Mann v The Queen

[2010] NZCA 68

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA537/2009

[2010] NZCA 68

BETWEEN  CARL BRIAN MANN

Appellant

ANDTHE QUEEN Respondent

Hearing:         24 February 2010

Court:            Arnold, Harrison and Fogarty JJ Counsel:       A N Isac for Appellant

N P Chisnall for Respondent

Judgment:      15 March 2010 at 2.30 pm

JUDGMENT OF THE COURT

A        The appellant is granted leave to adduce further evidence.

B        The appeal against conviction is dismissed.

REASONS OF THE COURT

(Given by Arnold J)

Introduction

[1]      Following a jury trial before Judge Atkins QC the appellant was convicted of one count of sexual violation by  digital  penetration  and  one  count  of  attempted

MANN V R CA537/2009  15 March 2010

sexual  violation  by  rape. He  was  sentenced  to  five  years’  imprisonment  on  the sexual violation count and to four years’ imprisonment on the attempted rape count, the sentences to be served concurrently.[1]

[1] R v Mann DC Palmerston North CRI-2008-054-1953, 18 August 2009

[2]      Although the appellant filed an appeal against both conviction and sentence, the  sentence  appeal  was  not  pursued.   Accordingly,  we  treat  it  as  abandoned  and address only the conviction appeal.

[3]      Affidavit evidence was filed in support of the appeal, although there does not appear  to  have  been  any  application  to  file  fresh  evidence. There were  affidavits from the Officer in Charge at the appellant’s trial, Detective Sergeant Milligen, and from the Court Crier, Mr K M Bailey.  These deal with aspects of the trial that are at issue on the appeal and are clearly admissible, so we receive them.   The appellant also filed an affidavit. Although it contains a good deal of inadmissible commentary, it does annex some relevant materials, so we receive it as well.

Factual background

[4]      The appellant was one of a group of people who were at the complainant’s flat one evening, socialising and drinking. The group (including the appellant and the complainant) left the flat sometime between 9 – 10 pm to visit some local bars. The complainant said that the appellant had showed some interest in her, but this was not reciprocated. She had recently returned to New Zealand from England, where she had lived for several years, and her boyfriend was shortly due to join her from there.

[5]  The group went from bar to bar, not always in company. At one bar a “wet tee shirt” contest was underway. One of the members of the group placed his hand on the complainant’s breast, as did the appellant. The precise circumstances in which this occurred are disputed. The complainant said that the appellant had “grabbed” her breast. The appellant said that the complainant has placed his hand on her breast,

after another person had touched it.  The complainant denied this, saying that she had

placed another person’s (LB’s) hand on her breast to “disarm” the appellant’s sexual advance.  LB supported this account.

[6]      Another  witness,  PS,  who  was  a  flatmate  of  the  complainant,  gave  another account. He said   that   he   and   LB  (and   not   the   appellant)   had   touched   the complainant’s  breasts,  at  the  complainant’s  instigation. He  said  that  this  had occurred at a bar the group had visited before the bar which was holding the wet tee shirt contest.  He said that in the course of the evening he expressed an interest in the complainant, but she had rejected his advances.

[7]      Over  the  course  of  the  evening,  the  complainant  became  very  intoxicated. She decided to return to her flat, which she did by taxi.  On arrival, she put a pot of water on the stove to boil.  However, while she was waiting she went into her room and fell asleep.

[8]      Meanwhile the appellant  decided to leave  his companions. He went to the complainant’s flat by taxi, on his own. In his video interview (the appellant elected not to call evidence at trial), the appellant said that he looked through the window and saw the pot boiling on the stove. He then knocked on the door of the flat and was let in by the complainant. For her part, the complainant had no memory of that.

In  any  event,  when  two  others,  ST  and  KW  (the  latter  being  a  flatmate  of  the complainant), arrived at the flat shortly after the appellant (sometime between 2 am and  3  am),  they  found  him  looking  after  the  pot  of  boiling  water  on  the  stove. Around this time, ST woke the complainant up to retrieve his tie and return her bra, which they had swapped at some stage during the evening as a joke.   He did some tidying up around the flat and left.

