Fong v Attorney-General

[2008] NZCA 425

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PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA184/07 [2008] NZCA 425

BETWEEN  POK VICTOR FONG Appellant

ANDTHE ATTORNEY-GENERAL OF NEW ZEALAND

First Respondent

ANDTHE DISTRICT COURT AT AUCKLAND

Second Respondent

Hearing:         29 July 2008

Court:            William Young P, Robertson and Arnold JJ Counsel: J R Billington QC for Appellant

M D Downs for Crown

Judgment:      16 October 2008         at 3 pm

JUDGMENT OF THE COURT

A        The appeal is allowed.

BThe judgment of the High Court is quashed and the s 347 discharge is reinstated.

REASONS OF THE COURT

(Given by William Young P)

POK VICTOR FONG V THE ATTORNEY-GENERAL OF NEW ZEALAND AND ANOR CA CA184/07  16

October 2008

Table of Contents

Para No

Introduction  [1] The evidence  [3] The plausibility of the evidence of the primary protagonists  [26] The closing addresses of counsel  [29] The summing up of Judge Hubble  [33] The jury’s verdict  [39] The decision of Judge Hubble to discharge the appellant under s 347  [40] The High Court judgment  [42] Section 347 – the authorities  [49] Our evaluation  [56]

Overview  [56] A notional appeal against conviction  [60] If dealing with an appeal against conviction, would we  [64] direct a new trial?
Resolution of the present appeal  [69]

Disposition  [72]

Introduction

[1]      The appellant, Pok Victor Fong, was found guilty by a jury on a charge of rape.  Unusually, the trial Judge (Judge Hubble) subsequently discharged him under s 347(3) of the Crimes Act 1961.  The Attorney-General challenged this decision in judicial review proceedings before the High Court.  The result was that Courtney and Lang JJ set aside the order discharging Mr Fong and remanded him on bail for sentence: Attorney-General v District Court at Auckland [2007] 2 NZLR 692.

[2]      Mr Fong now appeals.  In the meantime he has not been sentenced.

The evidence

[3]      This section of the judgment is largely based on the evidence given during the trial in District Court.  We say largely, however, because:

(a)      We have been given one important security camera photograph that was not produced to the jury; and

(b)The security camera photographs which we were given are all timed specifically whereas the images which the jury had were not so specifically timed.  We will explain the significance of this when we get into the detail of the case.

The  complete  (and  timed)  photographs  were  available  to  the  Judge  when  he addressed the s 347 application.

[4]      The key protagonists in the case are Mr Fong and the complainant.   The complainant is a flight attendant.   At the time of the alleged offending, the complainant was 29.  The appellant was a little younger.   Although born in Hong Kong, he is a New Zealand citizen.  He has degrees from the University of Auckland and had a reasonably well paid and responsible job with a bank.   Both the complainant and Mr Fong are people of good character.

[5]      The link between the appellant and complainant was Ms L, who is a work colleague of the complainant and a long standing and close friend of Mr Fong.  He had on occasion slept over in hotel rooms that Ms L was staying in but their relationship had never been a sexual one.

[6]      On the night of 17/18 December 2004, the  complainant and Ms  L were staying at the Hyatt Regency, having flown into Auckland that morning.  They met up that evening and later ran into the appellant by chance.  The upshot was that just before 10.00 pm the complainant, Ms L and the appellant went to the complainant’s hotel room (room 403) for drinks.  We derive this time from the electronic records as to the times when a security card was used to open the door to room 403.  (We note that there is a complicating feature associated with the electronic records in that the computer clock was 5 minutes slow.  Times we give in this judgment associated with the use of the door are corrected for this.)  Also present was a third member of the complainant’s crew, a man called Gary.  They were later joined by Mr C, who is a friend of Mr Fong.

[7]      Because the complainant became extremely intoxicated and claimed to have limited memory of the events that led up to the alleged offending, the primary evidence as to those events had to come from Mr Fong, Ms L and Mr C.  Although Ms L and Mr C were thus important Crown witnesses at Mr Fong’s trial, both appear to have been sympathetic to his predicament and Ms L in particular was perhaps in his camp.

