailed in the section. The Crown confirmed that it is only relying on the first intention contained in s 144C(1). It is not relying on the second. I do not give the second alternative any further consideration.

[87] Again, the Crown relies on ss 144A(1)(c) and 144A(4) of the Crimes Act. Those provisions and the relevant provisions for the Prostitution Reform Act have been set out above.

[88] There are two elements the Crown must prove beyond reasonable doubt to establish this charge. The Crown must prove that, between 12 March 2008 and about 20 August 2008, at Auckland:

(a) Mr W published information; and

(b) Mr W intended this information would promote conduct that would constitute an offence against s 144A.

[89] The words “publication of information” are defined in s 144C(2)(b) as meaning:

Publication of information by any means, whether by written, electronic or other form of communication, and includes the distribution of information.

[90] The Crown submits that the publication of information includes creating and maintaining a website that has information on it. It is its case that the information published by the accused consisted of both the information on the viewable pages of the Over the Rainbow website, and on the meta data behind the visible website.

[91] It is not in dispute that the meta data behind the Over the Rainbow website included the words “gay”, “Thailand”, “tour”, “gay sex”, and “boy”. The meta data also included a number of other words, including “family tour”, “get together”,

“7-day”, “Pattaya”, “Bangkok”, “Sunee”, “beach”, “fun”, “island”, “business” and

“travel”.

[92] Nor is it in dispute that the accused created the website. When he did so, he used a programme called Dreamweaver and he entered the meta data. He changed and updated the website from time to time.

[93] I now turn to consider the elements of the offence.

1. Did Mr W Publish Information between 12 March 2008 and 20 August 2008 at Auckland?
   

[94] The accused has accepted in the admission of facts document that in creating the website, he published information.

[95] In my judgment, the information published by Mr W comprised not only the website, but also the meta data. The evidence established that meta data is data that describes other data. It provides additional information about a web page. While it is not usually displayed to the user of a website, a user can readily view it within an Internet browser, by choosing the “view tab” option, or by right clicking on the computer‘s mouse. This meta data is publicly accessible. It is used by some Internet search engines to rank and to help users to find websites. The meta data does not have to match the data on the website‘s readily viewable pages.

[96] Copies of the website at various dates were produced as exhibits. The earliest version was captured in March 2008. The latest screen capture was on 29 July 2010.

[97] I am satisfied that the Crown has established beyond reasonable doubt that the accused published the information comprising both the website and the metadata.

b) Did the Accused Intend this Information to Promote Conduct or Constitute an

Offence Against s 144A?

[98] I am not satisfied beyond reasonable doubt that the accused intended that the information published by him would promote conduct that would constitute an offence against s 144A of the Crimes Act.

[99] The Crown argued that the website‘s name, Over the Rainbow, indicates that it is gay orientated or friendly. The Crown also pointed to the words “personally escorted tours”, and to the promise on the home page of “catering to your interests and desires”. It pointed to the words “special interests”, and to “personal itineraries”. It noted the reference “We do what YOU want to do”. It also noted the reference to showing customers the best Bangkok had to offer in nightclubs and Pattaya‘s renowned nightlife.

[100] None of these references in themselves promote anything which is illegal. In my judgment, the visible content of the website is unremarkable. It is nothing more or less than a holiday-type brochure.

[101] The website‘s meta data did refer to the words “tour”, “gay sex”, “gay” and

“boy”. It is not, however, an offence to promote a tour for persons interested in experiencing the gay sex scene. Nor is it an offence to publish information intended to promote sexual arrangements involving prostitutes over the age of 18 years. The evidence established that in gay and Thai culture, the word “boy” can be and is, used to refer to persons aged over 18 years. It also established that most of the boys involved in gay go-go bars in Thailand are aged over 18 years.

[102] The term “boy” can be contrasted with the term “boy lover” or its abbreviation “BL”. The evidence established that these words have their own special meaning in gay culture. They refer to someone who is interested in having sex with underage boys. Notably these terms were not used in the meta data and there was no link between the Over the Rainbow website and any website promoting paedophilia.

[103] In my view, use of the words “tour”, “gay sex” and “boy” in the meta data do not necessarily compel the conclusion that the accused was intending to promote through the website conduct that would constitute an offence against s 144A. I accept his evidence that it was not his intention to promote child sex tours or anything of that kind through the website and its associated meta data.

[104] It may have been a possibility that paedophiles might be attracted to the website because of the meta data, but I consider that there is a reasonable possibility that the accused did not intend that.

Verdict on Count 2

[105] I am not satisfied beyond reasonable doubt that the accused intended to promote conduct that would constitute an offence against s 144A when he published the website and the meta data.

[106] Accordingly, I found the accused not guilty in relation to count 2 contained in the indictment, and I discharged him on that count.

Wylie J