[9]      The appellant said that he wanted to sleep on a couch at the flat.   KW gave him a sleeping bag.   According to the appellant, sometime later he knocked on the complainant’s  bedroom  door  and  asked  if  he  could  go  in. He  said  that  the complainant responded  “Yeah  okay”.   The  appellant said he  got  into bed with the complainant and began to rub her vagina.  He said she positioned herself so that she could have sexual intercourse with him, but he was unable to do so because he could not get an erection.   He said the complainant then told him to leave, which he did.

As he was leaving he knocked on KW’s bedroom door to say he was leaving.   By this stage it was around 5.30 am.

[10]     By contrast, the complainant’s account was that she was not interested in the appellant.   She said that when she had fallen asleep, she was wearing pyjamas but when she awoke, she was naked.  She could feel someone rubbing her vagina.  When she turned to see who it was, she saw the appellant, naked, resting on his knees and masturbating himself. He was touching her vagina. When she asked him what he was doing, he said “Come on, you know you want it”.  The appellant then attempted to have intercourse with her.  The complainant yelled at the appellant to leave.  The appellant  gathered  his  things  and  left. The  complainant  then  fell  asleep  again, waking up some hours later.   After speaking to KW, the complainant contacted the police.

[11]     KW’s evidence  was that  when she  went to bed  after  giving the  appellant a sleeping bag he was watching television and drinking a beer.   Later, while asleep, she was woken by loud voices.   She thought that one belonged to another flatmate, PS, and that the other was also the voice of a male, presumably the appellant.   She said she went back to sleep, and did not wake again until the appellant woke her up to say that he was leaving.

[12]     The evidence of PS was that he returned to the flat around 4 am.  He said that

he went into the complainant’s room to say hello, to see what was going on and to tell  the  complainant  he  liked  her. He  said  he  sat  down  on  the  corner  of  the complainant’s bed and, when he put his hand out, came  into  contact  with  the appellant’s head.  He said he “got a bit of a shock that there were two people there” and left almost straight away. He was asked if the complainant had responded when he had entered the room. He answered that “she mumbled some words at me”. He thought she was awake but could not say whether or not her eyes were open as it was dark. The complainant had no recollection of any of this.

Basis of appeal

[13]     For the appellant Mr Isac advanced five grounds of appeal:

(a)The  complainant  was  wrongly permitted  to  give  evidence  about  the effect of antidepressant medication on her.

(b)The complainant improperly attacked the credibility of another Crown witness, PS.

(c)       A lies direction was given, which was not justified. (d)          The verdicts were unsafe for three reasons.

(e)       The verdicts were unreasonable and not supported by the evidence.

Discussion

[14]     We will deal with each ground of appeal in turn.

(i)       Complainant’s evidence about effect of medication

[15]     To put this ground of appeal  in  context,  we  must  summarise  briefly  the

Crown and defence theories of the case.

(a)The Crown’s theory was that the complainant was in such a state as a result of a combination of excessive alcohol consumption and antidepressant  medication  that  she  did  not  have  the  capacity  to consent  to  sexual  conduct  –  she  was  effectively  unconscious. The appellant took advantage of her when he knew that she was not in a position to consent.

(b)The defence theory was that the complainant had consented to the sexual contact, or the appellant reasonably believed that she had. The defence accepted that the complainant was genuine in her belief as to what had happened but said her evidence was unreliable. She had an incomplete memory of what had happened as a result of the alcohol and medication. The defence said the complainant had been flirting

with various people during the course of the evening and had recast events  in  her  mind  in  order  to  avoid  embarrassment,  given  the imminent arrival of her long-term boyfriend, who was about to leave England to join her in New Zealand.

