Craig v The Queen
[2021] NZHC 3338
•7 December 2021
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2021-443-43 [2021] NZHC 3338
BETWEEN NGIRA LAWRENCE CRAIG
Appellant
AND
THE QUEEN
Respondent
Hearing: 2 December 2021 (VMR) Counsel:
J C Hannam for Appellant
J M Marinovich for Respondent
Judgment:
7 December 2021
JUDGMENT OF ELLIS J
[1]On 16 July 2021, Mr Craig was convicted of the following charges:1
(a)sexual violation by rape;2
(b)unlawful sexual connection;3
(c)strangulation;4 and
1 R v Craig [2021] NZDC 14092.
2 Crimes Act 1961, s 128(1)(a) [maximum penalty of 20 years’ imprisonment].
3 Section 128(1)(b) [maximum penalty of 20 years’ imprisonment].
4 Section 189A(a) [maximum penalty of seven years’ imprisonment].
CRAIG v R [2021] NZHC 3338 [7 December 2021]
(d)kidnapping.5
[2] The charges arose from a single incident, after the complainant (T) had picked up Mr Craig while he was hitchhiking.
[3] Mr Craig’s convictions followed a judge-alone trial before Judge Hikaka in the New Plymouth District Court between 22 and 24 June 2021. The Judge found him guilty on all charges.
[4] Judge Hikaka then sentenced Mr Craig to 10 years and four months’ imprisonment.6
[5] Mr Craig now appeals his convictions on the grounds that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. He also appeals against his sentence, although that is accepted to be wholly dependent on his success on the conviction appeal.
Background
[6]At trial, there was no contest that:
(a)On 20 February 2020, T picked up Mr Craig while he was hitchhiking on a route back to New Plymouth at around 8.20 pm.
(b)Mr Craig wanted to go to a liquor store to buy alcohol; T drove him to one, where he went in and bought a litre of vodka, lemonade, and some plastic cups (he is captured on CCTV footage doing so).
(c)T drove to a nearby area beside the Waitara River, where Mr Craig consumed alcohol while in the car.
(d)Sexual intercourse between the two of them occurred.
5 Section 209 [maximum penalty of 14 years’ imprisonment].
6 R v Craig [2021] NZDC 19865.
[7]There was further evidence at trial that:
(a)Later that evening, T waved down a car driven by the Crown witness Mr Ryan Te Runa, who had with him two passengers, including the witness Ms Javana Hauraki:
(i)Mr Te Runa’s evidence was that when he pulled up beside the car, T was “blubbering”. He said that a man who had been sitting in the front passenger seat of T’s car got out and walked away, carrying a bottle of alcohol.
(ii)Ms Hauraki said there was a man with T and that she had said, “Can you get this man out of my car”. She also says T told her she had been strangled.
(b)T drove toward New Plymouth and stopped at a Z petrol station where, at some time between 11pm and midnight, she spoke with the Crown witness Kirsten Niwa, who described T as looking distressed and “like a deer in headlights”. Ms Niwa said that T told her that she had picked up a hitchhiker who had attacked and raped her.
(c)Ms Niwa said she could not smell alcohol or cannabis, but she could smell semen. She saw red marks and scratches on T’s neck. Together they arranged for Police and an ambulance to arrive.
(d)T was taken by Police to Kimiora House (a Police house where complainants are spoken to and medically examined). Dr Sarhatt arrived at 1.10 am and began a four-and-a-half-hour medical examination of T.
(e)The doctor noted left shoulder pain, left ear and jaw pain, front of neck pain, and left hip pain with an 8cm by 5cm pink and purple bruise to
the outer hip area (which was tender, swollen, and had a small abrasion). Normal findings were noted in relation to the genital area.7
(f)Two weeks later (on 3 March 2020), T gave her formal statement to Police, which was recorded on video (and would later be played in court).8
(g)T identified Mr Craig during a formal photograph montage as the person who attacked her.
(h)Mr Craig was arrested that same day; he was given his rights and his statement to Police was recorded on video.
(i)ESR analysis (report dated 17 August 2020) found DNA matching Mr Craig on the vaginal swab taken from T. A mix of DNA was found on the outside of T’s underwear; the major component could have originated from T, and the minor DNA component contained DNA from two individuals (one of which was male). The minor component was unsuitable for meaningful comparisons.
Mr Craig’s EVI
[8] In his Police interview, Mr Craig confirmed he had been picked up hitchhiking between Urenui and Waitara and said that he had asked to be dropped off at the “Waitara Alcohol store”. He recalled (incorrectly) that he purchased Jameson’s Whiskey and coke, rather than vodka and lemonade.
