R v Armstrong

[2007] NZCA 221

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

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL

DISPOSITION OF NEW TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA409/06 [2007] NZCA 221

THE QUEEN

v

LEIGH ARMSTRONG

Hearing:         17 May 2007

Court:            Chambers, John Hansen and Priestley JJ Counsel:     M N Pecotic and J Smith for Appellant

K B F Hastie for Crown

Judgment:      1 June 2007         at 3 pm

JUDGMENT OF THE COURT

A        The appeal against conviction is allowed.

B        The conviction is quashed.

R V ARMSTRONG CA CA409/06  1 June 2007

C        A new trial is directed on the charge of indecent assault.

DAn order is made prohibiting publication of the reasons for judgment in the news media or on the internet or in any other publicly accessible database until final disposition of the new trial.   Publication in a law

report or a law digest is, however, permitted.

REASONS OF THE COURT

(Given by John Hansen J)

[1]      Following a trial in the Auckland District Court before Chief Judge Johnson and a jury, the appellant was convicted on a charge of indecent assault.   He was acquitted on charges of sexual violation by rape and sexual intercourse with a girl over the age of 12 years and under the age of 16 years, not being his wife.

[2]      On 19 October 2006 the Judge convicted the appellant and ordered him to pay reparation of $2000.00 to the complainant.

[3]      The  appellant  appeals  against  his  conviction.    He  also  appeals  against sentence, submitting he should have been discharged without conviction.

Background

[4]      The complainant and appellant had known each other for some time.   The appellant was apparently a close friend of the complainant’s brother.   There was some social interchange between the two families.

[5]      At the time of the indecent assault in January 2005 the complainant was aged

14 years.   The appellant had just turned 18.   The complainant was at the Whangaparaoa Plaza.  She had been drinking.   The appellant collected her to take her home.  It appears that arose from a request from the complainant’s brother.  The complainant said that, while they were driving home, the appellant put his hand up her skirt and placed it on her upper thigh, leaving it there for some time.

[6]      At trial, the appellant accepted he was aware of the complainant’s age.  He accepted touching the complainant in the manner alleged, but said it was in response to her actions in fondling his penis.  His defence was that it was part of an incident involving  mutual touching  and  thus  not  indecent.    The  complainant  denied  she touched the appellant in any way.

The appeal

[7]      In  her  written  submissions  Ms  Pecotic  summarised  the  grounds  of  the conviction appeal as:

a)        the learned Judge misdirected the jury in respect of indecent assault, both in his summing up and in response to a question raised during deliberations; and

b)in respect of the indecent assault, the learned Judge failed to present the defence case fairly.

[8]      However, a more fundamental ground of appeal arose in oral submissions. That was that the Crown, defence and Judge proceeded under a section of the Crimes Act 1961 that was not in effect at the time of the offending.

Submissions

[9]      Ms Pecotic submitted that the new s 134 of the Crimes Act 1961 did not come into effect until 20 May 2005.  She submitted the transitional provisions were not applicable in the circumstances of this case as the appellant was charged on

7 March 2005 following his interview on 3 March 2005.

[10]     She  explained  that  she  raised  the  issue  of  the  new  section  with  the experienced Crown counsel who was prosecuting.  She was assured that the matter fell to be determined under the new section.   She submitted it  was apparent  by reference to the summing up that the Judge proceeded on the same basis.

[11]     She further submitted that the Judge had misunderstood the situation relating to consent.   She submitted it was not the appellant’s defence that the complainant

had consented to the touching.  Rather, she submitted that it was necessary for the jury to be advised that the fact of consent, if present, was relevant in their consideration of whether or not the act was indecent.

[12]     For the Crown, Ms Hastie acknowledged that, if the matter had proceeded under the wrong section, she could not resist the appeal and a retrial must be ordered. However, she submitted, if that was not the case, the Judge’s summing up in relation to the elements of indecent assault and the factual allegations was correct.

Sentence appeal

[13]     Ms Pecotic submitted that the Judge should have discharged the appellant without conviction.  She said a psychologist’s report showed there was low risk of reoffending.