[8]      It is common ground that the group were in room 403 drinking for some time, before the complainant, Ms L, Mr Fong and Mr C went in Mr C’s car to a Korean restaurant.   Gary did not join them, instead going to bed.   Given the electronic records associated with the use of the door to room 403, they cannot have left the hotel until after 2.22 am.   At the restaurant the complainant appears to have behaved in a way which annoyed a waitress and some of the patrons.  Although the detailed evidence of this came from Mr Fong, Ms L and Mr C, the complainant’s own evidence suggested that she had caused some irritation.  While at the restaurant the complainant became very intoxicated, to the point that she fell over when walking to the lavatory.

[9]      Mr C drove the appellant, the complainant and Ms L back to the hotel.  The complainant vomited outside.   Footage from a security camera in the hotel foyer timed at 4.35 am shows Mr Fong carrying the complainant into the hotel lobby.  The complainant had lost her hotel room card.   The reception staff issued a new one. This card was used to enter her room at 4.36 am.  The images the jury had of this phase of events were noted as having been taken between 4.30 am and 5.00 am.  We do not see this as particularly material, because in her address  to  the jury,  the prosecutor  referred  to  the  door  being  opened,  which  she  erroneously  timed  at

4.31 am instead of 4.36 am because she did not correct for the computer clock being five minutes slow.  In the context of the case as a whole, nothing turns on this five minute error.

[10]     Mr Fong and Mr C left Ms L and the complainant in room 403 and waited for Ms L in her room.  Ms L then helped the complainant to undress partially and get into bed.  Her evidence was that she helped the complainant get into “sleeping pants” but was unable to change the clothing on the upper half of her body because the

complainant would not remain still.  Ms L’s evidence was that the complainant was very much awake at this time and was acting and talking in a way which suggested that she had sex (and probably with Gary, the member of her crew whom we have already mentioned) on her mind.

[11]     Ms L then went to her own room where Mr Fong and Mr C were waiting. Security camera footage shows the two men leaving the hotel at 4.43 am.

[12]     Mr Fong and Mr C returned to Mr C’s car.   They initially decided to stay there, to sleep off the effects of the night’s drinking.   While in the car, however, Mr Fong vomited a number of times.  His case throughout has been that while he was looking for something to clean up the vomit on himself and the car, he found the complainant’s cellphone and hotel card under the back seat.

[13]     It is common ground that Mr Fong left the car and walked back into the hotel and tried to get into the complainant’s room using the card he had found.  He was unable to access her room because the card had been cancelled.   So he prevailed upon one of the receptionists to issue him with a card to the complainant’s room and let himself in.   The concierge (Mr Charles Niu) in his evidence confirmed that Mr Fong showed him both a phone and the key.  There is security camera footage of the appellant at the reception desk between 5.11 am and 5.13 am and the security system records show that Mr Fong entered room 403, using the new card, at 5.14 am. The security camera images which the jury had were not specifically timed but bore notations indicating that they were taken between 5.00 am and 6.00 am.  The lack of specificity in these timings is not particularly significant because the evidence as to when  the  door  was  opened  was  before  the  jury  and  was  emphasised  by  the prosecutor in her closing address (albeit that she again used an uncorrected time and was thus five minutes out).  This five minute error again is not material and the jury would have appreciated that Mr Fong entered room 403 not long after 5.00 am.

[14]     His explanation at trial for going back to the hotel was that he wanted to clean himself up and to return the phone to the complainant.

[15]     Mr Niu gave evidence to the effect that he was a little concerned about what had happened, in particular that Mr Fong had been given a key to a guest’s room. He said that when Mr Fong did not reappear after ten minutes or so, he spoke to the receptionist and the upshot was that a security guard was asked to go to the room to make sure that nothing was wrong.  His evidence was that when the security guard came back he said that he could not hear anything in the vicinity of the room.

[16]     A security guard (Mr Lolesi) gave evidence of going to room 403 to find out what was happening.  He said that the only sounds he heard coming from the room were indicative of a bed hitting a wall.  His evidence, however, did not fit in easily with that of Mr Niu as to timing and context.  This is because the drift of Mr Lolesi’s evidence was that he went to room 403 earlier in the morning (possibly between

1.00 am and 2.00 am) and that he did so because of a noise complaint, having been asked to check the room by “the Argentinean receptionist”. Between 1.00 am and

2.00 am  there  was  something  of  a  party  going  on  in  room  403,  which  might conceivably have attracted a noise complaint.  Further, had Mr Lolesi told Mr Niu that  he  had  heard  the  sound  of  a  bed  hitting the  wall,  this  would  hardly have assuaged  the  latter’s  concerns.    So  there  is  arguably  room  for  doubt  whether Mr Lolesi’s evidence related to what happened after Mr Fong had entered room 403 at 5.14 am.