[9] Mr Craig described T being on her phone using Black Power slang. He said he asked her if she would like to go “somewhere private to drink” and that they “ended up going over the bank”. Then he said he asked her whether she would like to “sleep
7 Dr Sarhatt noted that both consenting and non-consenting contact may or may not result in injury; it is normal and common for people to present with normal genital area findings after alleged sexual assaults.
8 T only identified Mr Craig after recognising him at the Braemar Motel, where she had been given emergency housing by WellStop after the attack and where, it transpired, Mr Craig was also staying with his partner and children. She later identified him again during a photo montage process.
with” him or to “hook up”, and she replied, “We’ll do it in the back seat”, which they did. He said it did not last long and that it “was a quick root.” He agreed that after penile sex there was oral sex. He said no force was involved and he denied causing any bruising, although he acknowledged that while they were having sex her head hit the car door. He said he had to hold the door open so that it did not hit her head.
[10] Mr Craig accepted that he was feeling a bit intoxicated. He said he told her she could keep the left-over money he had after buying the alcohol (as well as the leftover alcohol) because he “appreciated her time.” Then, he said he “jumped out and went home.”
The Judge’s verdicts decision
[11] The Judge’s decision began by setting out a summary of the evidence, both undisputed and disputed. He then specifically dealt with the “areas of contention” under the headings:9
(a)Identity;
(b)Gangs, drugs, phone calls, messaging and money;
(c)Injuries;
(d)Running away; and
(e)Fabrication.
[12] I set out the next part of the Judge’s decision more or less in full. After reminding himself of the usual rules about the burden and standard of proof and about assessing credibility and reliability, the Judge set out his “Findings”, using the same areas of contention headings. He said:
[70] Factors supporting the challenges put to the complainant regarding identity of her violent assailant and her fabrication of the allegations included;
9 I will return to aspects of what the Judge said under these headings later in this judgment.
(a)Identity. Ms Hauraki’s description of the person getting out of the complainant’s car was in my view mistaken. It was so at-odds with the other descriptions given that I concluded that even though Ms Hauraki’s description was her honest recollection, it was unreliable. One aspect of her recollection that tended to support the evidence of the complainant was the person’s laughter when she told him to get out of the car. Minor DNA components on the outside of the complainant’s underwear were unsuitable for comparison and it would be merely speculative to suggest that it supported doubt as to the identity of defendant as being the person in the sexual encounter or the violence. The defendant admitted he was in the sexual encounter with the complainant, but not without consent.
(b)Gang, drugs, phone calls, messaging and money. Reference to messages meaning to imply the complainant’s involvement with the gang and drugs even if as put to her were accepted by the complainant, did not tend to prove or disprove the allegations. In my view they were irrelevant. The ‘phone calls and messaging’ overall provided support for the complainant’s evidence. If the complainant’s objective in picking up the defendant was to get money for gas, the defendant’s evidence that he left her $30.00, if accepted, would have meant that her objective was achieved.
(c)Injuries. The medical examination results did not undermine the complainant’s complaints of the injuries and pain she suffered. The photos also did not undermine those complaints. The visible bruising again appeared to be within the bounds of what the medical evidence indicated.
(d)Running Away. Inconsistencies in the complainant’s evidence were apparent. As were the sequence of activities around the sexual and physical violence. She also referred to it “as a bit of a blank”. I will return to this point under the Fabrication heading to follow.
(e)Fabrication. The overall challenge put to the complainant was that she was making up the complaints. A number of the inconsistencies in her evidence were pointed out to her. She acknowledged some and expanded on others.
[71] In spite of inconsistencies in what the complainant had to say at different junctures, her evidence with respect to the elements of the charges was, at its core, consistent, and in my view, credible and reliable. The consistent thread to her evidence was the trauma that she had suffered, physically and emotionally, the high level of distress she experienced and her difficulty managing the acute embarrassment she felt as a result of what happened. Manifestations of that thread were witnessed by Mr Te Runa and Ms Hauraki, Ms Niwa and Sergeant Betteridge. Those manifestations were also obvious during her video interview and the evidence she gave in court. Having noted that, I reminded myself that demeanour is but one factor to consider.
[72] I am satisfied that the defendant directed the complainant to the parking area where he drank alcohol he had purchased from the bottle store, and that he tried to persuade the complainant to drink as well.
