Wednesday, August 13, 2014

Photos from abroad

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.

In summarising this case I have used the terms “principal party” and “secondary party” in the sense that is consistent with s 66(1): a principal party actually commits the offence and is liable under s 66(1)(a), and a secondary party does any of the acts described in s 66(1)(b)-(d). The meaning in the judgments is the same but the tendency is to use the expression “party liability” to mean “secondary party liability”, see, for example [23], and so to distinguish a principal from a party (meaning a principal party from a secondary party) as in [19].