A man accused of turning his garage into a den for child abuse appealed his charges today at the Supreme Court, in a case that will go on to frame the boundaries of child sex offending in New Zealand.
The father, who has name suppression, allegedly forced his 11-year-old son and his son's two friends, aged 11 and 12, to masturbate in front of him.
The alleged offences took place in the man's garage where he stored computers, remote control models, a flight simulator and pornography.
Defence lawyer Chris Wilkinson-Smith condemned the man's behaviour as "repugnant", but argued that it was not illegal under New Zealand legislation.
Court documents state the accused would lock the garage doors and show his son and his son's friends pornographic movies. He provided the boys with lubricant, and encouraged them to masturbate, which they "eventually" did. Meanwhile, the man would stand back and watch them.
Wilkinson-Smith argued this was not a breach of the Crimes Act because the man did not touch the boys, or "indulge in any sexual activity" during the incidents.
At the man's trial in the Auckland District Court in January last year, his defence lawyers successfully argued the accused had not committed a crime, with the judge "reluctantly" dismissing the case after ruling the man did not carry out sexual acts "with" the boys.
In a rare move, the Court of Appeal in October 2012 overturned the acquittal, finding the act criminal because the man had "actively encouraged" the boys to masturbate.
At today's appeal, Wilkinson-Smith said: "While most people would think [the accused's actions] should be criminal, by the state of the law as it's been interpreted, they aren't. The courts can raise the flag and say [the law] needs changing, but that cannot be done during this case."
He said the case was unusual in that it showed you could not charge a man based simply on his misbehaviour, unless those actions aligned with a breach of the law.
In response, the Crown said the law quite clearly targeted the exploitation of children, and "no extension of the law is required to criminalise this conduct".
"If you force someone to masturbate using threats of force you'll be guilty of indecent assault, but if you do the same thing to a child - not needing to use force because the child is respectful of the adult - and there is no criminality, that is quite absurd."
All names are suppressed in the case to avoid identifying the victims. The judges' decision is reserved.
QUESTION OF INTERPRETATION
Section 2(1B) of the Crimes Act 1961 provides:
(1B) For the purposes of this Act, one person does an indecent act on another person whether he or she -
(a) does an indecent act with or on the other person; or
(b) induces or permits the other person to do an indecent act with or on him or her.
The issue raised by this case is consideration of the word "with" and, in particular, whether an "indecent act" can be done by a person who does not commit an indecent act himself but watches another perform it.
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