Attorney-General v District Court at Auckland HC Auckland CIV 2006-404-5460
[2007] NZHC 250
•2 April 2007
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2006-404-5460
UNDER the Judicature Amendment Act 1972
BETWEEN THE ATTORNEY-GENERAL OF NEW ZEALAND
Applicant
ANDTHE DISTRICT COURT AT AUCKLAND
First Respondent
ANDPOK VICTOR FONG Second Respondent
Hearing: 16 March 2007
Court:Courtney J Lang J
Appearances: M D Downs and M Inwood for Applicant
No appearance by First Respondent (abides the decision of the Court) J R Billington QC for Second Respondent
Judgment: 2 April 2007 at 11:00 am
JUDGMENT OF THE COURT
This judgment was delivered by Courtney and Lang JJ
on 2 April 2007 at 11:00 am
pursuant to R 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date……………………..
Solicitors: Crown Law, P O Box 2858, Wellington
Fax: (04) 473-3482
Counsel: J R Billington QC, P O Box 4338, Shortland Street, Auckland
Fax: (09) 366-1599
THE ATTORNEY-GENERAL OF NZ V THE DISTRICT COURT AT AUCKLAND & ANOR HC AK CIV-
2006-404-5460 2 April 2007
Introduction
[1] In May 2006 Mr Fong was tried before a jury in the District Court at Auckland on a charge of rape. At the end of the Crown case he applied for an order discharging him under s 347(3) of the Crimes Act 1961 on the basis that there was insufficient evidence to enable a properly directed jury to convict him. The trial Judge dismissed that application, and Mr Fong then gave and called evidence. The charge was then left to the jury, which brought in a guilty verdict after a retirement of approximately seven hours.
[2] After the verdict, but before sentencing, Mr Fong appointed new counsel who filed a fresh application for discharge under s 347. In a reserved decision delivered on 11 August 2006 His Honour Judge Hubble granted that application.
[3] The Crown has applied for judicial review of the Judge’s decision. Counsel agreed that the decision of a District Court Judge to discharge under s 347 is amenable to judicial review, although any such review is to be sparingly exercised: Auckland District Court v Attorney-General [1993] 2 NZLR 129 at 136:
It is appropriate only in rare cases where, by reason of the nature of the error or jurisdictional law in the District Court, the intervention of the High Court is imperative…
[4] For the Crown, Mr Downs contends that the Judge embarked on a qualitative assessment of the evidence, which is not permitted under s 347. It submits that there was evidence on which a jury, properly directed, could reasonably have convicted. For that reason it argues that the Judge applied incorrect principles in exercising his discretion, and that his decision is amenable to review on that ground.
[5] For Mr Fong, Mr Billington submits that the Judge exercised his discretion in accordance with correct principles and that, in relation to at least one of the essential elements of the crime of rape, there was no evidence upon which a jury properly directed could reasonably have convicted Mr Fong. For that reason he contends that there is no basis upon which this Court can disturb the Judge’s decision.
[6] Mr Downs also noted that when the jury delivered its verdict the Judge had not expressly deferred the entry of a conviction. Section 3 of the Crimes Act 1961 provides that a person is deemed to be convicted upon being “found guilty on indictment”. As a result, and on the basis of comments made in R v Reddy (2004) 20
CRNZ 1063 (at [13]), he submitted that the Judge purported to exercise the power to discharge under s 347(3) when he may not have had the jurisdiction to do so.
[7] Mr Downs advised us during the hearing that the Crown did not want the case to be decided on this technical point. Rather, it wanted the Court to determine the case on the basis of the substantive issues that it raises. Mr Downs nevertheless submitted that the Court’s opinion regarding this issue would provide practical assistance in a difficult area of the law.
[8] The issues that arise in this case are therefore:
a) Did the trial Judge have the necessary jurisdiction to exercise the power to discharge Mr Fong under s 347(3)?
b)Did the Judge exercise the power under s 347(3) in accordance with correct principles?
c) If he did not apply the appropriate principles, was the evidence adduced by the Crown sufficient to permit the charge to be left to the jury?
[9] Before considering those issues it is convenient to set out in greater detail the evidence adduced at trial.
The evidence adduced at trial
[10] The charge against Mr Fong arose from an incident that occurred in a bedroom of the Hyatt Regency Hotel in Auckland in the early morning of
18 December 2004. The complainant was a flight attendant who had arrived in Auckland on a flight from Hong Kong on the morning of 17 December 2004. That evening she had dinner with other members of her air crew. Later, whilst she was
out with another flight attendant, she met Mr Fong, who was a friend of her companion. They arranged to go back to the complainant’s hotel room for drinks. There they were joined by another crew member and, later, by a friend of Mr Fong.
