Keats v The Queen
[2021] NZHC 3155
•22 November 2021
NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) WORKPLACE OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI-2021-412-8
[2021] NZHC 3155
BETWEEN DWAYNE DOUGLAS KEATS
Appellant
AND
THE QUEEN
Respondent
Hearing: 4 November 2021 Appearances:
D J More for the Appellant J A Eng for the Respondent
Judgment:
22 November 2021
Reissued:
1 February 2022
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 22 November 2022 at 3.30 pm
Registrar/Deputy Registrar Date:
KEATS v R [2021] NZHC 3155 [22 November 2021]
[1] Dwayne Douglas Keats was convicted on six charges of rape1 and four charges of unlawful sexual connection2 by Judge M A Crosbie after a judge-alone trial.3 He was acquitted on one charge of unlawful sexual connection. One further charge each of rape and unlawful sexual connection were dismissed and Mr Keats was deemed acquitted.
[2] Mr Keats was sentenced to 15 years’ imprisonment with a minimum period of imprisonment of eight years by Nation J earlier this year.4
[3]Mr Keats appeals his convictions.
Factual background
[4] Mr Keats was from October 2016 on electronically monitored parole flowing from a sentence of eight years’ imprisonment imposed on 12 March 2010 for sexual violation by rape.
[5] The Crown alleged Mr Keats sexually violated the complainant (Ms A) on numerous occasions between 2 February 2017 and 16 March 2017. She was 45 years old. Mr Keats met Ms A through his work in November 2016. He developed intimate feelings for her and began asking her out on dates. There was no dispute that Ms A had been sexually attacked by an unrelated third party prior to the offending. Initially Ms A declined Mr Keats’ advances as she did not want a relationship. The following summary relates the findings made in the District Court.
Charges 1 and 2 “the couch incidents”
[6] The first tranche of offending, “the couch incident”, occurred on 2 February 2017 when Mr Keats went to Ms A’s home address in Dunedin after phoning her beforehand to say that he was coming around for a cup of coffee. Ms A was on the couch in the lounge and Mr Keats began kissing her. He pulled her tights and pants off and began raping her. She fought him and protested but he persisted. Eventually
1 Crimes Act 1961, ss 128(1)(a) and 128B; maximum penalty 20 years’ imprisonment.
2 Crimes Act, ss 128(1)(b) and 128B; maximum penalty 20 years’ imprisonment.
3 R v Keats [2020] NZDC 15884 [the Judgment].
4 R v Keats [2021] NZHC 359.
he pulled out before ejaculating. He put his penis in her mouth and forced her to perform oral sex on him by grabbing her head with his hands and moving it. He then began raping her again. He finally stopped when she said “please Dwayne stop!”. From “the couch incident” Mr Keats was charged with charge one, rape and charge two, unlawful sexual connection.
Charge 3 — the “car incident”
[7] After continuous invitations from Mr Keats, Ms A agreed to accompany him out on a date and did so on 28 February 2017. The Crown alleged Mr Keats drove her to a lookout but left that lookout because other people were present. The pair travelled to another lookout where Mr Keats forced his fingers into Ms A’s vagina without her consent. Mr Keats then drove home with his fingers still inside her. This “car incident” resulted in charge three, unlawful sexual connection.
Charge 4 — the “kitchen sink incident” — and Charge 5 — the “back of the couch incident”
[8] When they returned to Ms A’s home address Mr Keats moved himself in with her and they began a relationship. From this point until 16 March he stayed with her most nights during the week.
[9] At some point in this period Mr Keats pushed Ms A against the kitchen sink and raped her forcefully with her body pinned between his and the cupboard doors and sink. This “kitchen sink incident” resulted in charge four, sexual violation by rape. Charge five of rape, referred to as “the back of the couch incident”, alleged that Mr Keats forced Ms A over the back of the couch and raped her from behind. She tried to get away but could not.
Charge 6 — the “hands around her neck rape incident”
[10] A representative charge (six) of rape was laid for “hands around the neck rape incidents”. The Crown alleged that, on at least three or four occasions, Mr Keats raped Ms A with his hands around her neck. These incidents were distinct because while he raped her Mr Keats would push down on the tube of Ms A’s neck harder and harder.
Charge 7 — the “wake me up incidents”
[11] Another representative charge (seven) of sexual violation by rape alleged Mr Keats woke the complainant up on multiple occasions and forced her to have sex with him. These were referred to as “the wake me up incidents”. He would slap her leg to get her into position.
Charge 8 — the “finishing him off incidents”
[12] Charge eight, a representative charge of unlawful sexual connection, related to “finishing him off incidents” where Mr Keats would withdraw his penis from Ms A’s vagina and push her head down onto it to get him to ejaculate.
Charge 9 — the “before work incidents”
[13] Charge nine, a representative charge of rape, related to “before work rape incidents” where Ms A was forced to have sex before work. This charge was dismissed and Mr Keats deemed acquitted.
Charge 10 — the “other [B] Street rape incidents”
[14] The final rape charge (10) — the “other [B] Street rape incidents” — was representative and alleged Mr Keats would get Ms A into position on her hands and knees and rape her even though she was saying she was sore.
Charge 11 — “the vibrator incident”
[15] Charge 11, of unlawful sexual connection, related to a “vibrator incident” where the Crown alleged Mr Keats penetrated her with a vibrator without her consent. Mr Keats was acquitted of this charge as the Judge was unable to rule out consent or Mr Keats’ belief in it.
Charge 12 — the “oral sex on her incident”
[16] Charge 12, the “oral sex on her incident”, another representative charge of unlawful sexual connection, alleging Mr Keats had performed oral sex on Ms A without her consent, was also dismissed and Mr Keats deemed acquitted.
Charge 13 — the “anal sex incident”
[17] The final charge of unlawful sexual connection related to “the anal sex incident” where Mr Keats got Ms A to roll over and forced his penis inside her anus.
[18] Ms A gave evidence that, in addition to the non-consensual activity alleged, she and Mr Keats had engaged in consensual sexual activity.
[19] The defence in relation to charges one, two, five, seven, eight and 10 was that the sexual activity was consensual. Mr Keats denied that the events in charges three, four, 11 and 13 occurred.
[20]Mr Keats was found guilty and convicted of charges one to eight, 10 and 13.
