P v Police HC Whangarei CRI 2006-088-4622

[2007] NZHC 1856

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2006-088-004622

BETWEEN  P

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 June 2007

Appearances: R Bowden for the Appellant

A L Hyndman for the Respondent

Judgment:      18 June 2007

RESERVED JUDGMENT OF PRIESTLEY J (Appeal Against Conviction)

This judgment was delivered by me on 18 June 2007 at 10.00 am., pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date: …………………………

Solicitors:
R Bowden, P O Box 1862, Whangarei

A L Hyndman, Crown Solicitors, P O Box 146, Whangarei

P V POLICE HC WHA CRI 2006-088-004622  18 June 2007

The Appeal

[1]      The appellant faced a charge of indecent assault under s 135 of the Crimes

Act 1961.  The charge was laid summarily.

[2]      The hearing took place on 2 March 2007 before Judge D G Harvey in the Whangarei District Court.  The Judge found the charge was proved.  The appellant was convicted, fined $750, and ordered to pay court costs of $130.  He was further ordered to pay $500 to the complainant by way of emotional harm reparation.

[3]      The appellant challenges his conviction on appeal.

Background

[4]      The appellant, who at the time of the alleged offending was aged 49, was born in Zimbabwe.  He arrived in New Zealand approximately six years ago.  He is a mechanic by occupation but drove a taxi in Whangarei as a secondary source of income.

[5]      The alleged offending took place in the early hours of 9 September 2006. The complainant had gone to a Whangarei night club with her brother.  Alcohol had been consumed.  At approximately 3 am she decided to return to her brother’s home. She stepped into a taxi, parked outside the night club, which was being driven by the appellant.  Unusually, perhaps, for a woman in a taxi she sat in the front passenger seat.

[6]      The  vehicle  was  an  automatic  transmission  model  with  the  gear  lever between the two front seats.  As the driver headed up Bank Street towards Kamo he made various complimentary remarks about the complainant including that she looked “lovely” and  that  they “would  look  good  together”.    The  complainant’s evidence was that from the region of the Kensington traffic lights through to Whau Valley the appellant had his hand on the  gear lever and managed to touch the complainant persistently on her knee and half way up her thigh.  Just before reaching Whau Valley the complainant moved her leg out of reach.

[7]      There is no evidence about the type of clothing the complainant was wearing over or around her legs that night.  She stated that the incident “seemed like a long time but it probably wasn’t, he kept touching and then I moved, once I realised”.

[8]      In cross-examination the complainant agreed with the suggestion put to her that perhaps the outside of her thigh was against the appellant’s hand on the gear stick for a distance of approximately 2 km.   The touching was not constant.   She considered that the appellant had stretched his fingers across but that his hand never left the gear stick.  The complainant eventually moved her leg out of reach.

[9]      The complainant, being alarmed by the appellant’s conversation which she understandably construed as an attempt to chat her up, asked to be driven to a service station at Kamo.  There she alighted from the vehicle, withdrew some money from an ATM, paid the appellant, and remained in the service station until the arrival of another taxi which she had asked the service station attendant to summon.

[10]     Evidence was also called from the service station attendant.  He remembered the complainant as “being a bit stressed”.  He also recalls the appellant returning to the service station some time later to inquire what the complainant had said.

[11]     The  appellant   gave  evidence.     He   denied   that   he   had   touched   the complainant’s leg.

District Court Decision

[12]     The Judge was faced with conflicting evidence in some areas and credibility issues.   These included the exact sum the complainant had withdrawn from the ATM; whether or not she had complained to her brother that the appellant had asked for a blow-job; whether the complainant initially left her bag in the taxi when she alighted at the service station; and whether or not the appellant had initially offered the complainant a free ride.

[13]     None of these issues were determinative in the District Court hearing and are certainly not relevant to this appeal.  On the aspect of the blow-job, the complainant

apparently acknowledged that she had originally told her brother that the appellant had made such a request.  She later resiled from that statement, however, as she was uncertain about the accuracy of her memory.