[11] The group sat in the hotel room drinking until some time between 1-2 am on the morning of 18 December 2004. The complainant, her companion, Mr Fong and his friend then went out to a Korean restaurant. The complainant and Mr Fong were both drinking, and did not get back to the hotel until about 4 am. Video footage from a camera in the hotel foyer shows Mr Fong carrying the complainant into the hotel lobby. She was obviously very intoxicated. The complainant had lost her electronic hotel room key, so the hotel cancelled it and issued a new one. Mr Fong left the complainant in her hotel room with her companion and returned to his friend’s car.
[12] Mr Fong was also somewhat intoxicated and was sick in the car. While he was looking for something to clean up the car, he found the complainant’s cellphone and hotel key in the car. He then went back into the hotel to return them to her. He prevailed upon the hotel’s receptionist to issue him with a key to the complainant’s room and let himself in.
[13] The complainant’s evidence was that the first thing she remembered happening after being in the restaurant was a sense that she was having sexual intercourse in a dream. As she became conscious she realised that she was not dreaming and that she was indeed having sexual intercourse. She realised that she was sitting on top of Mr Fong and that they were having sex. He had no clothing on the top half of his body. When she realised what was happening she pushed him away, and rolled away from him. She began to cry and did not notice when he left.
[14] Under cross-examination she said that she did not remember how she came to be on top of Mr Fong. She could not remember taking Mr Fong’s pants off. She could not remember touching him. She could not remember putting a condom on him, and thought that it was unlikely that she had done so because she had never put a condom on a man. She could not remember saying anything to Mr Fong.
[15] When the complainant subsequently underwent a medical examination, the doctor found that there was a condom inside her vagina. There was no DNA evidence in or on the condom to connect Mr Fong with it.
[16] Mr Fong’s evidence was that he let himself into the complainant’s hotel room, and that she was retching and asked him to help her. She asked him to stay with her. He sat beside her at the end of the bed. At some stage he fell asleep. He recalls someone trying to take his sweater off, the feeling of someone kissing him, the feeling of something in his mouth, perhaps a finger. He then went back to sleep. The next thing he recalled was the feeling of someone touching his penis and of someone speaking in Cantonese, saying “fuck me harder”. He opened his eyes and saw that the complainant was sitting on him having sex with him. He pushed her off and she started to cry. He got dressed and left shortly afterwards.
Did the trial Judge have the necessary jurisdiction to exercise the power to discharge Mr Fong under s 347(3)?
[17] Section 347(3) of the Crimes Act 1961 provides:
The Judge may in his discretion, at any stage of the trial, whether before or after verdict, direct that the accused be discharged.
[18] However, s 3 of the Act provides:
For the purposes of this Act, a person shall be deemed to be convicted on indictment if -
(b) He is found guilty on indictment.
[19] In this case the Judge not expressly state that he had deferred the entry of a conviction following the delivery of the jury’s verdict. But nor did he enter a conviction. In his judgment he noted that it was his practice not to immediately enter a conviction following a guilty verdict.
[20] The Crown contended that, because the Judge did not expressly state that he was deferring the entry of a conviction, the effect of s 3 was to deem Mr Fong to have been convicted on indictment. As a result, the Court lacked jurisdiction to entertain a subsequent s 347 application.
[21] In response, Mr Billington argued that, in practice, many judges refrain from entering a conviction immediately after verdict in order to preserve their discretionary powers to discharge the accused under s 347(3) and s 106 of the Sentencing Act 2002. He submitted that, for a conviction to be irreversibly recorded, the Judge was required to actually enter the conviction.
[22] It is now settled that the jury’s guilty verdict alone cannot oust the Court’s specific discretionary power under s 347(3) to discharge after verdict in appropriate circumstances. In R v Ramstead CA428/96 12 May 1997 the Court of Appeal said (at 11):
…A conviction, as a matter of irreversible record, does not necessarily occur on delivery of a verdict of guilty. Section 347(3), which empowers the Court after verdict to order a discharge which has the effect of an acquittal, demonstrates the point.
[23] The Court of Appeal confirmed this principle in R v Downing CA311/99 23
November 1999, when it said (at [12]):
In R v Ramstead (CA428/95 judgment 12 May 1997) this Court held that a conviction “as a matter of irreversible record does not necessarily occur on delivery of a verdict of guilty”(emphasis added) as it is apparent from s
347(3) that a Judge is not inevitably constrained to enter a conviction in accordance with the jury’s verdict.
[24] Any other result would render meaningless the express words of s 347(3). In a jury trial a finding of guilt is made at the point at which the jury delivers its verdict. If the effect of s 3 was to prevent the power to discharge being exercised as soon as the verdict is delivered, the power under s 347(3) to discharge the accused after verdict could never be exercised. It is no doubt for this reason that the Court of Appeal was at pains in both Ramstead and Downing to confirm that a conviction, as a matter of irreversible record, does not necessarily occur upon delivery of a guilty verdict.
