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Hogg v R [2019] NZHC 1254 (5 June 2019)

Last Updated: 20 June 2019

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 5 June 2019 at 11.30 am

Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Solicitors:

Public Defence Service, Auckland Crown Solicitor at Auckland

HOGG v R [2019] NZHC 1254 [5 June 2019]

Introduction

[1] The appellant, Mr Hogg, was convicted by Judge Tremewan in the District Court at Waitakere, following a Judge-alone trial, of indecently communicating with a young person under the age of 16 years, contrary to s 124A of the Crimes Act 1961.¹

[2] Mr Hogg appeals his conviction on two grounds. First, he argues that evidence of the communications was wrongly admitted, and, secondly, that the Judge was wrong to find that the communications were indecent.

[3] The Crown opposes the appeal, arguing that the Judge correctly ruled that evidence of the communications was admissible, and further, that the Judge correctly directed herself as to the legal test for indecency and made appropriate findings on the evidence.

Background

[4] Mr Hogg owns and runs a pizzeria and, in December 2017, he hired the complainant to work for him. She was 15 years old at the time. She was employed by Mr Hogg at the pizzeria until March 2018. Over this period, Mr Hogg regularly communicated with the complainant using the computer application known as Facebook Messenger. Some of the communications related to the complainant’s employment. Others were of a more personal nature.

[5] The communications the subject of the charge started at 11.15 pm and continued until 11.28 pm on 21 January 2018. The communications read as follows:

Mr Hogg: “All good I don’t think weather is going to be any good. I just got of the pool tho which was nice as”.

Mr Hogg: “Spose I should get dressed”.

Complainant: “Meh, sometimes helps :D”.

Mr Hogg: “Lol just lying on my bed in the nude messaging you :D :D oops”.

Mr Hogg: “Lol I know you wish you could be here for that :D :D :D jokes”.

¹ R v Hogg [2018] NZDC 26372.

Complainant: “Can’t say that I agree :D :D :D”.

Mr Hogg: “Lol can’t say I know what that means :D”. Complainant: “That I don’t wish I was there hahah”.

The colon and capital letter – “:D” – denote an emoji. They appeared in the messages as a grinning face. The communications in bold were the subject of the charge.

[6] The police obtained the communications in the course of executing a search warrant in relation to an unrelated matter.

[7] Relevantly, in November 2017, a man boarded a bus on the North Shore in Auckland. While sitting on the bus, he exposed his genitals through the leg holes of loose-fitting shorts. He held his phone up and took photographs of the victim of his offending – a young female who was seated in the seat immediately across the aisle. The person exposing his genitals looked away from the victim while taking the photographs. The victim in turn took a video of the person exposing his genitals.

[8] A photograph taken from the video was posted on the computer application known as Facebook. The post read as follows:

Anyone know this guy? Must live in Albany or the coast, last seen flashing his genitals to a 14 year old girl on a bus. Share and let’s find him.

[9] The police were alerted to the Facebook post. Initially they did not know the identity of the man shown in the photograph. The officer tasked with the investigation placed the photo on an internal police communications platform. This platform gave officers, who may have had previous dealings with and known the person shown in the photograph, the opportunity to identify him. This process resulted in two officers with knowledge of Mr Hogg identifying him as the person shown in the photograph. The police then spoke to the father of the victim. They were given additional photos taken from the video and they were able to confirm that the victim had been on the bus at the relevant time.

[10] The police then applied for a search warrant. The application was supported by an affidavit from Detective Constable Thomas Libby. The warrant was granted.
The copy made available to me is not signed, but there is no dispute that it was signed on 28 December 2017 under s 6 of the Search and Surveillance Act 2012.

[11] Relevantly, the warrant records that the Judge or issuing officer was satisfied:

3.1 that there are reasonable grounds to suspect that the offence of:

3.1.1 Indecent Act (Male Offender) under section 125(1) of the Crimes Act 1961, and being an offence in respect of which Section 6 of the Search and Surveillance Act 2012 authorises an application for a search warrant, has been committed.