Principles on appeal
[21] Under s 232 of the Criminal Procedure Act 2011, the High Court may only allow an appeal against conviction 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 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.5 In this section, a trial includes a proceeding in which the appellant pleaded guilty.6
[22] It has been observed by the Supreme Court in Sena v Police, that if an appellate court comes to a different view on the evidence, the trial judge will have erred. But an appeal is not a de novo consideration of the trial issues. It is for the appellant to demonstrate an error, and the appeal court must take account of any advantages enjoyed by the trial judge.7 Where, as in this case, the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise caution for two reasons:8
5 Criminal Procedure Act 2011, s 232(4).
6 Section 232(5).
7 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575, (2019) 29 CRNZ 200 at [38].
8 Sena v Police, above n 7.
[39] … first … a slow-paced trial, at which the evidence emerges gradually, provides a good opportunity for evaluating the strengths and weaknesses of a case. In assessing the plausibility of what is said by the witnesses, the judge has the advantage of being also able to form a view as to what sort of people they are. This is an appreciable consideration despite the now well-recognised difficulties with demeanour-based credibility assessments.
[40] … second … in effect the other side of the coin … appellate judges dealing with a case on the basis of a written record of what happened at trial and the submissions of counsel are unlikely to be as well-placed as a trial judge to determine contested questions of fact based on contested oral evidence. For instance, what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record. More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel rely does not replicate the advantages of a trial judge which we have just described.
(footnotes omitted)
District Court decision
[23] Following a six-day trial, Judge Crosbie on 1 July 2020 delivered verdicts.9 On 23 September 2020 his Honour delivered his Reasons Judgment, a 359 paragraph decision. He began by directing himself on the evidential issues arising before comprehensively reviewing the evidence. There is no suggestion that he omitted to consider any relevant evidence.
[24] The Crown case relied on the evidence of the complainant, four of her colleagues, a friend (her former partner), a propensity witness (the victim of Mr Keats’ earlier rape) and a doctor. The scope and admissibility of the propensity evidence was considered by the Court of Appeal before the trial.10
[25] The defence at trial was principally an attack on counter-intuitive behaviour of Ms A that, in defence counsel’s submission, reduced her credibility. Mr More, who was instructed on the appeal (but was not trial counsel), has maintained a similar position. Mr Keats’ grounds of appeal characterised the complainant’s evidence as “incredible” and “unreliable” (or, as Mr Keats’ trial counsel put it, her evidence
9 Judgment, above n 3.
10 Keats v R [2019] NZCA 59.
“beggared belief”).11 As Mr More put it in relation to what he identified as “inconsistencies and contradictions”:
…counter-intuitive principles may explain delay in reporting and continued association, but they do not and cannot be used to explain the victim’s evidence saying one thing, and contemporaneous texts stating the opposite.
[26] The Judge directed himself on how he should approach the complainant’s counter-intuitive behaviour. He did so because:12
…while the context of judicial instructions to juries on such evidence is now uncontroversial, a jury is not required to explain the basis for its approach to utilising such evidence, if at all. I am so required.
[27] The Judge referred to the leading cases of DH v R13 and Kohai v R.14 He concluded that evidence to support awareness of counter-intuitive principles has evolved from finders of fact being educated by expert witnesses through to accepted principles and directions. Counsel agreed that expert evidence was unnecessary, and the Judge could direct himself on the appropriate principles.
[28]The Judge identified the counter-intuitive conduct alleged:15
(a)although [Ms A] was texting BM, who was also a previous partner16 around the time of charges 1 and 2, she made no mention of the alleged offending until five days later;
(b)[Ms A] was possibly aware that [Mr Keats] was a convicted rapist on parole and was being monitored by GPS at the time of charges 1 and 2 but most certainly was aware by the time of the later charges;17
(c)[Ms A] instigating and continued contact with [Mr Keats] including by text, messaging him in a manner which appears consistent with a functional and happy relationship;
(d)[Ms A] having numerous opportunities to report the offending during the relationship and to leave, but did not do so and allowed it to continue;
11 Judgment, above n 3, at [69].
12 Judgment, above n 3, at [70].
13 DH v R [2015] NZSC 35, [2015] 1 NZLR 625.
14 Kohai v R [2015] NZSC 36, [2015] 1 NZLR 833.15 Judgment, above n 3, at [76].
16 This was deemed possibly relevant to the level of discussion the complainant may have had with this person.
17 The defence position was that Ms A was possibly aware of Mr Keats’ earlier rape conviction and ankle bracelet when she allowed him into her house on the first occasion. Even if not aware then the Judge found she clearly was by the time of the other charges.
(e)[Ms A] having a panic alarm which she could have used at any time but did not;
(f)[Ms A] having a lock to install at her property but did not do so;
(g)regular texting between BM and [Ms A] after telling him of being raped including continuing to text him in a loving/flirtatious manner;
(h)not telling BM about seeing [Mr Keats] again after being raped and sexually violated on 2 February 2020;
(i)not complaining to police until some six weeks after the first rape allegation;
(j)seeing [Mr Keats] again after the first allegation (some [four] weeks later); and
(k)continuing to see, text and have consensual sexual relations with [Mr Keats] after resuming the ‘relationship’ and remaining in the relationship despite continuing to be sexually abused.
[29] The Judge considered it trite that complainants exhibit a range of behaviour and identified the following accepted counter-intuitive principles from DH v R as relevant to the present case:18
(a)delay in disclosure of sexual abuse;
(b)reasons for delayed reporting; and
(c)continuing contact between victim and perpetrator.
[30] The Judge framed the issue as “what, if any, adverse credibility finding can be drawn from [Ms A]’s behaviour?”.19 He considered a judge was entitled to take into account the general principles of counter-intuitive evidence without needing to hear from an expert on the subject. The Judge was unaware of any appellate decision in New Zealand on the treatment of counter-intuitive evidence in a judge-alone trial. Given the importance of the issue he turned to Commonwealth decisions.
18 DH v R, above n 13, at [22].
19 Judgment, above n 3, at [79].
[31] The Judge analysed the Canadian Court of Appeal decision R v ARJD20 and the corresponding Supreme Court decision.21 He concluded:
[87] While R v ARJD related to a child complainant, the Court of Appeal and Supreme Court’s decision extends to victim behaviour, including lack of avoidant behaviour, generally. Noting the Supreme Court’s inclusion of “solely”, the decision supports prohibiting blind adverse credibility findings based solely on factors addressed by counter intuitive evidence. This is effectively what the defence suggests the Court’s approach should be in this case. Adverse credibility findings should not be based solely on a complainant’s behaviour following an alleged incident as evidence and research shows victims act in different ways. However, logically this does not prohibit an adverse credibility finding when, after taking into account the principles of counter intuitive evidence and the full facts of the case, the fact finder determines that the facts diminish the complainant’s credibility. To argue otherwise would be to fetter the discretion of the fact finder. Each case must therefore be looked at on its own facts, and continued association or other behaviours may in some instances weigh against the complainant’s credibility.