[73] I am satisfied that the complainant was reluctant to drive the defendant to that area and to drink alcohol. I am satisfied that the defendant’s demeanour changed from being pleasant to being dominating and, eventually, violent. Even though the complainant at times tried to present as calm and strong, in reality she was neither.
[74] I am satisfied that the initial sexual contact was when the defendant forced the complainant’s head to his penis and his penis into her mouth.
[75] I am satisfied that in the back seat of the complainant’s car the defendant pinned the complainant down with his forearm across her upper chest, collar bone area and had sexual intercourse with her. During the time they were in the back seat, he applied pressure to her throat to the point where she momentarily lost consciousness. She banged her head on the car door, which he opened, and her head touched the ground. Her hat came off. After that, when she was outside the car, she tried to retrieve her hat which the defendant grabbed, and he taunted her with it.
[76] I am satisfied that the complainant was conflicted about opportunities that may have enabled her to run away. She was angry, upset, confused, stressed and scared.
[77] I am satisfied that the defendant played “cat and mouse” with the complainant around the car and at one time picked her up. She kicked down causing a dent to her car. The “cat and mouse” actions referred to and picking up the complainant amounted to detaining the complainant. That detention was intentional and without consent.
[78] On all those points, based on all the evidence, I am satisfied beyond reasonable doubt.
[13]The Judge then found all charges proven, accordingly.
Approach on appeal
[14] An appeal against conviction in a Judge-alone trial is governed by s 232 of the Criminal Procedure Act 2011 (CPA).
232 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
(a)in the case of a jury trial, having regard to the evidence, the jury’s verdict was unreasonable; or
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred.
(c)in any case, a miscarriage of justice has occurred for any reason.
…
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[15] The Supreme Court recently re-examined the approach to conviction appeals from judge alone trials in Sena v New Zealand Police.10 The Court held that appeals in such cases should proceed by way of rehearing in accordance with the well- established principles canvassed in Austin, Nichols & Co Ltd v Stitchting Lodestar.11
[16] Mr Craig must therefore satisfy the Court that a miscarriage of justice has occurred, either because “the Judge erred in his … assessment of the evidence to such an extent that a miscarriage of justice has occurred” or for any other reason.12 A miscarriage of justice is “any error, irregularity, or occurrence” that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”.13 Not every error or irregularity causes a miscarriage of justice; a miscarriage “is more than an inconsequential or immaterial mistake or irregularity”.14
[17] In addition, Sena requires a judge, in giving a judge-alone verdict, to provide adequate reasons for the decision:15
[36] … [The reasons] should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached.
10 Sena v New Zealand Police [2019] NZSC 55.
11 At [32], citing Austin, Nichols & Co Ltd v Stitchting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
12 Criminal Procedure Act 2011, s 232(2).
13 Section 232(4).
14 Matenga v R [2009] NZSC 18 at [30].
15 Sena, above n 10, at [36].
Reasoning which consists of a conclusory credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. …
[18] That said, the Court also recognised that a judge need not express perfectly and fastidiously their reasons:16
[37] In saying all of this, we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.
The appeal
[19] In general terms, Mr Hannam advanced Mr Craig’s appeal on the basis that the Judge did not explain why he preferred T’s evidence about the key events over Mr Craig’s account (as given during his EVI). More particularly, he says that the Judge made “conclusory” credibility findings, which failed (or failed adequately) to address:
(a)the contention that T’s recall and behaviour had been affected by drugs;
(b)T’s financial difficulties giving her a motive to fabricate the allegations (because as a result of making the complaint she was given emergency housing in New Plymouth);
(c)T’s lapses in memory, evasiveness, and refusal to answer questions;
(d)the inconsistencies in T’s evidence;
16 Emphases added.
(e)the unbelievability of T, in the situation as she described it, not just running away when at the riverbank;
(f)the absence of medical evidence linking the bruise seen on T’s thigh and any assault;
(g)her failure to disclose to Mr Te Runa what had happened;
(h)the doubt about whether the man described by Mr Te Runa and Ms Hauraki as being in T’s car was or could have been Mr Craig; and
(i)the credibility of Mr Craig’s account.
Discussion
[20] I record at the outset that I do not accept that the Judge needed to do more in terms of expressly or separately addressing the credibility of Mr Craig’s account. In what was largely a “he said/she said” case, it was enough that he accepted T’s evidence as to the core aspects of the narrative. If the Judge found that T’s evidence as to those core elements was truthful and reliable, then it follows that Mr Craig’s account of events was not. The only real issue on appeal is whether the Judge erred in—or failed to give sufficient reasons for—finding her evidence credible and reliable. I assess that issue by reference to the other specific points listed at [19] above.