[25] There is nothing in Ramstead or Downing to suggest that a Judge must expressly state that he or she is deferring the entry of a conviction in order to preserve the power to discharge the accused under s 347(3). Neither, we think, was
that the effect of the following observation by Potter J in R v Reddy (2004) 20 CRNZ
1063 (at [13]):
If a conviction is not entered in fact, s 3 would deem it to have been entered on guilty plea or verdict. Section 3 may be interpreted as defining the point at which there is conviction on indictment if there is no actual act of conviction, but does not prevent the entry of conviction being deferred following a guilty plea or guilty verdict in appropriate circumstances. Thus the discretion to discharge may be preserved beyond a guilty verdict or plea as contemplated by s 347(3).
[26] We do not consider that the reference in the above passage to the conviction “being deferred” means that the trial Judge must expressly state that he or she is deferring the entry of a conviction in order to be able to exercise the power to discharge under s 347(3) and s 106 of the Sentencing Act 2002. So far as the latter is concerned, the Court of Appeal has expressed the view that even the actual entry of a conviction will not prevent the Court from exercising its power to discharge without conviction: R v Sarich CA407/04 16 May 2005 (at [30]).
[27] If a Judge deliberately refrains from entering a conviction, the legal effect of that act should be the same whether or not he or she also expressly records what has occurred. We do not see why, as a matter of logic, differing consequences should follow depending upon whether or not the trial Judge has expressly articulated what he or she has done following the delivery of the jury’s verdict. The end result is the same whichever method is used.
[28] For this reason we have concluded that, whilst the act of entering a conviction will extinguish the jurisdiction to exercise the power to discharge under s 347(3), an omission to do so will not have the same effect. A Judge who elects not to enter a conviction immediately following a guilty verdict, but does not state that that is what he or she has done, will not thereby lose the power to discharge the accused under s 347(3).
[29] We therefore conclude that the trial Judge in the present case had the necessary jurisdiction to exercise the power under s 347(3) notwithstanding the fact that he did not expressly state that he was deferring the entry of a conviction following the delivery of the jury’s verdict.
[30] Before considering the next issue, which is whether the Judge applied the correct principles in exercising the power to discharge in the present case, it is appropriate to review the principles that apply generally to the exercise of that power after verdict.
The principles to be applied in exercising the power under s 347(3) after verdict
[31] The principles to be applied when the power to discharge an accused person under s 347(3) is invoked prior to verdict are well established and understood. Those to be applied when application is made after verdict are not, however, as well known. The reason for this is probably that applications for discharge are seldom made once the verdict of the jury has been delivered. Challenges to the reasonableness of a verdict are generally made by way of appeal to the Court of Appeal.
[32] The history of the power to discharge can be found in R v Jeffs [1978]
1 NZLR 441, the authority usually cited in relation to the use of the section post verdict. In that case Somers J said (at 443):
What I think does emerge is that s 347 may be used in a similar way by this court as s 42(1) of the Criminal Justice Act is used in a Magistrate’s Court. It may enable an accused person in a proper case even after verdict to be discharged without conviction with or without the payment of any monies for any of the purposes set out in s 42(5) of the latter Act.
I do not think that it was intended that s 347(3) would enable a judge to overrule, as it were, a verdict of a jury upon the grounds that it was unreasonable or was against the weight of evidence. I think it would be possible even after verdict to apply the section in a case where there was no evidence at all, but where there is evidence it seems to me that the appropriate remedy is not to ask a judge to discharge under s 347 but to appeal to the Court of Appeal upon the grounds set out in s 385(1)(a) of the Crimes Act, that is, that the verdict should be set aside either on the ground that it is unreasonable or cannot be supported having regard to the evidence or that in some other way there was a miscarriage of justice.
I am loath to limit or to purport to limit the scope of the discretion conveyed in such wide words as are contained in s 347(3) but I think those words are to be read in context of the Crimes Act as a whole and in the context of the general nature and principles of a criminal trial. I do not think they can have been intended to allow a trial judge to usurp the functions of a jury, to overrule those findings of fact confided to it and necessarily made by its verdict, or to enable a trial judge to undertake functions which in terms of
the Crimes Act and the practice and administration of the criminal law are those of the Court of Appeal.
[33] This passage echoes the general principle that, in a trial before Judge and jury, the Judge must recognise those aspects of the trial process that are properly the domain of the jury. Where there is evidence that, if accepted, is sufficient to prove the charge, the Judge should leave it to the jury to decide what weight should be given to that evidence. This principle was emphasised in R v Flyger [2001] 2 NZLR
721 and refined in R v Parris [2004] 1 NZLR 519, the leading New Zealand authorities in relation to the manner in which s 347(3) should be applied prior to verdict.