(my emphasis)
[32] In support of his conclusion the Judge referred to another Canadian Court of Appeal decision, R v LS.22 He found the approach in R v ARJD was consistent with the Supreme Court’s approach in DH v R in terms of the objective of considering the complainant’s credibility on a neutral basis.
[33] On most of the charges the Judge found that Ms A’s evidence, if accepted, was sufficient to prove the elements of the offence including a lack of reasonable belief in consent. However, the overarching question was whether the Judge accepted Ms A’s evidence which he found came down to an overall assessment of her credibility. This was the key issue at trial and focus of the defence. Mr Westgate cross-examined Ms A extensively on the perceived inconsistencies and counter-intuitive conduct. He submitted her conduct went beyond any theory of counter-intuitive reasoning.
[34] The Judge accepted that some of Ms A’s actions were, without explanation, counter-intuitive. He considered the propensity evidence expanded on Ms A’s behaviour. That was because the behaviour of the propensity witness, Ms B, was similar during and after her relationship with Mr Keats. The Judge found both Ms A
20 R v ARJD 2017 ABCA 237, [2017] AJ No 746.
21 R v ARJD 2018 SCC 6, [2018] 1 SCR 218.
22 R v LS 2017 ONCA 685, [2017] OJ No 4586 at [88]–[89].
and Ms B exhibited a lack of avoidant behaviour and associated with Mr Keats after the fact in a manner similar to that described in R v ARJD.
[35] The Judge said Ms A’s evidence made a very strong impression on him and that assisted a conclusion that she was credible. He assessed her as naive and not overly intelligent. He also assessed her as a somewhat reluctant, if not fragile, witness. The Judge could understand why after an overall assessment of the evidence. He referred to the fact Ms A was sexually attacked by a third party prior to charge one and two and that Mr Keats knew of that attack. The Judge inferred Mr Keats knew she had not complained about that earlier rape. He found this explained Ms A initially feeling unable to go to police. The Judge found a second level of vulnerability was caused by her mental health. He considered the fact she was depressed and that the period from December 2016 to March 2017 had clearly been emotional and turbulent.
[36] The Judge considered Ms A’s view of Mr Keats’ power and control over her was relevant to her not complaining. This, the Judge found, was strikingly similar to the propensity witness Ms B’s evidence about Mr Keats. The Judge considered Mr Keats’ physical and mental power and control was undoubtedly a factor that contributed to Ms A’s actions and inaction. The Judge had earlier rejected Mr Keats’ explanation given in his police interview and found a defence witness’s evidence insufficient to establish a positive propensity.
[37] The Judge also considered the fact Ms A made concessions including that Mr Keats was on occasions loving, kind, nice and/or caring. The propensity witness gave similar evidence. The Judge regarded their descriptions of Mr Keats’ personality and behaviours as striking. He later considered the fact Ms A explained she had pity on Mr Keats and that was why she went back to him and could not go to police earlier. The Judge found her statement that she “couldn’t” was plausible in the context of the earlier rape by a third party.
[38] Significantly, the Judge found no sign of malice from Ms A towards Mr Keats. He recorded at various times she said she wanted to see the good in him, wanted him to get help and did not want him to get in trouble or end up back in prison. His
impression was that Ms A was a vulnerable and somewhat tortured complainant who tried to see the good in everyone, including Mr Keats, a convicted rapist.
[39]The Judge then referred to his own knowledge and experience. He said:
[348] As a judge, I have heard the evidence of hundreds of victims. I have heard many experts give evidence about counter intuitive behaviour and I have attended educational seminars on the same. I adopt the appellate principles I have identified above on counter intuitive evidence which supports the existence, indeed the preponderance, of such behaviour. As I have noted above, there is no prescription or script for how individuals will react. Victims do stay with their attackers. They also allow their attackers to return and return.
[40] The Judge found Mr Keats’ behaviour and psychological hold contributed to Ms A’s counter-intuitive behaviour. Indeed, he found there was nothing unusual in it in the circumstances. He found that, in this particular case, lack of avoidant behaviour did not degrade the credibility of Ms A or the propensity witness Ms B.
[41] Following that determination, the Judge considered the recent complaint evidence including complaints to a friend/former partner BM and co-workers. Nothing in cross-examination caused the Judge to doubt any of those witnesses’ credibility. The Judge considered Ms A’s complaints specific and consistent as to the rapes themselves and also on her explanations for why she had not gone to the police. He found the complaint evidence bolstered Ms A’s credibility.
[42] The Judge said Ms A’s evidence was sufficient to make him sure that Mr Keats committed the offences in charges one to eight, 10 and 13. When he added that to the weight of the recent complaint evidence and the propensity evidence of Ms B, the Judge considered the Crown case very strong and charges one to eight, 10 and 13 proved beyond reasonable doubt.
Submissions
Appellant’s submissions
[43] Mr More, for Mr Keats, submitted there were inconsistencies between Ms A’s evidence and the texts between herself and Mr Keats and her actions. He referred to the delay in her making a complaint to the police. He submitted this counter-intuitive
conduct should have diminished her credibility and led to acquittals on all the charges. He submitted the Judge incorrectly applied counter-intuitive principles, applicable to children, to Ms A who is a mature adult woman. He maintained Ms A’s account was unreliable and incredible and the Judge failed to place appropriate weight on her inconsistencies.
[44] Mr More provided an example using charges one and two. He said on Ms A’s evidence she was raped and forced to take Mr Keats’ penis in her mouth on 2 February 2017. She then complained to RB, a colleague. Mr More noted she said she complained to RB the next day, whereas RB said Ms A complained to her some days later. Mr More submitted the likelihood was, at this time, both knew Mr Keats was on parole for rape. Mr More said if what Ms A told RB was as graphic as her evidence it is inconceivable that RB would not have immediately advised her to go to police. If RB had given that advice and it was rejected, Mr More says she would have said so in her evidence. Mr More also noted that the global positioning data placed Mr Keats at the address on 2 February and that his defence was that the intercourse was consensual.
