Ah-Chong v R
[2015] NZSC 83
•17 June 2015
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| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 93/2014 [2015] NZSC 83 |
| BETWEEN | TAGIAO AH-CHONG |
| AND | THE QUEEN |
| Hearing: | 18 February 2015 |
Court: | Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ |
Counsel: | E J Forster for Appellant |
Judgment: | 17 June 2015 |
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS
| McGrath, Glazebrook and Arnold JJ | [1] |
| Elias CJ | [92] |
| William Young J | [144] |
McGRATH, GLAZEBROOK AND ARNOLD JJ
(Given by Arnold J)
Following a jury trial before Judge Down, the appellant was convicted of one count of assault with intent to commit sexual violation by rape, contrary to s 129(2) of the Crimes Act 1961. He had grabbed the complainant, whom he did not know, in a bear hug, pressed his erect penis into her back and tried to remove her overalls, preparatory to having sexual intercourse with her. His defence was that he thought that the complainant wanted to have sexual intercourse with him. Reasoning by analogy from this Court’s decision in L v R in relation to attempted sexual connection by rape (s 129(1) of the Crimes Act),[1] the trial Judge instructed the jury that they had to be satisfied beyond reasonable doubt that (among other things) the appellant had no reasonable grounds to believe that the complainant was consenting to have a sexual encounter with him.
[1]L v R [2006] NZSC 18, [2006] 3 NZLR 291.
The appellant argued that this direction was wrong. He contended that the offence of assault with intent to have sexual connection by rape[2] involved two distinct mental elements, one relating to the assault and another relating to the intention to rape. In relation to assault, a mistaken belief in consent to the conduct constituting the assault would be a defence[3], even if it was unreasonable. This would be so even if the mens rea for intention to rape was met by an honest belief in consent to sexual intercourse that was unreasonable.
[2]For convenience we will refer to this offence as assault with intent to rape.
[3]Strictly speaking, consent is not a defence in relation to assault but rather means that no assault has occurred. It is convenient to describe it as a defence, however, and we will do so.
In the circumstances of this case, we have concluded that the Judge’s instruction was correct. The Judge told the jury that to convict the appellant they had to accept the complainant’s account of the assault. On her version of events, there was no suggestion that the appellant in fact had a belief in consent that was independent of a mistaken belief that the complainant was consenting to sexual intercourse – there was no possibility of another mistaken belief in consent going only to the assault.
On the question whether a mistaken but unreasonable belief in consent to sexual intercourse meets the mens rea required by the intention to rape element of the offence, we see no reason to depart from the approach taken by this Court in L v R in relation to attempted rape. Interpreted in context of the surrounding sexual violation provisions, and the underlying policy they express, s 129(2) requires the same mental element in relation to intention to rape as s 129(1).
In any event, on the complainant’s version of events, which the jury must have accepted given the Judge’s instructions, there was no evidential basis for an argument that the appellant had any belief in consent, much less a reasonable one. The appellant’s argument as to his belief in consent was based on a version of the facts that the jury rejected.
For these reasons, we would dismiss the appeal.
Although we consider that this case can be resolved on the basis of the statutory language, interpreted in context and in light of this Court’s decision in L v R, we acknowledge that it engages two contentious aspects of the criminal law. The first is the tension between subjectivity and objectivity, in particular, the extent to which criminal liability may legitimately be based not on a person’s subjective state of mind (ie, intention, knowledge or foresight) but on objective considerations. The second concerns liability for inchoate offences.[4] Given their potential for over-reach, such offences raise the question of the proper scope of the criminal law. Identification of the physical element and, in this case, the mental element assumes particular importance as a consequence. Although the particular offence at issue in this case, assault with intent to commit rape, is not a true inchoate offence given that it requires proof of an assault, it raises similar issues to inchoate offences such as attempted rape.
Factual background
[4]Inchoate offences such as attempt, conspiracy and incitement are offences which criminalise conduct whicih is incomplete or imperfect, in the sense that it has not resulted in the commission of a substantive offence: see A Simester, W Brookbanks and N Boister Principles of Criminal Law (4th ed, Brookers Ltd, Wellington, 2012) at [8.1].
On the day that the complainant started work at a new job at a food processing factory, she was assigned for 45 minutes or so prior to the lunch break to work on the other side of a conveyer belt from the appellant, grading produce. The complainant, who was 20, did not know the appellant, a 19 year old Samoan who spoke little English. The environment was a noisy one, and both the appellant and the complainant were wearing overalls, ear protectors and head coverings in the nature of balaclavas.
The complainant said she began to notice that, although conversation was impossible, the appellant was attempting to make eye contact with her, and was raising his eyes and whistling. She said she was “creeped out” by this and tried to ignore him and focus on her work. When it was lunch time, the complainant removed her head covering and ear protectors and tied the top half of her work overalls round her waist (she was wearing a tank top underneath). She went to the rest area to have her lunch. The appellant was sitting with some other men at a table, conversing in Samoan. As she was leaving the room, the appellant got up and said something to her in Samoan. She did not understand what he was saying and ignored him.
The complainant went downstairs to the women’s toilets and entered one of the cubicles. She said that when she came out of the cubicle to go the hand basin, she noticed the appellant standing at the open door to the toilets. The complainant became confused and told the appellant that this was not the women’s toilet (meaning the men’s toilet) and went to the hand basin to wash her hands. When she had finished, she turned round and noticed that the appellant had shut the door to the toilets and was standing in front of it. When the complainant tried to step around him to leave the toilets, the appellant grabbed her in a bear hug from behind, pinning her arms to her side. She immediately began to struggle, saying “No” several times. She said she could feel the appellant’s erect penis thrusting against her bottom. The appellant then tried to remove the bottom part of the complainant’s overalls, freeing one of his hands to do so. This enabled the complainant to wriggle free, open the door and leave. She was in a distressed state.
The appellant gave a very different account of events in his interview with the police (he did not give evidence at trial). Through an interpreter, the appellant told the police that the complainant had been flirting with him at the conveyer belt. He asked how old she was and if she liked him, and they exchanged “thumbs up”, which he interpreted to mean that she had agreed to a “quickie”. He said that when they were at the conveyer belt, the complainant had winked at him and pointed towards the bathroom. He signalled for her to “take the lead” and they went into the toilets together, with him following close behind her. The appellant said that, once inside, he told the complainant by means of body language that he wanted to “get it done”. He said that he touched or grabbed her hand, pulling her towards him “to … find out what the story is”. He said she pushed his hand away and left the toilets. This brought the incident to an end. The appellant denied that he had grabbed the complainant from behind, that he had tried to pull her overalls down or that he had pressed his erect penis against her bottom.
In closing to the jury, defence counsel said that there was no doubt that the appellant intended to have sexual intercourse with the complainant and accepted that the complainant did not consent to that. Counsel argued that the appellant had thought, mistakenly, that the complainant was willing to have sex with him. Counsel accepted that there had to be “some type of reasonable basis for his belief” but submitted that, in the circumstances, there was such a basis.
Judge’s instructions to jury
In his summing up, the Judge identified the issues that the jury had to answer as follows:
[14] There are four questions that need to be answered.
(a) Did the defendant assault [the complainant]?
(b) At the time did he intend to have sexual intercourse with her?
(c) Did she give true consent?
(d) Did he have reasonable grounds to believe that she was consenting?
The Judge referred to the evidence relevant to the matters at issue by reference to a question trail provided to the jury after discussion with counsel.[5] In relation to whether an assault had occurred, the first question in the question trail asked whether the jury was satisfied beyond reasonable doubt that “[the appellant] grabbed [the complainant] from behind, pressing himself against her and preventing her from leaving”. In the summing up, the Judge said:
[15] It is clear from the way that this trial has been run and the concessions made by counsel, Mr Forster, in his closing address that the first question, did he assault [the complainant] is in issue in this case because the defendant says that all he did was to take her by the hand and pull her towards him. Of course, the Crown allege … that he grabbed her in a bear hug from behind trapping her arms, that he pressed or thrust his pelvis and erect penis towards the complainant’s bottom several times and that he made an attempt to pull down her pants.
[16] Now although taking someone by the hand and pulling them towards you is technically an assault and you heard counsel explain what an assault is. It is not what is alleged here. What is alleged here is what the complainant says happened, the bear hug, the thrusting, the pressing and the preventing her from leaving.
[17] Only if you are satisfied beyond reasonable doubt that he assaulted [the complainant] in the way that she alleges could you answer [the first] question “yes” … .
[5]The Court of Appeal judgment records that, before it, defence counsel said that he did not agree with the form of the question trail: A (CA814/2013) v R [2014] NZCA 385 (O’Regan P, Goddard and Andrews JJ) [A v R (CA)] at n 3.
In relation to the second issue, the intention to have sexual intercourse, the Judge noted that even though that had been conceded by counsel for the defence in his closing address, the jury needed to be satisfied beyond reasonable doubt that the appellant had that intention. The Judge made a similar comment about the third issue, whether or not the complainant was consenting, which counsel had also conceded in closing.
The Judge then turned to the fourth element. The question trail asked if the jury was satisfied that the appellant had no reasonable grounds to believe the complainant was consenting. In the summing up, the Judge said:
[22] Of course, if you accept [the complainant’s] account of the assault it would be difficult to conclude that [the appellant] had a reasonable basis to believe that she was consenting. However, if it is reasonably possible that his account of taking her hand and pulling her towards him and immediately stopping when she struggled and said, “No”, if that is true, if you find that it is true you almost certainly could not be satisfied beyond reasonable doubt that he did not realise she was not consenting and that he had a reasonable basis up to that point for believing that she did consent.
[23] Of course, the Crown say that he could not have had that belief at any stage on the account he gave of these non-verbal communications. If you accept as a reasonable possibility that he desisted, that he stopped as soon as she struggled and said, “No” you could conclude that he no longer, at the relevant time, had the intent to have sexual intercourse with her. As Mr Forster submits to you, the timing of the event and the fluid developing situation is potentially very important here.