[17]     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: she was sitting on top of Mr Fong and they were having sex.  He had no clothing on the top half of his body and his trousers and boxer shorts were around his ankles.  She was wearing knickers, pushed to one side, but nothing else.  She said that she rolled away from him, wrapped herself in the duvet and began to cry.   She did not notice when he left.

[18]     Under cross-examination she maintained 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 or 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 only once tried, unsuccessfully, to put a condom on a man.  She could not remember saying anything to Mr Fong.

[19]     Mr Fong’s account of what happened was that when he let himself into the complainant’s hotel room she was retching and asked him to help her.  He placed a rubbish bin beside the bed for her use.  She asked him to stay with her.  He sat beside her at the end of the bed.  At some stage he fell asleep.  As he drifted in and out of sleep, he remembered someone trying to take his sweater off, the feeling of someone kissing him and the sensation of something warm, perhaps a finger, in his mouth. The next thing he recalled was the feeling of someone touching his penis and of someone saying, “Fuck me harder”, in Cantonese.  He opened his eyes and saw that the complainant was sitting on him having sex with him.  He pushed her off and said to her, “what’s going on”.   The complainant did not respond and began to cry. Mr Fong then got dressed and tried to talk to her; unsuccessful, he left shortly afterwards.  Mr Fong said that he thought that he woke up around 6.30 am, and left the room around 7.00 am.

[20]     However, Mr Fong was recorded on security footage leaving the hotel at

8.08 am.   The photograph of him leaving was not produced in evidence in the District Court, something which we regard as very significant.  In the absence of this photograph, there was no firm evidence as to when Mr Fong left the hotel, and his estimate was about an hour earlier than in fact was the case.  This left it open to the Crown to run the case very much on the basis that the sexual interaction between Mr Fong and the complainant occurred soon after he went into her room.  But when the image of Mr Fong leaving the hotel at 8.08 am is brought into account along with the evidence of the complainant and Mr Fong as to what happened once she rolled off the appellant, it rather appears that this  phase of  events  occurred  sometime between 7.30 am and 8.00 am.

[21]     The complainant telephoned Ms L and asked her to come down to her room. According to the complainant this was at 8.43 am.  There was some dispute in the evidence at trial between Ms L and the complainant as to what was said.  According to Ms L, the complainant told her that she had woken up to discover that she was “doing that” with a man she could not identify.   She did not describe herself as

sitting on top of Mr Fong and she did not explicitly complain of being raped.  On the complainant’s account of events, she complained that Mr Fong had been in her room and that there had been sexual intercourse which had stopped.  Whatever was said, Ms L rang Mr Fong and received his account of events.

[22]     When the complainant subsequently underwent a medical examination, the doctor found a condom deep inside her vagina.  There was no DNA evidence in or on the condom to connect it with Mr Fong.

[23]     According to the doctor who examined the complainant, the complainant alleged that she had woken up to find the appellant on top of her.  In her evidence at trial she accepted that in truth she was on top of the appellant when she woke up. The complainant and the Crown at trial suggested that the complainant (whose first language is Cantonese) and the Doctor (who is from Croatia) may have been at cross-purposes.

[24]     Photographs taken in room 403 after the incident was reported to the police showed a rubbish bin in a position which was consistent with Mr Fong’s evidence of having placed a rubbish bin beside the complainant.  Mr Fong gave an account of events when interviewed by the police and although we do not have a copy of his statement it is clear that it was consistent with what he had told Ms L at the time and the evidence he gave at trial.

[25]     At the end of the Crown case, counsel for Mr Fong applied for an order discharging him under s 347(3) 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 evidence which was in accord with the narrative we have already set out.  He also called character evidence.

