R v Aylwin

[2007] NZCA 458

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA49/07 [2007] NZCA 458

THE QUEEN

v

ALISDAIR BRUCE AYLWIN

Hearing:         26 June 2007

Court:            William Young P, Randerson and Panckhurst  JJ Counsel:     S J Bonnar for Appellant

K Raftery for Crown

Judgment:      23 October 2007 at 3.30 pmat 3.30 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

REASONS OF THE COURT

(Given by Randerson J)

R V AYLWIN CA CA49/07  23 October 2007

[1]      On 19 December 2006 the appellant was convicted in the District Court at Tauranga on one count of indecent assault.  His conviction followed a jury trial with Judge Harding presiding.  He was later sentenced to 100 hours community work.

[2]      He now appeals against conviction and sentence.   The points advanced in support of the appeal against conviction are:

(a)      The Judge erred in permitting the Crown to put the case to the jury in separate counts alleging alternative factual bases for the charge of indecent assault;

(b)Crown  counsel  put  prejudicial  and  irrelevant  questions  to  the appellant resulting in a miscarriage of justice; and

(c)The verdict of the jury was unreasonable or not supported by the evidence.

[3]      The   sentence   appeal   was   advanced   on   the   ground   that,   in   all   the circumstances of the case, the Judge erred in refusing to exercise his discretion to discharge the appellant without conviction.

The factual background

[4]      The appellant was a serving police officer.  On the evening of 2 July 2005 he and the complainant were invited to watch a rugby match on television in a garage at the home of mutual friends.   Both the complainant and the appellant became extremely intoxicated at the function, to the extent that each vomited during the evening.   At some point, the complainant fell asleep in the garage but was later woken by the host (a Mrs Morgan) who assisted the complainant into a single bed in a bedroom in the house and shut the door.

[5]      Soon afterwards, Mrs Morgan met with the appellant who enquired about the complainant.  Mrs Morgan told him that the complainant was in a relationship.  With Mrs Morgan’s permission, the appellant then went into a separate bedroom and lay down.  Feeling unwell, he later got up and vomited.  Eventually, he entered the room in which the victim was sleeping in the early hours of the morning.  He stripped to his underwear and got into bed with her.

[6]      The next  morning,  while  it  was  still  dark,  and  as  the  appellant  and  the complainant were waking, the physical contact occurred which was the subject of the charge.  The nature of this contact was strongly disputed at trial.  The complainant alleged she was awoken by someone pulling her underwear aside and touching her vagina.  This was denied by the appellant whose account was that he awoke with his right arm draped over the top of the complainant across her midriff.  The appellant stated that he stroked or rubbed the complainant’s stomach region below her navel on the skin for approximately 10 or 15 seconds.  According to him, his hand did not move lower than the top of her underwear.   The complainant then pushed the appellant’s hand away and no further contact occurred.

[7]      Following this contact, the appellant fell asleep again.  She subsequently left the bedroom.   Both parties agree that she offered the appellant a coffee which he accepted.  Conversation then took place between the two in which personal details were  exchanged.   In the  course  of the  conversation,  the  complainant  asked  the appellant how he had ended up in her bed.  His response was to say she had led him there from the garage where they had been dancing.  The complainant then left the house, kissing him on the lips as she left.

[8]      The complainant later discovered that the appellant had lied to her about how he had ended up in her bed.  She complained to the police on 27 July 2005, some three to four weeks after the incident.  When spoken to by the police the appellant gave an account broadly consistent with his evidence at trial.  He denied touching the complainant on her vagina and stated that the touching on her stomach area was not an indecent assault and not intended by him to be so.   He had no intention of touching her in a non-consensual way.

[9]      The appellant was charged with a single count of indecent assault.  There was no dispute that, until the commencement of the trial, the Crown allegation was that the appellant had touched the complainant around her vagina with his fingers. However, at the commencement of the trial, there was a discussion between counsel and the Judge about the contents of a memorandum the Judge intended to give the jury setting out the elements of the offence.  Crown counsel said he wished the Judge to refer in the memorandum to the accused touching the complainant’s stomach or vaginal area.   He informed the  appellant’s counsel  and  the  Judge  he would  be submitting to the jury, as an alternative, that the touching of the complainant’s stomach,  as  described  by  the  appellant  in  his  police  interview,  constituted  an indecent assault.