[16]     The Crown called an expert witness, Dr Cape, who gave evidence based on a survey  of   the   medical   literature   of   the   combined   effects   of   alcohol   and   the antidepressant   drug   taken   by   the   complainant.  He   had   not   examined   the complainant, so his  evidence  was  general  in  nature.  He  said  that,  although  the medication did carry a warning against consuming excessive alcohol when taking it, there  were  no  significant  studies  on  the  effect  of  consuming  large  quantities  of alcohol with it.   He said that he was unable to say whether the combination of the medication and alcohol could affect the ability of a person to wake up as there was no research on the topic.   However, he also said that consumption of alcohol in the quantities consumed by the complainant could induce a deep sleep from which it was difficult to rouse the subject. He acknowledged that excessive alcohol consumption can also cause memory loss, even though the subject is still capable of acting in the intoxicated state.

[17]     In her evidence in chief, the complainant described the medication which she took.  She was asked about the effect of the medication on her.  In particular she was asked  whether  it  had  any  impact  on  her  ability  to  be  roused  from  sleep.  The complainant said:

A:I did find when I had been taking the [medication] and maybe had a few drinks that I did, like I would sort of, for example like if I had fallen asleep on the couch and someone had tried to wake me up I wouldn’t have woken up if I had had a couple of drinks to the point where my partner in the past has just left me –

OBJECTION: MR ISAC

EXAMINATION CONTINUES: [CROWN COUNSEL]

Q:Perhaps  I’ll  rephrase  the  question.   If  you  were  woken  up  by somebody, how easy did you find it to be woken up?

A:Well  I  was  taking  a  double  amount  so  that  I  would  stay  asleep,  I would usually wake up in the middle of the night by the driving of a car or some noise outside, I found that taking double the medication I would stay asleep.

[18]     The  complainant  went  on  to  describe  a  little  further  the  impact  on  her  of taking  the  medication  and  consuming  alcohol.   She  said  that  instead  of  becoming intoxicated slowly, she experienced a “brick wall” effect of total intoxication.

[19]     Mr   Isac   said   that   the   complainant’s   evidence   about   the   effect   of   the medication on her when taken in conjunction with alcohol “constituted both hearsay and  inadmissible  opinion  evidence  on  the  side  effect  of  a  drug  when  she  was  not qualified  to  comment  on  its  side  effects…,  particularly  where  the  side  effects  of alcohol in large volumes were indistinguishable”.

[20]     In our view, there is a short answer to this submission, and it lies in the latter part of the extract which we have just quoted from Mr Isac’s submissions, that is, “particularly where the side effects of alcohol in large volumes are indistinguishable”. On the evidence it was indisputable that the complainant had consumed a large amount of alcohol over the course of the evening and had become very intoxicated.  Dr Cape confirmed that a person who consumes as much alcohol

as the complainant had could fall into a deep sleep from which he or she would be difficult to rouse. This was the state that the Crown said the complainant was in, and that was what the jury had to focus on. As the Crown put it in closing, the Crown case was that the complainant had “been woken after effectively passing out to find the [appellant’s] fingers inside of her vagina and the [appellant] attempting to thrust

his penis into her”.  Whether the complainant’s state came about wholly as a result of her  consumption  of  alcohol  or  from  the  combined  effect  of  alcohol  and  the medication was not the critical point.

[21]     When the jury came to consider whether the Crown had established beyond reasonable  doubt  that  the  complainant  was  asleep  or  unconscious  when  the  sexual contact occurred and therefore not capable of consenting, it had to consider all the evidence. This included the accounts given by the other witnesses about  the complainant’s state, as well as those given by the complainant and the appellant in

his video interview. In assessing the complainant’s reliability on the central point, the jury would have taken surrounding matters  into  account.  For  example,  the appellant said in his video interview that when he and the complainant were in bed they were both naked from the waist down but he could not remember whether or

not the complainant was wearing a top.   The complainant said that when she woke

up  on  the  morning  of  the  incident  she  was  naked  and  her  pyjamas  were  scattered about.   She found that her pyjama top had been unbuttoned.   She thought this was odd because she never unbuttoned it.   As it was too large for her she simply left it buttoned up and slipped it over her head whenever she put it on or took it off.  If the jury accepted this, it supported the view that she had not removed the top.