The plausibility of the evidence of the primary protagonists

[26]     One  of  the  problems  with  this  case  is  that  neither  the  complainant  nor

Mr Fong gave a particularly plausible account of events.

[27]     The complainant in evidence reverted constantly and sometimes implausibly to the assertion that she could not remember what had happened, often in relation to details which were quite significant.   There was an apparent conflict between her accounts as given to the doctor and at trial of her position relative to Mr Fong when she woke up.  As well, her evidence as to what was said when Ms L came to room

403 after she rang her around 8.43 am differed somewhat from that of Ms L.  More generally and importantly, her contention that events got to the state they did, with her sitting astride Mr Fong, while she was still unconscious (or at least not aware of whom she was having sex with), is of doubtful plausibility.

[28]     Similar comments can be made about the plausibility of Mr Fong’s evidence, in particular as to whether he could have got to the point of becoming undressed and having sex with the complainant with her on top without realising what was happening.  As well, some of his evidence did not fit well with other evidence which was independent of the complainant, particularly his assertions that he was more intoxicated than the complainant and as to detail of the interactions between him, Mr Niu and the receptionist when he obtained a card to get into room 403.

The closing addresses of counsel

[29]     Ms Barrett, the prosecutor, addressed the jury very firmly for the Crown in the course of which she made a number of strong points.   What is relevant for present purposes, however, is the way she addressed timing issues.  Her references to time were usually tied to when the door to room 403 was opened and unfortunately and confusingly all of these times were wrong by five minutes because she did not adjust for the computer clock being slow.

[30]     The theory of the case she advanced was that the complainant was highly intoxicated when she went back to the hotel room and was in effect insensible.  She suggested that the night of drinking finished up “at around 5.00 am” although she later referred (albeit incorrectly) to when the door was opened (which she said was

4.31 am and not 4.36 am).  She suggested that Mr Fong initially sought to by-pass security by using the card he had found and when that failed, he went to reception where he would appear (from the camera footage) not to have been as intoxicated as

he claimed at trial to have been.  She suggested that this occurred “only half an hour” after he had carried the complainant to her room.  This was a slight exaggeration but of no particular moment because she did mention to the jury the time at which the appellant entered the room (which she said was 5.09 am because again she did not correct for the error in the computer clock).

[31]     She put the case for the Crown on the basis that Mr Lolesi went to room 403 not long after Mr Fong had entered and that he heard Mr Fong having sex with the complainant.  She did not engage with when Mr Fong left the hotel and of course the image to which we have referred in [20] was not before the jury.

[32]     In his address for the defence Mr Cordwell too did not directly engage with the timing issues which we see as so important.   Instead the arguments for the defence were presented on a very broad basis.

The summing up of Judge Hubble

[33]     The summing up of Judge Hubble was, broadly, favourable to Mr Fong.  He was obviously impressed by the quality of the primary protagonists, that is Mr Fong and the complainant.  He also described Mr C as “a thoroughly fine young man”.

[34]     In the course of his summing up he referred to the notes of evidence (which he made available to the jury) but was not particularly pressing in his invitation to the jury to refer to the notes of evidence.  This may be of some significance as the evidence associated with the timing of the use of the door to room 403 was buried in the notes of evidence (and not the subject of a separate schedule) and further complicated by reason of the necessity to correct the timings to allow for the error in the computer clock.

[35]     The Judge then went on:

[8]       You have heard all the witnesses say it is difficult to gauge time. That is particularly so if you have had a few drinks.   Well that is just common sense.  So inaccuracies in time do not necessarily need to carry a great deal of weight.  Of some importance in this case is the evidence of the

security  officer.    He  was  apparently  miles  out  in  time  but  I  will  say something about that later on.

[36]     At no stage in the summing up did the Judge seek to untangle the confusion that existed over timing.  This is a point of some considerable significance to which we will revert later.

