R v Aranui

[2007] NZCA 354

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA486/06 [2007] NZCA 354

THE QUEEN

v

ABRAHAM BELL ARANUI

Hearing:         25 July 2007

Court:            Wilson, Panckhurst and Venning JJ Appearances: O S Winter for Appellant

D La Hood for Crown

Judgment:      16 August 2007         at 11am

JUDGMENT OF THE COURT

The  appeal  against  convictions  for  rape  and  unlawful  sexual  connection  is

dismissed.

REASONS OF THE COURT

(Given by Panckhurst J)

R V ABRAHAM BELL ARANUI CA CA486/06  16 August 2007

An appeal against a rape conviction

[1]      Following a trial in the District Court at Napier, the appellant was convicted on one count  of sexual violation by rape  and  one  count of sexual  violation  by unlawful sexual connection (an oral act).   This appeal is against conviction alone, there  being  no  complaint  made  in  relation  to  the  sentence  of  seven  years imprisonment imposed in relation to the rape conviction.

[2]      The  conviction  appeal  raises  a  single  narrow  issue,  namely  whether  the evidence was sufficient  to  exclude the appellant’s assertion that  he believed  on reasonable grounds the complainant consented to the relevant acts.  Necessarily, the argument is fact specific, the more so because Mr Winter raised no complaint in relation to the directions to the jury by Judge Rea.

The evidence relevant to reasonable belief in consent

The complainant’s account

[3]      On 10  December  2005 the  complainant  and  her  boyfriend,  Rawiri  Bills, socialised with the appellant and his partner, Patricia Beach.  The complainant and Ms Beach were close friends.  The two couples met at about 9.00 pm at the home of the complainant.

[4]      During the evening both couples drank a considerable amount.  Cannabis was also consumed.  By the early hours of the morning all four were intoxicated.

[5]      The complainant and Mr Bills went to bed in her bedroom.   The appellant and  Ms  Beach  slept  on  a  couch  in  the  sitting-room.     After  they  retired  the complainant and Mr Bills engaged in sexual activity before going to sleep.  Later, the complainant awoke, left the bedroom and vomited outside the house.  On returning to the bedroom Mr Bills was still asleep.  The complainant lay on the bed, partially across her partner with her legs hanging over the side of the bed.  She was wearing a robe but nothing underneath.

[6]      The complainant was roused and became conscious that somebody was performing oral sex on her.  She assumed it was Mr Bills.  She described “a flash or a blacking out” and her next awareness was of intercourse occurring.   Again, she assumed it was Mr Bills.   Then she realised that it was not him because of the roughness of the act, the noise of Mr Bills snoring and, when the person having intercourse spoke, she realised it was not Mr Bills’ voice.  The complainant jumped out of bed and endeavoured to wake her partner up.  The appellant left the bedroom.

[7]      It took some time to wake Mr Bills and explain to him what had taken place. They decided not to confront the appellant there and then.  Instead, the next morning the complainant told Ms Beach what had occurred.  Ms Beach and the appellant left the address.  A short time later she confronted the appellant about the matter.

The accused’s account

[8]      The appellant participated in a video interview on 13 December 2005.   His account was essentially consistent with that of the complainant.

[9]      With reference to the complainant’s condition, the appellant said that she was “pretty whacked out” with both drink and smoke.  He said that after falling asleep on the couch with Ms Beach he got up to go to the toilet.  After that he went into the complainant’s bedroom and found the complainant and Mr Bills asleep on the bed. The complainant was naked although partly covered by a blanket.

[10]     The appellant said he started to kiss and touch her, first on the leg and that she then opened her legs, sighed a little and that he “licked her out”.   Then the appellant rolled the complainant over and commenced to have intercourse with the complainant.   He thought she was awake and she seemed to be enjoying it.   She made some moaning sounds and did not indicate that the appellant should stop.

[11]     However, the appellant said that when he spoke to her the complainant must have realised “it wasn’t her man’s voice”.   Immediately, the complainant freaked out, pushed the appellant away and he left the room.  At one point in the course of the video interview the detective asked:

It seems too good an opportunity to miss?

and the accused answered:

Yeah, exactly.

[12]     Mr Aranui did not give evidence at trial.  Ms Beach was called as a defence witness, but her evidence concerned events before and after the relevant period in the complainant’s bedroom.

The arguments

[13]     It was common ground that, in order to succeed on appeal, the appellant must show that the verdict was unreasonable in the sense that there was no  evidence capable of proving that a reasonable person would have known the complainant was not consenting: R v Ramage [1985] 1 NZLR 392 (CA).

[14]     Mr Winter argued that this test was met, having regard to various aspects of the evidence.  Counsel referred to the complainant’s acceptance that at some of the critical times she was awake and aware of the sexual activity.  Until the very end the complainant did not resist or object to the sexual acts.   Indeed, she cooperated at least to the extent of opening her legs and facilitating the act of intercourse. Immediately the complainant raised objection, the appellant desisted and removed himself from the bedroom.

[15]     In light of this evidence Mr Winter submitted:

It is not possible to reasonably exclude the possibility, objectively assessed, that the appellant believed the complainant was consenting.

[16]     Mr La Hood submitted that the evidence as a whole provided an ample basis for the jury to conclude that the Crown had negatived reasonable belief in consent. This issue was characterised as quintessentially a jury question, involving a need to assess credibility and the weight to be given to the evidence of the complainant and the appellant.  Significantly, a s 347 application was not made at trial.  This indicated that trial counsel appreciated that there was evidence fit to be left to the jury, and the assessment of that evidence was very much a jury issue.

Was there sufficient evidence to establish an absence of reasonable belief in consent?

[17]     We are in no doubt that the evidence was such as to permit the jury to return a verdict of guilty.   This case involved sexual connection, and intercourse, with a complainant who was both intoxicated and asleep when the sexual activity began. Her evidence of participation in the relevant acts indicated a situation of mistaken identity.

[18]     It remained for the jury to determine, in these circumstances, whether the appellant  acted with a genuine belief  in consent  and,  if so,  whether there were reasonable  grounds  for  that  belief.     The  verdict  is  well  susceptible  of  the interpretation that the jury concluded the appellant did not have a belief (even a mistaken one) in consent.   Some of his answers in the interview savoured of an awareness that the complainant’s cooperation and participation was only the result of mistake as to identity on her part.

[19]     Alternatively, it was open to the jury to conclude that any mistakenly held belief was not reasonable in all the circumstances.   This aspect does not require elaboration.  The evidence speaks for itself.  The interpretation of that evidence was for  the  jury which,  observed  and  heard  the  witnesses.    In  light  of  that  crucial advantage, there is no basis for the intervention of this Court.

One other point

[20]     In the course of argument reference was made to Judge Rea’s direction that in considering reasonable belief in consent the jurors should place themselves in the accused’s position “sober, undrugged, looking at the circumstances” and make a decision from there.  We reserved leave for Mr Winter to make written submissions as to the correctness of this direction, if desired.

[21]     Counsel has done so.   Complaint is not raised.   The direction accords with

R v Clarke [1992] 1 NZLR 147 (CA) and subsequent decisions of this Court.

Result

[22]     For these reasons the appeal is dismissed.

Solicitors:

WinterWoods Lawyers, Palmerston North for Appellant

Crown Law Office, Wellington for Respondent