Harris v Police
[2017] NZHC 849
•2 May 2017
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS, OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011.
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2016-409-150 [2017] NZHC 849
BETWEEN DEVON HARRIS
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 4 April 2017 Appearances:
K Gray for Appellant
P A Norman for RespondentJudgment:
2 May 2017
JUDGMENT OF NICHOLAS DAVIDSON J
Introduction
[1] On 19 September 2016, Judge Ross found the appellant guilty of indecent assault but not guilty of theft.1
[2] On 16 November 2016, Judge Farish sentenced the appellant to pay $1,000 reparation for emotional harm.2 The appellant appeals against the conviction for indecent assault.
Facts
[3] The indecent assault is alleged to have occurred on 17 October 2015. The complainant was also the complainant in the alleged theft charge. She said that the
1 Police v Harris [2016] NZDC 18439.
2 Police v Harris [2016] NZDC 25916.
HARRIS v NEW ZEALAND POLICE [2017] NZHC 849 [2 May 2017]
appellant came into her house, unknown to her, and grabbed her from behind in a bear hug. His chest and legs were touching right against her body. She said that he asked “are you horny?” and “do you like playing with yourself?”. He also asked if she used a vibrator. She said that she was in shock and she asked him to leave her alone, and to “fuck off”.
[4] The appellant’s version of events was that the complainant asked him to come to her house to remove a trampoline. They had a conversation about the complainant missing her ex-partner, particularly at night and in bed. The appellant said he told her that she should sort herself out and get a vibrator or another man. He claimed there was no assault, but accepted the words alleged were used by him.
District Court Decision
[5] The Judge dismissed the theft charge. After describing the competing versions of events in relation to the alleged indecent assault, the Judge addressed credibility. Based on the appellant’s conduct in the witness stand and some inconsistencies in his evidence, the Judge preferred the complainant’s evidence. He noted agreement as to the words used by the appellant, but that there was contest whether the facts proved an assault and how it was “converted by the use of terms or phrases into an assault of indecency or an assault which is accompanied by
circumstances of indecency”.3
[6] The Judge had no doubt that on the complainant’s evidence this was an
indecent assault, and he found the appellant guilty.
Principles on appeal
[7] Section 232 Criminal Procedure Act 2011 provides that the High Court may only allow an appeal if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any other reason”. A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has
created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.4
[8] Section 232 makes clear that not every error or irregularity causes a miscarriage of justice. Instead there must be a “real risk” that the outcome was affected. R v Sungsuwan defines a “real risk” as “a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong”.5
[9] R v Condon held that a mere departure from good practice does not render a trial unfair.6 Instead the errors or irregularities must depart from good practice in a manner “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.7
[10] The appeal proceeds by way of rehearing, and the Court on appeal must
examine the Judge’s reasoning carefully and come to its own decision on the facts.8
However, it is only in exceptional circumstances that a court on appeal will interfere
with the trial Judge’s findings of fact.9
Submissions on appeal
[11] The appellant, through counsel Ms Gray, submits that the Judge failed to direct himself fully and properly as to the elements of indecent assault and as a result was in error in finding the charge proven. Further, counsel submits that the Judge failed to undertake the standard tripartite direction when assessing the credibility of the two competing witnesses and applying his findings in that regard. This is submitted to have resulted in the Judge failing to put to one side the appellant’s evidence when that was not accepted, at least in part, and then to review the
prosecution’s case to assess whether the charge was proved beyond reasonable
4 Section 232(4).
5 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.
6 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
7 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in Condon v R, above n 6, at [78].
8 R v Slavich [2009] NZCA 188.
9 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38].
doubt. Ms Gray emphasises that indecent assault is a serious offence which carries a three strikes warning under s 86B Sentencing Act 2002.
[12] The Crown through counsel Ms Norman, submits that while the Judge did not particularise the elements of the offence, each element was made out on the evidence available. The Crown submits that the Judge gave sufficient reasons as to why he rejected the appellant’s evidence and that he did follow the tripartite approach to the evidence which is required once he chose to give evidence.
Analysis
The elements of indecent assault
[13] There was helpful discussion with counsel about this, and memoranda later filed at the Court’s request. Focus narrowed to one element but all must be addressed.
[14] R v Aylwin sets out the factors that need to be proved by the prosecution on a charge of indecent assault:10
(a) The accused assaulted the complainant by the deliberate (intentional)
application of force to the person of the complainant.
(b)The assault occurred in circumstances of indecency in the sense that it would be so regarded by right-thinking members of the community generally.