In addition to setting out the questions for decision, the question trail briefly summarised the position of both Crown and defence on each question.
The Court of Appeal
The appellant appealed to the Court of Appeal against his conviction. The appeal was unsuccessful.[6] Having cited L v R, the Court said:
[32] Where sexual violation is an ingredient of any alleged offence, it is necessary to prove lack of consent on the intended victim’s part, coupled with lack of any reasonable belief on the perpetrator’s part that the victim consents. Consequentially, assault with intent to commit sexual violation necessarily incorporates the probative elements relevant to the intent required to establish a charge of sexual violation. In a charge of assault with intent to commit sexual violation, intent to sexually violate is a live issue at the time the assault is committed, not afterwards.
The Court went on to say that the argument pursued on the appeal had no grounding in the facts of the case.[7]
The issue
[6]A v R (CA), above n 5.
[7]At [36].
As we discuss further below, the definition of assault in the Crimes Act potentially catches a wide range of conduct involving the deliberate touching of another person. However, its ambit is narrowed by the fact that consent may be a defence. Accordingly, in principle a person who, when deliberately applying force to another, has an honest but mistaken belief that the other person is consenting to the application of force will be protected from liability, even though the belief in consent is unreasonable.[8]
[8]See R v Lee [2006] 3 NZLR 42, (2006) 22 CRNZ 568 (CA) at [308]. See the discussion below from [50].
However, in relation to the offence of sexual violation, whether by rape or unlawful sexual connection, where there is a mistaken belief in consent, it must be based on reasonable grounds to provide a defence.[9] Where a perpetrator uses physical force capable of constituting an assault as a prelude to sexual intercourse in the honest but unreasonable belief that the victim is consenting to the intended sexual intercourse, how is the issue of intention in respect of the two elements of assault and intent to rape to be approached? In particular, does the existence of an honest but unreasonable belief in consent to sexual intercourse mean there is no “assault” for the purposes of s 129(2)?
[9]Crimes Act 1961, s 128(2)(b) and (3)(b).
We said at the outset that, on the facts as accepted by the jury, the only belief in consent possibly available to the appellant was a mistaken belief that the complainant was agreeable to having sexual intercourse with him, plainly an unreasonable belief in the circumstances. In determining what suffices to meet the mens rea of the “intent to commit rape” element of s 129(2), we see no reason to depart from the approach taken by this Court in L v R to the offence of attempted sexual violation by rape under s 129(1). While the issue ultimately comes down to the interpretation of s 129(2) in context, we think there is value in putting the issue in its broader context.
Subjectivity and objectivity in the context of sexual offending
Generally speaking, in recent times academic criminal lawyers and common law courts have preferred a subjective rather than an objective approach to the imposition of criminal liability. The rationale for this approach was explained by Lord Bingham in R v G, a case concerning the meaning of “reckless” in s 1(1) of the Criminal Damage Act 1971 (UK).[10] Section 1(1) applies where a person has destroyed or damaged the property of another “intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged”. The question was whether the accused had actually to appreciate the risk of damage or destruction or whether it was sufficient that a reasonable person in the accused’s position would have appreciated the risk.
[10]R v G [2003] UKHL 50, [2004] 1 AC 1034.
The House of Lords held that the former meaning was intended. In the course of explaining this outcome Lord Bingham said:[11]
[I]t is a salutary principle that conviction of serious crime should depend on proof not simply that the defendant caused (by act or omission) an injurious result to another but that his state of mind when so acting was culpable. This, after all, is the meaning of the familiar rule actus non facit reum nisi mens sit rea. The most obviously culpable state of mind is no doubt an intention to cause the injurious result, but knowing disregard of an appreciated and unacceptable risk of causing an injurious result or a deliberate closing of the mind to such risk would be readily accepted as culpable also. It is clearly blameworthy to take an obvious and significant risk of causing injury to another. But it is not clearly blameworthy to do something involving a risk of injury to another if (for reasons other than self-induced intoxication: R v Majewski [1977] AC 443) one genuinely does not perceive the risk. Such a person may fairly be accused of stupidity or lack of imagination, but neither of those failings should expose him to conviction of serious crime or the risk of punishment.
[11]At [32].
Both Lord Steyn and Lord Rodger observed that this interpretation reflected the modern tendency of the criminal law. Lord Steyn said:[12]
This interpretation of section 1 of the 1971 Act would fit in with the general tendency in modern times of our criminal law. The shift is towards adopting a subjective approach. It is generally necessary to look at the matter in the light of how it would have appeared to the defendant.
Lord Rodger noted:[13]
It is no secret that, for a long time, many of the leading academic writers in English criminal law have been “subjectivists”. By that I mean, at the risk of gross oversimplification, that they have believed that the criminal law should punish people only for those consequences of their acts which they foresaw at the relevant time.
[12]At [55].
[13]At [65].
However, like other legislatures, the New Zealand Parliament has on occasion deliberately amended the law to depart from a wholly subjective approach to the mental element of offences by introducing an objective element. This occurred in 1985 in relation to sexual violation. Currently, the offence of sexual violation by rape contains three requirements:[14]
(a)intentional penetration of the genitalia by the penis;
(b)without the consent of the complainant; and
(c)without the accused believing on reasonable grounds that the complainant is consenting.
[14]Crimes Act, s 128(2) and L v R, above n 1, at [6].
As will be obvious, there are two aspects to the offence which involve the perpetrator’s mental state – the penetration must be intentional and any belief in consent must be based on reasonable grounds. Our focus is on the second of these elements, namely the objective requirement that a mistaken belief in consent be reasonable.
To understand the change to New Zealand law by Parliament in 1985 it is necessary to go back to the well-known decision of the House of Lords in Director of Public Prosecutions v Morgan.[15] There the House of Lords considered whether a person could properly be convicted of rape where he believed the woman was consenting but his belief was not based on reasonable grounds. This was against the background that s 1(1) of the Sexual Offences Act 1956 (UK) merely declared it was an offence for a man to rape a woman. The majority held that the prosecution had to establish an intention to have non-consensual intercourse, that is, that the accused either knew that the complainant did not consent, or was reckless as to whether or not she consented, so that an honest belief that the complainant consented to sexual intercourse would negative the requisite intention, no matter how unreasonable that belief was. The reasonableness of the accused’s belief went only to the fact-finder’s assessment of whether it was likely that he held it.
[15]Director of Public Prosecutions v Morgan [1976] AC 182 (HL).
The law as articulated in Morgan applied in New Zealand[16] and elsewhere.[17] The fact that it gave full effect to subjectivity in relation to the mental element of rape caused much controversy. Ultimately legislation was enacted in Canada,[18] New Zealand[19] and the United Kingdom[20] to introduce an objective component into the mens rea requirements for sexual offences. In New Zealand, the requirement that an accused’s belief in consent be based on reasonable grounds was introduced, so that the Crown must now prove that the accused did not believe on reasonable grounds that the complainant was consenting to the relevant sexual activity.[21] Several of the Australian states have taken similar, albeit not identical, steps.[22]
[16]See, for example, R v Walker CA 133/79, 3 March 1980 at 2–3 and R v Kaitamaki [1980] 1 NZLR 59 (upheld on appeal to the Privy Council: Kaitamaki v R [1984] 1 NZLR 385, [1985] AC 147 (PC)). See also Criminal Law Reform Committee The Decision in DPP v Morgan: Aspects of the Law of Rape (Wellington, 1980).
[17]See, for example, R v McEwan [1979] 2 NSWLR 926 (NSW CCA) and R v Saragozza [1984] VR 187 (VSCFC) in Australia and Pappajohn v R [1980] 2 SCR 120 in Canada.
[18]Criminal Code, RSC 1985, c. C-46 (Can), s 273.2, which provides that it is no defence to sexual assault charges that the accused believed that the complainant had consented where the accused did not take steps that were reasonable in the circumstances known to him or her to ascertain consent.
[19]Crimes Amendment Act (No 3) 1985.
[20]Sexual Offences Act 2003 (UK).
[21]Crimes Act, s 128(2)(b) and (3)(b).
[22]See, for example, Crimes Act 1958 (Vic) s 37AA, which provides that if evidence is led that an accused believed the complainant was consenting, the judge must direct the jury to consider any evidence of that belief, and whether it was reasonable in all the relevant circumstances.
In addition, as we discuss further at [53] to [57] below, some legislatures (including the New Zealand Parliament) enacted statutory provisions which identify matters that do not amount to consent to sexual activity.[23]
Section 129
[23]In New Zealand, see s 128A of the Crimes Act 1961, which was introduced by the Crimes Amendment Act (No 3) 1985, s 2.
Against this brief background, we turn to the provisions at issue in the present case. Section 129 of the Crimes Act provides:[24]
Attempted sexual violation and assault with intent to commit sexual violation
(1)Every one who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years.
(2)Every one who assaults another person with intent to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years.
[24]Emphasis added.
Section 72(1) identifies what is required in relation to an attempt. It provides:[25]
Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
The language of s 72(2) and (3) indicates that the common law requirement that, to constitute an attempt, the act or omission must be immediately or proximately connected with the intended offence is part of New Zealand law and requires an initial assessment by the judge. This requirement is a mechanism to provide at least a partial solution to the problem of over-reach by limiting the actus reus of “attempt”.
[25]Emphasis added.
As will be appreciated, both the s 129(1) and s 129(2) offences require an intention to commit sexual violation, in this case by rape. In the case of the s 129(1) offence, this is by virtue of the definition of “attempt” in s 72(1); in the case of the s 129(2) offence, it is by virtue of the subsection itself.