[22]     The complainant’s evidence about the combined effect of alcohol and medication on her was not supported by Dr Cape’s evidence, although neither did his evidence  undermine  it. Dr  Cape  simply  said  that  there  was  no  relevant  research. But, as we have said, his evidence was certainly supportive of the proposition that someone who was as intoxicated as the appellant could have fallen into a deep sleep from which she could not easily be roused.  Mr Isac submitted that the complainant’s evidence might have led the jury to believe that  the  presence  of  the  medication would have had an additional impact on her level of consciousness (ie, beyond that caused by the alcohol).  But given the amount of alcohol that she had consumed, we do not accept that this created any risk of a miscarriage.

[23]     Accordingly, we reject this ground of appeal.

(ii)      Complainant improperly attacked credibility of another Crown witness

[24]     Mr  Isac  said  that  the  evidence  of  a  Crown  witness,  PS,  was  critical  to  the defence  case,  given  what  he  said  at  the  preliminary hearing.   This  was  because  it provided   support   for   the   proposition   that   the   complainant   was   awake   and unconcerned when the appellant was in (or on) her bed at the time PS entered the bedroom.  PS had said that he had spoken briefly to them both, although he could not remember what was said.

[25]     After the incident, PS and the complainant had a falling out.  Mr Isac said he advised Crown counsel that the Crown should not attempt to explore the subsequent acrimony between PS and the complainant to further the Crown case, on the ground that the Crown was not entitled to ask one Crown witness to impugn the integrity of another.

[26]     Mr Isac complains that during the course of the complainant’s evidence in chief, Crown counsel asked the complainant a question about her relationship with PS.  She responded that PS had propositioned her several times during the evening but she had told him that she was in love with her boyfriend and he was due to arrive

in New Zealand shortly.  Crown counsel then asked how PS had reacted to that.  The complainant replied:

Very badly, he went off and sulked.  He didn’t talk to me for the rest of the night, and in later weeks he became very angry about it.

[27]     Mr Isac then applied for a mistrial.  Judge Atkins declined the application in a written ruling.   He said that there had been no deliberate attempt by the Crown to lead  evidence  from  the  complainant  to  undermine  the  evidence  of  PS  and  that  Mr Isac  accepted  this.   Further,  the  Judge  considered  that  the  complainant’s  evidence was  relevant  and  therefore  admissible.           Although  the  Judge  did  not  say  why  he considered it to be  relevant, he presumably had  in mind that it both supported the complainant’s account that she did not want a sexual relationship with the appellant or   anyone   else   given   that   she   was   already   in   a   long-term   relationship   and undermined the defence case that the complainant was being flirtatious and seeking a sexual partner that evening.

[28]     Before us, Mr Isac said that the sequence of question and answer just discussed showed that the Crown was attempting  to  undermine  another  Crown witness improperly. He said that in closing the Crown had invited the jury to treat PS’s evidence as unreliable. As to the breast touching incident, the Crown suggested that PS had imbibed a great deal of alcohol. In addition, in relation to his brief visit

to  the  complainant’s  bedroom,  the  Crown  argued  that  his  evidence  as  to  the complainant’s state was highly equivocal.

[29]     We see nothing in this ground. The Crown called a number of witnesses who gave evidence about the events of the night. The Crown was not obliged to give equal  value to everything that every Crown witness of fact said in  evidence. Inevitably  there were conflicts and inconsistencies in  the  evidence  of  the  various witnesses, and the Crown went no further than suggesting that to the jury that limited weight should be placed on the evidence of PS given his heavy intoxication.  There

is no rule prohibiting the Crown from inviting the jury not to accept evidence given

by a witness it has called.[2]   Further, if the defence regarded the evidence of PS as critical, it could have called him as its witness.   Finally, as it ultimately emerged at trial, the evidence of PS as to what occurred in the bedroom, in particular as to the state of the complainant, was not particularly helpful to the appellant.

