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.
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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
Continue reading Ah-Chong v R
Sign in free to access the full text
Details
AGLC
Ah-Chong v R [2015] NZSC 83
Case
[2015] NZSC 83
Decision Date
CaseChat Overview and Summary
Tagiao Ah-Chong was convicted by jury of one count of assault with intent to commit sexual violation by rape contrary to s 129(2) of the Crimes Act 1961. The appeal against conviction was dismissed by the Court of Appeal and leave to appeal to the Supreme Court was granted. The appeal concerned the requisite intent to commit sexual violation for the offence of assault with intent to commit rape. The appellant argued that an honest 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. The Supreme Court dismissed the appeal. It found that the trial judge's direction to the jury was correct and that the appellant had no basis for any suggestion that he had a belief that the complainant was consenting to sexual intercourse. The Court 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 same analysis applied in respect of the assault offence. The Court held that there would need to be a close connection between the assault and the intended sexual intercourse. The appeal was dismissed.