[45] Mr More also referred to the text messages exhibited at trial. He applied for an order that the court receive as evidence a trace of all calls to and from Mr Keats’ cell phone between 1 January 2017 and 20 March 2017. The trace shows text messaging between Mr Keats and Ms A commenced on 25 January 2017 with two texts from Mr Keats to her. Mr More analysed the trace and submitted there were 30 messages between Mr Keats and Ms A on 2 February, including texts during the period Mr Keats was at her home. He noted the Judge held there was no evidence of a prior plan or agreement for the appellant to visit on 2 February. He further submitted Mr Keats sent Ms A eight text messages after he left her residence on 2 February. Mr More asserted that was not the action of someone who had just committed rape.
[46] Mr More went on to analyse what he summarised as a continuing pattern of contact between Mr Keats and Ms A between 2 and 27 February 2017, the date of the next offence. He submitted this presented an entirely different picture than that provided to the Judge, which Mr More summarised as one of little contact between the two dates.
[47] Mr More also analysed text messages between Ms A and her friend/former partner BM. He submitted her complaint to BM must lack credibility because three days later Ms A was again texting Mr Keats.
[48] Mr More then turned to the fact the complainant agreed to go out for dinner with Mr Keats notwithstanding her earlier complaint. He also submitted her evidence lacked credibility in that she said Mr Keats inserted his fingers into her vagina for the drive home on 28 February, but she still let him enter her home and stay the night. In essence, Mr More restated the defence theory at trial that Ms A’s conduct was so counter-intuitive that she should not be believed.
[49] Mr More also referred to text messages from Ms A suggesting she enjoyed the couch incident. He submitted this meant there was a reasonable doubt as to her consent in relation to this incident. Mr More then considered a charge which was dismissed, the vibrator incident, and submitted the fact the Judge found Ms A’s evidence was unreliable on that incident tainted her credibility and reliability.
[50] Mr More submitted the Judge’s justification for finding Ms A credible was substantial reliance on counter-intuitive evidence principles. He referred briefly to R v ARJD,23 DH v R24 and Kohai v R25 then submitted counter-intuitive evidence principles only apply to children who have been abused. He says the Judge therefore erred by applying those principles to an adult complainant.
[51] Mr More further submitted the Judge linked the counter-intuitive evidence principles to the circumstances of the complainant and thereby used them in a diagnostic sense. He said this is not permitted under DH v R.
Respondent’s submissions
[52] Mr Eng, for the Crown, submitted the high point of Mr Keats’ defence was that Ms A had not behaved as one might expect of a victim of sexual assault. He submitted the Judge confronted Ms A’s counter-intuitive conduct squarely and fairly with due
23 R v ARJD, above n 21.
24 DH v R, above n 13.
25 Kohai v R, above n 14.
regard to the limits of counter-intuitive evidence principles. Mr Eng said the Judge was able to assess, over one and a half days of Ms A’s oral evidence, whether her lack of sophistication, naivety and vulnerability was genuine or an artifice.
[53] Mr Eng submitted there was no inconsistency between Ms A’s allegations and her text messages with Mr Keats. He said, as the Judge found, Ms A’s choices were more than adequately explained by her particular circumstances and by Mr Keats’ controlling and manipulative behaviour.
[54] Mr Eng rebutted Mr More’s submissions relating to the trace data. He pointed out the trace data were entirely consistent with Ms A’s evidence and the Judge’s observations in relation to what occurred on 2 February 2017. He noted Ms A’s evidence was that Mr Keats invited himself around via text message and he submitted that was consistent with the trace data. Ms A also gave evidence that Mr Keats texted her while he was at her address.
[55] Mr Eng also responded to Mr More’s assertion that Mr Keats sending eight text messages after he left her home on 2 February 2017 “[is] not the [action] of a person who has just committed rape”. Mr Eng submitted that conclusion simply does not follow the evidence given, which demonstrated Mr Keats was an obsessive, controlling and dominating person. Eight unanswered messages following a rape, he submitted, were entirely consistent with that picture.
[56] Mr Eng further rejected Mr More’s submission that the trace data and text messages showed a “continuing pattern of contact” that was inconsistent with the picture provided to the Judge at trial. Mr Eng said that was exactly the picture provided at trial as, on Ms A’s evidence, she avoided Mr Keats for a few days but thereafter tried to act normal around him. He noted she said she came to feel sorry for him and that she felt he was the sort of person she would get to have a relationship with. He submitted the messages identified by Mr More are consistent with the picture painted at trial of a vulnerable and naïve victim being emotionally manipulated and then sexually assaulted by an insistent and dominating abuser.
[57] Similarly Mr Eng rebutted Mr More’s assertion that it strained credibility to accept that, had Mr Keats inserted his fingers into Ms A’s vagina (on 28 February) as she described, she would then allow him back to her home and allow him to stay the night. Mr Eng submitted that argument ignored the explanatory power of Mr Keats’ domination and control in his relationship with Ms A. He submitted it was also based on a narrow expectation of how a victim of sexual violence should behave with no regard for accepted counter-intuitive evidence principles.
[58] Mr Eng also responded to Mr More’s submissions in relation to the couch incident. He submitted it is not at all clear that Ms A was referring to the incident Mr More suggests in the text messages he refers to. He referred to Ms A’s concessions that she could not be sure how many sexual experiences there were on the couch nor the timing of the event she did recall. But, Mr Eng submitted, she was clear that the couch incident she recalled was a violent rape that she described as one of the two scariest experiences with Mr Keats.
[59] Mr Eng observed that Ms A did not maintain, as suggested by Mr More, that she did not consent to the vibrator incident. To the contrary, as the Judge recorded, she made concessions in cross-examination that led to the charge being dismissed. Mr Eng submitted these were responsible concessions that the Judge was entitled to find did not impact her credibility generally.
[60] Mr Eng submitted Mr More’s proposition that counter-intuitive evidence principles apply only to child complainants is plainly unsustainable. Mr Eng referred to the leading cases of DH v R and Kohai v R and acknowledged they involved child complainants.26 However, Mr Eng said, that explains why the expert evidence focused on principles applicable to children and young persons. There was nothing to limit that discussion to those complainants. Indeed, Mr Eng submitted Dr Blackwell, the expert in those cases, routinely provides counter-intuitive evidence in cases relating to adult complainants. Mr Eng referred to Stevens v R,27 HKR v R28 and OY v Complaints Hearing Committee29 in support of this submission.
