R v Bruce
[2021] NZHC 626
•3 December 2020
NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2019-088-1656
[2021] NZHC 626
THE QUEEN v
MYLES ANTHONY BRUCE
Hearing: 2 December 2020 Counsel:
M B Smith and S T Patia for Crown
W D McKean and S L Plaisted for Defendant
Judgment:
3 December 2020
Reasons:
26 March 2021
JUDGMENT OF BREWER J
This judgment was delivered by me on 26 March 2021 at 11:00 am
Registrar/Deputy Registrar
Solicitors:
MWIS Lawyers (Whangarei) for Crown WRMK Lawyers (Whangarei) for Defendant
R v BRUCE [2021] NZHC 626 [3 December 2020]
Introduction
[1] On 3 December 2020, I delivered a results judgment1 on applications for discharge under s 147 of the Criminal Procedure Act 2011 made by Mr Bruce at the close of the Crown case.
[2] Mr Bruce stood trial on 44 charges of sexual and physical violence relating to five adult complainants. The charges related to the period December 2000 to January 2015. During this period Mr Bruce entered into domestic relationships with the five complainants. He was 17 years old at the beginning of the period. He applied to be discharged on charges 1, 17, 18, 21, 23, 26, 30, 32, 34, 40 and 42. I dismissed Mr Bruce’s applications in respect of charges 23, 30, 32, 34 and 40. I granted his applications in respect of charges 1, 21 and 42. I dismissed his applications in respect of charges 17, 18 and 26 but amended them from charges of injuring with intent to injure to charges of male assaults female.
[3] I now give reasons for my decisions. I address the charges in the three groups above: the dismissed applications, the granted applications, and the charges which I amended.
Dismissed applications
[4] The complainants BW, HS, SR, and EH all gave accounts of particular occasions on which they alleged sexual contact took place without their consent. Those occasions were made the subjects of specific charges. Each complainant also gave general evidence of the course of their relationship with Mr Bruce and alleged that on many occasions there was sexual contact to which they did not consent. These allegations were the subject of representative charges.
[5] A representative charge is brought where a complainant alleges that a criminal act occurred more than once but the complainant cannot differentiate them. To sustain a representative charge, there must be sufficient evidence to go to the jury that the charged act occurred on at least one occasion.
1 R v Bruce [2020] NZHC 3185.
[6] Mr Bruce applied for discharge on charges 23, 30, 32, 34 and 40. All were charges of sexual violation in some form and all were representative charges.
[7] On the representative charges, Mr McKean’s submission was there was insufficient evidence that the complainants did not consent to the sexual contact charged and there was insufficient evidence that Mr Bruce did not believe on reasonable grounds that there was consent.
[8] The basis for Mr McKean’s submission was that none of the complainants, in their evidence going to the representative charges, alleged that Mr Bruce used violence, or threats of violence, to obtain the sexual contact he wanted. Mr McKean’s submission was that the complainants’ evidence went no further than the giving of consent, albeit reluctantly or grudgingly. Mr McKean submitted further that even if on occasion a complainant did not consent, the evidence could not establish that Mr Bruce did not honestly believe on reasonable grounds that there was consent.
[9] As I have said, I declined to discharge Mr Bruce on these representative charges. Before I address the charges individually, I will set out the law I applied to my analyses.
The law of consent
[10]Section 128 of the Crimes Act 1961 defines sexual violation:
(1)Sexual violation is the act of a person who—
(a)rapes another person; or
(b)has unlawful sexual connection with another person.
(2)Person A rapes person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis,—
(a)without person B’s consent to the connection; and
(b)without believing on reasonable grounds that person B consents to the connection.
[11] Section 128A prescribes that allowing sexual activity does not amount to consent in some circumstances:
(1)A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.
(2)A person does not consent to sexual activity if he or she allows the activity because of—
(a)force applied to him or her or some other person; or
(b)the threat (express or implied) of the application of force to him or her or some other person; or
(c)the fear of the application of force to him or her or some other person.
(3)A person does not consent to sexual activity if the activity occurs while he or she is asleep or unconscious.
(4)A person does not consent to sexual activity if the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5)A person does not consent to sexual activity if the activity occurs while he or she is affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(6)One person does not consent to sexual activity with another person if he or she allows the sexual activity because he or she is mistaken about who the other person is.