(iii)     Lies direction wrongly given

[2] See R v Eagles [2004] 2 NZLR 468 (CA) at [22] and R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [84]-[86].

[30]     In his video interview, the appellant gave an explanation as to how he came

to  touch  the  complainant’s  breast  in  the  pub. As  we  note,[3]   he  said  that  the complainant had placed his hand on her breast.  For her part, the complainant denied the appellant’s account, saying that he grabbed her breast uninvited.

[3] At [5] above.

[31]     In  closing  the  Crown  said  that  the  appellant’s  explanation  was  a  lie,  and invited the jury to reach the same conclusion about his version of what occurred in the  complainant’s  bedroom.  The  Crown  asked  the  Judge  to  give  a  lies  direction pursuant to s 124 of the Evidence Act 2006.

[32]     In his summing up, Judge Atkins said:[4]

It was said by [the Crown] that the [appellant] had lied during the course of that  interview  when  he  suggested  that  it  was  [the  complainant’s]  flatmate who went to pinch her nipple and that  [the complainant] had grabbed [the appellant’s] hand and placed it on her breast.   The defence position is that this was not a lie.  It is for you to determine if you are able to, whether or not this was a lie, keeping in mind that you must be satisfied that  it  was a lie before  you  consider  giving  it  any  weight. If  you  conclude  that  you  are satisfied  that  this  was  a  deliberate  lie,  and  it  was  not  merely  forgetful, mistaken  or  confused,  you  should  keep  in  mind  that  people  may  lie  for various reasons, and if you are satisfied that he did tell a lie, then you should not conclude that just because he told a lie, he is guilty of one or both of the offences with which he is charged.  So you can give lies the weight – if you find  a  lie  has  been  told  –  you  can  give  a  lie  the  weight  you  think  is appropriate, but you should be keeping in mind that people may lie for all sorts  of  reasons,  such  as  panic  or  confusion  or  fear,  and  you  should  be careful  about  the  weight  you  give  to  any  lie  which you  find  to  have  been told.

[4] At [14].

[33]     Mr Isac said this instruction was unfairly prejudicial to the appellant.  On the evidence it was not open to the Crown to submit that the appellant had lied.

[34]     In  our  view  the  Judge’s  instruction  was  entirely  appropriate. The  Crown submitted to the jury that the appellant was lying.  There was clearly a basis for that submission  on  the  evidence. Having  noted  the  Crown’s  position  and  that  of  the defence, the Judge said that the jury would have to determine the point.  However, he warned  the  jury  that  if  they  did  conclude  the  appellant  was  lying, they  should  be careful not to jump to the conclusion that he was therefore guilty of the offending charged. We see no prejudice to the appellant in this.

[35]         When  referring  to  the  weight  the  jury  might  attach  to  the  lie  if  they considered it proved, the Judge obviously had in mind that, as a result of s 124(2) of the Evidence Act, the jury was entitled to use a proved lie about a material matter told by the appellant as circumstantial evidence of his guilt.[5]

[5] See R v Dewar [2008] NZCA 344 at [17].

[36]     There is nothing in this ground of appeal.

(iv)     Verdicts unsafe

[37]     Mr Isac submitted that the jury’s verdict was unsafe because:

(a)It was apparent from a question they asked that the jury members had predetermined their verdict on one count.

(b)       During an adjournment the appellant’s mother approached a member

of the jury to ask how the jury’s deliberations were going.

(c)One juror was dismissed during the course of the trial, on the ground that she had met PS socially and had formed a negative view of him.

He  did,  however,  acknowledge  that  these  matters  were  unlikely,  individually  or collectively,  to  provide  a  basis  for  overturning  the  convictions,  a  sentiment  with which we agree.  We address each point in turn.