26 DH v R, above n 13; and Kohai v R, above n 14.
27 Stevens v R [2014] NZCA 494.
28 HKR (CA792/12) v R [2013] NZCA 372, [2013] NZAR 1202.
29 OY v Complaints Hearing Committee [2013] NZCA 107, [2013] NZAR 629.
[61] For completeness Mr Eng noted that the Judge’s approach was similar to the approach approved by this Court in MG v Police.30
[62] Similarly, Mr Eng rejected the submission that the Judge engaged in impermissible diagnostic reasoning. Mr Eng submitted the Judge directed himself clearly and firmly that the principles are not to be assessed in a diagnostic way. He submitted the Judge did not ignore that direction. He said the high point of the Judge’s treatment of counter-intuitive principles was the proposition that Ms A’s behaviours must not “in and of themselves” diminish her credibility. Mr Eng submitted in the present case the full facts pointed strongly towards a positive credibility finding as the Judge inevitably found.
Counter-intuitive evidence
[63] Counter-intuitive evidence aims to dispel myths about how complainants behave when they have been sexually abused.31 Its purpose is to prevent illegitimate reasoning.32 In a jury trial, it enables the jury to consider the credibility of the complainant on a neutral basis,33 allowing the fact-finders to assess credibility free from the influence of erroneous assumptions concerning victim behaviour.34 As explained by the Law Commission, the purpose is “to restore a complainant’s credibility from a debit balance because of jury misapprehension, back to a zero or neutral basis”.35
[64] Judge Crosbie referred to the Canadian case of R v ARJD,36 finding the appellate decisions to be consistent with the Supreme Court’s direction in DH v R (that the objective is to consider complainant credibility on a neutral basis). In R v ARJD, the Ontario Court of Appeal found the trial Judge had misdirected himself when
30 MG v Police [2017] NZHC 3137.
31 Nancarrow v R [2020] NZCA 636 at [45].
32 DH v R, above n 13, at [2].
33 Nancarrow v R, above n 31, at [45].
34 Kohai v R, above n 14, at [18].
35 Law Commission Evidence: Evidence Code and Commentary (NZLC R55 vol 2, 1999) at [C111]; adopted in DH v R, above n 13, at [2].
36 R v ARJD, above n 21; R v LS, above n 22.
acquitting the defendant partly by reference to the complainant’s failure to avoid the defendant. The majority in the Court of Appeal observed:37
… what, if anything, can evidence of a lack of avoidant behaviour by a complainant tell a trier of fact about a sexual assault allegation? The answer is simple — nothing.
[65] This observation, as Judge Crosbie noted,38 is consistent with the Supreme Court’s explanation of the purpose of counter-intuitive evidence in DH v R:39 “The objective is to allow the jury to consider the complainant’s credibility on a neutral basis.”
[66] In DH v R, O’Regan J (delivering the reasons of the Court) explained how a witness providing counter-intuitive evidence and a Judge giving directions in relation to it should explain the evidence:40
…
(b) The evidence should not be linked to the circumstances of the complainant in the case in which the evidence is being given. This is an important limitation, designed to ensure that the evidence is not used in a diagnostic or predictive way. The witness should make it clear that the witness is not commenting on the facts of the particular case.
…
(e) Where counter-intuitive evidence is admitted in a jury trial, the judge must instruct the jury of the purpose of the evidence and that it says nothing about the credibility of the particular complainant. The judge must caution the jury against improper use of the evidence, such as reasoning that the fact that the complainant behaved in one of the ways described by the expert witness (for example, delayed in complaining) is itself indicative of the complainant’s credibility or that sexual abuse occurred.
[67] The observation that “evidence is not [to be] used in a diagnostic or predictive way” may alternatively be put on the basis that fact-finders should not reason that, because the complainant or the defendant behaved in a way that may be consistent with victims or perpetrators of sexual abuse, that meant the offending occurred.41
37 R v LS, above n 22, at [39].
38 Judgment, above n 3, at [88].
39 DH v R, above n 13, at [30(a)].
40 DH v R, above n 13, at [30] (footnotes omitted).
41 At [116]–[117].
[68] The Supreme Court in both DH v R and Kohai v R has emphasised that where counter-intuitive evidence is called, it should be kept as brief as possible (consistently with the need to ensure accuracy) to avoid any concern that a jury will treat it as having greater significance than it warrants.42
[69] In DH v R, the Supreme Court considered the ways in which counter-intuitive information may be presented, including specifically by evidence, agreed statements under s 9 Evidence Act 2006 and by jury direction.43 The Court then concluded:
[110] We do not think it is appropriate to be prescriptive about how erroneous beliefs or assumptions are best to be countered in criminal trials. Judicial directions, s 9 statements and expert evidence are all possibilities.
[70] In relation to the use of directions, O’Regan J referred to the Crown Court Bench Book issued by the Judicial Studies Board of England and Wales in March 2010, which contains a number of model directions dealing with matters such as “avoiding judgements based on stereotypes” and “late reporting”.44 O’Regan J set out one of the model directions (concerning delayed complaint) and continued:
[107] We can see the benefit in a direction of this kind being given, and therefore obviating the need for expert evidence. But the area of delay in reporting is less controversial than some other areas, such as retractions or normalisation, as is reflected by the inclusion in s 127 of the Evidence Act of a direction on delay. Not all of the topics covered by the evidence given by Dr Blackwell in the present case would be amenable to a jury direction of this kind.
[71] There have now been many cases, including the leading cases in DH v R and Kohai v R, in which the counter-intuitive evidence has been given in relation to young complainants. Unsurprisingly, passages may be found in those cases which link the counter-intuitive evidence to cases involving young victims of sexual abuse, such as this in DH v R and Kohai v R:45
Counter-intuitive evidence is evidence admitted in cases involving allegations of sexual abuse of young persons …
(emphasis added)