Complainant’s recall and behaviour had been affected by drugs
[21] The Judge expressly rejected this contention as irrelevant, at [70](b) of his decision. It was therefore a point to which he was alive, but which he rejected. In my view he was right to do so.
[22] I acknowledge that there was some evidential basis for a suggestion that T may have been involved with drugs of some kind during the night and day before the relevant events. Put briefly, text messages to and from T’s phone during that time make some references that could reasonably be taken to refer to drugs, and the
frequency and timing of her texts more generally suggest that she had had little sleep over that period.
[23] Against that, however, is the absence of any noting of intoxication or drug use by the doctor who examined T at 1:15 am on 21 February (a few hours after intercourse had taken place). Rather, the doctor described her as “alert and competent” and “able to cooperate fully with the examination”. Ms Niwa’s evidence was that T did not smell of either alcohol or cannabis. Moreover, in Mr Craig’s own account (recorded in his EVI), he makes no reference to T appearing to be under the influence of drugs or otherwise intoxicated.
[24] But even if the (scarce) evidence of the text messaging and wakefulness could be taken as safely establishing prior drug use (which I do not think it can), I agree with the Judge that it was not relevant. There was no evidence capable of safely establishing the kind of drug at issue, the time of consumption, or the amount consumed. Nor was there evidence as to its effect (if any) on memory or behaviour. The Judge was right to view drug use as a red herring.
Motive to lie
[25] As I have said, Mr Hannam suggested that T’s financial difficulties gave her a motive to fabricate the allegations. Although he emphasised her texts that (as T herself accepted) indicated an intention to “hustle” people for money, it is unclear to me how that might be said to give her a motive to make up allegations against Mr Craig. On Mr Craig’s account, he did in fact give her some money (although she denied this).
[26] Mr Hannam’s point that T did in fact obtain a benefit as a result of making the allegations (in the form of emergency housing) also does not really assist Mr Craig. On my reading of the notes of evidence it is not something that was put to T and it is not referred to by the Judge in his decision. But in any event, the suggestion that T would make up the allegations against Mr Craig in order to obtain temporary housing is very farfetched. It seems to me highly unlikely that she would have had that degree of knowledge or foresight to do so.
Evidential inconsistencies, lapses in memory, evasiveness and refusal to answer questions
[27] The Judge specifically addressed the inconsistencies in T’s evidence, noting that:17
She accepted some of the inconsistencies but also referred to her emotional state, embarrassment and struggle to deal with what had occurred. Some of her responses explained some of the inconsistencies.
[28]The Judge then observed that:18
The complainant was not the only witness in whom evidence inconsistencies could be identified. The defendant referred to what he was wearing as described above which was different from the image of him captured in the bottle store. He referred to buying whiskey and coke but he bought vodka and lemonade.
[29] As set out above, the Judge concluded (at [71]) that despite some inconsistencies, the core of T’s evidence—her evidence relating directly to the events giving rise to the charges, and her response to those events—had been consistent and was credible and reliable. While reminding himself of the care needed before relying on witness “demeanour”, the Judge considered that T’s high level of distress and embarrassment, which she had manifested throughout, was something that supported her evidence of the relevant events. In my view he was entitled to reach that conclusion; the proposition that genuine victims will always give a thoroughly consistent account is rightly regarded as a rape myth.19
[30] I acknowledge that T did, on occasion, say she could not remember things. But lapses of memory about matters unrelated to the key events are hardly a telling indicator of unreliability.
[31] Similarly, I acknowledge that T did, on occasion, refuse to answer questions, usually (on my reading of the transcript) because she regarded the question as upsetting or irrelevant. That seems to have particularly been so when the questions related to drugs or to her involvement with gangs or gang members. As it transpired,
17 R v Craig, above n 1, at [66].
18 At [67].
19 Elisabeth McDonald Rape Myths as Barriers to Fair Trial Process (Canterbury University Press, 2020) at 44.
the Judge agreed with her assessment as to the relevance of those things. And in any event, it is difficult to see how that might fairly or obviously lead to a conclusion that she was lying about other matters.
[32]Again, I can discern no error in the Judge’s approach.