[10]     The trial Judge said he would permit the Crown to present the case on that basis.  The appellant’s counsel advised the Judge it was not accepted on behalf of the appellant that the touching of the complainant’s stomach constituted an indecent assault.  The Judge said he regarded the matter as a jury issue and counsel did not further pursue the point.  No formal ruling was sought or given at that stage.

[11]     The Crown then opened to the jury on the basis that, even if the jury were to reject the complainant’s version of events, the conduct of the appellant, as described by him in his police interview, constituted an indecent assault.

[12]     On the final morning of the trial, Crown counsel applied to formally amend the indictment by the inclusion of an alternative count of indecent assault which particularised the contact as occurring on the complainant’s stomach.  The appellant did not oppose the amendment given the trial Judge’s earlier indication.

[13]     The jury found the appellant not guilty on Count 1 (the touching of the genitalia) but guilty on Count 2 (the touching of the stomach).

The amendment of the indictment to include the alternative factual basis in a second count

[14]   Mr Bonnar for the appellant, submitted that the Crown ought to have particularised the count in the original indictment.  If at that point, the Crown then wished to seek leave to file an amended indictment out of time, application should have been made and argued on a considered basis.  He submitted the Judge should have refused to amend the indictment and that the failure to follow this procedure resulted in unfairness to the appellant leading to a miscarriage of justice.

[15]     Mr Bonnar submitted that the power to amend an indictment under s 335

Crimes Act 1961 after the trial has commenced, permits amendment where there appears to the Court to be a variance between the proof and the charge in any count in the indictment.   The Court is only entitled to make the amendment under that section if it is of the opinion that the accused is not being misled or prejudiced in his defence (s 335(2)).  Mr Bonnar submitted there was no variance between the proof and the charge.   The complainant’s evidence in court was consistent with her complaint and the appellant’s version of events had been known from the time of his police interview at an early stage.

[16]     We agree with Mr Bonnar that it would have been preferable for the Crown to have applied prior to the commencement of the trial to amend the indictment under s 345D of the Crimes Act.  Under that provision, the trial Judge could have amended the indictment if the amendment was considered to be conducive to the ends of justice.  However, Mr Bonnar frankly conceded he was unable to point to any prejudice arising from the way in which this issue was dealt with at trial.

[17]     We are satisfied there was no prejudice to the appellant since he and his counsel were aware from the outset of the trial that the Crown intended to rely on the alternative factual basis for the indecent assault allegation should it be necessary to do so.  The appellant’s case did not change in any way.  He had always denied the allegation of touching in the vaginal area and his account from the beginning was

that he had only touched the complainant in the area of her stomach.  No miscarriage of justice has resulted from the introduction of the alternative count.

Cross-examination of the appellant giving rise to a miscarriage of justice

[18]     At trial, the prosecutor commenced his cross-examination of the appellant by putting to him that he had lied to the complainant when she enquired as to how he had ended up in her bed on the night in question.  The appellant accepted he had lied in that respect and no complaint is made about this aspect of the cross-examination.

[19]     Part way through the cross-examination, the appellant was asked whether he would be calling character witnesses.  The prosecutor then said:

Given that you are calling character evidence I want to ask you this.

[20]     The appellant’s counsel objected and the jury retired.   It transpired that the prosecutor’s intention was to cross-examine the appellant about an alleged sexual relationship with another police officer.   The Judge ruled against this line of questioning and the matter proceeded no further.   However, Mr Bonnar submitted the  jury  must  have  been  left  with  the  impression  that  the  prosecutor  was  in possession of some damaging information which would bear upon the appellant’s character.

[21]     We do not accept this submission for which there is no factual foundation. No adverse material was placed before the jury at this point and the Judge directed them in his summing up to come to their verdict solely on the evidence placed before the Court.

[22]     The main thrust of Mr Bonnar’s submission was based on the questions asked near the end of the cross-examination regarding alleged sexual advances to two other women present that evening.  The relevant questions and answers were:

Did you make a sexual advance to Suzanne Coffey that night?…I don’t know Suzanne Coffey

Did you make a sexual advance to Kim Jesney that night?…No I did not

[23]     Mr Bonnar’s submission was that these questions were improper since they were entirely without foundation, prejudicial and irrelevant.  He submitted that the questions went to propensity and the prosecutor should have sought the leave of the Court to cross-examine on those matters.