[14]     She submitted that notwithstanding the acquittal on the first two counts, the sentencing  notes  make  it  apparent  that  the  Judge  was  influenced  by  what  he perceived to be the overall nature of the case, including the matters of which the appellant had been acquitted.  She also submitted that the Judge wrongly took into account the fact of the complainant having to give evidence.   She submitted the Judge had failed to properly weigh the consequences of conviction to the appellant against the gravity of the offending when he declined to discharge the appellant without conviction.

[15]     For the Crown, Ms Hastie submitted that the Judge correctly identified the test  and balanced the relevant  factors so there  was  no  fault  in  principle  in  the sentence imposed.

Discussion

[16]     In the indictment the appellant was correctly charged under the original s

134.   While we accept  Ms Pecotic’s assurances that  counsel proceeded under  a misapprehension that the new s 134 applied, we are not satisfied that the Judge did

so proceed, at least in relation to the elements of the offence. (We note in passing that the elements of the offence are the same under  both sections.)    While the cross-examination at the bottom of p 112 and the top of p 113 of the case on appeal could suggest a reference to the new legislation, in our view, it is more likely to be directed at count 2, the charge of sexual intercourse with a girl over 12 and 16 not being his wife, of which the appellant was found not guilty.

[17] However, it is apparent by reference to the summing up that the Judge considered the new s 134A was applicable: see at [45], quoted below at [32]. Given the degree of confusion, it is appropriate we set out the relevant legislation to ascertain the correct position.

[18]     Section 134 of the Crimes Act 1961, where relevant, reads:

134 Sexual intercourse or indecency with girl between 12 and 16

…

(2) Every one is liable to imprisonment for a term not exceeding 7 years who—

(a) Indecently assaults any such girl; or

(b) Being a male, does any indecent act with or upon any such girl; or

(c) Being a male, induces or permits any such girl to do any indecent act with or upon him.

(3) It is a defence to a charge under this section if the person charged proves that the girl consented and that he is younger than the girl:

Provided that proof of the said facts shall not be a defence if it is proved that such consent was obtained by a false and fraudulent representation as to the nature and quality of the act.

(4) It is a defence to a charge under this section if the person charged proves that the girl consented, that he was under the age of 21 years at the time of the commission of the act, and that he had reasonable cause to believe, and did believe, that the girl was of or over the age of 16 years:

Provided that proof of the said facts shall not be a defence if it is proved that the consent was obtained by a false and fraudulent representation as to the nature and quality of the act.

(5) Except as provided in this section, it is no defence to a charge under this section that the girl consented, or that the person charged believed that the girl was of or over the age of 16 years.

…

[19]     This section was amended on 20 May 2005 by s 7 of the Crimes Amendment

Act 2005, which substituted a new s 134 which reads, as far as relevant:

134 Sexual conduct with young person under 16

…

(3)     Every one who does an indecent act on a young person is liable to imprisonment for a term not exceeding 7 years.

(4)     No person can be convicted of a charge under this section if he or she was married to the young person concerned at the time of the sexual connection or indecent act concerned.

(5)     The young person in respect of whom an offence against this section was committed cannot be charged as a party to the offence if the person who committed the offence was of or over the age of 16 years when the offence was committed.

6)        In this section,—

(a)     young person means a person under the age of 16 years; and

(b)     doing an indecent act on a young person includes indecently assaulting the young person.

[20]     Defences to s 134 are now placed in a separate s 134A:

(1)     It is a defence to a charge under section 134 if the person charged proves that, -

(a)     before  the  time  of  the  act  concerned,  he  or  she  had  taken reasonable   steps   to   find   out   whether   the   young   person concerned was of or over the age of 16 years; and

(b)     at  the  time  of  the  act  concerned,  he  or  she  believed  on reasonable grounds that the young person was of or over the age of 15 years; and

(c)     the young person consented.

(2)       Except to the extent provided in subsection (1), -

(a)     it is not a defence to a charge under section 134 that the young person concerned consented; and

(b)     it is not a  defence to a  charge under  s  134 that the person charged believed that the young person concerned was of or over the age of 16 years.

[21]     Sections 12 and 13 of the 2005 Act contain important transitional provisions:

12. Acts done before commencement of amending provisions

(1)       Every  provision  of  the principal  Act  amended  or  repealed  by  a section of this Act applies to an act or omission occurring before the commencement of the section as if the section had not been enacted.