[14]     The Judge dealt with the factual and legal issues before him carefully and comprehensively.

[15]     The Judge’s reasoning process, which led to him entering a conviction, was as follows.  He first found as a fact that the appellant had touched the complainant’s leg on more than one occasion, which established the required element of an assault. The Judge then reminded himself that whether or not an assault was indecent was to be determined by applying commonly accepted community standards.

[16]     The Judge then continued:

[53]      In this case a taxi driver picks up a young lady outside Danger Danger at around 3.00 am in the morning.  He is asked to transport her to an address in Kamo.   During the trip he touches her leg on more than one occasion and accompanying those touches are phrases such as “we’d look good together” and “you look lovely tonight”.   Would that generally be regarded as indecent?  What is to be indecent is to be judged in light of time, place and circumstances.  The circumstance here was a young lady who was attempting to be transported home in safety.  To do this she catches a taxi and in my view, any right-minded member of society would view that as being a sensible choice simply because in a taxi the passenger is going to be safe.  This is three o’clock in the morning, she does not know the taxi driver and she simply wants to go home.  Without any encouragement she is then touched and these comments are made not once, but several times.

[54]     Accordingly, in my view, the defendant has taken advantage of this young lady’s vulnerability and the fact that she is on her own, the fact that it is at night and the fact that she is in a moving vehicle, I cannot find that this assault was anything other than indecent in those circumstances.

[55]      The third matter that the Police must prove is that the defendant knew what he was doing would be regarded as indecent.  It is impossible to see into somebody’s mind, so again this must be viewed as against the circumstances.   The defendant is a taxi driver.   His job is to pick up passengers and to take them to where they want to go.   He must have known, in my view, that for him to use his position of trust and attempt to create a circumstance between himself and the complainant, which was clearly designed to be sexual, would be regarded as indecent and would be regarded as wrong.   It is inconceivable that a man in the defendant’s position could have thought in any other way.

[emphasis added]

[17]     Finally the Judge dealt with the issue of consent observing, that since the appellant had given evidence the touching had not occurred and there was no evidence  that  the  complainant  had  consented  to  it,  as  the  aspect  of  absence  of consent had been proved.

[18]     On that basis the Judge concluded he was satisfied beyond reasonable doubt there had been an assault which was indecent.

Discussion

[19]     Much of Mr Bowden’s written submissions were devoted to the proposition that the Judge was wrong to have resolved credibility issues against the appellant. Wisely counsel did not pursue this point at the appeal hearing.   Although the complainant admitted intoxication and while some of the peripheral matters to which I have referred (supra [12]) necessitated care in assessing the complainant’s overall credibility, the Judge was alert to those issues.

[20]   I am satisfied that the Judge’s finding that the appellant touched the complainant’s thigh in the manner she described, while his hand was resting on the gear leaver, was open to the Judge on the evidence.  I do not consider he was wrong to have rejected the appellant’s evidence that he never touched the complainant.

[21]     The issue on appeal is whether the established fact that the appellant touched the outside edge of the complainant’s thigh on more than one occasion during the period of the journey, whilst his left hand was resting on the gear stick, constituted an indecent assault in the context of the touching.   That context, as Ms Hyndman correctly observed, must include the appellant’s accompanying words during the journey in respect of which I do not consider the Judge’s factual finding can be challenged.

[22]     There are two critical aspects of the crime which must be proved beyond reasonable doubt.  The first is that the assault itself was indecent having regard to current community standards (R v Nazif [1987] 2 NZLR 122, 127 (CA); R v Dunn [1973] 2 NZLR 481, 483 (CA)). This is effectively the actus reus of the crime.

[23]     The second aspect is the requirement to establish the mens rea.  There must be proof beyond reasonable doubt that the alleged perpetrator intended to commit not only an assault but an indecent assault (R v Court [1989] 1 AC 28; R v Armstrong CA 409/06 1 June 2007 at [25]).