(7)A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.
(8)This section does not limit the circumstances in which a person does not consent to sexual activity
(9)For the purposes of this section,—
allows includes acquiesces in, submits to, participates in, and undertakes sexual activity, in relation to a person, means—
(a)sexual connection with the person; or
(b)the doing on the person of an indecent act that, without the person’s consent, would be an indecent assault of the person.
[12] Consent is not defined. But the starting point is that consent must be freely and voluntarily given by a person who is in a position to give it. The question is whether the victim consented at the time of the sexual offending. Traditionally, vitiation of consent required the operation of the considerations now expressed in s 128A(2) – force, threats of force or fear. But, as s 128A(8) makes clear, the circumstances listed in ss (2)-(7) are not exhaustive.
[13] One of the most cited decisions in this area is Holman v R.2 That is where the language, of “grudging consent”, was seemingly first used. In that decision, Jackson CJ said:3
It is clear that in the first passage cited his Honour when using the phrase ‘willing consent’ is seeking to distinguish between a consent which is obtained by threats or by fear and one which is not so obtained. But the adjective ‘willing’ is apt to convey a very different meaning. The Concise Oxford Dictionary defines it as ‘not reluctant, cheerfully ready’, terms which when applied to ‘consent’ in relation to rape could be positively misleading. The further use of the phrases ‘complete willingness’ and ‘a completely willing consent’ emphasizes, in my view, a concept which is not in any way justified by the statutory definition, which is simply intercourse ‘without her consent’. A woman’s consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits it (providing her permission is not obtained by force, threats, fear or fraud) it is not rape.
(emphasis added)
[14]That decision was referred to in the New Zealand Court of Appeal decision,
R v Cook:4
It matters not that the consent is a reluctant or even an unwilling consent or one produced by persuasion or some fraudulent means or even by threats other than threats of bodily harm… a woman’s consent to intercourse may be ‘hesitant, reluctant, grudging, or tearful, but if she consciously permits it (providing her permission is not obtained by force threats fear or fraud) it is not rape’. All this is reasonably plain from the terms of the statute and any wider view would enlarge the scope of the crime far beyond its previously recognised boundaries and would require a much clearer demonstration of such an intention by Parliament.
[15]Holman has been criticised, however. For example, in Ibbs v R, Burt CJ said:5
[If] not positively wrong, it would be highly dangerous for a jury now to be told that for the purpose of the new offence of sexual penetration without consent: ‘A woman’s consent to intercourse may be hesitant, reluctant, grudging or tearful, but if she consciously permits [emphasis mine] it, providing her permission is not obtained by force, threats, fear or fraud, it is not’ sexual penetration without consent.
[16] Burt CJ went on to say that the requirement that consent is “freely and voluntarily given” is at odds with the Court’s statement in Holman, as it would be a
2 Holman v R [1970] WAR 2 (CCA).
3 Holman v R [1970] WAR 2 (CCA) at 6.
4 R v Cook CA195/85, 19 June 1986.
5 Ibbs v R [1988] WAR 91 (CCA) at 93.
serious misdirection to say that consent is of that quality notwithstanding the fact it was “hesitant, reluctant, grudging, or tearful”. Consciously permitting something to happen is not the same as freely and voluntarily consenting to something happening.
[17] In Wagenaar, Kennedy, Pidgeon and Ipp JJ drew a distinction between submission and consent.6 There, the complainant felt intimidated by the defendant. The defendant was her uncle, and the complainant was 15 years old at the time of the offending. There were multiple incidences of sexual offending. Counsel for defence had submitted “mere submission” was not equivalent to an absence of consent, relying on Holman for the point that submission might or might not be consensual, and that the Judge’s jury directions were wrong.
[18] The Court dismissed the appeal. The Judges emphasised that there is a difference between consent and submission. For instance, the Court said:
[16] In the passages to which I have referred the learned Judge explained, as he put it, the “difference between consent and submission”, and stressed that that difference was “very important in this case”. His Honour said that consent had to be given its ordinary meaning, and contrasted consent with submission. He said that submission did not involve consent. After explaining that “submission may be entirely consistent with non-consent”, the learned Judge emphasised that “if she does consent to intercourse it cannot be rape” unless the consent was obtained by intimidation. His Honour pointed out that the complainant said that she was indeed intimidated by the appellant and this was the issue the jury had to face. Was the submission in consequence of intimidation or was there “real consent”? In my view the directions were perfectly clear and the jury could not have been misled.