(2)       Every enactment amended or repealed by section 10 or section 11 applies to an act or omission occurring before the commencement of those sections as if those sections had not been enacted.

(3)       Subsections (1) and (2) are subject to section 13.

13. Availability of new defences

To the extent (if any) that, with or without modification, a provision of the principal Act substituted by a section of this Act replaces or corresponds to a provision of the principal Act repealed by that section, there are available to a person charged after the commencement of that section with an offence against the repealed provision, so far as they are applicable,—

(a)     all  defences  available  to  a  person  charged  with  an  offence against the repealed provision; and

(b)     with any necessary modifications, all defences available to a person charged with an offence against the substituted provision.

[22]     In this case both the offending and the charge against the appellant occurred before 20 May 2005.   The effect of s 12 is that the original s 134 applies to this offending.    The  new  defences  are  not  applicable  in  this  case  because  they  are available only to a person charged after the commencement of the section, which is not the case here.  However, any confusion relating to what defences were available is perhaps understandable when the indictment was presented well after the date of the relevant legislative changes.

[23]     However, we consider there is a matter of even more fundamental concern. The summing up proceeded on the basis that the appellant’s defence to the charge of indecent assault, at least in part, was one of consent.  Yet it was apparent from the answers the appellant  gave  in cross-examination that  such a defence was  never available to him, whether under the old s 134 or the  new  s 134A.    Rather,  his defences were, first, that the actions were not indecent because it was part of mutual consensual touching and, secondly, that he did not recognise his actions would be regarded as indecent.   To  avoid confusion with the term “consent” used in the

legislation, and the summing up, we will refer to the various alleged actions as

“mutual touching”.

[24]     It is for the jury, as right-minded members of society, to determine whether or not the actions complained of were indecent.  Mutual touching, if it occurred, is part of the surrounding circumstances that the jury must consider in reaching their conclusions as to whether or not they are satisfied the assault was indecent.  Further, the surrounding circumstances will be relevant in determining an accused’s intent in doing the act complained of.

[25]     In R v Court [1989] AC 28, the House of Lords held that evidence as to an accused’s motive is admissible to establish whether he intended to commit not only an assault but an indecent assault. The prosecution must prove both that the accused intentionally assaulted the victim and that he intended to commit an indecent assault, and the defendant may lead evidence that he or she did not think the act to be indecent in the circumstances: at 44-45 per Lord Ackner.

[26]     The learned authors of Adams on Criminal Law (looseleaf ed.) at [CA135.02]

cite that decision and state:

Evidence of the accused’s reasons for acting will be admissible to support or negative that the assault was an indecent one and was so intended, even if such reasons were not disclosed at the time of the act.

[27]     The    House    of    Lords’    decision    was    approved    by    Gault    J    in Milne v Police (1990) 6 CRNZ 636 (HC).   Gault J noted the elements of indecent assault as identified by Lord Ackner in Court, and stated that they were equally applicable under the New Zealand Act.  He continued:

Intention is to be determined by  what  the appellant  said and  did  in the circumstances.  The background to the events in the car clearly are relevant.

The word “indecent” is to be given the meaning accorded to it in general use. What is to be indecent is to be judged in the light of time, place and circumstances: R v Dunn [1973] 2 NZLR 481, 483. In that case, (involving an indecent performance) the Court of Appeal upheld the direction given to the jury in the following terms:

It is the modern and popular use and acceptance of that term today. We are talking in this case of ‘now’, the present day application of

that word.   It is used in a criminal statute so it must be something which will warrant the sanction of the law, not some trifling or unimportant episode, something sufficient to invoke the law that must appeal to you as a matter of common sense.  You do not take trifling, silly little things with the law.  The criminal law deals with matters of substance,  and  that  is  what  you  have  to  deal  with  here.    Now

‘indecent’ is a word which very largely speaks for itself.  It is a word, as I have told you, which the statute uses and it is not qualified in the statute in any way at all. (Our emphasis).

[28]     The approach of Gault  J in Milne has been recognised  by this Court  as correctly stating the law in New Zealand: R v Butler CA194/02 27 February 2003 at [8].