[37]     Later in the summing up, when he was paraphrasing the closing address of the prosecutor, the Judge said this:

[44]     The prosecution say that a mere fifteen to twenty minutes [after Mr Fong returned to the room at 5.14 am] the security guard went up there and heard them having sex.  Well that is a matter for you but you may have some problems with that because, according to the evidence of Mr Niu he asked the security guard to go up and check on the room because he was afraid that this person had not come back down.  Yet the security guard says that the only reason he was asked to go up to the room was because of a noise complaint.  And he says that he thought he went up there at his dinner time which was about 1 o’clock or 2 o’clock in the morning and these incidents took place at 6 am.  Just what you can make of that is a matter for you but whatever time this security guard went up to the room and he could – it is a matter for you again – he could hear the sexual act taking place, the rhythmic thumping of  the bed  head against  the  wall.    So it appears that  he  was listening to these two at room 403 for a minute to three minutes and so this rhythmic thumping was going on for some time so it is a matter for you what you try and make of that.   But the prosecution’s submission, Ms Barrett’s submission that it was just 15 to 20 minutes after Mr Fong went up to the room it may have weight, it may not, it will be a matter for you.

[38]     When paraphrasing the defence address, the Judge returned to the security officer’s evidence saying:

[59]      The security officer’s evidence, what would you make of that?  Well if you can sort out the timing, which you might find a little difficult, what he heard was for one to three minutes he heard this rhythmic thumping against the wall.  It is up to you what you make of that.

The jury’s verdict

[39]     After a retirement of approximately seven hours the jury found the appellant guilty.  Not long before returning with this verdict, the jury asked to see the video footage which recorded the appellant carrying the complainant in the foyer of the hotel.

[40]     After the trial, Mr Fong changed legal representation and his new counsel renewed the application for a s 347 discharge.  This was heard and granted on

26 July 2006 with the Judge subsequently giving his reasons on 11 August 2006.

[41]     The Judge’s reasons were as follows:

[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 [have been] 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 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 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 bathroom 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 [L] 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 [Ms L] and comforted the complainant, his statement to the police and his evidence in Court.

(7)His good character and prior history with Ms [L] 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.

(Emphasis added.)

We note that the Judge was in error in the remarks which we have italicised.  The evidence  was that, at the time sexual intercourse stopped, the appellant  had  no clothes on the upper part of his body.  Further, the Judge appears to have confused the time at which the group left the hotel to go to the Korean restaurant (around

2.30 am) with the time that the complainant returned to her room, which in fact was

4.36 am.  He obviously proceeded on the basis that the sexual interaction which was described by both the complainant and Mr Fong took place at around 7.30 am, but this was around three hours after she returned to the hotel and not the five hours mentioned by the Judge.

[42]     The Crown then applied for judicial review of the Judge’s decision.

[43]     It was common ground in the High Court that the decision of the Judge to discharge the appellant under s 347 was amenable to judicial review, see Auckland District Court v Attorney-General [1993] 2 NZLR 129 at 136 (CA), but that such review is appropriate only in rare cases. It was also common ground that the s 347 power to discharge a defendant can be exercised after verdict.

[44]     The Court was troubled by the fact that nothing material to an appropriate exercise of the s 347 discretion changed between the end of the Crown case and the end of trial.  All that had happened was that the appellant had given evidence (in a way which accorded with what he had told the police and indeed Ms L) and there had been character evidence.  Courtney and Lang JJ put it this way:

[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.

[45]     They concluded that the reasons given indicated that the Judge had taken into account irrelevant considerations:

[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 [R v Momo (1983) 1 CRNZ 67 (HC)] and R v M [(Ruling No 2) HC AK T030906 25 March 2004]. 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 [R v Jeffs [1978] 1 NZLR 441].

[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.

[46]     Courtney and Lang JJ turned to consider whether the evidence was sufficient to permit the charge to be left to the jury.  As to this, they concluded that there was

obviously an adequate evidential basis for the conclusion that there had been penetrative sexual intercourse.  So this left for consideration the elements of consent and absence of belief on reasonable grounds in consent.

[47]     As to consent, the Court observed:

[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.

[48]     On the issue of absence of belief on reasonable grounds in consent, they observed:

[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 5.09 am 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 8 am. 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 7.30 am. 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.

Section 347 – the authorities

[49]     Section 347(3) is expressed in these terms:

(3)       The Judge may in his discretion, at any stage of any trial, whether before or after verdict, direct that the accused be discharged.

[50]     The leading cases are R v Flyger [2001] 2 NZLR 721 (CA) and Parris v

Attorney-General [2004] 1 NZLR 519 (CA).

[51]     In Flyger the Court said:

[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.