Section 129 dates back to s 193 of the Criminal Code Act 1893. That section provided:
193 Attempt to commit rape
Every one is liable to ten years’ imprisonment with hard labour, and, according to his age, to be flogged or whipped once, twice, or thrice, who attempts to commit rape, or assaults any person with intent to commit rape.
This section was carried over, in identical terms, in s 213 of the Crimes Act 1908. When the Crimes Act was enacted in 1961, s 129 read:
129 Attempt to commit rape
Everyone who attempts to commit rape or assaults any person with intent to commit rape is liable to imprisonment for a term not exceeding ten years.
Attempted rape and assault with intent to commit rape were not separated out into the existing subsections until s 7 of the Crimes Amendment Act 2005 came into force in mid-2005.
To understand how attempted rape and assault with intent to commit rape came to be included in the same section it is necessary to go back to the Criminal Code Bill which preceded the Act of 1893. The Revision of Statutes Act 1879 provided for the appointment of Commissioners to undertake various tasks in relation to New Zealand statute law. Under s 4(7) of that Act, they were required to report on a Bill introduced into the Imperial Parliament to establish a code in relation to indictable offences. By the time the Commissioners reported in 1883, several drafts of the Bill had been introduced in the United Kingdom Parliament, the latest being in 1880. The Commissioners prepared a draft Criminal Code Bill for New Zealand on the basis of the 1880 draft.[26]
[26]For a history of the Criminal Code Act 1893, see Stephen White “The making of the New Zealand Criminal Code Act of 1893: A sketch” (1986) 16 VUWLR 353.
The draft Criminal Code Bill referred only to attempts to commit rape; there was no specific reference to assaults with intent to commit rape. There was a provision dealing with aggravated assault, that is, assault with intent to commit an offence. It may be that assault with intent to commit rape was specifically identified and included with attempted rape in the Criminal Code Act as enacted in 1893 to reflect the fact that in the Bill the maximum penalty for attempted rape had been increased from two years to seven years imprisonment. Because the maximum penalty for assault with intent to commit an offence under the Bill was two years imprisonment, it may have been thought necessary to make specific provision for assault with intent to commit rape so as to attach to it the same seven year maximum penalty as applied in the case of attempted rape.[27]
[27]Although the maximum penalty for attempted rape under the Bill was seven years imprisonment, the maximum penalty under the Criminal Code Act as enacted was 10 years imprisonment for both attempted rape and assault with intent to commit rape. The maximum penalty for other aggravated assaults was two years imprisonment: see s 189.
In any event, the fact that the legislature combined attempted rape and assault with intent to commit rape in one section suggests that they were seen as having some common features, a point to which we will return.
L v R
This Court considered the mental element for attempted sexual violation under s 129(1) in L v R. The case was unusual in that the accused was a woman and the complainant a 15 year old male. Tipping J, delivering the judgment of himself, Elias CJ, Blanchard and McGrath JJ, gave the following summary of the factual basis for the appellant’s conviction:[28]
The appellant was found guilty on the attempted sexual violation count on the following basis. The 15-year-old complainant testified that the appellant had grabbed his penis and tried to put it into her vagina. He said he would not let it go in. She tried doing it a couple of times and he then stopped her and told her he could not do it.
[28]L v R, above n 1, at [3]. Henry J delivered a separate concurring judgment.
Having identified the three elements required for sexual violation by rape, the majority judgment said:[29]
The first element requires the Crown to prove the physical act of penetration accompanied by the necessary mental state, namely the intention of the accused that there shall be penetration. The second element requires proof of the fact that the complainant did not consent to the penetration. The third element requires the Crown to prove either that the accused did not believe the complainant was consenting to the penetration; or, if the accused did or might as a reasonable possibility have so believed, that the accused had no reasonable grounds for that belief.
[29]At [7].
The majority judgment then set out the provisions of s 72 of the Crimes Act dealing with attempts, set out the reasoning of the Court of Appeal and summarised the rival contentions of the parties, and its conclusion, as follows:[30]
[Counsel] for the appellant contended that the phrase “having an intent to commit an offence” comprehended only an intent to achieve penetration without consent; or, put in a different way, an intent to effect non-consensual penetration. The Crown argued that s 72(1) required attention to be given to all aspects of the completed offence [ie, intent to have sexual connection with the complainant, without the complainant’s consent, and without believing on reasonable grounds that the complainant consented]. It will emerge from the discussion which follows that we consider the answer lies essentially in the Crown’s approach. There are several reasons for this, not least of which is the desirability of having symmetry between an attempt and the completed crime, save, of course, to the extent necessitated by the fact that, in physical terms, an attempt must necessarily fall short of the full crime.
[30]At [11].
The appellant’s counsel had attempted to draw an analogy with attempted murder, where it is accepted that nothing less than an intention to kill is sufficient to justify a conviction, even though there are other lesser states of mind that are sufficient to constitute the completed offence of murder.[31] The majority judgment rejected the analogy, explaining that the lesser states of mind that were sufficient for the completed offence of murder were not sufficient for an attempt because they did not relate to the necessary result, namely death.[32] The majority said:[33]
The fact that in the case of attempted murder the necessary mental state of the accused is confined to the first of the statutory states of mind sufficient for the completed crime, does not, in our view, mandate the result for which [counsel for the appellant] contends in relation to attempted sexual violation. In relation to an attempt to commit that crime, [counsel’s] submission has the effect of eliminating altogether an express ingredient of the completed crime and substituting another, which has the accused’s intent wrongly focused on the complainant’s lack of consent. We do not consider the analogy [counsel] sought to draw is valid in principle or sound in policy terms. To have the proposed degree of dissonance between attempted sexual violation and the full offence would be undesirable in practical terms and, in our view, the statutory regime militates against [counsel’s] submission.
[31]See R v Murphy [1969] NZLR 959 (CA).
[32]L v R, above n 1, at [15]–[16]. Henry J also rejected the analogy at [52].
[33]At [16].
The majority considered that assistance could be derived from the decision of the Court of Appeal in England in R v Khan.[34] At the time of that decision, s 1 of the Sexual Offences Act 1956 (UK) provided that a man committed rape by having sexual intercourse with a woman without her consent knowing that she was not consenting or being reckless as to whether she was consenting. The issue for the Court concerned the mental element for attempted rape. The appellant argued that recklessness as to consent was not sufficient; rather, the prosecution had to show that an accused intended to have non-consensual sex with the complainant.
[34]R v Khan [1990] 1 WLR 813 (CA).
The Court of Appeal rejected this contention. Russell LJ said:[35]
In our judgment an acceptable analysis of the offence of rape is as follows: (1) the intention of the offender is to have sexual intercourse with a woman; (2) the offence is committed if, but only if, the circumstances are that: (a) the woman does not consent AND (b) the defendant knows that she is not consenting or is reckless as to whether she consents.
Precisely the same analysis can be made of the offence of attempted rape: (1) the intention of the offender is to have sexual intercourse with a woman; (2) the offence is committed if, but only if, the circumstances are that (a) the woman does not consent AND (b) the defendant knows that she is not consenting or is reckless as to whether she consents.
The only difference between the two offences is that in rape sexual intercourse takes place whereas in attempted rape it does not, although there has to be some act which is more than preparatory to sexual intercourse. Considered in that way, the intent of the defendant is precisely the same in rape and in attempted rape and the mens rea is identical, namely, an intention to have intercourse plus a knowledge of or recklessness as to the woman’s absence of consent. No question of attempting to achieve a reckless state of mind arises; the attempt relates to the physical activity; the mental state of the defendant is the same. A man does not recklessly have sexual intercourse, nor does he recklessly attempt it. Recklessness in rape and attempted rape arises not in relation to the physical act of the accused but only in his state of mind when engaged in the activity of having or attempting to have sexual intercourse.
If this is the true analysis, as we believe it is, the attempt does not require any different intention on the part of the accused from that for the full offence of rape. We believe this to be a desirable result which in the instant case did not require the jury to be burdened with different directions as to the accused’s state of mind, dependent upon whether the individual achieved or failed to achieve sexual intercourse.
We recognise, of course, that our reasoning cannot apply to all offences and all attempts. Where, for example as in causing death by reckless driving or reckless arson, no state of mind other than recklessness is involved in the offence, there can be no attempt to commit it.
In our judgment, however, the words “with intent to commit an offence” to be found in section 1 of the Act of 1981 mean, when applied to rape, “with intent to have sexual intercourse with a woman in circumstances where she does not consent and the defendant knows or could not care less about her absence of consent”. The only “intent”, giving that word its natural and ordinary meaning, of the rapist is to have sexual intercourse. He commits the offence because of the circumstances in which he manifests that intent ie when the woman is not consenting and he either knows it or could not care less about the absence of consent.
[35]At 818–819.
In this analysis, the Court adopted the distinction drawn by Professor Glanville Williams and others between the consequences of an act and the circumstances in which the act occurs.[36] Professor Williams considered that full intention was required in relation to the former, but recklessness would suffice for the latter.
[36]See the discussion in Glanville Williams “The Problem of Reckless Attempts” [1983] Crim LR 365 and the materials referred to therein. See also Fran Wright “Reckless attempts revisited” [2006] NZLJ 208 and Kevin Dawkins and Margaret Briggs “The Mental Element in Attempt” [2007] NZ L Rev 161, who discuss the distinction in the course of their discussion of L v R.
In L v R, the majority considered that the essence of the Court’s analysis in Khan was applicable to attempted sexual violation by rape in the New Zealand context. Referring to the three elements of the offence previously identified, the majority judgment said:[37]
The reference in [s 72(1)] to “having an intent to commit an offence” means that to be guilty of attempted sexual violation the person charged must intend to complete the first element of the full offence. That is the only intent necessary in the classic sense of that concept. But, as the context is an attempt to commit the full offence, the completed first element is not enough. It must be accompanied not only by the lack of consent of the victim required by the second element, but also by the lack of belief about the victim’s consent required of the accused person by the third element. That means the intent must be to complete the first element, that is, in a conventional case of sexual violation by rape, to effect penetration, in circumstances where that penetration is without the consent of the complainant and the accused does not believe on reasonable grounds that the complainant consents.
