An Auckland man found guilty of taking photos of children being sexually exploited in Russia has appealed to the Supreme Court.
He says he cannot be a party to the offence as the Russian principal offender cannot be charged under New Zealand law.
The Auckland man, who has name suppression, was found guilty in 2011 of being a party to sexual conduct with a child outside New Zealand.
He was found to have taken photographs in a Moscow apartment of a 7-year-old girl in a sexual position with a man.
He was one of the first New Zealanders to be convicted of committing a crime against children overseas.
The man appealed against his conviction on the grounds that extra-territorial offences were in a "special class", and New Zealand law under which offenders could be charged as a party to an offence applied only to domestic offences.
He said the Russian primary offender could not be charged in New Zealand because as a foreigner he was not subject to New Zealand law for an overseas crime.
There was no intention that the provision capture secondary parties to an overseas offence, said the New Zealander's lawyer, Chris Patterson.
For New Zealanders, an indecent act done overseas was an offence if it was against the law if done in New Zealand, he said.
The Supreme Court noted that it did not seem sensible the man would be a party to an offence if the principal offender was a New Zealander and could be charged under domestic law, but could not be a party to the indecent act if the person was a foreigner, as the case was here.
Crown lawyer Mathew Downs argued that the provision was to be interpreted as if the whole act, or sequence of acts, in exploiting the child took place in New Zealand and could be prosecuted under New Zealand law.
Not doing so would breach New Zealand's international obligations, specifically the United Nations Convention on the Rights of the Child, and the optional protocol to the convention on the sale of children, child prostitution and child pornography, he said.
The Supreme Court today reserved its decision.
- Fairfax Media