[19] A similar issue arose more recently in Mol v R, where a Judge’s direction that consent can be reluctant, begrudging or teary, made in reliance on Holman, was appealed. It was accepted by counsel and the Court that this direction was incorrect in law.7 It is at odds with the applicable statutory definition of consent. That definition provides that consent requires a person to freely and voluntarily agree to the intercourse.
6 Wagenaar v R [2000] WASCA 325.
7 Mol v R [2017] NSWCCA 76 at [73].
[20] Halsbury’s Laws of Australia notes that in light of decisions such as Ibbs, “it is no longer correct to direct a jury that consent may be given hesitantly, grudging, or tearfully”.8
[21] Similar issues have been considered in New Zealand, albeit more often using the language of “reluctant consent”, rather than “grudging” consent.
[22] In New Zealand, the reluctant or regretted consent direction is usually traced to the Court of Appeal’s decision in Herbert v R,9 where the Court said:
In summing-up to the jury on the issues of consent the trial Judge correctly directed that consent meant a true consent, but a true consent may be given reluctantly or hesitantly and might be regretted afterwards, but if consent is given even in such a manner, provided it is without fear of the application of force or the result of actual or threatened force, then the act of sexual connection would not be rape. He referred to s 128A(2). He directed that the Crown must prove not only that the act was without the complainant’s consent but also that the accused did not believe on reasonable grounds that she consented, there being no burden of proof on the accused to prove that he did believe. He expatiated upon the concept of consent, stating that it must be a full, voluntary, free and informed consent …
[23] This was, however, clarified in the Court of Appeal judgment Henry v R, where the Court said that:
Consent is not defined. We make this point because the need for a reluctant or regretted consent direction may be thought to arise from the affirmative way in which consent was explained in Herbert. We emphasise too that the direction of which the Court approved was to the effect that reluctant consent is still consent provided it is full, voluntary, free and informed.10
[24] Henry was briefly mentioned in Crump v R, a 2020 Court of Appeal decision.11 However, reluctant consent was not a major issue for the Court and there was no discussion of the concept.
[25] An English case, R v Olugboja,12 which some commentators read as going beyond and distinguishing Holman, is helpful. In that case, a 16-year-old complainant,
8 Halsbury’s Laws of Australia (1995, online ed) vol 9 Criminal Law at [130-2015].
9 Herbert v R CA81/98, 12 August 1998.
10 Henry v R [2019] NZCA 266.
11 Crump v R [2020] NZCA 287.
12 R v Olugboja [1982] QB 320 (EWCA).
after she saw her friend get dragged into a bedroom by a co-accused, was pushed onto a sofa where a second defendant had intercourse with her. She did not struggle or resist and did not cry out for help. She took her trousers off after she was told to do so by the defendant. The defendant said that her taking off her own trousers was an invitation to sex, and that because she did not verbally or physically reject him, he believed she was consenting.
[26] The trial Judge had directed the jury by making “constraint” a ground for vitiating consent: “You will … decide whether or not there were any constraints operating on her will, so that you are satisfied that in taking her trousers down and letting him have sexual intercourse with her, she was not, in fact, consenting to it”.
[27]The English Court of Appeal held that:
Accordingly, in so far as the actus reus is concerned, the question now is simply: at the time of the sexual intercourse did the woman consent to it? It is not necessary for the prosecution to prove that what might otherwise appear to have been consent was in reality merely submission induced by force, fear or fraud, although one or more of these factors will no doubt be present in the majority of cases of rape.