…

[15]      …. It is not a question of what a jury would be likely or unlikely to do but what a jury may properly do. The evidence in support of a charge may be barely adequate and so tenuous as to lead a Judge to the view that the jury  could  not  properly  convict  and  accordingly  the  interests  of  justice require an order for discharge. The evidence in a case may be adequate, if accepted, but witnesses may appear so manifestly discredited or unreliable that it would be unjust for a trial to continue. It may be that in such circumstances a jury would be unlikely to convict, but the rationale for an

order for discharge is not the likelihood of acquittal but the unsafeness of a conviction having regard to the evidence. …

[52]     In Parris the Court referred to the use of the word “normally” in [13] of Flyger and explained that this did not imply that a s 347 discharge could be made when sufficient evidence to prove the case was available: the implication was instead to the possibility of a discharge being granted for a reason unrelated to the sufficiency of evidence (at [10]). The Court then correlated the jurisdiction to allow an appeal against conviction under s 385(1)(a) and the exercise of the s 347 discretion:

[13]     … There should be a s 347 discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to much the same thing.

[14]     It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pretrial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. 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. …

[53]   Flyger and Parris contemplate a limited qualitative assessment of the prosecution case, under which a s 347 discharge is appropriate even where there is an evidential basis for a verdict of guilty if the relevant evidence is “so manifestly discredited or unreliable that it would be unjust for a trial to continue” (the words used in Flyger) and the case is thus “clear-cut in favour of the accused” (as it was put in Parris).   The approach taken in Parris also brings into play the recent jurisprudence on s 385 appeals, see R v Munro [2008] 2 NZLR 87 (CA) and R v Owen [2008] 2 NZLR 37 (SC).

[54]     The language of s 347(3) makes it clear that the s 347 power can be exercised despite a verdict of guilty, see R v Ramstead CA428/96 12 May 1997 and R v Downing CA311/99 23 November 1999, at [12].  On occasion, this has happened,

see R v Momo (1983) 1 CRNZ 67 (HC) and R v Lee [1973] 1 NZLR 13 (CA). These instances, however, involved circumstances well removed from the present. Also relevant in this context are the remarks of Somers J in R v Jeffs [1978] 1 NZLR 441 at 443 (SC):

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.

[55]     We endorse those remarks.  Although the s 385 jurisprudence is relevant to the exercise of the s 347 power, it is not appropriate for trial Judges, post-verdict, to review the decision of the jury as if exercising the appellate function under s 385.

Our evaluation

Overview

[56]     It follows from what we have just said that the Judge ought not to have exercised the s 347 jurisdiction after verdict.  In this respect we adopt the reasoning of Somers  J in Jeffs.  To put this another way, if the Judge was to exercise the s 347 jurisdiction in favour of Mr Fong, he should have done so during the trial.  Once the verdict had been received, he ought not to have engaged in an exercise which is akin to that required of this Court in a s 385 appeal.

[57]     In this context the remarks of the English Court of Appeal in R v Jones

[1998] 2 Cr App R 53 at 55-56 are apposite:

Whether or not a person is proved to be guilty of a serious criminal offence is, in this country, decided by a jury.  In our criminal process it is not the job of any one judge either to decide guilt or to cast doubt on a jury’s finding of guilt.  The limited function of the trial function in relation to the question of guilt is to decide whether there is, in law, sufficient evidence for the jury to consider, that is whether the evidence is such that a reasonable jury, properly directed, could convict.

The trial judge, rightly in our view, decided that there was such evidence. His role on this aspect of the case was thereby discharged.  The question of whether he would himself have convicted the defendant did not and does not arise.  His view was, and is, of no more relevance or materiality than that of an intelligent bystander in the public gallery who saw all the witnesses, heard all the evidence and understood the issues in the case.  Inevitably there are occasions, although in the experience of the members of this court they are very rare, when a trial judge feels that he would  not  have  found  a defendant guilty or not guilty as the jury did.  But that does not provide any proper basis for questioning the verdict of the jury whatever it was.

As the Court went on to explain, on an appeal against conviction, the appellate court forms its own view of the evidence and the case as a whole and does not take into account any views about verdict which the trial judge may have expressed.