3.2 and that there are reasonable grounds to believe that the search of the specified place will find evidential material in respect of the offence specified above, namely:

3.2.1 Any cellphone or any electronic device capable of taking and/or storing photographs and videos;

3.2.2 Any transport card including Auckland Transport HOP cards;

3.2.3 Any documentation relating to the offence, namely public transport receipts, personal journals, and printed photographs;

3.2.4 Grey coloured T-shirt with “NEW YORK 68” printed across the front.

The specified place was Mr Hogg’s residential address at Bucklands Beach, Auckland.

[12] Inter alia, the warrant authorised the police at any time that was reasonable:

4.1 to enter and search the specified place for the specified evidential material;

4.2 to seize any of the specified evidential material, or anything else found in the course of carrying out the search or as a result of observations at the specified place, if you have reasonable grounds to believe that you could have seized the item or items under any search warrant that you could have obtained or any other search power that you could have exercised.

[13] The warrant was executed on the day after it was obtained. Detective Constable Libby was present.

[14] In the course of executing the warrant, the police seized two electronic tablets and a cellphone from Mr Hogg. Mr Hogg provided the password for these devices as he was required to do under s 130 of the Search and Surveillance Act. Detective
Constable Libby opened them and carried out a preliminary search. He could not find any images of the victim of the alleged indecent act on the bus. He did however find the Facebook Messenger communications sent to the complainant of the indecent communications charge (set out in [5] above). He took a photograph of those communications.

[15] Subsequently the electronic devices were sent for analysis by the police’s digital forensic unit.

[16] The police then spoke to the complainant to whom the communications had been sent and to her parents. Further communications were made available and ultimately the charge of indecently communicating with a young person was laid.

[17] Mr Hogg challenged the admissibility of the communications, arguing that they had been improperly obtained and that they should be excluded under s 30 of the Evidence Act 2006.

[18] That challenge was heard by Judge Tremewen, and she issued a reserved judgment in relation to the matter on 24 September 2018.²

District Court’s decision – admissibility of evidence

[19] Judge Tremewen considered whether or not the evidence was improperly obtained, by reference to the decision of the Court of Appeal in R v Williams.³ She was satisfied that the police had reasonable grounds to suspect that an offence had been committed on the bus by Mr Hogg. She also accepted that the search would likely have resulted in evidential material relating to the offence being found, as the parameters of the search included investigating Mr Hogg’s cellphone and other electronic devices that could be used to take still photos and videos. She observed that the police were interested in obtaining photos showing the victim’s reaction to Mr Hogg’s actions, and that thus, the ambit of the search was broad enough to allow the police to search “apps”, such as Facebook Messenger, as those apps are commonly used to take and send photos. The Judge considered that there was a distinct possibility

² R v Hogg [2018] NZDC 19694.

³ R v Williams [2007] NZCA 52, [2007] 3 NZLR 207.

that, if the photograph in question had been deleted from the device’s camera roll, or had been taken using such an app, then there might still have been a record of it in the app. She did not consider that there had been a fishing expedition; she considered that the police’s intentions were bona fide, and could be seen as being “very ordinary” in the circumstances of the investigation. She found that the search was lawful.

[20] Further, she found that the search was not unreasonable. She noted that the warrant specifically contemplated a search of Mr Hogg’s electronic devices. She considered that the police had a bona fide intention to execute the warrant for the purposes of investigating the alleged commission of the indecent act on the bus. She considered that there was no bad faith involved. Accordingly, she concluded that the evidence had been properly obtained.

[21] The Judge observed that she did not need to consider s 30 of the Evidence Act, but commented that even if she had found that the evidence had been improperly obtained, she would have nevertheless have held that it was admissible under s 30, because the evidence went to the heart of the prosecution’s case. She acknowledged that there is a strong privacy interest in information held on personal electronic devices, but that in this case any breach was minor, given that the warrant authorised the search of the cellphone and other devices.

The appeal

[22] Leave to appeal was required in respect of the admissibility ruling.⁴ It was granted by Brewer J in a minute on 4 April 2019.

[23] This Court, as the first appeal Court, can confirm the decision, vary it, or set it aside and make any other order it considers is appropriate.⁵ There are no statutory grounds of appeal set out in the relevant provisions.

4. Criminal Procedure Act 2011, s 215(1). Although not recorded in the decision, the judgment was given under s 79 of the Act.

⁵ Section 221.