Failure to run away
[33]The Judge summarised T’s evidence on this point as follows:20
The complainant was challenged about why she did not run away. Her evidence was that at the time she remonstrated with herself for not doing so. Also, she was scared, and that if she had he would have been able to catch her. She also explained that she was “so sore” that she wanted him out of her car. She was not “with it” and did not know why she did not run, “kind of half there. I don't know. I can't explain it. I was deflated. I didn't have any fight left in me I think. I just, I was just weak. I was so angry. I couldn't even express at that point verbally or anything. I just, I was just done.”
[34] The Judge later noted that inconsistencies in T’s evidence on this point “were apparent”, as they were in relation to her evidence about the “sequence of activities around the sexual and physical violence”.21 Again, however, he did not regard these inconsistencies as diminishing the overall reliability and credibility of her core narrative.
[35] To the extent further justification for the Judge’s analysis and conclusion is required (which I do not think it is), I would add that the proposition that T’s “failure” to run away afterwards (or to coherently explain why she did not do so) somehow diminishes her credibility is simply a variant of the myth that a woman who is being raped will fight back. In fact, to the extent it is possible for me to assess on appeal (simply from reading the transcript), T’s description (in her EVI and at trial) of her fear and confusion has the ring of truth to it.
Absence of medical evidence linking the bruise seen on T’s thigh and any assault;
[36]The Judge summarised the evidence on this issue as follows:
20 At [63].
21 At [70(d)].
[60] The complainant was challenged about the injuries, particularly the bruising she complained of, and the photos taken of her injuries and bruising. She was adamant that she suffered bruising and swelling. Those injuries were not immediately obvious from the photos. But even a comparison of photos themselves showed that, depending on proximity of the camera and its angle, different shades of skin colour were apparent. It was put to her that the photos showed the remnants of sunburn. She refuted that stating that she always wears a hat. She referred to being sensitive about her hair and the importance of her hat.
[61] There was a photograph of her right foot which appeared to show bruising at the top front area, opposite and just above the Achilles tendon. The complainant gave evidence that the defendant picked her up at one time and that she brought her foot down hard onto her car. She said she caused a dent. She identified a dent to the driver’s side bonnet area of the car.
[62] In these exchanges, as well as in her first interview, the complainant referred to being embarrassed about what had happened. For that reason she did not tell Mr Te Runa what had happened and she did not want photos taken in the first place let alone have her back photographed.
[37] As set out earlier, the Judge concluded that neither the results of the medical examination nor the photographs undermined T’s account of the injuries she suffered.
[38] Mr Hannam took issue with the Judge’s “alignment” of the bruise to T’s foot and the dent in the car despite neither T herself nor the doctor making that connection. More generally he submitted:
There is no medical evidence that supports the assault claimed by Ms Thompson. The only obvious injury is the bruise on her hip. This injury does not support specific assault claims of strangulation.
[39]There is nothing in this point. As the doctor’s herself said in her report:
36. [T] was found to have a tender swollen bruise on the left hip. She reported to tenderness of the back of the head, both temple areas of her face, the left ear and left jaw, front of neck, across the chest, over the left clavicle/collar bone and posterior left shoulder, lower back, right ankle, and right forearm.
37.Her genital exam was normal.
38. Because the skin of the genital area is stretchy, it is common for penetration (consenting and nonconsenting) to occur without causing visible or detectable injury.
39.The likelihood of injury depends on multiple factors as discussed.
40. In general, the findings of a medical examination are often not able to confirm whether or not sexual contact occurred. If sexual contact occurred, a
medical examination cannot determine whether such contact was consenting or nonconsenting.
[40] And as for the “tenderness of the front of the neck and the alleged strangulation”, the doctor said:22
… The pattern of symptoms and signs may vary depending upon where the pressure was applied, the degree and type of force applied (e.g. hands or ligature), whether there was any movement during the application of force and how long the pressure was applied for.
If slight pressure is applied directly to the front of the neck over the sensitive windpipe, it can result in a feeling of being unable to breathe and pain, but not necessarily result in loss of consciousness or visible bruising, unless more pressure is applied.
Research of survived strangulation is limited. Most of the medical literature on strangulation is based on deceased individuals. It has been estimated that visible injuries are sustained in only 50% of cases. Importantly, minimal or no visible injuries can also occur in life threatening or significant strangulation. It is not possible to accurately correlate the types of injuries seen with the severity of strangulation. A normal examination of the face and neck may also mean that no strangulation occurred.
[Ms T] described a nonfatal strangulation event. She was experiencing some tenderness of the front of the neck.