[58]     It  is  unfortunate  that  the  case  has  been  in  limbo  since  the  High  Court judgment.  If Judge Hubble had sentenced Mr Fong, this could have occurred on the basis that it was without prejudice to Mr Fong’s present appeal to this Court.   It would then have been open to Mr Fong to have appealed against his conviction in the ordinary way.  Both appeals (ie the conviction appeal we are postulating and the present appeal) could have been heard together. In the unusual circumstances of the case, Mr Fong could quite properly have been released on bail pending the hearing of the appeals.   This would have put the whole process back on track (at least substantially) and the case could have been dealt with in the manner contemplated by the legislature; that is, under s 385.

[59]     Given the practicalities of the situation, counsel on both sides indicated that a possible approach to this appeal would be to treat it as involving, notionally, an appeal against conviction.  We are not entirely comfortable with that suggestion and we have toyed with the idea of insisting on Mr Fong being sentenced and then

addressing the case formally, and not just notionally, under s 385.   In the end, however, we have concluded that this would be to place too high a premium on process.  So, with some misgivings, we will address the case as if it were an appeal under s 385.

A notional appeal against conviction

[60]     An ideal summing up on the facts is along the lines described by Lord Devlin in Trial by Jury (1966) at 115-116:

All the material which gets into the ring that is kept by the rules of evidence is not of course of equal value, and the task of counsel and then of the judge is to select and arrange.  In discharging this task counsel can be helpful but not disinterested and the jury must look chiefly to the judge for direction on the facts as well as the law. It is his duty to remind them of the evidence, marshal the facts and provide them, so to speak with the agenda for their discussions.  By this process there emerges at the end of the case one or more broad questions – jury questions – which have to be decided in the light of common sense.

[61]     In this case, it was incumbent on the Judge to sort out for the jury the incontrovertible facts about the timing of events, pretty much in the way in which we have in [8] – [21] above.  In saying this we recognise that exact times did not appear on  the  security  camera  footage  which  was  produced  in  evidence.     But  the combination of the more general timing information which was on the photographs along with the electronic records associated with the use of the door to room 403 would have provided a time sequence which would have been broadly equivalent to what we have provided, save as to the time when Mr Fong left the hotel.  And we rather think that if an orderly chronology based on the hard timing evidence had been assembled, this would have highlighted the likely availability of incontrovertible evidence as to when Mr Fong left the hotel.

[62]     The Crown case at trial was that Mr Fong began to have sexual intercourse with the complainant very soon after going into room 403 and thus rested heavily on the evidence of the security guard.  Although the Judge noted that there were timing difficulties with his evidence, the full extent of those difficulties and other problems

with his evidence were not put squarely to the jury.  In particular, the jury’s attention was not addressed to the inconsistency between the security guard’s evidence that he had been dispatched to room 403 to investigate a noise complainant and the Crown theory that he had been dispatched effectively to see that nothing untoward was happening.  Because the jury did not have a chronology of events correlated to the incontrovertible timing evidence, no one drew their attention to the possibility that the security guard had gone to room 403 when it was being used for the pre-Korean restaurant drinks party. While this possibility was not particularly consistent with what he claimed to have heard, it is consistent with his evidence of timing and his reason for visiting the room.

[63]     For reasons already given, the evidence as a whole strongly suggests that the incident of sexual intercourse described by the complainant occurred sometime between 7.30 am and 8.00 am.  It follows that on our appreciation of the evidence as a whole, we do not  regard the Crown theory that  the  incident  the  complainant described occurred shortly after 5.14 am when Mr Fong entered room 403 as very plausible.  Yet this was the basis upon which the case was left to the jury.  In this context, we are satisfied that the failure of counsel and the Judge to marshal the evidence around the incontrovertible timing evidence and what we see as the associated absence of the photographic evidence of when the appellant left the hotel amounted to a process error which resulted in a miscarriage of justice.  On this basis, the notional appeal against conviction must be treated as having been allowed.

If dealing with an appeal against conviction, would we direct a new trial?

[64]     So far, we have treated the notional appeal as proceeding under s 385(1)(c) (“miscarriage of justice”) and a new trial usually results when an appeal is allowed on this ground.   On the other hand, where an appeal is allowed under s 385(1)(a) (“unreasonable or cannot be supported having regard to the evidence”) a new trial will not be directed.