Submissions

[24] Mr Dunne, appearing for Mr Hogg, argued that the Judge ought to have excluded evidence of the Facebook Messenger communication, because it was not reasonably necessary for the police to access the Facebook Messenger application when executing the search. He argued that the claimed purpose of the search was to obtain identification evidence, that the police were already in possession of evidence identifying Mr Hogg as the person exposing himself on the bus, and that the police had no cause to search Mr Hogg’s electronic devices to confirm that he had taken a photograph of the victim. In the alternative, it was argued that the police did not need to inspect the messages on the application. It was put to me that the police had a collateral purpose in searching Mr Hogg’s electronic devices, namely that they were hoping to uncover evidence of further offending. While it was conceded that there was nothing preventing the police from having a dual purpose, it was argued that a search must not go beyond what is required for the initial purpose. It was submitted that the search warrant identified the items to be searched, and the purpose for which they could be searched; the only items that could be searched on the electronic devices were photographs connected with the alleged offending on the bus, and the constable did not need to go into the Facebook Messenger application, let alone read communications which had been sent using that application.

[25] Mr Johnstone, for the Crown, argued that there were reasonable grounds to believe that the search would find evidential material in relation to the alleged offending on the bus, and that the police were seeking to obtain from the search further evidence identifying Mr Hogg as the offender. He argued that it was incumbent on the police to investigate the matter properly, to be sure that they were focusing on the right defendant. He denied that there was any improper or collateral purpose in obtaining the warrant and submitted that the warrant was properly granted. He also argued that the police did not act unreasonably and exceed the scope of the warrant, because the warrant extended to any cellphone or electronic devices capable of taking and/or storing photographs and videos. He referred to s 110(h) of Search and Surveillance Act, and argued that it allowed the police to search the electronic devices for evidential material. It was accepted that the warrant did not give specific authorisation to the police allowing them to search applications such as Facebook
Messenger, but it was argued that searching this and similar applications was nevertheless within the scope of the search authorised, as the Facebook Messenger application is commonly used to take and send photographs. It was said that the application keeps records of communications, so that if a photograph has been deleted from the camera roll in a cellphone or electronic device, it is nevertheless able to be found in the Facebook Messenger application.

Analysis – admissibility of communications

[26] The starting point is s 21 of the New Zealand Bill of Rights Act 1990. It provides as follows:

Unreasonable search and seizure

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

[27] The focus of the section is the right to be secure against unreasonable search and seizure. Whether a particular search or seizure is unreasonable will, in most cases, be answered by determining whether the person who conducted the search complied with the Search and Surveillance Act.⁶

[28] The search warrant was issued under s 6 of the Search and Surveillance Act. Relevantly, it provides as follows:

6 Issuing officer may issue search warrant

An issuing officer may issue a search warrant, in relation to a place, vehicle, or other thing, on application by a constable if the issuing officer is satisfied that there are reasonable grounds—

(a) to suspect that an offence specified in the application and punishable by imprisonment has been committed, or is being committed, or will be committed; and

(b) to believe that the search will find evidential material in respect of the offence in or on the place, vehicle, or other thing specified in the application.

[29] A search warrant is not to be granted lightly. The expression “is satisfied” used the introductory words to the section does not however mean that the matters set out

⁶ Simon France (ed) Adams on Criminal Law – Rights and Powers (online ed, Brookers) at [BC8].

in paragraphs (a) and (b) must be proved reasonable doubt or to any particular standard. Rather, it requires the issuing officer to make up his or her mind on reasonable grounds – in other words, to reach a judicial view on the matter.⁷

[30] There were clearly reasonable grounds to suspect that the offence of committing an indecent act in a public place had been committed by Mr Hogg. The police had a photograph of a person exposing his genitalia on what appeared to be a bus. The person had been identified as Mr Hogg. The affidavit filed in support of the application for the warrant by Detective Constable Thomas Libby disclosed that:

(a) Mr Hogg has a number of convictions for similar offending, including on buses;

(b) Mr Hogg was on bail at the time and he was subject to active charges;

(c) diary entries apparently written by Mr Hogg, described his compulsion to offend by exposing himself on buses. Photographs of pages from the diary provided by the victim of the active charges were annexed to the affidavit.