Jury question

[38]     Mr  Isac  said  that  the  conduct  of  the  jury strongly suggested  that  there  was predetermination on the part of at least some jurors.   Mr Isac relied on the fact that after the defence closing but before the Judge had summed up, the jury asked two questions, one of which was:

If  the  accused  was  unable  to  get  an  erection,  does  this  still  technically  &

legally constitute attempted rape?

There was then the following addendum:

May be addressed in directions tomorrow.

[39]     We see nothing improper in this. By the time the jury posed the question, they  had  heard  four  days  of  evidence  and  the  Crown  and  defence  closings. The appellant  had  said  in  his  statement  to  the  police  that  he  was  unable  to  achieve  an erection.  The jury obviously wanted to understand what, if any, legal effect this had. Accordingly,   they   asked   the   Judge   for   guidance. Far   from   indicating   pre- determination, this simply shows that the jury was going about its task in a careful and thoughtful way.

Approach by appellant’s mother to juror

[40]     Mr Isac said that during the luncheon adjournment on the penultimate day of the trial, the appellant’s mother asked a passing juror “How’s it going in there”.  The juror  reported  this  to  the  Judge  who,  in  the  presence  of  counsel,  sought  to  clarify with the juror what had happened and to determine whether the remark affected the juror’s  ability  to  consider  the  case  dispassionately. Clearly  he  concluded  that  it would not.

[41]     In his affidavit Detective Sergeant Milligan said that on the fourth day of the trial he was asked by the trial Judge to attend a conference in chambers with counsel. The Judge said that a juror had reported that she had been approached by a woman

who had been sitting in the court  throughout  the  trial,  who  turned  out  to  be  the

appellant’s mother.  Detective Sergeant Milligan said that, at the Judge’s request, he had  spoken  to  the  appellant’s  mother,  who  said  that  she  had  been  standing on  the steps outside the courtroom shortly before Court was to resume after the luncheon adjournment when the jury walked past.   She denied that she had said anything to them.   Detective  Sergeant  Milligan  warned  the  appellant’s  mother  of  the  possible consequences  of  attempting  to  communicate  with  the  jury,  and  told  her  that  the Judge had ordered her from the courtroom for the remainder of the trial.

[42]     Again, we see nothing in this point.   A juror made a report to the Judge, who instigated an investigation.   The investigation did not turn up anything.   It may be that  the  appellant’s  mother  had  in  mind  a  cynical  attempt  to  cause  the  trial  to  be aborted.  But in fact, there is no risk of a miscarriage of justice as a consequence of what she did.

Juror dismissal

[43]     Mr Isac said that on the third day of the trial as PS began to give evidence a juror advised the Judge  that she had had  social  contact with PS and had  formed a poor  impression  of  him.           After  speaking  to  her  and  confirming  that  she  had  not shared her views with any other member of the jury, the Judge discharged the juror, with the agreement of counsel.  The trial continued with 11 jurors.  There is nothing untoward in any of this.

(v)      Verdicts unreasonable and not supported by evidence

[44]     The test to be applied under s 385(1)(a) of the Crimes Act is found in Owen v

R,[6]   in  which  the  Supreme  Court  endorsed  six  principles  set  out  in  this  Court’s judgment in R v Munro.[7]   The essential question is whether the jury could reasonably have been satisfied that the appellant was guilty.

[6] Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [13].

[7] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87

[45]     The central issue in the present case was a classic jury question and depended largely upon the jury’s assessment of the complainant’s reliability.  Obviously, there

were difficulties with the complainant’s account, given the nature of the  evening’s events  and  the  extent  of  her  intoxication.       Through  his  cross-examination  of  the witnesses  and  his  closing  address,  Mr  Isac  drew  the  jury’s  attention  to  these difficulties,  with  some  force.  Ultimately  the  jury  accepted  the  complainant’s evidence.   In this case, there is no basis on which we could properly interfere with the jury’s assessment.

Decision

[46]     The  appellant  is  granted  leave  to  adduce  further  evidence,  but  the  appeal against conviction is dismissed.

Solicitors:

Fitzherbert Rowe, Palmerston North for Appellant

Crown Law Office, Wellington for Respondent