In taking
photographs of a girl performing oral sex on another man, the defendant did an
act “with or on” the girl so as to commit an offence as a principal offender
under s 132(3)
of the Crimes Act 1961 [NZ] (following Y
(SC40/2013) v R [2014] NZSC 34 (3 April 2014), noted briefly here
on 4 April 2014). He was therefore liable in New Zealand, even though this all
occurred overseas, because of the extension of jurisdiction by s 144A
of that Act.
That is how
the Court reasoned in LM v R [2014]
NZSC 110 (13 August 2014).
In addition
to accepting that liability could arise in that way, two of the five judges
found another path. They considered that the defendant was liable as a
secondary party under s 66(1)(b)-(d)
of the Act, regardless of where the principal offender committed the offence,
and that therefore, since he committed the acts of secondary participation
overseas, Mr LM came within the s 144A extended jurisdiction. On this approach (as
I understand it) one pretends, when asking whether the defendant was aiding or
abetting, inciting counselling or procuring the commission of an offence, that
the offence was committed in New Zealand by the principal, just for the sake of
establishing that what was done was an offence under New Zealand law.
William Young
J for the majority on this aspect of the case (with Elias CJ and McGrath J) was
“unable” to construe ss 144A and s 66(1) as imposing liability on someone who
is a secondary party to a substantive “offence” which occurred overseas but
which, because the principal party was a foreigner, was not an offence
recognised in terms of s 144A [24]. In this case the other man’s acts done
overseas were not an offence under New Zealand law because he was not a New
Zealand citizen and was not ordinarily resident in New Zealand.
Putting aside
the “with or on” aspect of the actus reus, which enabled the court to find that
Mr LM could be liable as a principal party, more generally there are three
permutations of circumstances illustrating potential liability. If both men had
been New Zealanders, both would have been liable in New Zealand, one as a
principal and one as a secondary party [17]. If the principal party had been a
New Zealander, but not the other, the principal would be prosecutable in New
Zealand, but as the legislation does not specifically impose liability on
secondary parties who are New Zealanders, a foreign secondary party’s liability
would be less certain, and the better view [20] is that only New Zealanders
could be liable as secondary parties under s 144A (the minority seem to agree:
[40, footnote 26]). And if the principal was a foreigner and the so-called secondary
party a New Zealander, the New Zealander would not be liable as there was no
offence, over which there was jurisdiction in New Zealand law, to which he
could have been a secondary party [23]-[24] (disagreeing with the minority).
The majority
suggest that s 144A should be revised to specifically refer to secondary
liability, as in the corresponding provisions in Australia and the United
Kingdom, to meet the concerns raised by this analysis of the permutations [25].
There seems, as the minority point out [40], no logical reason for the policy
to be to exclude the secondary liability of a New Zealander merely because the principal
party happens to be a foreigner.