[37]L v R, above n 1, at [21].
The judgment concluded on this point as follows:[38]
The approach we prefer means that the difference between an attempt and the full offence of sexual violation lies solely in the fact that the accused has tried to fulfil the first element of the completed offence but has not achieved his or her objective. In the ordinary case of attempted rape the man has tried to penetrate the woman but has not done so. The legislative policy, introduced in 1985, that any belief in consent on the part of the accused must be on reasonable grounds is maintained for the attempt consistently with what is required for the completed offence. Parliament can hardly have intended the position to be otherwise. There is a clear indication to that effect in the recently introduced s 134 of the Crimes Act in combination with s 134A, where the need for any belief about the age of the complainant to be on reasonable grounds is expressly required both for the completed offence and for an attempt. The difference between the attempt and the completed offence will, on this basis, be simple to explain to juries; much simpler than would be the case in the approach advanced by the appellant. Under that approach confusingly different tests would apply if the jury was having to consider whether the facts amounted to the full offence or only to an attempt. The resolution of the issue presented by this case in the way outlined is thus consistent with the general policy of current sexual offences legislation, with principle, and with practical considerations.
[38]At [24] (footnotes omitted, emphasis added).
Henry J delivered a short concurring judgment, in the course of which he said:
[48] It is necessary therefore to ascertain the elements of the offence of attempted unlawful sexual connection. First, an act which constitutes an attempt to have sexual connection. That is the actus reus. Secondly, that the victim is not consenting to the intended connection or, depending upon the proximity in time and place of the attempt, would not have consented to the intended connection. Thirdly, that the offender did not believe on reasonable grounds the victim was consenting or would consent to the intended connection. The mens rea of the offence lies in the third element.
[49] … The substantive offence [ie, sexual violation by rape] is not restricted to knowingly having non-consensual connection, and similarly an intent to commit that offence under s 72(1) is not restricted to an intent to knowingly have non-consensual intercourse.
[50] There is no difference in substance between the approach to consideration of the substantive offence and the attempt to commit it. The distinction lies solely in the fact that in the case of an attempt the act of connection has not been completed.
Henry J considered that to draw a distinction between the completed offence of sexual violation by rape and an attempt on the basis suggested by the appellant would create an “illogical distinction”,[39] which would create difficulties for juries. Obviously, this view accords with that of the majority.
[39]At [51].
We will return to L v R, and to Khan, later in this judgment when we discuss L v R’s application to this case. Before we do so, however, we need to address assault and the role of consent.
Assault and the role of consent
“Assault” is defined in s 2 as:
the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he or she has, present ability to effect his or her purpose.
In general, assault requires two intentional elements. First, the application of force must be intentional – an accidental or unintended application of force is not sufficient. Second, the person applying force must appreciate that the victim does not consent to the application of force, or at least be reckless as to that. This second requirement arises where the victim’s consent to the application of force is a defence, so that there is no assault.[40]
[40]This may arise from the way particular offences are defined or from the fact that s 20 preserves common law defences to the extent that they are not inconsistent with statute.
The circumstances in which consent can be a defence of a charge of assault were considered in some detail by the Full Court of the Court of Appeal in R v Lee.[41] In that case, the Court held so far as the common law of New Zealand was concerned:[42]
[41]R v Lee, above n 8.
[42]This summary is based on what is said at [289]–[318]. See also Barker v R [2009] NZCA 186, [2010] 1 NZLR 235.
(a)The common law position in relation to consent is preserved by s 20 of the Crimes Act, except to the extent that consent is dealt with specifically in particular statutory provisions.[43]
(b)Where consent is available as a defence, an honest but mistaken belief by the perpetrator in consent will also provide a defence. The mistaken belief need not be reasonable.
(c)Consent can be a defence to an assault where no serious injury is intended and caused except in the case of fighting.[44]
(d)In relation to intentional infliction of harm that is greater than “mere bodily harm”, consent may be a defence unless:
(i)there are good public policy reasons to forbid it; and
(ii)those policy reasons outweigh the social utility of the activity in question and the value that society places on personal autonomy.
(e)Where grievous bodily harm is intended, it will be rare for a court to accept that consent is available as a defence. It will be different where an activity (a contact sport, for example) involves the risk of serious injury. In such cases, a court is more likely to accept that consent is available, ie, that participants consent to run the risk of serious injury.
The important feature of this description for present purposes is that public policy considerations are relevant to the courts’ determination of the scope of the consent defence in the context of assault.
[43]For example, s 63 provides that no one has the right to consent to the infliction of death upon him or herself and s 61A deals with consent in the context of surgical operations.
[44]The Court used the term “mere bodily harm” in contradistinction to “serious injury”. It appears to be derived from the majority judgments in R v Brown [1994] 1 AC 212 (HL).
Consent may be express or implied. For example, participation in certain types of sports will involve, if not an express consent, at least an implied consent to the type of physical contact that occurs as an incident of such sports and to the risk of serious injury.[45] More relevantly to the present case, the law recognises that various actions that might technically constitute assaults occur between strangers in everyday life but should not be treated as assaults. An example is touching someone on the shoulder to get his or her attention. Instances of this type are best treated as involving implied consent – people are treated as consenting to the types of touching that are incidental to everyday social living.[46]
[45]See Simester, Brookbanks and Boister, above n 4, at [17.2.4(4)].
[46]At [17.2.2].
As noted previously, in general, where consent is available as a defence, an accused’s honest belief that the “victim” consented to the physical contact will be a defence to a charge of assault, even if that belief is unreasonable.[47] However, this has been legislatively modified in respect of the offences of sexual violation by rape or unlawful sexual connection.[48]
[47]See above at [19].
[48]Although not in the case of indecent assault, where an honest but unreasonable belief in consent still affords a defence: see R v Nazif [1987] 2 NZLR 122 (CA) at 128; and R v Aylwin [2007] NZCA 458 at [35].
A further legislative modification to the law relating to consent in the context of sexual offences is found in s 128A of the Crimes Act. The heading to that section reads “Allowing sexual activity does not amount to consent in some circumstances”. The section sets out a number of circumstances or situations which do not amount to the giving of consent to “sexual activity” (which is defined in s 128A(9) as sexual connection or doing an indecent act to a person that, without that person’s consent, would be an indecent assault). For present purposes, it is sufficient to mention just one of the circumstances identified. Section 128A(1) provides:
A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
The principle underlying this subsection appears to be that, in the context of sexual activity, mere submission does not constitute consent: consent requires some positive or affirmative words or conduct.
Consider the situation where a person charged with sexual violation argues that he or she honestly believed that the complainant was consenting to sexual intercourse or some other form of sexual connection simply because the complainant was entirely passive and did not protest in any way. The failure to protest could not amount to consent in fact; but could it provide a legitimate basis for an accused’s honest belief in consent? It might be said in such a case that the accused’s belief was not based on reasonable grounds given that lack of protest cannot, by law, constitute consent, so that the accused could not rely on it. But even if this analysis does apply where the charge is sexual violation, it may not where an accused is charged with indecent assault, because a belief in consent in that context need only be honestly held to provide a defence – the reasonable grounds requirement does not apply.
It is arguable that to allow an honest belief in consent based simply on the complainant’s passivity or failure to resist to operate as a defence would undermine significantly the policy that underlies s 128A(1). However, in R v Tawera where the complainant had not protested or resisted sexual activity, the Court of Appeal said:[49]
Having read the whole of the relevant evidence … we find it difficult to see how on an objective appraisal it can be said absence of belief in consent on reasonable grounds has been established beyond reasonable doubt. On analysis, there is nothing in the complainant’s evidence, the surrounding circumstances, or the appellant’s evidence which objectively indicated that the complainant was not consenting … It may be that the jury became unduly concerned about the direction (correctly given) on s 128A and the fact that a failure to protest or offer physical resistance does not by itself constitute consent. That kind of consideration may of course be highly relevant to whether there was consent, but it does not really bear on the critical issue of belief in consent.
The Court’s focus in this passage on there being nothing to indicate that the complainant was not consenting is arguably at odds with the principle that s 128A(1) appears to be based upon, namely, that consent to sexual activity is something which must be given in a positive way.
[49]R v Tawera (1996) 14 CRNZ 290 (CA) at 293.
In Canada, which has an equivalent provision to s 128A,[50] the Supreme Court has dealt with this issue by holding that an honest belief in consent based on a failure to protest reflects a mistake of law, and reliance on it is therefore prohibited.[51]
[50]Criminal Code, RSC 1985, c. C–46 (Can), s 265(3). See also s 273.1.
[51]See R v Ewanchuk [1999] 1 SCR 330 at [51] per Major J (delivering the judgment of himself and Lamer CJ, Cory, Iacobucci, Bastarache and Binnie JJ). Section 19 of the Canadian Criminal Code is the equivalent of s 25 of the Crimes Act (ignorance of law is no defence).
This is not an issue on which we need to express a view in the present case. The point of mentioning it is simply to emphasise that both the common law and statutory law as to consent are substantially influenced by policy considerations, and that this may carry over, to some extent at least, to defences based on mistaken belief in consent.
Against this background, we turn to consider the present case.
This case
We discuss the position under four headings – the competing versions of events, the operation of consent, over-reach and the application of L v R.
Competing versions of events
We begin with the competing versions of events given by the appellant and the complainant. In essence, the appellant’s account was that he grabbed or took the complainant’s hand believing that she wanted to have sex with him. When she pulled her hand away and went to leave, he realised that he was mistaken and took the matter no further. By contrast, the complainant said that when she attempted to walk past the appellant to leave the toilets, he grabbed her from behind, pinning her arms. She could feel his erect penis pushing into her bottom. Although she said “No” several times, the appellant attempted to remove the bottom part of her overalls, which gave her the opportunity to wriggle free from his grasp and make her escape.