42 DH v R, above n 13, at [100]; Kohai v R, above n 14, at [18(b)].
43 DH v R, above n 13, at [21]–[109].
44 At [106].
45 At [2].
[72] Such observations led Mr More to observe that the authorities referred to by Judge Crosbie in this case “apply only to evidence by children who have been abused”. Mr More noted that Dr Suzanne Blackwell is the leading expert in New Zealand, repeatedly called to give counter-intuitive evidence. He observed that in cases such as Kohai v R, it is clear that Dr Blackwell’s opinion is based on studies involving children.46
[73] Contrary to the tenor of Mr More’s submission, there have, throughout the last decade, been repeated instances where counter-intuitive evidence (including from Dr Blackwell) has been called in relation to adult complainants. In the Court of Appeal’s judgment in HKR v R in 2013, the Court dismissed an appeal against convictions resulting from a District Court jury trial in 2012, where the complainant (albeit the daughter of the defendant) was a 21-year-old at the time of the offending.47 Dr Blackwell had given counter-intuitive evidence based on her own professional experience and the research literature as to the reporting of sexual offending by both adult and child victims.48 The Court of Appeal, in rejecting criticisms of the trial Judge’s directions to the jury, referred to its recent decision in OY v Complaints Hearing Committee.49
[74] The principles adopted by the Supreme Court in both DH v R and Kohai v R, which were subsequently decided, were also to be drawn in large part from OY.50
[75] In OY, a female Presbyterian Minister alleged that she had been sexually abused by a more senior member of the clergy. Dr Blackwell gave counter-intuitive evidence for the Complaints Hearing Committee. The Committee upheld a number of charges of sexual impropriety and other offending against the appellant. The appellant’s application to the High Court for judicial review was dismissed, where it was held that the counter-intuitive evidence was properly admitted and used for proper purposes.51
46 Kohai v R, above n 14, at [14].
47 HKR v R, above n 28.
48 At [7].
49 OY v Complaints Hearing Committee, above n 29.
50 DH v R, above n 13, at [30]; Kohai v R, above n 14, at [18].
51 OY v Complaints Hearing Committee [2011] NZAR 323 (HC).
[76] The Court of Appeal dismissed the appeal. In doing so, the Court observed that much of Dr Blackwell’s evidence would have been admissible in the criminal context.
[77] By the nature of the difference between children and adults, there are recognised differences in relation to the counter-intuitive evidence that will apply. The Court of Appeal in OY was called upon to consider whether the elements of Dr Blackwell’s evidence that the Committee took into account in relation to the (adult) victim involved the legitimate use of such evidence. The Court found that the conclusions not to take into account the following factors involved a legitimate use of Dr Blackwell’s evidence, setting aside common misconceptions about how the victims of sexual abuse behaved:52
(a)the long delay in reporting alleged events;
(b)that the complainant took no steps to leave or disassociate herself from the person charged; and
(c)that there were incidences of the complainant returning to the person charged for help and/or returning to him after an interval.
[78] In the Court of Appeal’s decision the following year in Stevens, the Court again had to consider the use of counter-intuitive evidence in relation to adults.53 The offending had occurred over a period when the complainant was aged between 13 and 25 years. Dr Blackwell gave the counter-intuitive evidence. Of four topics, only one
— grooming — had application limited to children.54 The remaining three topics were found to relate to both children and adults, being:55
(a)delay in reporting;
52 OY v Complaints Hearing Committee, above n 29, at [63]–[64].
53 Stevens v R, above n 27.
54 At [26].
55 At [26].
(b)continuation of the relationship between the victim and the alleged abuser; and
(c)revictimization.
[79] Counter-intuitive evidence has subsequently continued to be led in cases involving intimate partner abuse. For instance, in R v Beckett, a case involving domestic violence charges, Simon France J in August 2021 permitted counter-intuitive evidence to be led from Dr Blackwell including in relation to reasons why victims remain and/or return to violent relationships, including through psychological intimation and control.56
[80] The Court must give reasons for its decision in a Judge-alone trial.57 In Sena v Police, the Supreme Court recently commented on the kinds of reasons Judges should provide in Judge-alone trials.58 They found Judges must provide reasons that address the substance of the case advanced by the losing party. They should:59
… show an engagement with the case, identity the critical issues … explain how and why those issues are resolved and generally provide a rational and constructive basis for the decision reached.
[81] It follows that, in the context of a Judge-alone trial, the Judge is required to explain the basis for their approach to utilising counter-intuitive principles, if they do so.
Discussion — use of counter-intuitive information in this case
[82] Mr Keats’ specified grounds of appeal did not identify an error in relation to the use of counter-intuitive information, focusing instead on the proposition that the prosecution evidence was “unreliable” and “incredible”.
56 R v Beckett [2021] NZHC 2151. See also R v Maney [2021] NZHC 2391, where the admissibility of Dr Blackwell’s proposed counter-intuitive evidence was left until trial but without suggestion that such evidence had no place in relation to intimate partner abuse.
57 Sena v Police, above n 7, at [36]–[37].
58 At [36].59 At [36], citing Criminal Procedure Act, ss 106(2) and 232(2)(b).
[83] That said, Mr More devoted the concluding paragraph of his written synopsis to the proposition that the Judge had justified his finding that the complainant was credible by relying in a substantial way on the principles of counter-intuitive evidence. The thrust of Mr More’s submissions was that the Judge’s approach was incorrect for two reasons. First, because counter-intuitive evidence principles apply only to evidence by children who have been abused. Second, because the Judge linked the counter-intuitive principles to the circumstances of the complainant in this case, thereby using those principles in a diagnostic sense, to justify findings of credibility (inconsistently, it was submitted, with the Court of Appeal’s observations in DH v R).60 Mr More’s first submission can be disposed of shortly, having regard to the authorities discussed at [64]–[81] above. Counter-intuitive principles are of valid assistance in countering incorrect assumptions in relation to the sexual abuse of intimate partners as in relation to the sexual abuse of children.
[84] I note that Mr More did not address alternative submissions (in the event I found against his first submission). He did not identify any of the specific topics referred to by Judge Crosbie and suggest it was inapplicable in the case of (adult) intimate partners. The Judgment records that Judge Crosbie referred to three topics on counter-intuitive issues:
(a)delayed complaint;61
(b)continued contact with Mr Keats; and62
(c)the complainant’s failure to remove herself from harm’s way.63
[85] Each of the factors Judge Crosbie directed himself to are well-established matters for direction to juries as indicated by the Court of Appeal’s judgment in Stevens (in 2014).64 They are matters on which, in the terminology used by the Supreme Court in DH v R, there is a “general acceptance of the topic”.65 On that basis
60 DH v R, above n 13, at [30(a)].
61 Judgment, above n 3, at [76(a), (h) and (i)].
62 At [76(b), (c), (g), (j) and (k)]
63 At [76(b), (d), (e) and (f)].
64 Stevens v R, above n 27.
65 DH v R, above n 13, at [111].
alone, the Judge was justified in directing himself on those matters without evidence from an expert evidence or the production of a statement under s 9 Evidence Act.
[86] The additional feature of this case which reinforces the above conclusion is that the Judge was invited by both the Crown and the defendant (through their respective counsel) to deal with the matters relating to counter-intuitive evidence by directing himself on the appropriate principles (expert evidence on the topics being unnecessary).66 In those circumstances, the fact that the matter proceeded on the Judge’s self-direction rather than on the basis of a s 9 statement is immaterial, unless the principles identified by the Judge were themselves incorrect, which I find not to be the case.
[87] How then did the Judge, having identified the principles emerging from counter-intuitive evidence, approach the evidence as a whole?
[88] First, the Judge, through his extended discussion (at [69]–[90] of the judgment) of the law relating to counter-intuitive evidence correctly identified that, in terms of the Court of Appeal’s decision in DH v R,67 the objective of such evidence is to enable the fact-finder to consider the complainant’s credibility on a neutral basis (that is, by countering incorrect assumptions).68 The Judge expressly recognised that the principles make it clear that the evidence is not to be assessed in a predictive or diagnostic way.69
[89] Before returning to “[Ms A]’s counter-intuitive behaviour” in the concluding paragraphs of the Judgment, Judge Crosbie carried out a detailed review of the evidence in relation to each charge and of each witness, including both the complainant and the important propensity witness.
[90] It is clear from the Judge’s concluding observations in relation to counter- intuitive evidence (at [358] of the Judgment), where the Judge observed (applying case law) that he did not find that Ms A’s counter-intuitive behaviour allowed him to make
66 Judgment, above n 3, at [76].
67 DH v R, above n 11.
68 Judgment, above n 3, at [88].
69 At [80].
an adverse credibility finding, that the Judge was correctly recognising that the counter-intuitive principles were there to allow him to consider the complainant’s credibility on a neutral basis. In that sense he was overcoming what might otherwise be adverse inferences rather than bolstering credibility.
[91] His Honour then turned to summarise his conclusions in relation to the credibility of the Crown witnesses (and Ms A, in particular) by reference to all the evidence, including the evidence of both Ms A and the propensity witness (RB) as to Mr Keats’ conduct towards them and their responses. The Judge’s summary is in two sentences:70
I consider that [Ms A]’s behaviour in this case can be fully explained by reference to accepted counter intuitive principles and the controlling and manipulative manner in which I find [Mr Keats] operated. [Ms A] provided many explanations as to why she did not complain and continued to associate with [Mr Keats]. Those reasons were made believable by the extent of the controlling behaviour declared by both [Ms A] and RB.
[92] Mr More’s submission was that these observations indicated that the Judge, contrary to his recognition that he was not to use the counter-intuitive evidence in a diagnostic or predictive manner, did so.
[93] On a fair reading of the judgment, that is not how the Judge in fact had regard to the counter-intuitive principles. What the judgment indicates is that the Judge thoroughly reviewed the Crown evidence, assessing the explanations of the complainant in relation to matters such as delay in reporting and non-avoidant behaviour, in the context of both Mr Keats’ power and controlling behaviour and the comparatively naïve and fragile complainant. In his discussion of that evidence, the Judge expressly recognised that “there is no prescription or script for how individuals will react [to sexual violence]”.71
[94] The nature of the assessment is clear — the Judge assesses the evidence of all witnesses, including particularly the complainant, finding it consistently fair and truthful, and strongly supported by the propensity evidence. In the same discussion,
70 At [358].
71 At [348].
the Judge appropriately recognises that the counter-intuitive behaviour is not to be taken as diminishing the credibility of Ms A (or RB, the propensity witness).72
[95] The Judge’s observations in his penultimate paragraph do not point to an incorrect adoption of a diagnostic or predictive approach to the counter-intuitive evidence (overlooking his earlier recognition of a prohibition in that regard), but rather represent an acknowledgement that the conclusions he is reaching in relation to the credibility of the complainant and the propensity witness fit well (are “fully explained”) with what is now well recognised by the principles relating to counter- intuitive evidence.73
Conclusion
[96] In these circumstances, I find that Judge Crosbie neither misdirected himself in relation to counter-intuitive principles nor misapplied those principles.
Application to adduce fresh evidence
The application
[97] After the appellant’s and the Crown’s submissions were filed for the hearing of this appeal scheduled for 15 September 2021, the hearing was adjourned to this further hearing date. In the intervening period, Mr More filed an application for orders under ss 334 and 335 Criminal Procedure Act 2011 and r 8.8 Civil Procedure Rules 2012 to admit evidence of a trace of inward and outward text messages between the telephones of Mr Keats and the complainant between 1 January 2017 and 20 March 2017 (“the data”).
The legal test
[98] As both counsel recognised, the test in relation to the reception of “fresh evidence” may be found in the decision of the Privy Council in R v Lundy.74 The overriding test is whether it is in the interests of justice to admit the evidence.75
72 At [348].
73 Judgment, above n 3, at [358].
74 R v Lundy [2013] UKPC 28, [2014] 2 NZLR 273 at [116]–[126].
75 At [116], citing R v Crime Appeals (CA) 60/88, (1988) 3 CRNZ 512.
[99] Generally, there is a series of sequential tests, requiring that the evidence must be:76
(a)sufficiently fresh in that it could not with reasonable diligence have been called at trial;
(b)sufficiently credible; and
(c)cogent in the sense that it might reasonably have led to a different verdict.
Background
The facts
[100] Detective Joshua Burt, the officer in charge of the prosecution of Mr Keats, swore an affidavit which annexes a job sheet dated 28 April 2020. The job sheet explains the steps police took leading to the disclosure of the text message records.
[101] The police sent an email to Spark requesting they hold all text messages for both Mr Keats and Ms A pending service of a production order on 24 March 2017. On 29 March 2017, police served the production order on Spark. On 19 April 2017, they received the text message content from both Mr Keats and Ms A’s cell phones for the period between 24 February 2017 and 17 March 2017. This was disclosed to Ms Stevens QC and then to Mr Westgate on 23 August 2019. Police subsequently, on 21 April 2020, used a filter on the text message content to show only text messages between Mr Keats and Ms A. The filtered messages were disclosed to Mr Westgate on 28 April 2020.
[102] Judge Crosbie issued a minute on 16 April 2020. His Honour recorded defence concerns that relevant texts from the complainant to Mr Keats had not been provided. The Judge noted “[i]t may be that the relevant telecommunications company does not retain records for that long, however that is a matter for the telecommunications company to advise police on”.
76 At [120].
[103] On 28 April 2020, Detective Burt spoke to Tania Hauparoa on the phone who indicated that Spark text message content was held by Spark for a maximum of 35 days. The content of any further relevant texts was, therefore, unavailable. The only available information appears to have been when the phones were active or texting.