[24]     We are not persuaded there was no factual foundation for the prosecutor’s questions.  The police had made enquiry with the two women, the results of which were recorded in job sheets.  Both women confirmed they had been at the function on the night in question.  Ms Coffey stated she had been introduced to the appellant who made a comment to her.   She was unable to recall the words he used but remembered they were “inappropriate and somewhat sleazy”.  While he was making these comments to her, she recalled the appellant was holding her hand quite firmly. She was concerned about the remarks.  About half an hour later, she was talking to Ms Jesney who was approached by the appellant.   He had made some type of flattering comment to Ms Jesney.  Ms Coffey described the appellant as being “very forward in his approach”.  She said neither she nor Ms Jesney knew how to respond to his approaches.  When asked, Ms Jesney was unable to recall any comment made by the appellant to her in the presence of Ms Coffey but that did not necessarily detract from Ms Coffey’s recollections.

[25]     Mr  Bonnar  submitted  that  the  job  sheets  did  not  provide  any  factual foundation for questions alleging “sexual advances” by the appellant to the two women.  We do not agree.  While Ms Coffey did not use those words specifically when contacted by the police, the general tenor of her comments were that the appellant had made some remarks to her of a sexual nature which caused her some concern.  She also recalled an incident along similar lines involving Ms Jesney.  Her reference to the appellant being “very forward in his approach” gave the Crown a sufficient basis to question the appellant in the manner described.

[26]     We do not accept Mr Bonnar’s submission that the question was irrelevant or that it went to propensity.   Whether the appellant had a sexual motivation for his approaches to the complainant that evening was very much at issue at trial.  Whether he had made sexual advances towards other women present was relevant to that issue.   There could be little doubt that, if he had answered those questions in the

affirmative, the evidence would have been admissible as tending to support the Crown contention that the appellant was interested in some form of sexual contact that night.

[27]     We  conclude  there  was  no  impropriety  in  the  cross-examination  of  the appellant.  As soon as a negative answer was received, the issue was not pursued. Mr Bonnar informed us that he had raised the issue with the Judge before summing up.  He did not wish the Judge to draw specific attention to these particular questions but the Judge agreed to, and did, give a general direction to the jury to the effect that the questions of counsel were not evidence unless the witness agreed with what was said.  We do not consider any miscarriage of justice has occurred.

Verdict unreasonable or not supported by the evidence

[28]     Mr Bonnar submitted there was no evidence to support a finding that, at the time of the admitted touching of the complainant’s stomach, the appellant knew or intended that the touching was without her consent.  He also submitted there was no evidence  to  support  a  finding  that,  at  the  relevant  time,  the  appellant  knew  or intended the touching was indecent in the sense that it would be so regarded by right minded members of the community.

[29]     The Judge correctly directed the jury that the Crown had to prove beyond reasonable doubt that the complainant did not consent to the touching and that the appellant did not believe she was consenting.  These elements become relevant in a case of indecent assault involving adults when the issue of consent is raised on the evidence, as it was in this case: R v Solanki CA106/05 6 September 2005.

[30]     The Judge also directed the jury on the subject of the appellant’s knowledge in the following terms:

The last thing that has to be proved is that the accused knew that what he was doing was indecent in the sense that it would be regarded as indecent by right thinking people.

[31]     The Judge then continued:

In the context of a case as a whole, the primary issue for you is the first one of what sort of touching was it.  If you are satisfied beyond reasonable doubt that  what the  complainant said  happened  did  actually happen, the  other issues will present little difficulty.  On the other hand if you are not satisfied that the complainant’s evidence about what happened is correct, you will have to consider what the accused said happened.  You will need to consider that anyway obviously.  But if so, whether what he said happened amounting to an assault, an intentional application of force without consent, in the sense that I have described, and whether it was indecent and known to be and whether he continued to do it anyway.  The Defence says not an assault or indecent at all. The Crown says both an assault and indecent.

[32]     There is ample authority for the proposition that the Crown must prove both that the accused intentionally assaulted the victim and that he intended to commit an indecent assault.  The majority of the House of Lords so held in R v Court [1989] AC 28, per Lord Ackner at 45. In New Zealand, Gault J adopted this approach (in Milne v Police (1990) 6 CRNZ 636, 641.  Recently in R v Armstrong [2007] NZCA

221, the Court adopted at [25] the view of the majority in Court without elaboration. What does nonetheless require some explanation is what constitutes an intention to commit an indecent assault.