…
Although ‘consent’ is an equally common word, it covers a wide range of states of mind in the context of intercourse between a man and a woman, ranging from actual desire on the one hand to reluctant acquiescence on the other. We do not think that the issue of consent should be left to a jury without some further direction. What this should be will depend on the circumstances of each case. The jury will have been reminded of the burden and standard of proof required to establish each ingredient, including lack of consent, of the offence. They should be directed that consent, or the absence of it, is to be given its ordinary meaning and if need be, by way of example, that there is a difference between consent and submission; every consent involves a submission, but it by no means follows that a mere submission involves consent: see R v Day (1841) 9 C&P 722 at 724, 173 ER 1026 at 1027 per Coleridge J. In the majority of cases, where the allegation is that the intercourse was had by force or the fear of force, such a direction coupled with specific references to and comments on the evidence relevant to the absence of real consent will clearly suffice. In the less common type of case where intercourse takes place after threats not involving violence or the fear of it, as in the examples given by counsel for the appellant, to which we have referred earlier in this judgment, we think that an appropriate direction to a jury will have to be fuller. They should be directed to concentrate on the state of mind of the victim immediately before the act of sexual intercourse, having regard to all the relevant circumstances, and in particular the events leading up to the act, and her reaction to them showing their impact on her mind. Apparent acquiescence after
penetration does not necessarily involve consent, which must have occurred before the act takes place. In addition to the general direction about consent which we have outlined, the jury will probably be helped in such cases by being reminded that in this context consent does comprehend the wide spectrum of states of mind to which we earlier referred, and that the dividing line in such circumstances between real consent on the one hand and mere submission on the other may not be easy to draw. Where it is to be drawn in a given case is for the jury to decide, applying their combined good sense, experience and knowledge of human nature and modern behaviour to all the relevant facts of that case.
(emphasis added)
Analysis
[28] In my view, Olugboja is consistent with the legislative framework which describes the law of consent in New Zealand. The common law to the effect that consent to sexual activity is vitiated where force, threats of force, or fear of force exist is only a part of the law of New Zealand as it is expressed in s 128A.
[29] For example, the section provides that an inability to give a consent cannot found a consent.13 Likewise, mistake as to the identity of the other person, or to the nature and quality of sexual activity, cannot found consent.14
[30] Subsection (8) makes it explicit that the circumstances the section describes as not amounting to consent do not limit the circumstances in which a person does not consent to sexual activity.
[31] The law requires that a valid consent to sexual activity is one which is a free and voluntary consent. Of course, what is free and voluntary can be a nuanced concept and highly circumstance dependent. That is why this can be such a difficult area on which to instruct a jury.15
[32] But, there is a difference between consent that is free and voluntary and submission to an act which the complainant does not want, but regards as unavoidable. Submission is not consent. A complainant who submits to, or acquiesces in, sexual
13 For example, s 128A(3) – asleep or unconscious; s 128A(3) – unable to consent because of drugs or alcohol.
14 Sections 128A(6) and (7).
15 For example, Brewer v R [1994] 2 NZLR 229 (HC).
activity because they feel powerless, trapped or exhausted does not give a free and voluntary consent to that sexual activity. To hold otherwise is to put an onus on a complainant to resist improper pressure past the point where they can no longer resist and the sexual activity which follows does so because the complainant’s will has been overborne.
[33] Charges 23, 30, 32, 34 and 40 rely on evidence that Mr Bruce’s conduct over the course of the relevant relationship was such that on multiple occasions, rather than giving free and voluntary consent, the complainants submitted to Mr Bruce’s sexual demands because by his conduct he overbore their will to refuse. I considered the evidence in relation to each charge to decide whether, taken at its highest, I could be satisfied that, as a matter of law, the jury, properly directed, could not reasonably convict.
The individual charges
Charge 23
[34] This charge related to HS. It was a representative charge of sexual violation by unlawful sexual connection (penis in mouth). The period covered by the charge was 1 April 2010 – 1 October 2012.
[35] HS gave evidence of her domestic relationship with Mr Bruce. They had two children together.
[36] HS’s evidence was to the effect that there was repeated non-consensual oral sex during the course of her relationship with Mr Bruce. Her evidence was that Mr Bruce required sex on a daily basis.
