To do an act “with” the defendant
Policy was an
important consideration in interpreting the phrase “to do an indecent act with
or upon” the defendant in s 2(1B)
of the Crimes Act 1961 [NZ], where the defendant, an adult, induced young
people to masturbate in his presence but without any physical contact or overt
participation by him: Y (SC40/2013) v R
[2014] NZSC 34 (3
April 2014). The policy point is apparent at [16].
Equally
interesting is the submission made for the appellant that the interpretation
imposing liability on the defendant would amount to retrospective
criminalisation, in view of decisions that appeared to suggest he would not be
liable. At [27] the Court noted that the earlier decisions did not deal with
situations where young people had performed the indecent acts, so this was not
retrospective criminalisation.
Civil but contemptuous
The
distinction between civil and criminal contempt of court was the basis for
holding that extradition on a criminal matter did not operate to bar
proceedings for an earlier civil contempt, in O’Brien v R [2014] UKSC 23 (2
April 2014). The distinction between civil and criminal contempt is mentioned
at [37] – [40], [42]. It is the nature of the defendant’s conduct that
determines the category of the contempt.