[34] In Flyger the Court said (at [13]):
In a trial before a Judge and jury a Judge must respect the jury’s responsibility to decide the facts. Accordingly a Judge should not normally make an order for discharge pursuant to s 347(3) where there is before the Court evidence, which if accepted, would as a matter of law be sufficient to prove the case.
[35] In Parris the Court said (at [14]):
The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear-cut in favour of the accused, it should be left for the jury to decide. If there is a conviction this Court on appeal has the reserve power to intervene on evidentiary grounds. The constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict or any such conviction would not be supported by the evidence.
[36] In England, the Court of Appeal has been required to consider the extent to which the trial Judge has the power at common law to discharge an accused person in circumstances where the Judge considers that it would be “unsafe” to leave the charge to the jury for determination. We mention this because the Judge in the present case based his decision, at least in part, on his perception that the jury’s verdict was “unsafe”.
[37] The leading authority on the point is R v Galbraith [1981] 2 All ER 1060. In that case the Criminal Division of the Court of Appeal discussed the difficulties that
had arisen in practice after the Criminal Appeal Act 1966 came into force. That Act required the Court of Appeal to allow an appeal if it was of the opinion that the jury’s verdict should be set aside on the ground that “under all the circumstances of the case it [was] unsafe or unsatisfactory”. Thereafter a practice had developed in criminal trials of inviting the trial judge to determine at the close of the prosecution case whether it would be “unsafe or unsatisfactory” to allow the charge to be left to the jury.
[38] Lord Lane LCJ doubted the wisdom of this test for the following reasons (at
1061):
… If a judge is obliged to consider whether a conviction would be ‘unsafe’ or ‘unsatisfactory’, he can scarcely be blamed if he applies his views as to the weight to be given to the Crown’s evidence and as to the truthfulness of their witnesses and so on. That is what Lord Widgery CJ said in R v Barker (197) 65 Cr App R 287 at 288 was clearly not permissible:
‘… even if the judge had taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the jury. It cannot be too clearly stated that the judge’s obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been called. It is not the judge’s job to weigh the evidence, decide who is telling the truth, and to stop the case merely because he thinks the witness is lying. To do that is to usurp the function of the jury …’
[39] Lord Lane LCJ had earlier said (at 1061):
There are two schools of thought: (1) that the judge should stop the case if, in his view, it would be unsafe (alternatively unsafe or unsatisfactory) for the jury to convict; (2) that he should do so only if there is no evidence on which a jury properly directed could properly convict. Although in many cases the question is one of semantics, and though in many cases each test would produce the same result, this is not necessarily so. A balance has to be struck between on the one hand a usurpation by the judge of the jury’s functions and on the other the danger of an unjust conviction.
[40] He then pointed out (at 1062) the inherent danger of applying, in the context of an application for discharge, a test of whether or not the jury’s verdict was likely to be “unsafe”:
“Unsafe”, unless further defined, is capable of embracing either of the two schools of thought and this we believe is the cause of much of the difficulty which the judgment of R v Mansfield has apparently given. It may mean
unsafe because there is insufficient evidence on which the jury could properly reach a verdict of guilty; it may on the other hand mean unsafe because in the Judge’s view, for example, the main witness for the Crown is not to be believed. If used in the latter sense as the test, it is wrong.
…
How then should the Judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant there is no difficulty. The Judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example, because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the Crown’s evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on submission being made, to stop the case. (b) Where however the Crown’s evidence is such that its strength or weakness depends on the view to be taken of a witness’s reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.
There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.
[41] We respectfully agree. It follows that a verdict of guilty should not be regarded as being unsafe merely because the trial Judge is of the view that a witness should not have been believed. It will generally only be unsafe in circumstances where, taken at its highest, the evidence for the prosecution is such that a properly directed jury could not reasonably have convicted on the basis of it.
[42] Even in the “borderline cases” referred to in Galbraith, the Judge cannot usurp the jury’s function by basing a decision to discharge on his or her assessment of the credibility of the witnesses for the prosecution. Once the prosecution has adduced evidence that, if accepted, would be sufficient to support the charge, the trial Judge will only in the rarest of circumstances be justified in discharging the accused on the basis that it would be unsafe or dangerous to allow the matter to be left to the jury.
[43] The same rationale applies with even more force, in our view, following verdict. By that stage there is an even greater risk that the Judge will be influenced by his or her perception of the decision that the jury ought to have reached.
[44] In R v Allison (No 35) HC AK T002481 29 July 2003 Williams J said:
[75] R v Jeffs has been relied on since in cases such as R v Wati (1984) 1
CRNZ 380, 384 where the Court of Appeal said that it would only be in a plain and unarguable case that a discharge should be given after verdict of
guilty, in Re An Application by Fiso and Ors (1985) CRNZ 689, 691 and, in
a Judge alone context, in R v R (No. 2) [1994] 2 NZLR 460. Mr Gotlieb relied on R v Lee [1973] 1 NZLR 13, 19 but that was a case where the second trial was incompetent for reasons of autrefois convict and is thus not in point.