The Judge instructed the jury that they had to accept the complainant’s version of events to convict the appellant. If they were left with a reasonable doubt about her version, or accepted the appellant’s account, they were obliged to acquit. We consider that this direction was correct. On the appellant’s account, he touched or grabbed the complainant’s hand with the intention of having sexual intercourse with her but when she withdrew her hand and left, he gave up. If that account is accepted, either:
(a)the touching can be seen as the type of commonplace touching covered by implied consent, so that it would not constitute an “assault”; or
(b)the appellant’s decision not to pursue that matter once he realised that the complainant did not want to have sexual intercourse with him indicated that he had no intention to commit sexual violation.
On either analysis, the appellant would not be guilty of an offence against s 129(2).
On the other hand, on the complainant’s account, the appellant continued with his attempt to have sexual intercourse by trying to remove the complainant’s overalls despite the fact that she had tried to walk around him to leave the toilets and, when he grabbed her round her arms and held her in a bear hug, had said “No” several times. There was no suggestion that the appellant had any belief that the complainant was consenting to the physical contact or to sexual intercourse on this version of events. For example, the appellant did not say that, despite the complainant’s protestations, he thought she was willing to have intercourse with him.
In the circumstances of this case, the Judge’s instruction to the jury in relation to the competing versions of events was correct. The jury obviously rejected the appellant’s account and accepted that of the complainant.[52] It follows from this that, even if we were to accept that the assault element of the offence required a separate mens rea and an honest but unreasonable belief that the complainant was consenting to sexual intercourse was sufficient to constitute a defence to that assault element (which we do not), the appellant was rightly convicted as there was nothing to indicate that he had any such belief. As a consequence, there is no miscarriage of justice, so that the appeal must be dismissed.
Operation of consent
[52]We say this because the Judge instructed the jury that they had to accept the complainant’s version of events before they could find the appellant guilty.
When considering the effect of an erroneous belief in consent, it is important to take account of what it is that consent may go to. We can illustrate the point by referring to two examples:
(a)First, assume that A and B are kissing passionately. A has it in mind that matters will progress to sexual intercourse whether B consents or not, that is, A has an intention to rape if necessary. B, however, does not intend to allow things to progress beyond the passionate kissing. Neither informs the other of what is in their minds. If they are interrupted at that point and nothing further happens, A could not be guilty of assault with intent to rape,[53] because there will have been no “assault” – the only physical contact that occurred was fully consented to. In this type of case, consent to the physical contact constituting the “assault” and consent to the intended sexual intercourse can sensibly be viewed independently.
(b)Second, assume a factual scenario of the type alleged by the complainant in this case. In this type of situation, there will be no consent to the physical contact (ie, the assault) or to the intended sexual intercourse. Because the physical contact and the intended sexual intercourse are so closely linked, there being a very brief sequence of events which, from A’s perspective, were intended to culminate in immediate sexual intercourse, it makes no sense to consider consent in relation to the physical contact in isolation from consent to the proposed sexual intercourse. (This close connection between the physical contact and the intended sexual intercourse is something to which we return below at [73].)
[53]This assumes that A’s intention to proceed to have intercourse whether or not B consented could be proved in some way.
This analysis carries over to mistaken belief in consent. In the first type of situation, A may have a mistaken belief in consent in relation to the activity that constitutes the assault quite independently of any belief about whether or not B is ultimately willing to have sexual intercourse. But in the second type of case, the physical contact is for the immediate purpose of having sexual intercourse – A’s justification for the physical contact is that A wrongly believes that B wants to have intercourse. So, in the present case, the appellant’s defence was not that he thought the complainant was consenting to the assault independently of the intended intercourse but rather that he thought the complainant wanted to have intercourse with him and the physical contact was to facilitate this mistaken belief.
We consider that it would be contrary to Parliament’s purpose in relation to this type of offending and serve no sound principle to take an approach to mistaken belief in consent in relation to the assault element of the s 129(2) offence that undermines the proper approach to the intention to rape element of the subsection. Accordingly, assuming for the moment that an honest but unreasonable belief in consent to intercourse does constitute an “intent to commit sexual violation” for the purposes of s 129(2), that same unreasonable belief could not be used to negative the assault element on the basis that it was honestly held. We consider that this outcome is required when s 129(2) is interpreted in the context of the sexual offences provisions more generally, which includes the legislative policy which underlies them, as we explain in more detail below.
In this connection, we note that in L v R the Court of Appeal had held that an accused must intend, at the time of the attempt, to have sexual connection without the consent of the complainant “to the activity which amounts to attempted sexual connection, and without believing on reasonable grounds that the complainant consents to that activity”.[54] This Court disagreed with that analysis. It held that the question was whether the complainant would have consented to the conduct necessary to constitute the full offence, rather than the conduct constituting the attempt.[55] The conduct constituting the attempt in L v R was an assault (the charge in that case could as easily have been assault with intent to commit rape as attempted rape). We consider that this supports the conclusion just expressed.
Over-reach
[54]L v R [2006] 3 NZLR 291 (CA) at [26] (emphasis added).
[55]L v R, above n 1, at [23].
As we indicated at the outset, inchoate offences raise the issue of the proper reach of the criminal law. As they fall short of completed offences, inchoate offences cover a wide range of conduct that, standing alone, may appear to be innocuous or non-threatening. What makes the conduct threatening is the fact that, from the perpetrator’s perspective, it was a step on the way to committing the full offence. Accordingly, intention (using the term broadly) in the context of attempts (and other inchoate offences) is particularly important.[56] However, if too much weight is given to intention, it is possible that a person will be subjected to criminal liability essentially as a result of his or her thoughts, which is generally thought to be beyond the proper scope of the criminal law. Moreover, it is always possible that someone who commences on the path to committing an offence will change his or her mind and abandon the proposed criminal enterprise, thus undermining the justification for the imposition of liability.
[56]In R v Whybrow (1951) 35 Cr App R 141 (CA) at 147, Lord Goddard CJ said in relation to attempt that “the intent is the essence of the crime”.
There are two obvious mechanisms which the law might utilise to meet problems of over-reach in relation to inchoate offences. The first is through control of what it is that is sufficient to constitute the actus reus. In relation to attempt, this is achieved through the common law test articulated in s 72(2) of the Crimes Act – conduct which is “only preparation” and too remote will not be sufficient to constitute an attempt (the proximity test). Whether conduct has gone beyond mere preparation and is sufficiently proximate to the commission of the offence is a question of law for the judge. The second is through the mental element. This is illustrated by the inchoate offence of conspiracy,[57] where it appears to be accepted that the offence requires full intention to agree to commit an offence, and an intention that the conduct necessary for the offence be carried out – neither recklessness nor negligence is sufficient even though they may be sufficient for liability for the completed offence.[58]
[57]Crimes Act, s 310.
[58]See Simester, Brookbanks and Boister, above n 4, at [8.3.5(3)].
Such control mechanisms may not operate uniformly across all forms of inchoate offences, however. For example, Graham Virgo argues that the mental elements for conspiracy and attempt are justifiably distinct because an attempt is closer to the completed offence than conspiracy, so that conspiracy requires proof of more significant culpability.[59] Others, however, argue for a uniform approach.[60]
[59]Graham Virgo “Criminal Attempts – The Law of Unintended Consequences” [2014] CLJ 244 at 247.
[60]See, for example, J Child and A Hunt “Mens rea and the general inchoate offences: another new culpability framework” (2012) 63 NILQ 247.
In relation to attempted rape and assault with intent to commit rape, the Court of Appeal in R v Hassan said (in the context of a sentence appeal):[61]
We accept that the two offences are separately defined under s 129 and do not necessarily contain the same elements. Frequently however they will overlap in their factual content, and what is important is for the circumstances of the particular offending to be properly analysed in the context of the particular charge. An assault with intent may fall short of an attempt, and an attempt does not necessarily involve an assault – hence the different offences, albeit with a common maximum penalty.
[61]R v Hassan [1999] 1 NZLR 14 (CA) at 16.
We agree that attempted rape will not necessarily involve an assault, although many attempted rapes do. In principle, it is possible to imagine situations involving assaults with intent to commit rape that do not amount to attempts,[62] as an assault may not be sufficiently proximate to penetration to constitute an attempt.[63] On the other hand, the fact that attempted rape and assault with intent to commit rape are dealt with together in the same section may indicate that Parliament considered that both should be subject to the same restriction that the conduct involved must be sufficiently proximate to the full offence.
[62]See Sex Offences Review Setting the Boundaries: Reforming the law on sex offences (Home Office, vol 1, July 2000) at [2.15].
[63]In R v Harpur [2010] NZCA 319, (2010) 24 CRNZ 909 a Full Court of the Court of Appeal took what can fairly be described as an expansive view of proximity. The approach in the United Kingdom seems rather narrower, although it is accepted that it is not necessary to show that the accused has attempted to effect penetration in order to secure a conviction for attempted rape: see Attorney General’s Reference (No 1 of 1992) [1993] 1 WLR 274 (CA) at 285. We express no view on which approach to proximity is to be preferred.
But even if proximity is not required as a matter of law in respect of offences under s 129(2), we think that, without it, the Crown will have difficulty in proving an intent to rape. The need for the Crown to prove that there was such an intent when the assault was committed means that generally there will have to be a close connection between assault and the intended sexual intercourse (which will often be sufficient to justify a conviction for an attempt if attempt had been charged). It is likely that the prosecution will have to rely on the circumstances and nature of the assault to assist in establishing that the accused intended to have sexual intercourse with the complainant and/or that the accused had the necessary mental element in relation to absence of consent, at least in the absence of other powerful extrinsic evidence of purpose or a confession.