[37] In her evidential video interview, HS gave a general account about the nature of her sexual relationship with Mr Bruce. The following passages are illustrative:
And then you’re dealing with – I had [F] who was 12 months old when [A] was born, and he was teething. And then [A], um, for the first four months of his life, had colic, so he was crying from about 4.30 in the afternoon ‘til 7 o’clock at night. And I had probably, in that instance I probably had two hours, two and a half hours of sleep a night, broken sleep, and a husband who just demanded sex. And I – you know, maybe I should’ve put up more of a
fight, but I just gave in because I just, I had two little boys to look after, I had
[T] to look after. It just wasn’t worth the fight.
So I gave in, so there’s no real instance of him physically forcing, but there’s, it was just he drained me of every inch of energy I had, mentally and emotionally, that it was just easier to give in. And – but then, you know, like, he just wasn’t satisfied with sex. It became like, well, then he had to have a blowjob in the middle of the day or something, you know, and then if I didn’t do that he, he would embarrass me in front of his friends. Like, he, he was fixing Xboxes in my garage when we were living in Rosier Road together. His friends would come over or his customers would come over, and he would make fun of me in front of them, you know, saying his wife wasn’t pleasing him, sexually. And just that humili-, that, it was part of the punishment, that humiliation of, um, embarrassing me in front of other people as a way of getting what he wanted. And it was always like, “If you please me, if you look after me, I’ll look after you”, and I used to say, “Well why don’t you look after me first, and then you’ll be looked after?” he says, “No, it doesn’t work like that”. You know, he was the man, I was the woman, I had a duty to provide him with what he needed, and therefore I would be rewarded. And it, it was unattainable, I couldn’t…
[38] I concluded that if the jury accepted HS’s description of the course of her sexual relationship with Mr Bruce, it was open for it to conclude that on at least one occasion he deliberately put his penis in HS’s mouth when HS did not consent to that connection and Mr Bruce did not believe on reasonable grounds that HS was consenting.
Charge 30
[39] This charge relates to SR. It was a representative charge of sexual violation by unlawful sexual connection (penis in anus). The period covered by the charge was 5 November 2013 – 24 February 2014.
[40] SR’s evidence was that on occasions which she could not individually identify there were acts of non-consensual anal sex.
[41] In the overall context of SR’s evidence, I was satisfied that the jury could conclude that on at least one occasion Mr Bruce deliberately put his penis into SR’s anus when SR did not consent to that act and at the time Mr Bruce did not believe on reasonable grounds SR was consenting.
[42]The jury found Mr Bruce not guilty on this charge.
Charge 32
[43] This charge also related to SR. It was a representative charge of sexual violation by rape. The period covered by the charge was 5 November 2013 – 24 February 2014.
[44] In her evidence, SR described a pattern of behaviour where Mr Bruce would require sex and that on more than one occasion SR did not consent to the sex which Mr Bruce demanded.
[45] A relevant part of SR’s evidence occurred under cross-examination. It is illustrative of SR’s account of her relationship with Mr Bruce:
Q. And that sex was consensual?
A. Consensual under duress.
Q. So you mean – when you say “under duress”, you mean wasn’t – not ideal, don’t you?
A. Yes.
Q. Meaning you’d just had a big argument?
A. Meaning that if I felt I could honestly say: “I don’t want to engage in sex,” and he respected that, I would have, but that was not the case, hence under duress.
Q.Sorry, can you just say that? If – can you say that to me one more time?
A. Which part of that?
Q. Sorry.
A. I said “duress” meaning that had I been able to say I wasn’t willing to have sex with him, and him respect that, I wouldn’t have engaged in sex.
Q. Well, he never hit you, did he?
A. No.
Q. Never anything physical, no?
A. When I was asleep, he used to say that – because he’d punched and kicked me in his sleep and he said that was part of his sleep paralysis or some nonsense like that.
Q. Okay, so that’s something in his sleep, yeah?
A. Yeah, yes, but when he was awake, no, he didn’t physically touch me.
Q. So when you said –
A. (inaudible 16:29:23)
Q.When you said: “He wouldn’t respect that,” what you’re meaning is he would do something non-physical, right? Is that right?
A. That is correct, that is correct.
Q. And those non-physical things would be he would complain?
A.No, he – yes, he would complain, but also with that there would be – he would degrade me by suggesting that I’d be happy to spread my legs for anyone else, um, and there was also that looming threat that he wanted to kill me, which was very real for me, regardless of whether he put his hands on me or not.