(c) The accused intended or appreciated those aspects of the assault, and the surrounding circumstances, which render it indecent.
And, where the issue of consent is raised on the evidence: (d) The complainant did not consent to the assault; and
(e) The accused did not honestly believe she was consenting.
[15] The Judge did not expressly refer to all these elements of the test. He said that “indecent assault is really only an assault which is accompanied by circumstances of indecency”.11 This echoes the English Court of Appeal in R v Leeson, which said: “[t]he definition of ‘indecent assault’ which has long been accepted in these Courts is an assault accompanied with the circumstances of indecency…”12
The evidence
[16] Before addressing the elements which must be proven, the Judge discussed the evidence, and the credibility of the complainant and the appellant. He concluded that where there was contest the complainant was more reliable.
[17] The “tripartite” direction that if the jury or the Judge accepts the defendant’s evidence, or they are left unsure, the charge is not proven. If the defendant is disbelieved, that is not necessarily in whole. Part of a witness’s evidence may be accepted and other parts may not be. Those parts accepted should be weighed with all the other evidence.
[18] Ms Gray submits that although the Judge preferred the complainant’s evidence, he should have determined whether the charge had been proven beyond reasonable doubt applying the tripartite direction. The Crown submits that Judge Ross’s analysis of the evidence was thorough and there was no risk that he misunderstood the onus or standard of proof. The Crown sets out the steps the Judge went through, and that his Honour:
(a) set out the competing narratives;
(b)explored the plausibility of the appellant’s narrative and the internal consistency of the appellant’s evidence in relation to his relationship with the complainant (at [14]);
(c) rejected the appellant’s evidence (at [15]);
(d) assessed the credibility of the complainant and appellant (at [16] and
[17]);
(e) returned to the lack of internal consistency in the appellant’s account
about the nature of the relationship (at [17]);
(f) found that he preferred the evidence of the complainant over that of the defendant (at [18] – [19]); and
(g) found the charge proved (at [19] and [21]).
[19] In my view, it is clear that where there was evidential contest, the Judge’s preference for the complainant’s account did not carry with it any doubt based on the defendant’s evidence, which otherwise would have meant that an element of the charge, and therefore the charge itself, was not proved beyond reasonable doubt.
[20] In Tekira v Police, Clifford J held that the absence of an explicit tripartite direction does not give rise to a miscarriage of justice.13 Priestley J held that in a judge alone trial, the judge need not refer expressly to the tripartite direction in giving judgment because:14
… District Court Judges by training and temperament have the necessary legal knowledge and forensic skills to grapple with the criminal onus without having to remind themselves about it during the course of giving decisions.
[21] While Judge Ross did not explicitly set out the tripartite direction in his judgment this of itself did not give rise to a miscarriage of justice. There was no real risk that the trial was affected because, as an experienced District Court Judge, he
has the necessary knowledge to understand what the criminal onus requires. Further, he carefully addressed all the evidence and his preference for the complainant’s evidence was not a fine balance or to a standard less than required by law. This ground of appeal is dismissed.
Did the appellant assault the complainant?
[22] The first element was made out. The appellant assaulted the complainant, by the deliberate (and unwanted) application of force.
Did the assault occur in circumstances of indecency, as it would be so regarded by right thinking members of the community generally?
[23] The physical contact of itself would not necessarily be regarded as indecent, although highly inappropriate. I do not rest this appeal Judgment on this observation. For someone to grab another and hold that person from behind in what is at least a suggestive way, and given that they were not friends, and the contact was unwanted, is but one element required for judgment. The comments and questions by the appellant quite obviously related directly to that contact.
[24] Ms Gray refers to R v Dunn, which held that the Court must be satisfied not only that right-minded persons would consider the act indecent, but also that it was such as to warrant the sanction of the law.15 Counsel submits that, while right-minded persons may consider the words used by the appellant indecent, they are not at a level which warrants the sanction of the law.
[25] The Crown submits that the offending was sufficiently serious to be considered indecent. The complainant knew this man but not well. He entered her house uninvited, and approached her from behind. He held her in an encompassing and not fleeting way, sexually suggestive in itself, while making overtly sexually
suggestive comments, directed squarely at her.
15 R v Dunn (1973) 2 NZLR 481 (CA).
Sexually referenced
Did the accused intend or appreciate those aspects of the assault, and the surrounding circumstances, which render it indecent?
[26] This was in my judgment without doubt an indecent assault as the second element requires to be established. This was a disturbing and unquestionably assault, unwanted, and was not banter or “horsing around”.
[27] Taking the physical and verbal components of the appellant’s conduct together, there can be absolutely no doubt about the nature of the contact, and exactly what was meant by it. The appellant was deeply intrusive into the complainant’s personal life, and his comments were connected inextricably with his grabbing her. What he said, and what he did, cannot be severed. Taken together, they were clearly indecent, as the words and actions left no doubt what the appellant was thinking and suggesting when he grabbed her from behind.
[28] On appeal, there was discussion at some length about what this element involves from the point of view of the offender.
[29] For the purpose of this appeal, the Judge did not expressly address whether the appellant intended or appreciated those aspects of the assault and surrounding circumstances that render it indecent. The Crown submits that the evidence clearly established this element, without the need for express reference by the Judge.
[30] The mental elements which the prosecution must prove are an intention to carry out the act, and an intention or appreciation of those aspects of the assault and surrounding circumstances which make it indecent. It does not require proof that the appellant knew that the act would or could be regarded as indecent by others.16
[31] The Supreme Court has recently confirmed R v Aylwin.17 Ms Norman refers
to a defendant’s intention or appreciation of his or her actions, in this passage from
the judgment:18
16 R v Court [1989] AC 28 (HL) at 34.
17 F v R [2017] NZSC 34.
18 F v R, above n 17, at [23].
The Judge also directed the jury that Mr F could only be found guilty if he recognised that his actions would be so regarded by right-minded people. This could have been interpreted [as] requiring the Crown to prove that Mr F knew his actions were indecent, a matter that does not have to be proved by the Crown.
[32] The Court of Appeal in Aylwin put aside any suggestion that the prosecution needed to prove the defendant knew what he was doing was indecent, in the sense that was how right-thinking people would regard it. The Crown must prove an intentional assault, and that there was an intention to commit an indecent assault. It is the latter framed as the third element of an indecent assault which has given rise to some difficulty, as addressed on this appeal.
[33] Ms Norman refers to Lord Goff in his dissenting speech in R v Court:19
Does an indecent assault require any mental element different from a common assault? There are, I consider, two matters to be borne in mind. First, the requisite intention on the part of the defendant to commit the relevant act involves, in the case of an indecent assault, that the defendant should have intended to commit any part of that act which rendered the assault indecent. Second, especially since, in considering whether an assault is indecent, it may be appropriate to have regard to the surrounding circumstances, it is necessary that the defendant should have been aware of the existence of any circumstances which are relied upon as rendering the assault indecent.
[34] The Court of Appeal in R v Aylwin said this:20
[34] We accept that the crime of indecent assault is committed only if the particular aspects of the assault, and the surrounding circumstances, which render it indecent were intended or appreciated (as the case may be). It is in this sense that an intention to commit an indecent assault is an element of the offence. But we see no justification either in the authorities or as a matter of principle for the mens rea requirement to extend to an awareness (or consciousness) at the time of the offence that the assault would be regarded as indecent by right-minded members of the community.
[35] That makes it clear that the prosecution must prove an assault, that it had the character of indecency as right-minded members of the community would consider it, and the accused intended or appreciated those aspects of the assault and surrounding circumstances which viewed objectively, are indecent. The accused or
defendant does not have to subjectively understand all that.
19 R v Court, above n 16, at 48-49.
20 R v Aylwin, above n 10.
[36] The word “intended” simply means that he intended each of those elements which make up the indecency, namely the physical assault and his use of highly suggestive language.
[37] The word “appreciated” simply gives rise to the need for the prosecution to prove that the defendant should have been aware of the existence of circumstances which are relied upon by the prosecution as rendering the assault indecent.
[38] Here, the defendant intended, and was aware that he grabbed the complainant from behind, unexpectedly. That was unwarranted. He intended and was aware of what he said to her at that time. In that sense, he clearly intended and appreciated the factual circumstances in which the elements of an indecent assault came together. It would be different, for example, if the words were used on a separate occasion, to sever the physical assault and those words, which would then each stand alone as suggestive and offensive. It would be different if his words were directed to another person, not to link with the physical assault or the complainant. He would then neither intend nor appreciate these circumstances, which viewed objectively and collectively, constitute an indecent assault.
Conclusion
[39] The appellant has not made out the grounds of appeal and opposition which have been advanced carefully by Ms Gray, and Ms Norman. The Judge addressed the evidence and it is implicit that he followed the tripartite direction. There was no other error by the Judge that could result in a miscarriage of justice. This is a very clear example of an indecent assault.
Disposition
[40] The appeal is dismissed.
Solicitors:
Raymond Donnelly & Co., Christchurch
Public Defence Service, Christchurch
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Nicholas Davidson J
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