[65]     It is right to record some caveats about our view of the facts.  Although we see the Crown timing theory as not very plausible, we accept that it may conceivably have been broadly correct, with sexual activities starting soon after Mr Fong went

into the room and continuing, with or without a break, until the point in events which the complainant described.  As well, although we think that the incident described by the complainant and Mr Fong probably took place between 7.30 am and 8.00 am, we must accept that is possible that Mr Fong subsequently remained in room 403 rather longer after the incident described by the complainant than we have assumed.  If so, that would put the incident described further back in time and thus closer to when Mr Fong entered the room.   On the evidence as to the state of the clothing of the parties and the condom, it appears that one or other (or perhaps both) of the complainant  and  Mr  Fong  acted  purposefully in  relation  to  sex.    Although  the complainant’s  evidence  did  not  literally go  beyond  claiming that  she  could  not remember acting in this way, the drift of her evidence was very much to the effect that she had not done so.  In broad terms, therefore, there was an evidential basis for concluding that Mr Fong had initiated sex with the complainant when she was asleep and continued to have sex with her until she pushed herself away.   A jury which found that this is what happened would be very likely to find Mr Fong guilty of rape.

[66]     The  assessment  of  the  evidence  required  under  s  385(1)(a)  must  be qualitative and not just quantitative.  In this context, the conclusion that there was an evidential basis for the verdict of guilty would not be inconsistent with a conclusion that the s 385(1)(a) ground of appeal was made out.

[67]     The primary problem with the Crown case, apart from the timing issues we have referred to, is that it just does not seem particularly plausible to assume that Mr Fong could have got to the point the complainant described without her waking up rather earlier than she claims she did.  She did not claim in evidence to have been in effect a rag doll at the time she was having sex with the appellant.  Rather, her evidence was that she was sitting on him.  Another feature which is material to an assessment of the case as a whole is the apparent mobility in the accounts given by the complainant of her sitting position in relation to Mr Fong when she says that she woke up.   As well, the evidence of Ms L as to the behaviour of the complainant when she put her to bed provides a context which lends at least some plausibility to Mr Fong’s account of events.

[68]     Whether the Crown case is strong enough to warrant being left to a jury is a matter upon which reasonable minds may legitimately differ, as indicated by the difference of opinion between Judge Hubble on the one hand and Courtney and Lang JJ on the other.  We consider it undeniable, however, that the Crown case, as presented, was not strong.  Clearly there is a significant possibility that if it were to be tried again, this case would result in a s 347 discharge or an acquittal.   On an appeal  against  conviction  this  would  be  a  material  consideration  in  relation  to whether to order a retrial, although it would not necessarily be decisive (given the general principle that issues of guilt or innocence are for juries and not judges).

Resolution of the present appeal

[69]     We are, of course, not hearing a conviction appeal and we do not have the power to direct a new trial.   So if we dismiss the appeal, there will have to be a further appeal (this time under s 385) which we consider must succeed as to conviction (for the reasons already given) and there would then have to be a decision whether to order a new trial.

[70]     Fundamental to our assessment as to what should now happen is our sense that the process has failed. The process failed at trial for the reasons we have already given.  It went further off the rails post-trial because of the s 347 discharge.  In the meantime, some years have passed since the alleged offending, although the present appeal has substantially contributed to the delay.    If there is to be a retrial, it will almost inevitably take place more than four years after the critical events occurred. Mr Fong has had the uncertainty of these proceedings hanging over him for nearly four years and has been on bail for most of that time.

[71]     Our  overall  assessment  is  that  the  flaws  in  the  Crown  case  as  it  was presented, in combination with the very special circumstances of this case, mean that we should bring the process against the appellant to a close. The special circumstances to which we refer include the inappropriate use of s 347, the further likely delay before any retrial could occur, the distinct possibility that any retrial would result in a successful s 347 application or an acquittal and the impact on the

appellant of the uncertainty and bail constraints to which he has now been subject for nearly four years.

Disposition

[72]     In those circumstances, we think it right to allow the appeal and quash the decision of the High Court with the result that the s 347 discharge stands.   We reserve costs.

Solicitors:

Sinclair Black, Auckland for Appellant

Crown Law Office for Respondents