[29]     In the present case the Judge said in his summing up:

[39]      Count 3 is also one of these age-related charges.  There is a structure of charges of laws relating to protecting young people, so the conduct which is quite acceptable between adults is interfered with by the law when it comes to young people for their protection.   I suppose this is where Ms Pecotic’s discussion about whether petting and other fondling is indecent or not.  Among adults where there is consent, that sort of conduct is regarded as all right.    It’s  not  against  the law,  probably  not  against  any  moral  law although I suppose there might be circumstances where that is the case.  But where young people are concerned, it may be that it’s different.

[40]     Now the law has to rely on the common sense of people about this. The law says “what is indecent is for you (the jury) to decide, taking into account the prevailing mores of our society.”  No doubt you would have an opinion if a man put his hand on the upper thigh of a woman in a motorcar when they  didn’t  have an intimate relationship  as to whether  it  was  an indecent  touching  or  not.    There’s  no  reason  why  you  should  apply  a different standard to young people as to whether it’s indecent or not, simply because you know that testosterone and hormones rage around that age.

[41]     So you must decide whether that conduct is basically indecent and then it’s a case of relating that to the requirements  of the  law.    So for consenting adults, while it may be basically indecent, it’s excusable because that’s allowed.  For non-consenting adults, not only would it be indecent if you agree that touching a thigh like that is indecent, it’s for you to decide that, not me, but it would be an assault because it would be a touching that’s not  allowed.    Where  young  people  are  concerned,  is  the  nature  of  the touching any different – either decent or indecent because of their age?  The real question is – is it in circumstances where it’s justified or authorised?

[30]     There the Judge has correctly identified that it is for the jury themselves to determine what is indecent.  The example he gives, however, of what may or may not be indecent between adults and then comparing it with young people is, with respect to the Judge, not particularly helpful in the context of this case. Indeed, the

jury could well have taken from the last sentence of [41] of the summing up that, in the absence of consent, the actions of the appellant were indecent.

[31]     Given that the defences were that the act was not indecent or not recognised by the appellant to be such, the jury needed to be instructed that their first factual inquiry was whether or not there was mutual touching.   The complainant’s clear evidence was that  she did  not  touch or fondle  the  appellant  in  any way.    The appellant’s evidence was that the incident was instigated by her fondling his penis through his clothing.   The jury needed to determine whose version they preferred. Having done that, they then needed to determine whether in all the circumstances the act was indecent.  The Judge’s direction was not, with respect, clear as to the line of inquiry to be undertaken.

[32]     The Judge also, with respect, confused the issue by referring to the formal defence of consent.  He said at [45], having set out the elements of the offence:

Then I have to deal with this consent issue again.  So if we go back to it, before the touching for consent to be a defence for him, before he has to show on the balance of probabilities, that is, that you conclude it’s more likely than not the case that, before the touching, he took reasonable steps to find out whether she was of or over the age of 16.  At the time he did it he believed on reasonable grounds she was of or over the age of 16, and in fact she consented.

[33]     But in this case, the appellant did not attempt to run the defence of consent. He admitted he knew the complainant was 14.  It was not for the Crown to negate consent; it was for the defence to prove it, if the defence so elected.  It did not.  By the Judge raising the formal defence of consent in circumstances where the appellant could not meet its terms, there was a real risk that the Judge left the jury in a state of confusion as to the role (if any) of “consent” in this case.  The jury may well have concluded that, because the appellant could not make out consent, the surrounding circumstances, including the complainant’s actions (if any), were irrelevant.   They were not irrelevant, however.   They informed both the assessment of whether the touching was indecent and also the separate question of whether the appellant recognised his actions would be regarded as indecent.

[34]     In  the  circumstances,  we  are  satisfied  that  a  miscarriage  of  justice  has occurred.  That miscarriage arises from the confusion relating to what law applied, coupled with an incorrect focus on consent as a defence, when that was not an issue in the case.

[35]     Accordingly, the conviction is quashed and a retrial is ordered.

The sentence appeal

[36]     Given our conclusion on the conviction,  it  is unnecessary to  address the sentence appeal.

Solicitors

Crown Law Office, Wellington