Q.So that – those comments about “happy to spread your legs for anyone else”, that wasn’t part of his – the sense of humour that you guys had?
A. No. When Myles didn’t get sex, he was aggressive. There was no playful attitude.
Q. It must have been terrible.
A. Yes, it was.
[46] In the overall context of SR’s evidence, I was satisfied that the jury could conclude that on at least one occasion Mr Bruce deliberately put his penis into SR’s genitalia when SR did not consent to that act and at the time Mr Bruce did not believe on reasonable grounds SR was consenting.
Charge 34
[47] This charge also related to SR. It was a representative charge of sexual violation by unlawful sexual connection (her mouth to his penis).
[48] In the course of her evidence, SR made allegations of forced oral sex in the context of the overall sexual relationship she described she had with Mr Bruce. In that context, I was satisfied that the jury could conclude that on at least one occasion Mr Bruce deliberately put his penis into SR’s mouth when SR did not consent to that act and at the time Mr Bruce did not believe on reasonable grounds SR was consenting.
Charge 40
[49] This charge relates to EH. It was a representative charge of sexual violation by unlawful sexual connection (penis in anus). The period covered by the charge was “on or about the 4th day of July 2014”.
[50] EH described a relationship where various sexual acts occurred frequently without her consent. The sexual acts included anal penetration by Mr Bruce’s penis. In my Results Judgment I said:
[24] I have considered para 1100 of the complainant’s evidential video interview and also passages which appear at pp 309, 318, 323, 324 and 325 of the notes of evidence. I am satisfied there is sufficient evidence to go to the jury and the application for discharge is dismissed.
[51] I was satisfied that in the overall context of EH’s evidence the jury could conclude that on at least one occasion Mr Bruce deliberately put his penis into EH’s anus when EH did not consent to that act and at the time Mr Bruce did not believe on reasonable grounds EH was consenting.
Granted applications
Charge 1
[52] The first complainant in time was LT. The first nine charges in the Charge List related to her. There was one charge of indecent assault and the others were charges of threatening to kill and various acts of violence.
[53] The relevant application for discharge concerned charge 1, a charge of threatening to kill.
[54] In deciding this application, and all the other applications, the test I applied was that in order to discharge Mr Bruce I had to be satisfied that, as a matter of law, the jury, properly directed, could not reasonably convict Mr Bruce.
[55] To sustain this charge the Crown needed sufficient evidence that Mr Bruce made a threat to kill LT and that he intended LT to take the threat seriously. The charge was not particularised. The date range was “between the 1st day of September 2000 and the 30th day of June 2001”. The place at which the alleged threat occurred was given as “Pukekohe”.
[56] LT did not give evidence of a threat to kill that could found this charge. Mr Smith could not refer me to any such evidence. LT was asked a general question
as to whether words of threat were made and gave a general answer that “further down the track, threats were coming out of his mouth every second day”.16 That answer could not prove the charge.
[57] There was insufficient evidence for the charge to be left to the jury and I discharged Mr Bruce accordingly.
Charge 21
[58] Charge 21 related to the complainant, HS. It was a charge of rape. The particular given was “camping”. In my results judgment I summarised the incident to which the charge was directed:
[9] Put briefly, there was a tramping expedition with camp being made for the night. Mr Bruce, according to the complainant, was sharing a tent with the complainant and wanted sex. The complainant initially said ‘no’ and Mr Bruce argued with her. The argument was audible to their companions in neighbouring tents and one of them called across and made a comment. According to the complainant, Mr Bruce took exception at the comment and she thought he would go and confront the friend. Accordingly, she changed her mind about having sex and did so in order to calm the situation down.
[59] For the charge to go to the jury there had to be sufficient evidence of the following elements:
(a)Mr Bruce intentionally put his penis into HS’s genitalia; and
(b)HS did not consent to Mr Bruce putting his penis into her genitalia; and
(c)At the time, Mr Bruce did not honestly believe on reasonable grounds HS was consenting.
[60] HS gave her evidence-in-chief by way of evidential video interview (EVI). HS said:17
So I kind of, um, to calm him down and to end the argument I just gave him what he wanted. And, I mean, most of the scenarios play out like that. Like, I would always give in, to stop him going on, um, about it. So, yeah, it was, it
16 Notes of evidence, p 35, line 11.
17 Evidential video interview, pp 2-3.
was the first of many, but it was quite – I was quite blown away that he wouldn’t take no for an answer. And, I mean, I, in the end I consented ‘cos I just was just – you know, it just sort of was over and done with.
[61]Mr McKean cross-examined HS about this incident:18
A.Myles was upset because he wanted sex and I said no. It was the first time that I’d seen him upset and I was kind of perplexed as to why he wouldn’t let it go and that’s when we started arguing, and then Loong made a comment, ‘cos he obviously heard what we were talking about but didn’t know the topic of conversation, and just sort of said something silly and snarky, and Myles got upset about it and that’s when – the first instance I saw of his aggression.
Q. Okay, so your evidence is Loong Chung heard the argument?
A. He heard – I don’t know what he heard, I can’t speak for him but he made a comment and it upset Myles.
…
Q. And so is it your evidence, so I – to stop Myles going and confronting his good friend, you had sex with him?
A.‘Cos that’s why he was upset, ‘cos I said no, so I just gave in so he would just chill out.
Q. You consensually gave sex to him, didn’t you?
A. In that moment, yes.
[62] An important theme of HS’s evidence (as it was for all the complainants save for LT) was that Mr Bruce required sex on a daily basis and would not take “no” for an answer. Instead, he would badger HS, abuse her, deprive her of sleep – sometimes for hours at a time – until she gave in to his demands.
[63] As I have said, for charge 23 I was satisfied this alleged course of conduct, as a matter of law, went sufficiently to the elements of lack of consent and lack of honest belief on reasonable grounds as to the presence of consent, that the jury, properly directed, could reasonably convict on the charge.
[64] However, the camping incident to which charge 21 relates occurred towards the beginning of HS’s relationship with Mr Bruce; before the course of conduct had developed. The law is that a grudging or reluctant consent is still a consent. There
18 Notes of evidence, pp 190-191.
was nothing in HS’s evidence to suggest that her consent to sexual intercourse on this occasion amounted to a submission to Mr Bruce because her will had been overborne by him leaving her feeling that she had no choice. Nor was there evidence upon which the jury could rely that Mr Bruce did not honestly believe on reasonable grounds that HS consented to sex.
[65] I was satisfied that, as a matter of law, the jury, properly directed, could not reasonably convict Mr Bruce on this charge. I discharged him accordingly.
Charge 42
[66] Charge 42 related to the complainant EH. It was a charge of threatening to kill. It was not particularised. The date range was “between the 24th day of December 2014 and the 20th day of July 2015”. The place at which the alleged threat occurred was given as “Whangarei”.
[67] To sustain this charge the Crown needed sufficient evidence that Mr Bruce made a threat to kill EH and that he intended EH to take the threat seriously.
[68] EH did not give evidence of a threat to kill that could found this charge. The only evidence which might relate to it is in EH’s EVI at marker 2085:
AS Yeah. Have there been any other threats in your, while you were in a relationship with him? Did he ever threaten you, threaten to kill you if you left or um …
EH He told me that he knew how to get rid of a body if he ever needed to take someone out. He told me that he would just get a drum of acid and put that person in there. And it wasn’t necessarily in a threatening manner, but it was so I knew what he was capable of kind of thing.
[69] EH was not asked any follow-up questions. It does not appear from the above passage that EH considered Mr Bruce was indirectly threatening to kill her. Nor is there evidence of circumstances surrounding the reported discussion that could prove that Mr Bruce was intending to threaten EH and intended her to take the threat seriously.
[70] There was insufficient evidence for the charge to be left to the jury and I discharged Mr Bruce accordingly.
Amended charges
Charge 17
[71] Charge 17 related to the complainant BW (named in the Charge List at the time as BG). It was a charge of injuring with intent to injure. It was particularised as “pillow incident”.
[72] The charge related to an incident described by BW in her EVI.19 The interviewer prompted BW that she had said previously there were “two times where there was suffocation/strangulation impeding breathing at times. So just think about one of those times now, think about the address that that happened at”.
[73]In the course of her quite lengthy reply, BW said:
So, um, so, anyway, so I, yeah – in particular e-, probably even more so I remember the time with the pillow over my face and him, him on me, his whole force of his body on me, holding that pillow down, telling me he was gonna kill me, and to the point where I thought I was gonna die. I seriously wasn’t expecting him to stop.
I couldn’t breathe, it was prolonged, um, and, yeah, it was definitely to the point of, of losing consciousness.
[74] To found the charge of injuring with intent to injure, the Crown had to have sufficient evidence that:
(a)Mr Bruce, in the course of this incident, injured BW; and
(b)Mr Bruce intended to injure BW when he put the pillow over her face.
[75] The problem for the Crown was that BW did not give any evidence that she was injured. “Injury” means some form of bodily harm that is more than trifling or transitory. But BW was not asked about whether she suffered injury. She described
19 Evidential video interview, at p 61.
that she felt her limbs getting heavy and that when Mr Bruce stopped she was gasping for air, but that is all.
[76] Mr McKean, in his cross-examination of BW, restricted his questions on this charge to whether BW received any injuries:20
Q.I just want to confirm with you that you didn’t receive any injuries, is that right?
A. Yeah, that’s right.
[77] Mr Smith did not contest that the required element of injury could not be proved in relation to this charge. He applied to amend the charge to one of male assaults female.
[78] When the Crown makes an application to amend a charge at the end of the Crown case, the principal inquiry is whether the defendant would be illegitimately prejudiced by the making of the amendment. Mr McKean could not identify any such prejudice, and I was satisfied there was none.
[79] In the context of the cross-examination, the defence to the charge was that what happened was a consensual part of a sexual encounter.
[80] In the absence of evidence of injury, and in the absence of illegitimate prejudice to Mr Bruce, I granted Mr Smith’s application and amended the charge to one of male assaults female.
Charge 18
[81] Charge 18 was also a charge of injuring with intent to injure. It was particularised “incident where he smothered her mouth”.
[82]The evidence for this incident was in BW’s EVI as follows:21
And, yeah, so he held me up against the wall physically with one arm and then h-, held his, you know, like this over my mouth, but closing my nose, and then hand over the mouth and up against the wall and, you know, just, yeah, that
20 Notes of evidence, at p 166.
21 Evidential video interview, at p 66.
was another time too. Again, prolonged, you know, suffocation and, you know, being abused while it’s happening, but like, um, it’s just reminded me of another thing.
[83] BW was not asked about whether she suffered any injury from this incident and gave no evidence of injury. Mr Smith accepted that this element could not be proved and he applied for the charge to be amended to one of male assaults female.
[84] As with charge 17, Mr McKean could not identify any illegitimate prejudice. The defence case was that this incident did not happen.
[85] I granted Mr Smith’s application and amended the charge to one of male assaults female.
Charge 26
[86] Charge 26 related to the complainant HS. It was a charge of injuring with intent to injure. There were no particulars. The date range was “between the 1st day of July 2011 and the 30th day of September 2011”. The place of the offending was given as “Auckland”.
[87] As Mr Smith accepted, there was no evidence by HS of an occasion where she was injured by Mr Bruce. HS did give general evidence of physical assaults. Accordingly, Mr Smith applied to amend the charge to one of male assaults female.
[88] Mr McKean did not point to illegitimate prejudice. The defence case was that Mr Bruce never assaulted HS.
[89] I granted Mr Smith’s application and amended the charge to one of male assaults female.
The jury’s decisions
[90] The jury, following the discharges on charges 1, 21 and 42, had to consider 41 charges. The jury acquitted Mr Bruce on the following charges:
·Charge 3: male assaults female, namely LT.
·Charge 5: threatening to kill LT.
·Charge 7: injuring LT with intent to cause her grievous bodily harm.
·Charge 8: kidnapping LT.
·Charge 23: a representative charge of sexually violating HS by unlawful sexual connection (mouth on penis).
·Charge 26: male assaults female, namely HS.
·Charge 29: sexual violation of SR by unlawful sexual connection (penis in anus).
·Charge 30: a representative charge of sexually violating SR by unlawful sexual connection (penis in anus).
[91]Mr Bruce was convicted on the remaining 33 charges.
Brewer J
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