[33]     Court  involved actions of the defendant (spanking a girl) which were arguably equivocal as to indecency and the issue which divided the law lords was the relevance and admissibility of his later acknowledgement to the police that he had a “buttock fetish”. Both the majority and minority agreed on a mens rea requirement for indecent assault which might broadly be regarded as extending to the circumstances which render the assault indecent and the real issue between them was whether an unexpressed sexual gratification motive was material in relation to actions which arguably were not inherently indecent. That is not a question in this case and for present purposes it is sufficient to refer to the reasoning adopted by Lord Goff in his dissenting speech at 48-49:

Does  an  indecent  assault  require  any  mental  element  different  from  a common assault?   There are, I consider, two matters to be borne in mind. First, the requisite intention on the part of the defendant to commit the relevant act involves, in the case of an indecent assault, that the defendant should have intended to commit any part of that act which rendered the assault indecent.  Second, especially since, in considering whether an assault is indecent, it may be appropriate to have regard to the surrounding circumstances, it is necessary that the defendant should have been aware of

the existence of any circumstances which are relied upon as rendering the assault indecent.

There  is  nothing  in  the  other  speeches  delivered  in  the  case  to  suggest  that  a defendant must have an awareness at the time of the offending that his actions would be regarded as indecent by right thinking members of the community.

[34]     We  accept  that  the  crime  of  indecent  assault  is  committed  only  if  the particular aspects of the assault, and the surrounding circumstances, which render it indecent were intended or appreciated (as the case may be).  It is in this sense that an intention to commit an indecent assault is an element of the offence.  But we see no justification either in the authorities or as a matter of principle for the mens rea requirement to extend to an awareness (or consciousness) at the time of the offence that the assault would be regarded as indecent by right-minded members of the community).

[35]     In summary, in a case of indecent assault involving adults, the Crown is required to prove that:

(a)       The accused assaulted the complainant by the deliberate (intentional)

application of force to the person of the complainant; and

(b)The assault occurred in circumstances of indecency in the sense that it would be so regarded by right-thinking members of the community generally.

(c)      The accused intended or appreciated those aspects of the assault, and the surrounding circumstances, which render it indecent.

And, where the issue of consent is raised on the evidence:

(d)      The complainant did not consent to the assault; and

(e)       The accused did not honestly believe she was consenting.

[36]     In most cases the evidence will convey that the relevant touching in the associated circumstances of indecency was intended and therefore deliberate.   A simple direction, of the kind indicated by the formulation of elements (a) and (b) in the previous paragraph, will suffice.   Indeed for many years New Zealand judges have summed up on this basis. If, however, the accused disputes indecency and in particular whether the features of the assault, and the surrounding circumstances, which render it indecent were intentional (or appreciated), a direction in terms of (c) will be required.

[37]     Understandably,  the  appellant  does  not  take  any  issue  with  the  Judge’s direction on the issue of knowledge since the direction was to his advantage.  But the question remains whether there was evidence from which the jury could infer that the Crown had proved the essential elements of the offence to the required standard. In approaching these issues, it is necessary to consider all the surrounding circumstances.   Here, there had been no contact of a sexual nature between the appellant and the complainant during the preceding party; both had become heavily intoxicated; and the complainant was put to bed by Mrs Morgan who, in response to the appellant’s inquiry, told him the complainant was in a relationship.  The door to the complainant’s bedroom was shut and the appellant went to his own bedroom.

[38]     Later,  in  the  early  hours  of  the  morning,  he  went  to  her  bedroom  and undressed.  There was no suggestion he was invited into her bedroom and, it was plainly open for the jury to infer that the appellant was motivated by thoughts of sexual contact when he got into her bed in these circumstances.   On his account, when the two were stirring in the morning, he began stroking her stomach down to the top of her underwear.  It was not suggested to the complainant that she consented to the activity and the appellant told the Court he was not suggesting she did consent. He did not make any direct assertion that he believed she was consenting, although some of his evidence might be open to the inference that he may have believed she was consenting up to the point when she pushed his hand away.  But it was also open for the jury to infer on the evidence that as the complainant became more fully awake and realised what was happening, she put a stop to the appellant’s activities.

[39]     There may be circumstances in which actions which are prima facie indecent may not be so regarded where there is an innocent explanation.  Here, there was no such explanation and it is difficult to conceive how there could have been in the circumstances.   We conclude that this ground of appeal must fail.   We are also satisfied there was evidence upon which the jury could reasonably have inferred that the appellant did not honestly believe the complainant was consenting to the activity.