…
[78] It follows from R v Jeffs and the authorities quoted that Mr Dunn can only be discharged under s 347 if there was no evidence whatever to support the jury’s verdict.
[45] In Allison Williams J was applying the principles referred to in Jeffs to the circumstances of the case before him. For that reason we do not understand his observation at [78] to mean that Jeffs is authority for the proposition that the power to discharge after verdict may only be exercised where there is no evidence whatsoever to support the charge. The passage from Jeffs cited above (at [26]) makes it clear that Somers J was not attempting to lay down a rule or formula of universal application. He accepted only that it would be “possible” for the power to be exercised after verdict in circumstances where there was no evidence at all to support the charge. He also said, however, that he was “loath to limit or purport to limit the scope of the discretion” given the broad wording of the statute.
[46] As Heath J said (at [29]) in R v M (Ruling No 2) HC AK T030906 25 March
2004, the words of Somers J have “proven to be wise”. It is impossible, and undesirable, to try to predict in advance the circumstances in which the section might need to be invoked.
[47] For that reason we consider that it would be wrong to attempt to prescribe or limit in any way the circumstances in which the power might be exercised. It was clearly designed to allow the Court to do justice in a wide variety of circumstances, including those that arise or are only properly appreciated after delivery of the verdict.
[48] The power must always, however, be exercised with due deference to the principle that decisions of fact are solely for the jury. It is not open to the Judge to disturb the jury’s verdict merely on the basis of a belief that the jury’s decision is wrong or even that it is unreasonable. Moreover, any attempt to disturb the verdict on the ground that it is “unsafe” runs the very real risk that the Judge may thereby be seeking to substitute his or her own view of the facts for that determined by the jury. If that is allowed to occur, the entire rationale for having criminal charges decided by a jury will be undermined.
[49] If the jury returns a verdict of guilty, the accused is entitled to seek redress under s 385(1)(a) of the Crimes Act 1961, which permits the Court of Appeal to quash a verdict where it is “unreasonable or cannot be supported by the evidence”. Even then, however, the Court of Appeal is not free to interfere merely because it disagrees with the verdict. It will only declare a verdict to be unreasonable where the Court concludes “that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant”: R v Ramage [1985] 1 NZLR 392. More recently the Court of Appeal has said that this is a test of irrationality rather than weight: R v Sturm [2005] 3 NZLR 252 at [53].
[50] As would be expected, the section has seldom been applied in practice after verdict. The cases in which this has occurred demonstrate that a discharge will generally only be granted where the Judge discovers, after verdict but before sentence, that there is no evidence to support the charge or where there are other exceptional circumstances that render the use of the section appropriate.
[51] In R v Momo (1983) 1 CRNZ 67 the accused had been convicted by a jury on charges of kidnapping and assault on a female. After verdict, but prior to sentencing, the complainant admitted that she had fabricated the allegations against him. In those circumstances Roper J discharged the accused pursuant to s 347(3) on the basis that it would be dangerous to convict and sentence him given the facts that had come to light following the verdict.
[52] In R v M (Ruling No 2) (supra) the accused faced four charges involving allegations of indecent assault or sexual violation. The jury returned with verdicts of
guilty on three of the charges and a verdict of not guilty on the remaining charge. At the request of counsel for the accused, the trial Judge conducted a jury poll. This revealed that one juror disagreed with the not guilty verdict on the fourth charge. As a result, the Judge treated that verdict as not having been reached unanimously, and he declined to accept the jury’s verdict. Rather than order a new trial on that charge as sought by the Crown, however, he discharged the accused pursuant to s
347(3). He did so on several grounds, one of which was that he had real doubts as to the ability to conduct a re-trial without introducing evidence relating to the charges in respect of which the accused had already been found guilty. He considered that that fact was likely to prevent the accused from receiving a fair trial if a new trial was ordered.
Did the Judge exercise the power under s 347(3) in accordance with correct principles?
Background
[53] We commence our consideration of this issue by re-iterating that the decision that is the subject of this proceeding was not the first decision that the Judge was required to make regarding the sufficiency of the evidence adduced by the Crown. He had also been required to address that very issue at the conclusion of the Crown case. The fact that he dismissed the application for discharge on that occasion demonstrates that he was satisfied at that stage that there was sufficient evidence to allow the case to proceed further.
[54] The Judge’s decision on the first application for discharge does not appear to have been recorded. For that reason it is no longer possible to examine the reasoning process that he undertook at that time. In the decision that is the subject of this proceeding, the Judge says merely that he declined the first application “with some hesitation because there was at least some evidence of sexual contact”. He also says that “perhaps had there been time to reflect further”, he would have granted the application.