[24]     The speech of Lord Griffiths in R v Court (op. cit. at 33) puts it well.

The gravamen of the offence of indecent assault is the element of indecency. It is this element of indecency that distinguishes the offence from common assault and makes it such a potentially serious offence…. By indecency is meant conduct that right-thinking people  will  consider  an  affront to the sexual modesty of a woman.

…. It seems natural to me that this extra mental element should be that which constitutes the essence of the offence, namely, an intent to do something indecent to the woman in the sense of an affront to her sexual modesty or, in other words, an intent to do that which the jury find indecent. Indecent assault is after all a sexual offence… and one should on general principle look for a sexual element as an ingredient of the offence.

[25]     In Milne v Police (1990) 6 CRNZ 636, Gault J declined to interfere with the conviction of a man who had signalled to a woman driver to stop, entered her vehicle, sat in the passenger seat, and kissed her on the lips.  Gault J suggested (at

641):

Intention is to be determined by what the appellant said and did in the circumstances.

His Honour then went on to say (ibid.):

A kiss, even unwelcome, upon an adult in many circumstances, although objectionable will not be indecent.

[26]     The  Judge  was  referred  to  these  authorities  by  counsel.    There  is  no suggestion that he was unaware of them.  The focus must be on his application of those authorities.

[27]     Mr Bowden’s submission was that the touching which occurred was not indecent.  Counsel further submitted that the words attributed to the appellant were irrelevant and could not by themselves convert the assault to an indecent assault.  I reject counsel’s submission to the extent that he endeavours to sever off the words

attributed to the appellant.  Concomitant comments are clearly relevant (R v Johns

CA 432/97 19 March 1998 at p 4).

[28]     Mr Bowden further submitted that the evidence fell far short of making it safe to attribute to the appellant an intention to commit an indecent assault.  In counsel’s submission, had the parties met in a social situation a feigned inadvertent touching of the thigh will go no further than testing a likely response.   Physical contact as a means of initiating sexual contact was as old as mankind.  The fact that the appellant was a taxi driver ought not bring into play a different standard.  The words used by the appellant were quaint compliments.  At the point the complainant moved her leg, no further contact was attempted.

[29]     For  the  respondent  Ms  Hyndman  submitted  that  the  appellant’s  verbal comments were important.  They were repeated and were sufficient to convert the touching into something which was sexual.  Counsel submitted that indecency must be assessed in its context.  The context here was the complainant being alone in a taxi late at night with a man to whom she had entrusted herself for the journey.  In Ms Hyndman’s submission the Judge correctly took into account the fact that the appellant was a taxi driver.   Indecency had to be assessed in those circumstances. His occupation was highly relevant.

Result

[30]     In determining whether or not an assault is indecent contemporary norms are highly relevant, as is the context of an assault.  Nor, in my judgment (although not relevant to this appeal), can the sexuality of the two participants be ignored.

[31]     Assuming, for the purposes of example, a heterosexual norm, kisses on the lips, pats or strokes to the back or arms, and even a hand on clothed buttocks will frequently be regarded as normal expressions of friendship and/or affection.  Such gestures will usually be devoid of any sexual dimension and will be given and received in that light.  Personal and cultural norms may, of course, vary.  As Gault J observed in Milne (supra) a kiss or gesture may be unwelcome.  But an unwelcome

assault devoid of the essential intention on the part of the perpetrator will not convert the assault into an indecent one.

[32]     In  social  encounters,  handholding,  kisses,  and  stroking  may  often  be exploratory preludes to an anticipated or desired sexual encounter.  Whether matters proceed beyond first base will usually depend on whether the initial “assault” is rebuffed.  At that stage the issue of consent as a defence to s 135 offending usually becomes operative.

[33]  In initial social encounters between strangers, and indeed between acquaintances, the ancient rituals of the human mating dance frequently come into play.  How will he/she react to this form of physical contact?  How will he/she react to this flirtatious comment?  Should I let him do this?  Will she let me do that?  The patterns of the dance are numerous.  The steps of the couple around the dance floor are well known.   Whether or not the dance is completed or where it may cease, remain to be seen.