A similar point can be made about attempts. In R v Harpur, the Full Court of the Court of Appeal accepted that there was a close linkage between the assessment of the actus reus of an attempt and the mens rea, so that when a court considers whether conduct that is alleged to constitute an attempt is sufficiently proximate, the strength of the evidence of mens rea will be relevant – ie, more remote conduct may meet the proximity test if the intent is clear.[64] In relation to assault with intent to commit rape, there is also a close relationship between the actus reus and the mens rea, although as a practical matter the relationship may well be the other way round – the nature of the assault will cast light on the mental element.
[64]R v Harpur, above n 63, at [25].
Accordingly, as a practical matter, we think it likely that there will have to be reasonable proximity between the assault and the intended sexual intercourse before an accused will be convicted. This will significantly limit, if not eliminate, the potential for over-reach.
Turning to the mens rea for attempted rape and for assault with intent to commit rape, the nature of the mental element required may widen or narrow the scope of the offences. If the mens rea required is full intention (ie, an intention to have sexual intercourse knowing that the complainant does not consent), the scope of the offence will be more limited than if a lesser mental state will suffice for conviction (ie, an unreasonable belief in consent). But if a lesser mental state is sufficient, that does not necessarily mean that the offence is over-broad: that will depend on a range of considerations. In this connection, it is noteworthy that the conduct at issue in this case would likely constitute the offence of sexual assault in the United Kingdom. There, sexual assault requires intentional touching that is sexual and not consented to, in circumstances where the toucher does not reasonably believe that the other person consents to the touching.[65] Whether a belief in consent is reasonable is to be determined having regard to all the circumstances, including whether the toucher took any steps to ascertain whether the other person consented.[66] Certainly, then, the United Kingdom Parliament did not consider that liability based on an objective mental element created an over-broad offence in a comparable context.
Application of L v R
[65]Sexual Offences Act 2003 (UK), s 3(1).
[66]Section 3(2).
As we have said, in L v R, this Court held that a person charged with attempted sexual violation by rape could be convicted if he or she had an honest but unreasonable belief that the complainant was consenting to sexual intercourse.[67] We see no legitimate distinction between attempt to commit sexual violation by rape and assault with intent to commit sexual violation by rape in this respect.
[67]L v R, above n 1, at [25].
Sexual violation by rape requires (1) penetration where (2) the victim does not consent and (3) the perpetrator does not have a reasonable belief in consent. In relation to an attempt, the only difference from the completed offence is that penetration is not effected – everything else remains the same. Similarly in the case of assault with intent to commit sexual violation by rape. The position must be assessed at the time of the assault. Apart from the deliberate physical contact constituting the assault, the Crown must establish an intention to commit sexual violation by rape, that is, that the perpetrator intended to have sexual intercourse with the victim, that the victim did not consent to sexual intercourse and that the perpetrator did not have a reasonable belief that she was consenting. In our view, this result follows from a contextual reading of the statutory language.
Assuming for the sake of argument that there are situations where an honest but unreasonable belief in consent to the physical contact comprising the alleged assault could operate as a defence to the assault element of the s 129(2) offence, that does not apply where the assault and the intended sexual intercourse are closely linked in time and place and the mistaken belief in consent that the accused relies upon as a defence to the assault element is a belief that the complainant was consenting to sexual intercourse. In this class of case, a belief in consent that is inconsistent with the belief required to provide a defence to the completed offence of sexual violation by rape is insufficient.
In L v R, the Court considered that s 129(1) had to be interpreted in its statutory context, specifically, the immediate context involving other sexual violation provisions as amended in 1985 and subsequently. These changes in legislative context had the effect of changing the scope of the text in s 129(1). The concept of intent to commit rape evolved to reflect the new context. Before the amendments, the intent to commit rape element required proof of full intention or recklessness, mirroring the completed offence; after the amendments, it included (in addition to those two mental states) a mistaken but unreasonable belief in consent, again mirroring the completed offence. Precisely the same analysis applies in the case of assault with intent to commit rape under s 129(2).
As we have noted, the Court in L v R derived assistance from the English Court of Appeal’s decision in R v Khan. There are two points to be made about Khan. The first is that it was applied by the English Court of Appeal in a different context in Attorney-General’s Reference (No 3 of 1992).[68] That case concerned a charge of attempted aggravated arson. The appellants had thrown some petrol bombs at a car, but they had missed their target (there were people in and near the car at the time). The completed offence of aggravated arson required that a person destroy or damage property and intend or be reckless as to that destruction or damage and as to whether another’s life would be endangered. The Court of Appeal identified the issue as being whether a defendant would be guilty of attempting the offence if he did something that went beyond mere preparation, intending to damage property and being reckless as to whether the life of another would thereby be endangered.[69] The Court held that the defendant would be guilty in those circumstances, saying:[70]
If, on a charge of attempting to commit [an] offence, the prosecution can show not only the state of mind required for the completed offence but also that the defendant intended to supply the missing physical element of the completed offence that suffices for a conviction.
[68]Attorney-General’s Reference (No 3 of 1992) [1994] 1 WLR 409 (CA).
[69]At 416.
[70]At 418.
In a subsequent decision, R v Pace, the English Court of Appeal distinguished Khan and Attorney General’s Reference (No 3 of 1992), albeit in a different context again.[71] The appellants were scrap merchants who were charged with attempting to conceal, disguise or convert “criminal property” under the Proceeds of Crime Act 2002 (UK). “Criminal property” was defined as property which constituted or represented the benefit of criminal conduct which the person knew or suspected constituted or represented such a benefit. The appellants had purchased “stolen” property from undercover police officers, who were conducting a “sting” operation to identify scrap merchants who were prepared to purchase stolen property. Because the goods were not in fact stolen, the accused were charged with an attempt rather than the completed offence. The issue was whether “suspicion” that the goods were stolen was a sufficient mental element for conviction of an attempt. The Court of Appeal held that it was not. Rather, the Court held that the phrase “with intent to commit an offence” in the UK equivalent of s 72(1) required, as a matter of ordinary language, an intent to commit all the elements of the offence.[72]
[71]R v Pace [2014] EWCA Crim 186, [2014] 1 WLR 2867.
[72]At [62].
In reaching its decision, the Court distinguished Khan on the basis that:[73]
(a)the offence in Khan allowed recklessness as the mens rea whereas that was not so in Pace;
(b)the appellants in Khan could have completed the principal offence whereas in Pace they could not as the goods they received did not in fact constitute or represent benefit from criminal conduct; and
(c)the Court in Khan acknowledged that its reasoning could not apply to all offences and attempts.
The Court also distinguished Attorney General’s Reference (No 3 of 1992).[74] Overall, the Court placed considerable weight on the fact that the completed offence was impossible given that the goods were not in fact stolen. Indeed, this seems to have been the decisive feature in the case.[75]
[73]At [52].
[74]At [53].
[75]See [54]–[59] and [63]–[64].
These cases have caused considerable controversy.[76] Academic opinion is divided. For example, Pace has been the subject of significant academic criticism,[77] but also has its supporters.[78] It is unnecessary for present purposes that we delve into the competing views. The Court was not asked to reconsider L v R or its reliance on Khan. We note, however, that the difference of view between the commentators seems to be influenced largely by their perceptions of the proper scope of the criminal law and therefore of the law of attempt and that, as far as New Zealand is concerned, the issue has been settled by L v R in respect of attempt to commit sexual violation by rape.
[76]For discussion of Khan and Attorney General’s Reference (No 3 of 1992) see, for example, A Simester and others, Simester and Sullivan’s Criminal Law: Theory and Doctrine (5th ed, Hart Publishing, Oxford, 2013) at 346–353.
[77]See Virgo, above n 59; and Findlay Stark “The Mens Rea of Criminal Attempt” [2014] 3 Arch Rev 7.
[78]See Peter Mirfield “Intention and Criminal Attempts” [2015] Crim LR 142; J Child and A Hunt “Pace and Rogers and the Mens Rea of Criminal Attempt: Khan on the Scrapheap?” (2014) 78 JCL 220; and A Simester “The Mens Rea of Criminal Attempts” (2015) 131 LQR 169.
The second point to be made about Khan is that, even though an objective element has now been introduced into the English law on sexual offending (that any belief in consent must be reasonable), some writers have expressed the view that the reasoning in Khan will continue to apply. In other words, the objective mental element in relation to mistakes as to consent applicable in the case of rape will also apply in relation to attempted rape. So, for example, Rook and Ward on Sexual Offences: Law and Practice says:[79]
The decision in Khan clarified the position, in that for offences of attempt it appeared that the precise requirement of the mental element will turn upon the distinction between acts (or omissions) and their circumstances. The courts are likely to follow the approach in Khan in applying the new law of rape, since although recklessness is no longer an element of the offence it has effectively been embraced in the requirement of absence of reasonable belief. Since an absence of reasonable belief relates to the circumstances of the offence, as opposed to the act of penetration itself, on the basis of Khan a defendant can be guilty of attempted rape if he intends to penetrate the complainant and does not reasonably believe the complainant is consenting at the time. It follows that the mental element of attempted rape is identical to that of rape.
[79]Peter Rook and Robert Ward Rook and Ward on Sexual Offences: Law and Practice (4th ed, Sweet & Maxwell, London, 2010) at [1.256] (footnotes omitted).
A similar view is expressed by Findlay Stark, who writes:[80]
Had the law on rape then been the same as it is now, under the Sexual Offences Act 2003, presumably the Court of Appeal [in Khan] would have found that the mens rea of attempted rape (in a case where the complainant is not consenting) is present where the defendant (i) intends to penetrate the complainant’s vagina, anus or mouth with his penis (conduct) whilst (ii) holding no reasonable belief in the complainant’s consent (circumstance). Applying the logic of Khan, if the defendant who lacked a reasonable belief in consent succeeded in what he was intending to do (penetrate the complainant) he would, in the light of the complainant’s non-consent, have been liable for rape. If he was intending to penetrate, and took a more than merely preparatory step towards that end, then the defendant should be liable for attempted rape.