[55] The Judge must, however, be doing himself a disservice in saying that he declined the first application merely on the basis that there was at least some
evidence of sexual contact. In order to properly determine that application he would necessarily have needed to consider whether the Crown had adduced sufficient evidence to allow the case to go to the jury. This would have required him to undertake an analysis of the evidence relating to each of the essential elements of the charge.
[56] The pool of evidence at the end of the defence evidence was not markedly different to that which existed at the close of the Crown case. The evidence of the accused at trial was consistent with what he had said when interviewed by the police. It was also consistent with what he had told one of the Crown witnesses shortly after the incident that gave rise to the charge. The only new material that was introduced by the defence at trial was the evidence of a character witness. This had no bearing on the evidence that related to proof of the essential elements.
[57] In those circumstances it is difficult to see how the Judge could have reached a different view of the evidence following delivery of the verdict. By that stage he had also summed up. In doing so he must have turned his mind to each of the elements that the Crown needed to prove, and provided the jury with directions regarding those matters. Presumably, too, he drew the attention of the jury to those aspects of the evidence that both sides relied upon in relation to each of the essential elements of the charge.
The Judge’s decision after verdict
[58] In the decision that the Judge delivered following the verdict he set out detailed reasons explaining why he considered the conviction to be unsafe. His reasoning is obviously critical in the context of the application for review. For that reason we propose to reproduce in full the material parts of the Judge’s decision:
[34] In the present case, an application under s 347 was made at the close of the Crown case. I declined that application with some hesitation because there was at least some evidence of sexual contact (perhaps had there been time to reflect further I would have granted that application). The application was not renewed following the defendant electing to give evidence. As Trial Judge I was confident after hearing from the defendant that the outcome would be a verdict of Not Guilty and felt considerable unease at the verdict which was delivered some seven hours later. Had an application under s 347 been made at the close of defence evidence and that application declined, I accept that Mr Brookie’s submission that the issue has already been dealt with may be pertinent. However, after hearing all the
evidence, in my judgment, there is no evidence which could properly be relied upon to support the verdict. It was unsafe for the following reasons:
(1) The only evidence of penetration was with the complainant sitting naked astride the accused who was lying on his back on the bed fully clothed but his pants around his ankles. First, there is the inherent improbability of the accused having lifted her into this position, there being no suggestion that she was slumped or unconscious. The jury could not infer that there was any prior sexual contact because there was no evidence whatsoever of this occurring. In my judgment it is inescapable that, in this position, the complainant, even if she was not, in fact, consenting could not do other than give the accused reasonable grounds beyond reasonable doubt for believing that she was consenting. Mr Gotlieb sought leave to adduce expert evidence as to the impossibility of rape occurring in the position as agreed to by both parties but in my judgment the inevitability of apparent consent left this, the sole evidence of sexual penetration bereft of proper weight. I would agree with Mr Gotlieb that this factor alone is sufficient to found a discharge under s 347(3). I also agree with Mr Gotlieb that the evidence relating to timing of events was confusing to the point that the jury, after almost seven hours deliberation, asked to review the video of the complainant being carried to her room through the foyer of the hotel. It is apparent that the timing evidence was so deficient that the jury could easily have had the impression that the accused took advantage of her whilst in that, apparently, comatose state. The evidence, however, was clear to the extent that the complaint or sexual act took place almost five hours later. The evidence was also from a Crown witness that the complainant was far from comatose when she went to bed.
(2) The accused’s evidence, as to his movements, were confirmed by the physical evidence to the extent that he gave his reason for returning to the room, that he had a valuable cell phone which needed to be returned and that on entry found the complainant retching and, therefore, fetched a bin from the bathoom which was evident from the photographs and finally (confirmed by the complainant) that she was astride him and he was lying on his back with his pants around his ankles and feet on the floor.
(3) The scientific evidence was to the effect that none of the accused’s DNA was found on the condom nor in the vaginal area of the complainant placing in doubt whether penetration occurred at all.
(4) The complainant’s “recent complaint” alleged only that when she woke up she was “doing it” with the accused and that she pushed him away but she thought that it was her boyfriend. She did not allege rape nor tell Ms Lam that she was on top.
(5) She claimed to the doctor that she woke up with the accused on top of her. In her evidence she acknowledged that when she woke up she was on top.
(6) By contrast Fong’s evidence remained consistent from the time he spoke to Miss Lam and comforted the complainant, his statement to the police and his evidence in Court.
(7) His good character and prior history with Ms Lam does not appear to have been given due weight.
[35] In my judgment these factors clearly point to the conclusion that there was no proper evidence upon which the jury could reach a verdict of guilty beyond reasonable doubt.