[34]     The appellant, of course, was not encountering the complainant in a social context.   Rather he was plying his trade as a taxi driver.   His obligations were contractual.  His opportunities for social exchanges ought to have been limited.  And if, as is clear from the Judge’s findings, he saw the journey as an opportunity to “chat up” the complainant or explore the possibility of some sexual encounter, then he was wrong to do so.

[35]     Counsel informs me that the appellant’s career as a taxi driver has come to an end.   Conduct of this type is unacceptable on the part of a taxi driver.   From the complainant’s standpoint, although she was intoxicated, to have had intermittent contact on her thigh with the appellant’s fingers coupled with his suggestive comments would have been an alarming experience.  It was the complainant’s alarm which led to her leaving the taxi at the service station.

[36]     Although right to have regard to this context, I consider the Judge has erred in finding that what occurred constituted indecent assault.  As is apparent from para [53]  (supra)  of  his  decision,  the  Judge  turns  his  mind  to  the  circumstances.

Confusingly perhaps, he applies the test of a “right-minded member of society” not to the context of indecency, but instead to the complainant’s choice to engage a taxi. He refers to the facts as he found them, the appellant’s comments, and the touching, and concludes (para [54] supra) that because the appellant has “taken advantage of [the complainant’s] vulnerability” when she was on her own at night in a moving vehicle, the assault was an indecent one.

[37]     I cannot agree that the appellant’s verbal remarks coupled with the appellant touching the complainant’s proximate thigh when his hand was on the gear lever can constitute, in those circumstances, an indecent assault.   The conclusion seems to have been driven by the appellant’s occupation and the Judge’s perception that an advantage had been taken.  It is significant, in my judgment, that the complainant’s leg was not removed for some time and that when she did move it there was no repetition.

[38]     Although   the   appellant’s   conduct,   particularly   his   comments,   was inappropriate for a taxi driver, the facts that he was a taxi driver and in a position to take advantage do not, in themselves, convert the touching to an indecent assault.

[39]     The Judge has failed to address the correct test as to whether the touching and its context would be regarded as indecent in terms of current community standards.

[40]     Even if I were to be wrong on that aspect, the Judge’s route to finding the necessary mens rea had been established beyond reasonable doubt is even more problematic.  Again the Judge has solely focused on the appellant’s occupation.  In para [55] (supra) the Judge refers to the appellant’s job and concludes:

He must have known … that for him to use his position of trust and attempt to create a circumstance between himself and the complainant, which was clearly designed to be sexual, would be regarded as indecent and would be regarded as wrong.   It is inconceivable that a man in [his] position could have thought in any other way.

[41]     It is of course totally conceivable that the appellant would have thought in another way.  If one assumes that his comments and his failure to move his hand off the gear lever were in combination designed to see whether he could take matters further with the complainant, then it is impossible to conclude that he intended an

indecent assault.   The Judge is right to categorise the appellant’s conduct as attempting “to create a circumstance” with the complainant.   He is also correct to categorise the appellant’s conduct towards a fare-paying passenger as “wrong”.  But those factors do not in my judgment lead to a safe finding that the appellant intended to  commit  an  assault  which  was  capable  of  being  considered  by  right-minded persons as indecent.

[42]     Had the appellant touched different parts of the complainant’s anatomy, or had he persisted with touching her leg once she had moved it, or had the appellant’s comments been more overtly sexual (as for example R v Johns (supra)) then the relevant mens rea might well have been inferred.  However, in the circumstances of this case, and in the particular context of what occurred,  I do not consider the inference of the requisite intention was safely drawn.

[43]     For these reasons therefore the appeal is allowed.

Result

[44]     The appeal is allowed.

[45]     The conviction entered against the appellant in the Whangarei District Court on 2 March 2007 is quashed.

...........................................… Priestley J