R v Hapakuku [2016] NZDC 14353

Published 05 August 2020

Section 147 application for discharge — indecent act — indecent assault — foot fetish — photography — meaning of "indecent" — circumstances of indecency — Milne v Police [1990] 6 CRNZ 636 — R v Court [1998] All ER 221 — R v George [1956] Crim LR 52 — R v Annas [2008] NZCA 534 — Crime Appeal 273/91 — R v Graham-Kerr [1998] 1 WLR 1098 11 — Paris v Attorney General [2004] 1 NZLR 519 — Crimes Act 1961, ss 126 & 134(3) — Criminal Procedure Act 2011, s 147. The defendant sought to be discharged on two charges of doing an indecent act and two of indecent assault. He was alleged to have photographed the feet of two teenaged complainants, and on two occasions to have also touched the feet of one of the complainants. The defendant argued that photographing or even touching a person's feet did not qualify as indecent. The Court examined prior authorities and found that the charges required that both an act take place, and that it be accompanied by circumstances of indecency. In this case there were only allegations that the defendant actually had taken photographs; no actual photographs were available as evidence. In the absence of photographs the Court could not tell whether or not there were circumstances of indecency — therefore, the Court concluded, a properly-directed jury would not be able to find the defendant guilty. The Court ordered that the charges be dismissed. Judgment Date: 29 July 2016.