A Tauranga man convicted of filming down a woman's blouse has had his application for leave to appeal, based on the fact he filmed down instead of up, dismissed.

Leonard George Diffin, 54, was testing a loophole in ‘peeping Tom' laws in an appeal against his conviction for making an intimate visual recording that he made looking down a woman's blouse.

Photo: File.

Diffin was sentenced to 200 hours' community work after police found a hidden camera and a number of secret recordings during a search of his house. Diffin appealed and the sentence was reduced to 100 hours' community work.

Diffin also appealed another charge of recording a woman's bra and cleavage, looking down the woman's blouse as she sat or bent forward.

An appeal against the conviction failed, and the High Court refused him leave to appeal on a question of law. Diffin then sought leave from the Court of Appeal.

Diffin's lawyer Craig Tuck argued that because the law speaks of recordings made ‘beneath or under clothing', that it does not prohibit ‘down blouse' recording, only ‘up blouse' or ‘up skirt' recording.

The legislative history confirms that Parliament did not intend to limit the offence in that way, says Justice Forrest Miller for the Court of Appeal. The offending behaviour is colloquially described as ‘down-blouse' and ‘up-skirt' recording.

'Because it opens at the neck a blouse or similar common upper garment is more likely to reveal a view of breasts from above than below, and we see no reason why the legislature should have chosen to permit one and prohibit the other,” says Justice Miller.

'It depicted parts of her breasts and brassiere that would not normally have been visible to others.”

Whether a visual recording of a woman's breasts is intimate depends firstly on whether she has covered them with clothing. Should she choose to expose them, a recording is not intimate unless she is in a place, which would reasonably be expected to afford her privacy.

Where the woman has clothed her breasts an image of them is intimate if made from beneath or under the clothing. The distinguishing quality of such recording is that it captures a view of the woman's breasts that she did not intend others to see, the court heard.

'We conclude that the proposed question of law does not merit submission to this Court for decision.

'For the reasons just given, the judgment of Heath J on appeal was plainly correct, and the proposed question is not seriously arguable.”

The application for leave to appeal was dismissed.