Decision
[59] The manner in which the Judge has framed his decision makes it difficult to discern the precise basis upon which he invoked the section. The references to “no evidence which could properly be relied upon” and “no proper evidence” suggest that he was applying the “no evidence” test referred to in Jeffs. The reference to the verdict being “unsafe”, however, suggests that the Judge was of the view that, although there was evidence to support the charge, it was of such a nature that it would have been unsafe for the jury to rely upon it.
[60] The seven factors that the Judge relied upon do not resolve this apparent conflict. Some of them appear to be directed to a perceived deficiency in the Crown case. These include the Judge’s observation that, even if the complainant was not consenting, she must have given Mr Fong reasonable grounds for believing that she was. Others, however, appear to be directed to a much more broadly based foundation for the Judge’s decision. By way of example, the references to matters that may have influenced the jury in its deliberations and to Mr Fong’s good character clearly have no relevance to any analysis of the sufficiency of the evidence. If they have relevance at all, that relevance can only relate to the exercise of the power on the ground that the verdict was, in some other indefinable way, unsafe.
[61] There was, however, nothing exceptional about the circumstances of the trial or, so far as is presently known, the deliberations of the jury. Issues relating to the latter would be properly addressed in any event by an application for an order declaring a mistrial or by way of appeal following conviction. They would not generally give rise to jurisdiction to discharge under s 347(3).
[62] Moreover, nothing new came to light after or as a result of the delivery of the jury’s verdict as happened in Momo and R v M. Neither was it the case that the credibility of the complainant had been so shaken during cross-examination that it would be unsafe to convict on the basis of her evidence alone. Her evidence has been relatively consistent throughout. Her position has always been that she does not know what went on before the point at which she realised that she was not dreaming.
[63] The Judge was not entitled to grant a discharge based on his perception that the jury’s verdict was wrong or that it caused him, to use his words, considerable unease. To do so would result in a failure to properly defer to the verdict and a usurpation of the function of the Court of Appeal. It would only have been appropriate for the Judge to grant the application if he reached the conclusion, contrary to his earlier view, that an analysis of the evidence showed that the Crown could not establish one or more of the essential ingredients of the charge. In other words, the application fell to be determined in accordance with the traditional principles referred to in Jeffs.
[64] In order to reach that conclusion the Judge’s task was straightforward. He was required to re-consider whether the evidence adduced in relation to each of the essential elements of the charge, if accepted by the jury, was sufficient to prove the charge. Matters such as the factors that may have influenced the jury during its deliberations, Mr Fong’s good character and the consistency of his version of events were therefore, with respect, irrelevant to the topic that he was required to address.
[65] Given the importance that the Judge obviously placed on those matters, we have reached the view that he took into account irrelevant considerations in reaching his decision. It is therefore amenable to review on that ground.
[66] There would be no point, however, in setting the decision aside and remitting the proceeding to the District Court if the outcome would be the same even if the correct principles were applied. For that reason we now consider whether the evidence was sufficient to permit the charge to be left to the jury.
Was the evidence adduced by the Crown sufficient to permit the charge to be left to the jury?
[67] The Crown was required to establish the following elements in order to prove the charge of sexual violation by rape:
a) That the accused penetrated the vagina of the complainant with his penis; and
b) That he did so without the complainant’s consent; and
c) That he did not believe on reasonable grounds that the complainant was consenting.
[68] There was no real dispute regarding the first element. The complainant said that at the point at which she realised that she was not dreaming, Mr Fong’s penis was inside her vagina. Mr Fong also said in evidence that when he woke up the complainant was on top of him and that his penis was in her vagina. There was therefore sufficient evidence regarding this particular element.
[69] The Crown case in relation to absence of consent was that the complainant was either unconscious or asleep at the time at which sexual intercourse occurred. As a result, she was incapable of giving any real or informed consent to what was occurring.
[70] We consider that there was evidence to support this proposition. In her evidence in chief the complainant said that she remembered nothing from the time when she was in the Korean restaurant until she realised that she was not dreaming about having sexual intercourse. At that point Mr Fong's penis was inside her vagina. In cross-examination she also said on several occasions that she was unconscious prior to the point at which she realised that she was not dreaming. This evidence, if accepted by the jury, was sufficient to establish that the complainant was not capable of giving informed consent (or indeed any consent at all) at the time that intercourse began.
[71] The Crown case in relation to the third and final element, namely absence of belief on reasonable grounds that the complainant was consenting, was that Mr Fong was awake at the time that intercourse began. As a result, he knew that the complainant was unconscious and incapable of consenting to have sexual intercourse with him.
[72] Mr Fong denied this proposition. He has consistently said that he awoke to find his penis in the complainant’s vagina and that he pushed her away as soon as he
became aware of what was happening. Evidence to establish the final element must therefore be found elsewhere in the Crown case.
[73] In order to establish this element the Crown relied on Mr Fong’s acts at or around the time that sexual intercourse must have begun. It contended that these were deliberate, and that they demonstrate that he must have been awake at the critical time.
[74] First, the Crown pointed to the fact that at 5.09am Mr Fong had gone to the reception desk of the complainant’s hotel in order to obtain a key to her room, ostensibly so as to be able to return her mobile telephone to her. The Crown contended that sexual intercourse must have taken place within a relatively short period of time after his arrival in the room, and that this suggested that it was likely that Mr Fong was awake when intercourse began.
[75] We do not consider that this argument carries any real weight. Mr Fong was filmed leaving the hotel shortly after 8am. His evidence was to the effect that the incident that has led to the charge occurred about half an hour before he left the hotel, although he believed that he had left the hotel at “about 7ish”. If he is correct in his assessment that he left the room approximately 30 minutes after the incident occurred, the incident must have occurred at approximately 7.30am. Either way, however, there was a period of time measurable in hours between the time that Mr Fong went to the complainant’s room and the time that sexual intercourse began. We do not consider that any real weight can be placed on the fact that Mr Fong was awake and walking around the hotel at least an hour and a half, and probably longer, prior to the commencement of sexual intercourse. That fact does not provide any real assistance regarding his condition at the critical time.
[76] Next, the Crown relied on the fact that a condom was found in the complainant’s vagina. It says that this must have come from Mr Fong, and that it is likely that he put it on prior to the commencement of sexual intercourse.
[77] If the Crown could establish that Mr Fong had put on a condom before intercourse began, it would obviously assist it to prove that he was awake at the time
that intercourse began. The problem with this argument, however, is that there is nothing to connect the condom with Mr Fong. No DNA from him was located on or in the condom, and during cross-examination he denied that he carried condoms or that he had put one on that night. The complainant said that although her boyfriend used condoms he would put them on himself, and that she had never put a condom on a man. In the absence of any evidence connecting Mr Fong with the condom, we consider that the suggestion that he was the source of the condom is based on speculation rather than the evidence.
[78] The final matter that the Crown relied upon was the fact that both the complainant and Mr Fong said that at the time that intercourse occurred Mr Fong was lying on his back on the bed with his torso bare and his trousers and underwear around his ankles. The Crown said that the fact that the trousers and underwear were around his ankles, and not removed entirely, suggests that they were removed for the specific purpose of facilitating intercourse.
[79] We consider this aspect of the evidence to be important for present purposes, because the jury was entitled to draw one of two inferences from it. The first is that Mr Fong had removed his trousers and underwear in order to have sexual intercourse with the complainant. Alternatively, the complainant pulled them down whilst Mr Fong was still asleep. Either inference was available on the evidence. The jury’s function would be to weigh up all of the evidence in order to determine whether it was satisfied beyond reasonable doubt that it should draw the inference urged upon it by the Crown.
[80] In our view this evidence was sufficient to provide the Crown with the necessary platform to suggest that Mr Fong must have been awake at the commencement of intercourse. If the jury accepted that he was the person who pulled the trousers and underwear down, it would be entitled to conclude that he was awake at the time that intercourse began. If he was awake at that time and the jury was satisfied beyond reasonable doubt that the complainant was unconscious, the jury would also be entitled to conclude that Mr Fong commenced having sexual intercourse with her knowing that she was incapable of providing the necessary consent. If the jury was satisfied beyond reasonable doubt that that is what occurred,
the final element would be established to the required standard. Put at its highest, therefore, the evidence was sufficient to establish the charge.
[81] Although the Judge concluded that it was “inescapable” that the complainant “could not do other than give the accused reasonable grounds beyond reasonable doubt that she was consenting”, he did not deal with the issue of the state of Mr Fong's clothing in this particular context. The Judge did not consider the inferences that the jury was entitled to draw from the fact that the trousers and underwear were around Mr Fong's ankles. He said only that “the accused was lying on his back, his clothes still on, apart from his trousers which he, at least, said were placed around his ankles and she was naked sitting on top of him”. The evidence was, however, that Mr Fong was completely undressed apart from his shoes and socks. His jersey and jacket had been completely removed and his trousers and underwear were around his ankles.
[82] We have therefore concluded that the Crown adduced sufficient evidence in respect of each of the three essential elements of the charge to justify the Judge’s initial decision that the case should be left to the jury. Thereafter the weight to be given to that evidence was a matter solely for it. This was not one of those rare cases that would justify the trial Judge disturbing the jury’s verdict.
Relief
[83] The application for judicial review is granted. The order discharging Mr Fong on the charge on which he was found guilty is set aside. He is now remanded on bail to a date to be set by the Registrar of the District Court for a pre-sentence report and sentence. The terms of bail are to be those that applied up until the date
of trial.
COURTNEY J
LANG J
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