[80]Stark, above n 77, at 7 (footnotes omitted, emphasis in original).
Moreover, we note that the Law Reform Commission of Ireland has recommended that culpability for an attempt ought to track the culpability required for the substantive offence, so that where negligence is sufficient for the completed offence it will also be sufficient for an attempt. The only exceptions to this are inchoate offences relating to murder – attempted murder, conspiracy to murder and incitement to murder.[81]
[81]Law Reform Commission Inchoate Offences (LRC 99–2010) at [2.90]–[2.124] (Ireland).
This is not a universal view, however. For example, the United Kingdom Law Commission has expressed the view that, despite that reduction of the fault element for rape from recklessness to negligence, the minimum mental element for attempted rape (and for attempts in respect of other completed offences where negligence is sufficient for liability) should be recklessness.[82] This does need to be seen against the background, however, that the offence of sexual assault in the United Kingdom would apply to a situation such as that in the present case.
Conclusion
[82]The Law Commission Conspiracy and Attempts (LC 318, 2009) at [8.108]–[8.133] (United Kingdom). See also Richard Card (ed) Card, Cross and Jones Criminal Law (21st ed, Oxford University Press, Oxford 2014) at [14.115].
Undoubtedly, the question of the mental element for attempted rape in jurisdictions where the mental element for the full offence will be met by an unreasonable belief in consent is contentious. Arguments can be advanced either way. But in New Zealand this Court held in L v R held that the mental element for attempted rape was satisfied by a mistaken but unreasonable belief in consent, as in the case of the completed offence. The Court reached this view on the basis of a contextual reading of the statutory language, having regard to the general policy of the sexual offences legislation, logic and principle, and practical considerations. We consider that the same analysis applies in respect of assault with intent to commit sexual violation by rape. As was the case in L v R, there will need to be a close connection between the assault and the intended sexual intercourse. We see no justification for adopting a different approach to the mental element for the assault offence than is adopted in relation to the attempt offence as the same reasons of statutory language, legislative policy, logic and principle, and practicality as were identified in L v R apply in respect of the assault offence.
Finally, we note that the issue is not determinative in this case in any event. Once the jury accepted the complainant’s account of what occurred, as it did, there was no basis for any suggestion that the appellant had any belief that the complainant was consenting, so that no question of a miscarriage of justice arises.
Decision
For these reasons, the appeal is dismissed.
ELIAS CJ
The appellant was convicted after trial by jury of the offence of assault with intent to commit sexual violation created by s 129(2) of the Crimes Act 1961. His appeal to the Court of Appeal has been dismissed[83] and he appeals with leave to this Court.[84]
[83]A (CA814/2013) v R [2014] NZCA 385 (O’Regan P, Goddard and Andrews JJ).
[84]A (SC 93/2014) v R [2014] NZSC 157.
The principal question on appeal concerns the intent to commit sexual violation required by s 129(2). Is it, as the appellant argues, intent to have non-consensual sexual penetration, so that an honest belief that the complainant consents to such penetration is a defence? Is it, as the trial Judge directed and as the Court of Appeal approved, intent to have sexual penetration without belief on reasonable grounds that the complainant consents to sexual penetration (applying to assault with intent to commit sexual violation the intent this Court in L v R[85] held to be necessary for attempted sexual violation under s 129(1))? Or is it, as William Young J suggests is the case where the intended penetration is in the future and not immediately proximate to the assault, a state of mind which is reckless of whether or not the complainant consents (an intent which falls between subjectively intending non-consensual penetration and objectively having no reasonable belief in consent)?
[85]L v R [2006] NZSC 18, [2006] 3 NZLR 291.
My approach
As is apparent I have distinct reservations about the approach taken in L v R. My preference would be to hold that the elements of the offence of attempted rape encompass an intention to commit the crime of rape; and, because absence of consent is part of the actus reus of rape, this requires proof of an intention to have non-consensual intercourse. This has the not inconsequential advantage of being consistent with the statutory text. And although I accept that there are some considerations which support the view that s 128(2)(b) should be held to apply to attempted rape (the underlying legislative policy and the practical difficulty where rape and attempted rape are charged in the alternative), these are at least balanced by considerations which go the other way (the futurity problem and the desirability for caution before applying s 128(2)(b) in circumstances not provided for by the legislature given the policy issues I have discussed).
My preference is therefore to conclude that an intention to rape is only established if it is shown that the defendant intended to have sexual intercourse irrespective of consent. This would be a little more favourable to defendants than the position adopted in L v R, but I doubt whether there would be many cases which would turn on the difference.
My preference notwithstanding, I accept that in cases such as L v R and Khan where the substantive offence is all but completed, the conduct of the defendant is broadly within the policy of s 128(2)(b). There is no practical problem with applying the extended s 128(2)(b) mens rea to the defendant’s conduct because it is so closely associated with the actus reus of the substantive offence. And, as well, because the defendant will have got past the point where desistance as a result of the victim’s response is a plausible possibility, there is no risk of over-criminalisation. For these reasons, in such cases the futurity problem does not arise.
On the basis that L v R is right (which is plainly the view of the majority), it follows that the mens rea for attempted rape is an intention to have sexual intercourse without belief based on reasonable grounds in consent. But, as I have explained, even on this basis there remains scope for argument as to how such an intention can be made out. As well, and importantly, there is a real question as to how this element of the offence should be explained to the jury. In cases where the futurity problem arises I see the combination of the subjective (“an intention to …”) and the objective (“on reasonable grounds”) as quite awkward and as giving rise to difficulties of explanation. As I will later explain, I think that this is illustrated by aspects of the way in which the Judge summed up in this case.
As to all of this, it seems to me to be not inconsistent with L v R to conclude that where the intended sexual intercourse is to take place in the future, an intention on the part of the defendant to have sexual intercourse without belief in consent on reasonable grounds is only established if the defendant appreciated that there would not be reasonable grounds for belief in consent when the sexual intercourse was to occur. This could be best and most simply explained to the jury as requiring proof that the defendant intended to have sexual intercourse irrespective of consent, in other words, by showing that the defendant was reckless in the sense I have discussed.
The mens rea component of the assault element of the s 129(2) offence
“Assault” in the Crimes Act
Assault is defined in the Crimes Act, relevantly, as including the intentional application of force.[155] Assault is an offence under s 196. It is also an element in a large number of other offences. Although this is not explicitly provided for in the Act, consent is in general a defence to a charge of assault,[156] as is an honest and not necessarily reasonable belief in consent.[157] So in the case of indecent assault where the complainant is over 16 years of age, an honest belief in consent is a defence.[158]
[155]Crimes Act, s 2.
[156]See R v Barker [2009] NZCA 186, [2010] 1 NZLR 235. For circumstances where this is not so, see R v Lee [2006] 3 NZLR 42 (CA).
[157]See for instance R v Nazif [1987] 2 NZLR 122 (CA).
[158]See R v Norris (1988) 3 CRNZ 527 (HC) at 530 where Tipping J said: “A person charged with indecent assault if able to establish that he honestly believed that the complainant was consenting is entitled to be acquitted, even though objectively considered the grounds for his belief were unreasonable.”
On the facts of the present case, a charge of indecent assault may well have been proffered, either instead of the s 129(2) charge or as an alternative in case the jury were not satisfied that there had been an intention to commit sexual violation. As well, given the way the charge was laid, assault was an included offence. So if the jury were not satisfied as to the intention to commit sexual violation, a verdict of guilty of assault would have been possible. It is perfectly clear that if the jury had been required to address whether the appellant was guilty of indecent assault or assault, the Judge would have been required to direct that honest belief in consent was a defence.
Does L v R dictate that a special approach be taken to the mens rea for assault in relation to s 129(2)?
The view expressed in Adams on Criminal Law is that the ordinary principles as to mens rea apply to the assault component of a s 129(2) charge:[159]
Assault with intent to commit sexual violation requires proof of an assault, ie the use or threat of force … There is no requirement that the assault be indecent, and the defendant will have a defence if the actions that constitute the assault were consented to, no matter what his or her ultimate intention was at the time. So long as the assault is one to which consent would ordinarily provide a defence, a mistaken belief in consent on the part of the defendant will also provide a defence whether or not it was reasonable in the circumstances.
[159]Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CA129.03].
The countervailing argument is that consistency with L v R requires that a special approach be taken to assault for the purposes of s 129 and perhaps that we should adopt judicially the approach taken by the United Kingdom Parliament to sexual assault in England and Wales.[160]
[160]See the reasons given by Arnold J at [76].
I consider that there is no principled basis for departing from orthodox principle in respect of the assault component of a charge under s 129(2). There would also be practical problems if the jury dealing with a charge under s 129(2) was also required to deal with an alternative charge of indecent assault or the included charge of assault. In the latter case particularly it would not be possible to give an explanation which a jury would regard as logical as to why honest belief in consent to the assault is a defence to the included charge but not the assault component of the charge as laid.
The way in which the Judge left the case to the jury
The Judge’s approach
In his summing up, the Judge identified the issues that the jury had to answer as involving four questions:[161]
[14] There are four questions that need to be answered.
(a) Did the defendant assault [the complainant]?
(b) At the time did he intend to have sexual intercourse with her?
(c) Did she give true consent?
(d) Did he have reasonable grounds to believe that she was consenting?
[161]District Court summing up, above n 119.
These questions formed the basis of a written question trail:
1.1Are you satisfied beyond reasonable doubt that Mr Ah-Chong grabbed [the complainant] from behind, pressing himself against her and preventing her from leaving?
If yes, go to question 1.2.
If no, find Mr Ah-Chong “not guilty”.
Crown case: Mr Ah-Chong grabbed [the complainant] from behind, prevented her from leaving by binding her arms, pressed his penis against her bottom several times and tried to pull down her pants.
Defence case: Mr Ah-Chong did not assault her as alleged.
1.2Are you satisfied beyond reasonable doubt that Mr Ah-Chong intended to have penetrative sexual intercourse with [the complainant]?
Sexual Intercourse involves the penetration of a person’s genitalia with the penis of another.
If yes, go to question 1.3.
If no, find Mr Ah-Chong “not guilty”.
Crown case: The combined effect of his actions in the toilet infer an intention to have sexual intercourse.
Defence case: Mr Ah-Chong did not behave in the way alleged.
1.3Are you satisfied beyond reasonable doubt that [the complainant] did not consent to sexual intercourse with Mr Ah-Chong?
Consent means true consent freely given by a person who is in a position to make a rational decision. There is no presumption of law that a person is incapable of consenting to sexual connection because of age. Lack of protest or physical resistance does not, of itself, amount to consent. There are some circumstances where allowing sexual activity does not amount to consent, including the application of force to the complainant or the threat or fear of such application of force.
If yes, go to question 1.4.
If no, find Mr Ah-Chong “not guilty”.
Crown case: [The complainant] made it clear by her words and actions that she did not want a sexual encounter with Mr Ah-Chong.
Defence case: This element is not in dispute; although as a matter of law you must still be satisfied beyond reasonable doubt.
1.4Are you satisfied beyond reasonable doubt that Mr Ah-Chong had no reasonable grounds to believe that [the complainant] was consenting?
If yes, find Mr Ah-Chong “guilty”.
If no, find Mr Ah-Chong “not guilty”.
Crown case: [The complainant] made it clear by her words and actions that she did not want a sexual encounter with Mr Ah-Chong
Defence case: [The complainant’s] behaviour during the morning led him to believe she would consent to sexual intercourse and his grounds for believing that she would consent were reasonable.
In summing up, the Judge spoke generally of what the Crown had to prove:[162]
The Crown has to prove, beyond reasonable doubt … Firstly, that the defendant assaulted the complainant intending to sexually violate her by rape; and secondly, at the time that he did so the defendant intended to have sexual intercourse with the complainant where she did not consent and he had no belief on reasonable grounds that the complainant consented to the intended sexual intercourse.
[162]At [12].
When dealing with the first question in the question trail, the Judge directed as follows:[163]
Now although taking someone by the hand and pulling them towards you is technically an assault and you heard counsel explain what an assault is. It is not what is alleged here. What is alleged here is what the complainant says happened, the bear hug, the thrusting, the pressing and the preventing her from leaving.
Only if you are satisfied beyond reasonable doubt that he assaulted [the complainant] in the way that she alleges could you answer [the first] question “yes” … You can only answer that “yes” if you are satisfied beyond reasonable doubt that he assaulted [the complainant] in the way that she alleges.
[163]At [16]–[17].
On the second question, the Judge said:[164]
The second question – at the time did he intend to have sexual intercourse with her is not in fact in dispute. It is clear from the evidence and it was conceded by counsel, Mr Forster, in his closing address, that that was his intention to have sexual intercourse with her.
Although it is not in dispute you still need to be satisfied beyond reasonable doubt that that was his intention.
[164]At [18]–[19].
On the third question, the Judge recorded that the defence conceded the complainant was not in fact consenting, by which he meant consenting to sexual intercourse.[165]
[165]At [20].
On the fourth question, the Judge said:[166]
… if you accept [the complainant’s] account of the assault it would be difficult to conclude that [the appellant] had a reasonable basis to believe that she was consenting. However, if it is reasonably possible that his account of taking her hand and pulling her towards him and immediately stopping when she struggled and said, “No”, if that is true, if you find that it is true you almost certainly could not be satisfied beyond reasonable doubt that he did not realise she was not consenting and that he had a reasonable basis up to that point for believing that she did consent.
… If you accept as a reasonable possibility that he desisted, that he stopped as soon as she struggled and said, “No” you could conclude that he no longer, at the relevant time, had the intent to have sexual intercourse with her. As Mr Forster submits to you, the timing of the event and the fluid developing situation is potentially very important here.
The directions on an intention to rape the claimant
[166]At [22]–[23].
As will be apparent from what I have said in the earlier part of my reasons, I am of the view that the Judge should have summed up on this part of the case by directing the jury that they could only find the appellant guilty if satisfied that he assaulted the complainant with the intention of having sexual intercourse irrespective of whether she consented. As well, I consider that the way in which the Judge did sum up illustrates the difficulties of applying a s 128(2)(b) approach in circumstances which do not amount to attempted penetration in the L v R sense.
It is perfectly clear that the complainant did not consent to the appellant’s actions. And at least in a broad sense it is likewise perfectly clear that her conduct did not amount to consent to sexual intercourse. But on the approach taken in L v R, issues of consent and reasonable belief in consent must be addressed to the intended sexual intercourse rather than the actions said to amount to the attempt (and thus, in this case, the assault). In cases of the kind I have postulated earlier in these reasons – where the actus reus of the attempt does not involve interaction between the defendant and the complainant – a question whether the complainant consented to sexual intercourse would be devoid of meaning. And although this is not such a case, the appellant’s conduct was not so proximate to sexual intercourse as to amount to attempted penetration in the L v R sense. I therefore see this question as at best something of a distraction for the jury.
It will be recalled that the question trail asked:
1.4Are you satisfied beyond reasonable doubt that Mr Ah-Chong had no reasonable grounds to believe that [the complainant] was consenting?
This formulation might be thought to raise the further question, “Consenting to what?”, a question which is also raised by the Judge’s formulation of the issues in [14](c) and (d) of his summing up as set out above at [202]. From my view point and in the context provided by question 1.3 in the question trail, it is obvious that the Judge meant “consenting to sexual intercourse”. But given the tense – “was consenting” – what the Judge said might be thought more readily to refer to the actions of the appellant which constituted his assault on the complainant. This involved a diversion from what, on any view, was the fundamental issue in the case, namely the state of mind of the appellant as to whether the complainant would consent to sexual intercourse.
There was also this supplementation in the summing up, which despite the further repetition, is worth setting out again:[167]
However, if it is reasonably possible that his account of taking her hand and pulling her towards him and immediately stopping when she struggled and said, “No”, if that is true, if you find that it is true you almost certainly could not be satisfied beyond reasonable doubt that he did not realise she was not consenting and that he had a reasonable basis up to that point for believing that she did consent.
There is an awkwardness of expression as to the standard of proof. As well, the tense used in relation to consent very much suggests a focus on the complainant’s reaction to the appellant’s assault on her rather than the appellant’s state of mind as to whether or not she would consent to sexual intercourse.
[167]At [22].
On these directions, the jury could have been forgiven for addressing the case by reference to whether (a) the appellant intended to have sexual intercourse with the complainant and (b) whether he continued his assault after the point when he could have had no reasonable grounds for believing that she consented to his actions. But there was no direction to the effect that he could only be found guilty if his intention to have sexual intercourse with the complainant persisted after the point when she struggled.[168] This problem would have been resolved if the Judge had added to his supplementary direction something along these lines:
If you are sure that the complainant struggled and that after she did so the appellant continued to restrain her and did so with the intention of having sexual intercourse with her, you could be [or even would be] satisfied beyond reasonable doubt that he assaulted her with the intention of having sexual intercourse with her and did so without a belief on reasonable grounds that she was consenting.
[168]A careful analysis of what the Judge said as to the first and second questions in the question trail might suggest that the accused should only be convicted if he intended to have sexual intercourse at the time when he carried out the acts referred to by the Judge as amounting to the assault, “grabb[ing] [the complainant] from behind, pressing himself against her and preventing her from leaving” but the discussion as to this was too diffuse to bring the relevant point sufficiently to the attention of the jury.
For the reasons just given, it seems to me that even on a s 128(2)(b) approach to mens rea, the summing up was defective. This discussion also illustrates the more general point that there are real problems for judges in directing juries in a simple and concrete way in the manner proposed by the majority where the defendant’s conduct did not amount to attempted penetration.
Mens rea for assault
In his question trail, the Judge did not treat honest belief in consent in relation to the assault component of the charge as a defence. On the other hand, in the passage set out in [208] and repeated in part in [212] he indicated that the appellant should be acquitted if he stopped the assault as soon as the complainant started to struggle and say “no”. Although what the Judge said in this part of his summing up was, at least in context, addressed to belief on reasonable grounds in consent in relation to sexual intercourse, it could be taken as a direction to the jury to acquit unless satisfied that the appellant continued the assault after the complainant began to struggle. At this point the appellant could not have believed that the complainant was consenting.
All of that said, I remain uneasy about this aspect of the case. This is for three reasons:
(a)The passage set out in [208] was not very clearly expressed, in particular as to the standard of proof.
(b)This supplementation was in effect an add on to the question trail. It was not addressed to question 1.1 or the assault element of the offence. It was also very closely tied to the appellant’s narrative as to what had happened in the bathroom which the jury may have rejected without necessarily accepting everything that the complainant said.
(c)The point made in [213] is material because there was a failure by the Judge to ensure that there was a precise focus on the appellant having simultaneously the states of mind required to meet the mens rea requirements for both assault and the intention to rape the complainant.
A miscarriage of justice
On my approach to what was required, there was a miscarriage of justice because:
(a)the direction as to what constitutes an intention to rape was wrong in that the Judge should have directed as to recklessness; and
(b)in any event, there were failures in the respects identified in [213] and [215]–[216] to give directions as to the state of mind of the appellant which were sufficiently precise.
I would allow the appeal and order a new trial.
Solicitors:
Crown Law Office, Wellington for Respondent
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