[31] There were also reasonable grounds to believe that the search would find evidential material in respect of the alleged offence. The photograph posted on Facebook which had been taken from the video footage filmed by the victim and which had been brought to the police’s attention, showed Mr Hogg holding a cellphone while he was exposing himself. Mr Hogg had noted in his diary that he liked to photograph his victims’ reactions to his indecent exposures on his cellphone. It was likely that there would be photographs of the victim on Mr Hogg’s cellphone.

[32] It was argued for Mr Hogg that the police already had sufficient evidence to prove the charge of committing an indecent act in a public place.

7. Z v Dental Complaints Assessment Committee [2008] NZSC 55, [2009] 1 NZLR 1 at [96]; R v Leitch [1998] 1 NZLR 420, (1997) 15 CRNZ 321 (CA) at 428 and 327; R v White [1998] 1 NZLR 264 (CA) at 268; See also Simon France (ed) Adams on Criminal Law – Rights and Powers (online ed, Brookers) at [SS6.09].

[33] That argument does not assist. As Judge Tremewen noted in her decision, the police may well have been criticised if they had not tried to obtain evidence from Mr Hogg. The position was confirmed by Detective Constable Libby in answering a question from the Judge at the hearing. The question and answer were as follows:

Q. Can I just confirm I’ve understood an aspect of your evidence Detective Constable. So had you obtained a copy of ... a photograph which appeared to have been taken by the defendant when on the bus and the relevant act was taking place, is what you’re saying to the Court that because you weren’t to know necessarily what might happen with the case, it could be a way of book ending the evidence or tying it even more clearly back to this particular defendant?

A. Yeah that’s correct.

It was incumbent on the police to investigate the matter properly, to be sure that they were focusing on the right defendant, and to ensure that they had a robust case which could withstand challenge at trial.

[34] It was put to Detective Constable Libby that the police had a collateral motive, and that they were looking for material outside the scope of the warrant. In particular it was suggested that the police were looking for material that might help them advance the other active charges that Mr Hogg was then facing. These assertions were denied by Detective Constable Libby. The following exchange took place:

Q. Well I’m putting to you that you probably had an improper purpose in having this warrant executed. What do you say to that?

A. I don’t believe that. I know I didn’t have an improper purpose. I didn’t know we’re going to locate a Facebook Messenger chat. I was looking for photos of my victim.

There was nothing to suggest any improper purpose, and in any event, the existence of a collateral purpose, even a dominant collateral purpose, would not render the search unlawful or unreasonable where the search was otherwise lawful and reasonable, and as long as the scope of the search covered only what was necessary to fulfil the lawful purpose of the search.⁸

⁸ R v Williams, above n 3 at [36] and [231].

[35] It was argued that the search went beyond what was necessary to fulfil its lawful purpose. It was noted that the police were searching electronic devices, and submitted that this raised special privacy concerns of the kind envisaged in s 21, given the nature and extent of personal information held on computers, including smart phones.⁹

[36] Here, the application and warrant expressly referred to Mr Hogg’s electronic devices and to what, it was expected, would be found on them – namely photographs and videos relevant to the incident on the bus. Where the search of a computer or data storage device is specifically authorised by the warrant, the examination or analysis is not limited to a mere visual inspection of the device.¹⁰

[37] When it was put to Detective Constable Libby that he went beyond the lawful purpose of the search by going into the communications stored on the Facebook Messenger application, he replied as follows:

A. We don’t know where these photos are stored. Whether they’re sent to other people. We wouldn’t be doing our job properly if we didn’t look in other places where media is shared amongst other people.

Q. But you know what a text message looks like don’t you?

A. I know what a text message looks like, yes.

Q. And you know what Facebook looks like?

A. Yes.

Q. And you that that’s quite different from a photograph don’t you?

A. You can share photographs across that platform.

...

Q. And you didn’t find any photograph taken by Mr Hogg, did you?

A. No I didn’t.

Q. And so did you examine all of the text messages in Mr Hogg’s phone

-

A. No.

⁹ Dotcom v Attorney General [2014] NZSC 199, [2015] 1 NZLR 745 at [190]- [192].

10. Search and Surveillance Act, s 110(h); And see S(CA 712/15) v R [2016] NZCA 448 (dealing with s 151 of the Customs and Excise Act 1996).

Q. - for a photograph?

A. I had my preliminary examination and the photographs that I took has been disclosed as all that I read into it.

Q. And so didn’t you think it was going beyond the scope to find or look through text messages on the electronic device being the tablet?

A. No. As I said before, we were looking across all different platforms within the tablet. I identified that communication with [the complainant]. I saw the nature of what was being discussed and I had to bring that to the attention otherwise it would be unjust to ignore it.

A little later, the following exchange took place:

Q, But then the Facebook Messenger messages weren’t photographs, were they?

A. No, but I would not know that until I look at them.

And then:

Q. Well, there was nothing, you weren’t looking for discussions or conversations between other persons in the electronic device, were you?

A. We’re looking for images that could be shared to other people.

...

Q. Yes, but you said that you were looking for photographs that could be exchanged?

A. If I, if I can clarify what I am talking about there, I am talking about a photo of the reaction or whatever he’s taken a photo of, the victim in my case, whether he’s sent that to other people, I don’t know what the likes of the defendant wished to do with these media files but it is clear in the image, in my evidence from my case, that he films them or takes photos. That was also evidenced in his personal journals.

Q. I put it to you you were looking for material outside the scope of that warrant and I put it to you that you were looking for material that might have been mentioned to you by [the complainant in the active charges], what do you say to that?

A. No that’s not true.

A little later, the Judge asked Detective Constable Libby about the same issue:

Q. And you’re saying that images can be sent, attached to forms of written communication?

A. That’s correct.

17. So you do the preliminary search before involving some more sophisticated forensics technology?

A. That’s correct.

[38] In my judgment, the police’s actions in undertaking a preliminary search of the messages on the Facebook Messenger application, to see whether or not photos were attached to them, did not exceed the scope of the warrant, and the police’s conduct in searching Mr Hogg’s electronic devices was reasonable. The evidential material sought was in relation to a charge of doing an indecent act. The application for the warrant made it clear that the police were interested in obtaining photographs believed to have been taken by Mr Hogg, showing the victim’s reactions to Mr Hogg’s actions in exposing his genitalia. The search warrant permitted the police to search Mr Hogg’s address to find evidential material in respect of the offence. It extended to cellphones and other electronic devices capable of taking and/or storing photographs and videos. The ambit of the search warrant was broad. It allowed a search of the devices for relevant photographs. The messages were found located in the Facebook Messenger application on one of the electronic devices. While the warrant did not give specific authorisation to search applications such as Facebook Messenger, in my judgment, searching that application and similar applications was within the scope of the search authorised by the warrant, because, as Detective Constable Libby pointed out at the hearing, images with photographs attached can be shared with other people Under s 110(h) of the Search and Surveillance Act, persons exercising search powers are authorised to use reasonable measures to access any computer systems and data storage devices located in the specified place.

[39] The evidence of the communications was not improperly obtained, and Judge Tremewen correctly held that it was properly admissible.

[40] It follows that I do not need to go on and consider s 30 of the Evidence Act. In case I am wrong in my conclusions regarding the admissibility of the evidence, I record that I would have been prepared to admit the evidence, even if it had been improperly obtained. I accept that Mr Hogg had a significant privacy interest in the personal information on his electronic devices, but the police had authority to search those devices under the search warrant. Any impropriety was not as a result of bad faith. It is clear from Detective Constable Libby believed that he had authority to
search Mr Hogg’s electronic devices pursuant to the warrant. It turned out that the evidence obtained was of no assistance in regard to the offence for which the warrant was sought. It is however cogent evidence of the indecent communication charge. Indeed, it was central to the Crown case in that regard. Any impropriety was minor in the circumstances of this case.

[41] I now turn to consider the alternative argument presented for Mr Hogg – namely, that the Judge was wrong to find that the communications were indecent.

District Court’s substantive decision - conviction

[42] In a reserved judgement given on 17 December 2018,¹¹ Judge Tremewen recorded that Mr Hogg had pleaded not guilty to the charge faced, and that she had presided over the trial on a Judge-alone basis. She recorded the onus and standard of proof required. She summarised the relevant evidence and the law. She set out the elements of the offence, inter alia recording that the Crown had to prove beyond reasonable doubt that the communications were indecent. The Judge noted the word “indecent” is not defined in the Crimes Act, but that it has been held to encompass anything which can be regarded as sufficiently objectionable to warrant the label of indecent and the responding intervention of the law.¹² The noted the trier of fact must be satisfied that a right-minded individual would consider the communication indecent, taking into account the time, place and circumstances of the communication.¹³ She observed that the defendant’s intentions and the recipient’s reactions are irrelevant, because whether a communication is or is not indecent is determined objectively.

[43] The Judge then recorded the submissions advanced by the Crown and for Mr Hogg. She then turned to analyse the case. She noted as follows:

(a) the complainant was a young person – aged 15 years old;

¹¹ R v Hogg, above n 1.

¹² R v Dunn [1973] 2 NZLR 481 (CA) 482 to 483.

¹³ Milne v Police (1990) 6 CRNZ 636 (HC) at 641.

(b) Mr Hogg sent a communication to the complainant, aware that she would see it;

(c) the communications in question (highlighted in bold in [5] above) were sexual in nature. Mr Hogg was telling the complainant that he was lying naked on his bed while he messaged her, and that he knew the complainant wished to be there with him. The Judge took the view that there was a “strongly suggestive tone about the words”, and that Mr Hogg was not only referring to himself but also including the complainant – a schoolgirl in his employ – in the imagery naturally arising from his words;

(d) the Judge considered that it was relevant that the communications followed a backdrop of earlier messages sent. The Judge summarised those earlier messages;

(e) the Judge noted that not only was Mr Hogg the complainant’s employer, but that he was 36 years old – more than twice her age. She referred to the dynamics of the relationship; noting that it was a not a relationship of peers or equals;

(f) the message was sent outside work hours;

(g) Mr Hogg knew that the messages were unsuitable. He had conveyed this in some of his other messages.

The Judge concluded that the evidence was sufficient to permit a rightminded person to conclude that the communications were indecent. Accordingly, she found the charge proved.

The appeal

[44] This aspect of the appeal is brought pursuant to s 229(1) of the Criminal Procedure Act.
[45] Section 232(2)(b) requires that, in the case of a Judge alone trial, the first appeal court must allow the appeal if it is satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any other reason. The first appeal court must dismiss an appeal in any other case. The words “miscarriage of justice” mean any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or that it has resulted in an unfair trial or a trial that was a nullity.¹⁴

Submissions

[46] Mr Dunne submitted that Her Honour erred both in fact and in law in holding the communications indecent. It was submitted that the Judge placed too much emphasis on the background, and that the offence requires that the messages must be indecent “intrinsically”. It was said that surrounding circumstances cannot make something indecent which was otherwise not indecent. While it was accepted that communicating with the complainant on a social level was inappropriate, it was noted that there were over 900 messages exchanged, that this was “general circumstance” of the communications in issue, and that properly construed, there was nothing sexual in the communications the subject of the charge.

[47] Mr Johnstone submitted that the key issue was whether or not the word “indecent” used in s 124A of the Crimes Act should be interpreted to include reference to the surrounding circumstances, or whether indecency is to be determined by reference to the communications alone. He noted that there is no definition of the word “indecent” in the Crimes Act, and that it is for the fact finder to determine whether the material in question should be considered indecent by right-minded people. He argued that the test is objective, and that while Mr Hogg’s intentions and how the complainant felt when she received the messages were irrelevant, any assessment can include a consideration of the surrounding circumstances.

¹⁴ Section 232.

Analysis – the substantive decision - conviction

[48] The Crimes Act does not define the term “indecent”. It has been held that it is a word which “very largely speaks for itself”, and comprises anything which “modern and popular use” would regard as sufficiently objectionable to warrant the description and hence the intervention of the law”.¹⁵ It is for the tribunal of fact to determine whether the material in question would be considered by right-minded persons to be indecent, taking account of the “time, place and circumstances” in which the communication occurred.¹⁶

[49] If these tests remain good law, there can be no doubt that Judge Tremewen did not err in law. She expressly adopted them. At issue is whether or not the law has changed as a result of the Supreme Court’s decision in Rowe v R.¹⁷

[50] Section 124A appears in part 7 of the Crimes Act. That part of the Act deals with crimes against morality and decency, sexual crimes and crimes against public welfare. A number of the provisions refer to indecency, and use the word “indecent”. Section 126 deals with indecent acts undertaken with intent to insult or offend. This section is focused on exhibitionism or sexual display, and the Supreme Court has held that there must be something in the nature of the act which is an affront to the public so as to make it indecent.¹⁸ The Court held – at least in the context of s 126 – that the requirement that the behaviour is an affront to the public means that it must be intrinsically indecent.¹⁹

[51] Section 124A was not in issue in before the Supreme Court, and the majority did not address it. Sir William Young J, in a separate judgment, expressed reservations about the continuing applicability of the community standards test. He did not consider that indecency is always just a matter of fact to be determined by the trier of fact by reference to community standards. However, he declined to accept that the Court should approach the concept of indecency from the starting point that it has a single meaning which can be applied uniformly throughout part 7 of the Crimes Act.

¹⁵ R v Dunn , above n 12 at [482]-[483].

¹⁶ Milne v Police, above n 13 at [641].

¹⁷ Rowe v R [2018] NZSC 55.

¹⁸ At [63].

¹⁹ At [40] and [65].

He did not consider that indecency for the purposes of ss 125 and 126 has the same meaning as it does in provisions addressed to indecent assault and indecencies with children.²⁰ The Judge held that, for the purposes of s 126, indecency falls to be determined by reference only to the externalities of a defendant’s behaviour. He did not comment on the meaning to be given to the word “indecent” in s 124A.²¹

[52] Since the Supreme Court’s decision in Rowe, it has been suggested that the same approach might be required in respect of other “indecent act/type” offending. In O’Sullivan v R,²² the appellant had been convicted of doing indecent acts on children and young persons. The trial Judge and the Court of Appeal had referred to the Court of Appeal’s decision in Rowe. Both decisions had been made before the Supreme Court had delivered its judgment in Rowe. The Supreme Court (post Rowe) declined Mr O’Sullivan leave to appeal, but noted that this was in part because the trial Judge had drawn the conclusion that the acts were indecent from “the externalities of the applicant’s conduct at the time of offending”, and that as a result, it could not be argued that the decision was wrong in light of its decision in Rowe.²³

[53] As a result, it is not altogether easy to say what test applies to the use of the word “indecent” in s 124A.

[54] Judge Tremewen did not refer to Rowe. However, in my judgment, she did not err in the approach she took. She correctly noted that Mr Hogg’s intentions were irrelevant, and she did not take the same into account. She also recorded that the complainant’s reactions were irrelevant. She did nevertheless record evidence given by the complainant that Mr Hogg’s communications had made her feel “awful”, that the communications at issue were “disgusting and horrible” and that she became anxious as a result. It would have been preferable if the Judge had not referred to these matters. A respondent’s response to communications is not relevant to whether or not the charge is proved. I am not however persuaded that Judge Tremewen’s reference to these matters was fundamental to her decision.

²⁰ At [83] and [90].

²¹ At [95] and [96].

²² O’Sullivan v R [2018] NZSC 103.

²³ At [5].

[55] The key part of the Judge’s reasoning is set out at paragraph [21] of her decision. She there addressed directly the communications in issue. She found that they were sexually suggestive. While the Judge went on to consider other circumstances, such as Mr Hogg’s age, the complainant’s age, the nature of the relationship between them and what she described as the “backdrop of earlier messages sent”, it is clear that none of those circumstances was relied upon by her to make an otherwise equivocal or innocent communication indecent. The Judge had already found the communications themselves to be indecent. As I read the Judge’s judgment, having found that the communications were indecent, she went on, in effect, to explain why they would be considered indecent from the perspective of a right- thinking person. I do not regard the decision in Rowe as precluding this type of consideration. Rather, the majority in Rowe held that a prurient motive or intention cannot transform an otherwise unobjectionable act into an indecent act. The effect of Judge Tremewen’s judgment was to find that the communications in themselves were indecent, on their plain meaning. While Mr Hogg gave a different explanation as to what he intended the messages to mean at trial – namely, that they were just “silly things that [he did]”, that it was only “meant to be joking around like sarcastic”, and that it was “just a throw away sarcastic sort of remark”, the Judge, having had the benefit of seeing Mr Hogg give evidence, was entitled to reject this self-serving evidence. There is no proper basis to set aside the Judge’s finding in this regard.

[56] In my judgment, Judge Tremewen did not err in her finding that the communications were indecent.

Result

[57] The appeal against the admission of the communications is dismissed, as is the appeal against conviction.








Wylie J