Appeal against sentence

Submissions

[40]     Mr  Bonnar  submitted  that  the  Judge  erred  in  declining  to  discharge  the appellant without conviction under s 106 Sentencing Act 2002.   He informed the Court that after the conviction was entered, he was forced to leave the police force and obtain alternative employment.  In terms of s 107 Sentencing Act, Mr Bonnar submitted that the direct and indirect consequences of the conviction were out of all proportion to the gravity of the offence.  He pointed to the appellant’s previous good record (he had no previous convictions) and to the character references produced and character evidence led at trial.

[41]     Mr Bonnar submitted that the offending was near the lowest end of conduct which could be said to constitute indecent assault, noting the conduct took place for no more than 10-15 seconds and did not involve touching an inherently private part of the complainant’s body.  He submitted that the appellant had been the subject of substantial adverse publicity by virtue of his position as a police officer at the time.

The sentencing remarks

[42]     In sentencing the appellant, Judge Harding referred to the “very significant” effects upon the victim who had been receiving counselling for stress and whose relationship with her partner had been adversely affected.  The Judge noted that the victim had described the effects on her as involving an overwhelming violation of trust.  However, he accepted Mr Bonnar’s submission that he had to put to one side

the victim’s statement that she believed she had been the subject of a more serious crime than indecent assault.

[43]     The Judge discussed the probation report which described the appellant as being a heavy drinker at the time of the offence but considered him to have only a low risk of reoffending.   As to his motivation and readiness to change, the Judge found it disturbing that the appellant continued to maintain his innocence.

[44]     The Judge considered the aggravating circumstances to be that the appellant had made an uninvited entry into the bedroom of another guest behind a closed door and had then taken off his clothes and got into bed with her.  He also regarded the victim as being in a particularly vulnerable state given her state of intoxication.  He noted that the touching had been “skin to skin”.  Although he regarded the Crown’s submission that the appellant’s conduct was predatory as something of an overstatement, he considered the circumstances which preceded the actual offending as being entirely of the appellant’s making.   The Judge considered there was no genuine remorse.  The mitigating factors were the appellant’s history and previous good character.

[45]     The Judge then stated his conclusions:

[27]  This is clearly not offending at the highest end of the scale, which can constitute indecent assault  but in the overall circumstances, neither is at the bottom end.   I expressly take into account the  high  likelihood that  any conviction would be likely to result in your removal from the Police and the likelihood that it would prevent the prospect of some other occupations such as teaching.

[28]  The question is whether in the circumstances of this offending, those probable consequences would be out of all proportion to the seriousness of the offending, or to use the proper statutory terms and it is the statutory term by which I must be guided, would it be out of all proportion to the gravity of the offence.

[29]  That there might be employment consequences for a conviction of this kind is not unique to you or to a number of others.

Conclusion & Result

[30]  I am unable in all of the circumstances to conclude that a conviction would result in consequences which would be out of all proportion to the gravity of the offence.   I expressly observe that your occupation is not an aggravating feature as Mr Bonnar submits, but your occupation does put you

in a position akin to somebody with a position of trust as regards children with this sort of offending.  There is no higher legal obligation than anybody else, but there is a flavouring of trust which is expected and which was breached in this case.

[31]  In the circumstances, I conclude that the proper sentence to impose is a brief sentence of community work.  I do not regard a fine as adequate in all of the circumstances.   You are convicted and sentenced to 100 hours community work.

[46]     Mr Bonnar submitted that the Judge was unduly influenced by the fact that the appellant was a serving police officer and submitted there was no breach of trust in the way that commonly occurs when an adult is charged with sexual violation or indecencies towards a child.

Conclusions on sentence appeal

[47]     We are unable to detect any error of law or principle which would justify interference with the discretion exercised by the sentencing Judge.   He carefully weighed all the relevant factors and concluded he could not properly exercise his discretion to discharge without conviction.  We agree that the offence was very much at the lower of the scale but that was reflected in the sentence of 100 hours community work.  We also agree that any breach of trust could not be equated to the breach of trust involved in a case where a child is sexually abused.  The Judge was alive to these issues and, did not, we think, give inappropriate weight to the appellant’s position as a police officer when considering the breach of trust question.

[48]     There is always the potential for adverse publicity in criminal cases and we see nothing to take this matter out of the usual run of cases of this kind.   It is of course unfortunate that the appellant lost his employment as a police officer but he did so as a consequence of his own actions.  The Judge was entitled to give weight to the fact that the appellant had taken advantage of the complainant while she was in an intoxicated state and the effects which the incident had on the complainant.

Result

[49]     The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington.