Lu v The Queen

[2021] NZHC 2121

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2021-404-137

[2021] NZHC 2121

BETWEEN

NAN LU

Appellant

AND

THE CROWN

Respondent

Hearing:	28 June 2021
Appearances:	M Dyhrberg QC for the Appellant M Davie for the Respondent
Judgment:	13 August 2021

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 13 August 2021 at 4:00pm

Registrar/Deputy Registrar

LU v THE CROWN [2021] NZHC 2121 [13 August 2021]

Introduction

[1]    Following a judge-alone trial before Judge P J Winter in the District Court at Auckland on 4 December 2020,1 Mr Lu was found guilty of two charges of sexual violation by unlawful sexual connection2 and one charge of assault with intent to commit sexual violation.3 He was found not guilty of one charge of sexual violation by rape. On 24 February 2021, Judge Winter sentenced Mr Lu to three years’ imprisonment and gave him a first-strike warning.4

[2]    Mr Lu appeals against his convictions on the ground that the Judge did not give adequate reasons for finding the Crown had proved its case. I have to determine whether the Judge’s reasons were adequate.

Background

[3]    Mr Lu was a trainee bus driver. On 8 August 2018, he met the complainant, B, who was a passenger on the bus service Mr Lu was driving. B was the last passenger on the service and Mr Lu spoke to her. Both are Chinese nationals and B considered Mr Lu trustworthy. She told Mr Lu where she was going and he offered to take her there in his own car. They exchanged details for a social messaging platform and he took her home. B considered Mr Lu a helpful support person and asked him for advice on several matters, including sexual activity. Mr Lu offered to engaged in sexual activity with her but B refused.

[4]    On the morning of 13 September 2018, Mr Lu sent B a message telling her he would come to her house. He offered sushi. She agreed to meet outside her house and to have sushi with him. After he had arrived, B came out and Mr Lu asked her to sit in the back seat of the car where he joined her.

[5]    From that point the accounts of what happened diverged. B alleged that Mr Lu pushed her down on the back seat of the car, lifted her dress, pulled down her underwear, and inserted his fingers in her vagina. B alleged she repeatedly said no to

1      R v Lu [2020] NZDC 26261.

2      Crimes Act 1961, s 128(1)(b). Maximum penalty: 20 years’ imprisonment.

3      Crimes Act 1961, s 129(2). Maximum penalty: 10 years’ imprisonment.

4      R v Lu [2021] NZDC 3153.

Mr Lu and that she tried to get away from him. Mr Lu was charged with sexual violation by unlawful sexual connection. Mr Lu admitted putting his fingers into her vagina but said it was a consensual act.

[6]    B said that Mr Lu then licked her vagina. This gave rise to the second charge of sexual violation by unlawful sexual connection. Mr Lu accepted the physical act of oral sex but again said it was consensual.

[7]    Next, it was alleged Mr Lu inserted his penis into B’s vagina. B said that his penis did not go all the way in and was not there for long before she managed to kick him away from her. This gave rise to the third charge of sexual violation by rape. Mr Lu said that he put himself in a position where he might have been able to have penile penetration, but B refused consent before penetration occurred, and he immediately stopped and did not pursue his intentions.

[8]    Finally, B alleged that Mr Lu then tried to force her to give him oral sex by attempting to push her head down on to his penis. B said she resisted. This gave rise to the charge of assault with intent to commit sexual violation. Mr Lu denied grabbing B’s head or pushing her head down. He said there was a discussion about oral sex, B moved herself into a position where she could give him oral sex and he placed his hand on top of her head. But B chose to stop and he did not go any further.

District Court judgment

[9]    Mr Lu’s appeal raises the adequacy of the Judge’s reasons. I will therefore set out those reasons at some length.

[10]   The Judge acknowledged the points in dispute were limited. As to the two charges of sexual violation, Mr Lu admitted the acts occurred but said B consented. The charge of rape, on which Mr Lu was found not guilty, was denied on the basis that although he prepared to engage in sexual intercourse, the complainant withdrew consent and he immediately stopped and there was no penetration. On the charge of assault with intent to commit sexual violation, Mr Lu accepted there was discussion about oral sex but said he did not push her head down.

[11]   The Judge acknowledged the standard of proof was beyond reasonable doubt and the Crown had to prove the elements of each offence to that standard. He noted there was no obligation on Mr Lu to prove or disprove anything.5

[12]   The Crown case relied on the honesty, credibility and reliability of B. The Judge recognised that an assessment of credibility depended on the consistency of B’s evidence with other evidence, the internal consistency of her evidence, the consistency of her evidence with prior statements, the inherent plausibility of her evidence, and the consistency of her evidence with contemporaneous documentary evidence. He noted that B’s demeanour as a witness should not be considered in isolation from other evidence and relevant facts. Further, credibility and reliability were clearly connected and should be approached in a similar way.6

[13]   The Judge recounted WeChat messages between B and Mr Lu. These indicated that B trusted Mr Lu and also that B thought Mr Lu was in a relationship with another woman. B sent Mr Lu a message wishing him all the best in that relationship. Later, B told Mr Lu she was in a relationship with another man (who she referred to as her boyfriend) and that she was in love with him. She asked Mr Lu for advice about this relationship.

[14]   This brought the Judge to an exchange of messages prior to the incident in question. B disclosed to Mr Lu that she had recently slept with her boyfriend. Until that time, she had insisted that she did not intend to have a sexual relationship with anyone until after marriage. The information that B was prepared to have a sexual relationship, the Judge said, appeared to have been a “catalyst” for Mr Lu’s subsequent actions. Mr Lu messaged B asking to meet in person so he could teach her about having a sexual relationship with her boyfriend because of his experience in such matters. He assured her they would only talk.

[15]   B messaged Mr Lu her address, saying he could come and have a short stay, such as for a cup of tea. Mr Lu messaged B and said he was on his way to meet her. Mr Lu sent a further message telling her he was parked away from her home and that

5 At [13].

6      At [15] and [16].

he had brought some sushi for her. B came out to the car. The incident in question then took place.

[16]   The Judge found B’s evidence in court to be consistent with her statement to Police recorded in an evidential video and “broadly consistent” with a statement made to a Police officer on the afternoon of the incident.7 The Judge noted that B was cross- examined and it was put to her she had consented. She said she resisted from the beginning to the end.8

[17]   The Judge found B’s evidence that she did not consent to Mr Lu inserting his fingers into her vagina to be credible and reliable. The Judge referred to the messages between B and Mr Lu. B trusted Mr Lu and regarded him as a brother in a familial sense. In contrast, the messages from Mr Lu to B indicated a clear intention by him to manipulate her into sexual activity with him, whether she consented or not. After Mr Lu became aware B had engaged in sexual activity with her boyfriend, the Judge found there was a marked change in his messages. Mr Lu knew B was naïve about sexual matters because she had told him so.9

[18]   The Judge also found that Mr Lu knew that B did not consent to the sexual activity. The Judge accepted B’s evidence that she told him “no”. He found that Mr Lu’s comments to Police that he saw B as “easy” because she had very recently slept with her boyfriend as telling as to his intention in meeting with B. He did not accept Mr Lu’s evidence that he believed B knew that wearing a skirt would be a “hint” to him that she would consent to sexual activity.10

[19]   The Judge therefore found the first charge proved beyond reasonable doubt. For the same reasons he found the second charge proved, noting that B’s evidence was consistent with the narrative she gave shortly after the events both to Police and to a medical examiner.11

7      At [29] and [30].

8 At [31].

9 At [62].

10 At [65].

11 At [67].

[20]   The Judge carefully reviewed the evidence about whether rape had occurred. The defence position was that Mr Lu’s penis had not entered B’s vagina. The Judge recognised that only the slightest degree of penetration was necessary. B’s account was that there was entry of Mr Lu’s penis into her vagina. But her statements indicated she was not entirely certain and was struggling to get Mr Lu away from her and kicking out at him. Her evidence at trial was that his penis did enter her vagina but under cross-examination she said she thought she felt something in her vagina. She was sure it was Mr Lu’s penis because he was holding her wrists using both his hands. She did not see his penis though.

[21]   The Judge found B’s evidence on whether penetration had occurred to be less consistent and reliable than her evidence in respect of the other charges. He concluded the evidence fell short of the very high standard of proof the Crown was required to meet.12

[22]   On the final charge, the Judge found that B’s evidence was consistent with a message she sent to her boyfriend shortly after the incident, with what she told Police later that day, and with what she said in her electronically recorded interview.13 The Judge also considered B was naïve on sexual practices and this supported her credibility as a witness because of the way she described the sexual act in her Police interview.14 For those reasons the Judge preferred B’s evidence to Mr Lu’s and found the Crown had proved the acts occurred. For the reasons he had set out earlier (relating to the first two charges), he also concluded that the Crown had proved B did not consent and Mr Lu had no reasonable grounds for believing she had.

[23]The Judge therefore convicted Mr Lu on charges one, two and four.

Grounds of appeal

[24]   Ms Dyhrberg QC, for Mr Lu, submitted that the seriousness of the case called for the highest standards of analysis, such that cogent and detailed reasons were required to return guilty verdicts. She submitted the Judge provided inadequate

12     At [71] and [73].

13     At [54], [55] and [76].

14 At [78].

reasons. She said there was limited engagement with the evidential tensions in the case or satisfactory explanation for the resolution of those tensions. She submitted the factual findings by the Judge were based on five reasons:

(a)The Judge assessed B as credible and reliable;

(b)The messaging between B and Mr Lu disclosed that he manipulated B;

(c)Mr Lu saw B as “easy”;

(d)B had given prior consistent statements;

(e)B was naïve in sexual matters and this supported her descriptions.

[25]   Ms Dyhrberg submitted the Judge did not attempt to explain the evidence of the two witnesses other than to accept B’s account and reject that given by Mr Lu. Further, the Judge failed to engage with any evidence which tended against his reasoning.

Analysis

[26]   To succeed on this appeal, Mr Lu must, under s 232(2)(b) and (c) of the Criminal Procedure Act 2011 (the Act), establish that the Judge erred in his 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.

[27]   The sole basis on which Ms Dyhrberg submitted that a miscarriage of justice had occurred was that the Judge gave inadequate reasons. She relied on the Supreme Court’s decision in Sena v R,15 in which the Court considered the obligation on a Judge to give adequate reasons. William Young J, giving the judgment of the Court, said:16

[Reasons] should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to

15     Sena v R [2019] NZSC 55, [2019] 1 NZLR 575.

16 At [36].

suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute.

[28]   It follows that a failure to provide adequate reasons may suggest a miscarriage of justice has occurred.

[29]   Ms Dhyrberg did not suggest there was any failure by the Judge to “show an engagement with the case” or to “identify the critical issues in the case”. Her complaint was that the Judge’s reasons were inadequate to explain why he had accepted the factual elements of B’s narrative and rejected Mr Lu’s explanation. She said that the Judge’s findings did not attempt to rationalise B’s and Mr Lu’s evidence, other than to say he accepted B’s account and rejected Mr Lu’s. She submitted that, under Sena v R, such a “global finding of credibility” was inadequate in a case of this seriousness.

[30]   I do not accept that the Judge failed to give adequate reasons. I begin by observing that in Sena v R William Young J clarified that the obligation to give reasons is not a requirement for perfection:17

In saying all of this, we accept that imperfection of expression is practically unavoidable, particularly in oral judgments. Accordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden for judges of balancing the need for prompt determination of criminal cases with other workload requirements. The adequacy (or not) of reasons must be assessed in light of the type of case (including seriousness) and the issues involved. What is required are reasons which address the substance of the case advanced by the losing party. Depending on the circumstances, this can be achieved without necessarily referring in detail (or sometimes at all) to every issue or argument which that party has advanced.

[31]   I acknowledge this case involved very serious allegations against Mr Lu. I assess the Judge’s reasons in that context.

17 At [37].

[32]   I also take into account the issues involved. They were consent, belief in consent and the reasonableness of any belief, and whether the acts alleged in the rape charge and assault with intent charge had occurred. Resolving those issues depended on whether the Judge accepted B’s account or Mr Lu’s account, bearing in mind the burden and standard of proof on the Crown.

[33]I set out the Judge’s reasons earlier. I now summarise those reasons:

(a)The Judge found B’s evidence in court to be consistent with her statement to Police recorded in an evidential video and “broadly consistent” with a statement made to a Police officer on the afternoon of the incident.18

(b)When B was cross-examined it was put to her she had consented. She reiterated that she had struggled with Mr Lu, that she had said “no”, and that she resisted from the beginning to the end.19

(c)B’s evidence that she did not consent to Mr Lu inserting his fingers into her vagina was credible and reliable. The Judge explained this finding in part by reference to the contemporaneous messages between B and Mr Lu.20

(d)The Judge found that Mr Lu knew that B did not consent to the sexual activity, and accepted B’s evidence that she told him “no”. The Judge made those findings in part by reference to Mr Lu’s comments to Police that he saw B as “easy” and that he believed B knew that wearing a skirt would be a “hint” to him that she would consent to sexual activity.21

18     At [29] and [30].

19 At [31].

20 At [62].

21 At [65].

(e)On the second charge, the Judge said that B’s evidence was consistent with the narrative she gave shortly after the events both to Police and to a medical examiner.22

(f)On the final charge, the Judge found that B’s evidence was consistent with a message she sent to her boyfriend shortly after the incident, with what she told Police later that day, and with what she said in her electronically recorded interview.23 The Judge also considered B was naïve on sexual practices and this supported her credibility as a witness because of the way she described the sexual act in her Police interview.24 For those reasons the Judge preferred B’s evidence to Mr Lu’s.

[34]   These reasons are far from the “conclusory credibility preference” deprecated by the Supreme Court in Sena v R. They adequately explain, in the context of the serious charges faced by Mr Lu, why the Judge found (to the requisite standard25) that B’s account should be preferred to Mr Lu’s.

[35]   Ms Dyhrberg’s submissions focused only on some of the Judge’s reasons that I have set out. She emphasised the reasons found in the “decision” section of the judgment. But I accept the submission of Mr Davie, for the Crown, that important parts of the Judge’s reasons were also found earlier in his judgment, in the section that outlined the evidence on each charge.26 A perfect judgment may have set out all the reasons in the “decision” section. But Sena v R does not mandate perfection.

[36]   The Judge provided adequate reasons to justify his decision. There was no miscarriage of justice.

22 At [67].

23     At [54], [55] and [76].

24 At [78].

25   In her oral submissions Ms Dhyrberg submitted the Judge had, at the end of his decision, applied a balance of probabilities standard. I reject that submission. The judgment is replete with references to the standard being beyond reasonable doubt.

26 My outline of the Judge’s reasons incorporates the reasons found in that section of his judgment.

Result

[37]The appeal is dismissed.

Campbell J