[104] While relevant information must be recorded and a prosecutor must disclose relevant information, the police were under no obligation to obtain evidence of the fact of further messages devoid of their content.77 The police were not required to investigate at Mr Keats’ request — he could, through counsel, have applied for disclosure from a third party.78
[105] As Mr Keats does not impugn his trial lawyer, Mr Westgate, this court must proceed on the basis that Mr Keats made a decision, with the benefit of advice, to defend the charges in the way he did with the evidence supplied. There is no evidence to the contrary.
Discussion
[106] The further evidence to be adduced is not fresh. It was open to Mr Keats to obtain the data before the trial.
[107] Even if the evidence were considered fresh, there has been no miscarriage of justice.
[108] Mr Keats was convicted of 10 charges, which can be split into two groups. First, charges one and two (“the couch charges”), and, secondly, the remaining charges on which Mr Keats was convicted (“the remaining charges”).
[109] The findings on the remaining charges are not directly affected by the proposed new evidence. The only complaint there is the Judge’s positive assessment of Ms A’s credibility despite, as Mr More described, her “incredible” evidence. In each case the Judge reached a supportable credibility finding based on Ms A’s one and a half days of oral evidence which was strongly supported by the propensity evidence.
77 Dashtabi v R [2019] NZCA 214 at [89].
78 Criminal Disclosure Act 2008, s 24.
[110]The findings on the couch charges require more analysis.
[111]Mr More submitted the data showed:
(a)there was, in fact, a plan or agreement that Mr Keats would attend Ms A’s address on 2 February 2017;
(b)Mr Keats’ actions in sending Ms A eight text messages “after the event” were inconsistent with Ms A’s evidence that he had raped her; and
(c)there was a continuing pattern of conduct between Mr Keats and Ms A which was not identified or accepted by the Judge at trial.
[112] In each case Mr Eng submitted the timing of the text communications was in fact consistent with the Judge’s findings rather than incompatible or inconsistent as suggested by Mr More.
[113] There were 13 messages (initiated by Mr Keats with replies from Ms A) sent before Mr Keats’ arrival at her address on 2 February. The fact text messages were sent between Ms A and Mr Keats on 2 February does not demonstrate there was a plan or agreement Mr Keats would visit as Mr More submitted. Rather, as identified by Mr Eng, it is consistent with Ms A’s evidence that Mr Keats invited himself around (for coffee) through text message. The eight unanswered messages from Mr Keats to Ms A while he was at her address are consistent with her evidence that Mr Keats texted her “I like you” while at her address. The data reinforces Ms A’s credibility on this charge.
[114] Similarly, the fact Mr Keats sent eight text messages to Ms A after leaving her address on 2 February 2017 does not in the absence of information as to the content and context of those messages impugn her evidence that Mr Keats raped her at her address. As Mr Eng submitted, the fact these eight messages were sent is consistent with the Judge’s overall assessment at trial, which was that Mr Keats was an obsessive, controlling and domineering person who manipulated Ms A.
[115] The continuing record of text messages between Mr Keats and Ms A was acknowledged and directly addressed by the Judge in his discussion of the evidence. Ms A’s evidence was that she avoided Mr Keats for a few days and then tried to “act normal” around him. She also gave evidence that she felt sorry for him and felt he was the sort of a person she would “get” to have a relationship with. The data, which displayed consistently more messages from Mr Keats than from Ms A, without their content, is consistent with that evidence.
[116] Accordingly, the admission of the evidence, which is credible but not fresh, would neither have impacted on the outcome of the appeal nor demonstrated that an injustice has occurred.
Other submissions for Mr Keats
Summary
[117] Mr More also raised several other substantive points on appeal, one of which is completely addressed by my conclusion on the Judge’s use of counter-intuitive evidence above at [96], namely:
(a)an alleged inconsistency relating to the complaint to RB;
(b)the fact the complainant went out for dinner with Mr Keats after being raped and permitted him to enter her house immediately after he sexually violated her;
(c)text messages from Ms A suggesting she enjoyed an event of intercourse on a couch; and
(d)an argument that the Judge’s finding on the vibrator incident should have tainted Ms A’s evidence in relation to the other charges.
Point (a)
[118] Mr More submitted that, if what Ms A told RB was as graphic as her evidence, it is inconceivable that RB would not have immediately advised her to go to police.
But Ms A’s complaint to RB was plainly not as graphic as her later complaint to the police. RB, in evidence in chief, said Ms A told her Mr Keats had forced himself on her but when asked by counsel in cross-examination “how did it happen”, she responded, “I didn’t get any details like that”.
Point (b)
[119] This point is answered by my conclusion that the Judge neither misdirected himself in relation to counter-intuitive principles nor misapplied those principles.
Point (c)
[120] Mr More submitted charge five (the “back of the couch incident”) seems to have happened on the evening of 2 March 2017. He notes Ms A and Mr Keats on the next day exchanged text messages (before going to the dentist) about “what [she] got over the couch this morning”. Ms A texted “I enjoyed that better lol”. Mr More submitted the latter text must have referred to the back of the couch incident that was the subject of charge five. In his submission this ought to have led to the conclusion that Mr Keats possibly had a reasonable belief in consent.
[121] Mr Eng submitted it is not clear the “enjoyed that better” text related to the back of the couch incident. Ms A consistently acknowledged there was consensual sex as well as rapes. Ms A made no concessions that the text message must have related to the “back of the couch incident” despite being cross-examined on the issue. Mr Keats’ text message in the leadup to the “enjoyed that better” text refers to sex in the morning. Ms A’s evidence was that the “back of the couch incident” occurred after she got home from work. The Judge’s conclusions could not reasonably have changed had the data been in evidence — it was consistent with Ms A’s evidence which his Honour accepted.
Point (d)
[122] In relation to the vibrator incident, Mr More observed the charge was dismissed and submitted that this indicated Ms A was not a reliable witness. But, as Mr Eng submitted, Ms A did not, in the course of her evidence, maintain the vibrator incident
was not consensual. Instead the dismissal of that charge arose out of concessions she made in response to questions by the Judge. Critically, she could not rule out that she had consented to the insertion of the vibrator (indicating that she was concerned with the extent of force she recalled Mr Keats using). Her concession on that clearly did not on the Judge’s assessment detract from her general credibility or reliability.
Conclusion
[123] The appellant has not established any of his grounds of appeal. There has not been a substantial miscarriage of justice.
Order
[124]I order:
(a)the application to adduce fresh evidence is dismissed; and
(b)the appeal is dismissed.
Osborne J
Solicitor:
Crown Law Office, Wellington Barrister:
D J More, Barrister, Dunedin
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