T’s failure to disclose to Mr Te Runa what had happened
[41] Failure to disclose or to disclose immediately is another rape myth. The reality is that T did make disclosures to others very shortly afterwards (including to Ms Hauraki, to the effect that she had just been strangled). Her reluctance to speak to a man about it is wholly understandable. Mr Te Runa gave evidence about T’s obvious distress at the time of their encounter. There is nothing in this point.
The man described by Mr Te Runa and Ms Hauraki as being in T’s car
[42] There is CCTV footage of Mr Craig from the night in question. He is wearing a dark T-short with yellow writing, dark knee length shorts and dark shoes. He appears to be Māori with dark shortish hair and goatee-like facial hair. He is shown buying what appears to be a litre-sized bottle of vodka and a large bottle of sprite.
22 Emphasis added.
[43] The Judge summarised the relevant part of the evidence given by Mr Te Runa and Ms Hauraki as follows:
[48] Mr Te Runa described the front passenger seat who got out of the complainant’s car and walked off, as having not long hair and that it was fluffy, curly, dark brownish in colour and that he had a little bit of facial hair. He said he was of solid build, wearing a dark coloured T-shirt and shorts and work boots. He had with him, a “big bottle, hot stuff, bourbon or something” with only a couple of mouthfuls left in the bottle. He said the person did not have a bag with him. He noticed that the person “stumbled out of the car and just moseyed off”.
[49] Ms Hauraki said she yelled at the man to “get the fuck out of the car” and that he laughed at her but he did eventually get out. She described him as bald, then as having hair but not much, and that it was black. She described him as a dark-skinned Maori, wearing a dark green long-sleeved “Hunting and Fishing” top and he had a backpack like a school bag. She said: “He looked drunk.”
[44]Later, the Judge said:
[53] It was put to the complainant that she had consensual sex with the defendant and that any injuries she suffered were as a result of someone else’s violence to her. That contention was put in part on account of the different descriptions of the individual who got out of her car and described by Mr Te Runa and Ms Hauraki and that on the complainant’s underwear, the minor component located contained DNA from at least two additional individuals at least one of which was male. However, as referred above the minor component was unsuitable for meaningful comparisons.
[54] The complainant adamantly refuted that suggestion and said that the only person she had in her car that night was the defendant.
[45] The Judge later concluded that Ms Hauraki’s description of the man in the car was mistaken and unreliable because it was “so at odds with the other descriptions given”.
[46] Mr Hannam nonetheless contended that the Judge failed to deal adequately with the defence suggestion that it had been some other man in the car with T when she flagged down Mr Te Runa and Ms Hauraki. Mr Craig had said that he and T had parted company earlier, at the riverbank. And the man described by Ms Hauraki in her evidence bore no resemblance to Mr Craig. Mr Hannam also relies on the DNA evidence, which (he says) supports the defence theory that there was a second man involved.
[47] Again, I cannot agree. The Judge was right to regard the suggestion that the DNA evidence supported the involvement some other man as speculative. Nor was he wrong to put Ms Hauraki’s description of the man in the car to one side and to regard Mr Te Runa’s as reliable. Apart from the mistaken reference to work boots, Mr Te Runa’s description of the man matches the images of Mr Craig in the CCTV footage. It could properly be regarded as strong evidence supporting T’s account that Mr Craig remained in her car and had refused to get out when she asked him to.
The relative credibility of Mr Craig’s account
[48] Finally, Mr Hannam says that the Judge failed to properly address Mr Craig’s statement or to explain why he chose not to accept the evidence in that statement.23
[49] I cannot accept that submission, either. It follows from the Judge’s acceptance of T’s account (supported as it was by other evidence) that he did not accept Mr Craig’s account. There was no particular part of Mr Craig’s statement that was left unanswered. His position was straightforward: intercourse took place, but it was consensual and he did not use force or cause T any injury. But T’s evidence about the key events—if accepted—is a complete answer to that.
[50] The Judge was therefore not required to explain why he did not accept each aspect of Mr Craig’s version of events.24 It suffices that the Judge set out and systematically addressed each of the key areas of contention.
[51] In my view, this is not a case where there was an insufficiency of evidence to convict, or where the Judge has made a material error in the onus or standard of proof. It is not a case where the Judge has failed to properly provide reasons for his verdicts. Put simply, the Judge has not erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. The appeals must fail, accordingly.
23 Which Mr Hannam submitted was contrary to Sena.
24 Sena, above n 10, at [37].
Result
[52]The appeals are dismissed.
Rebecca Ellis J
Solicitors:
Hannam & Co Lawyers, New Plymouth for Appellant Crown Solicitor, New Plymouth for Respondent
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