R v Can

[2007] NZCA 291

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA492/05 [2007] NZCA 291

THE QUEEN

v

MUSTAFA CAN

Hearing:         19 April 2007

Court:            William Young P, Potter and Fogarty JJ

Counsel:         C R Carruthers QC and D A Ewen for Appellant

P K Feltham for Crown

Judgment:      16 July 2007         at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by William Young P)

R V CAN CA CA492/05  16 July 2007

Introduction

[1]      Following trial in the Wellington District Court on charges alleging sexual offending against two complainants C and P, the appellant was found guilty of unlawfully  detaining  C  without  her  consent  and  with  intent  to  have  sexual intercourse with her (count one), sexual violation of C by digital penetration of her genitalia (count two), raping C (count three), raping P (count seven) and indecently assaulting P (count eight).  He was discharged during trial by the Judge on counts of detention  with  intent  to  have  sexual  intercourse  and  sexual  violation  involving digital/genital connection in relation to P and found not guilty by the jury on a further count of sexual violation (digital/anal connection) in relation to C.

[2]      He now appeals against his conviction.  We propose to discuss the arguments advanced on his behalf under three headings:

(a)            Was the evidence of the two complainants properly left to the jury as potentially mutually supporting?

(b)             Did the approach taken by the Crown and the Judge in relation to

P’s intellectual impairment result in a miscarriage of justice?

(c)            Did the Judge misdirect the jury in relation to the sexual violation counts as to what constituted reasonable grounds for belief in consent?

Before we do so it is necessary to discuss briefly the factual background.

Factual background

[3]      The events giving rise to the charges which the appellant faced occurred in August 2004.  The appellant was then 37 years old and he managed a kebab shop in Cuba Street.  He is of Turkish descent and does not have a full command of English.

[4]      On 2 August 2004, C (then 16 years of age) walked past the appellant’s kebab shop.   He invited her in to the shop, on her evidence, under the guise of wanting to give her Turkish delight.  The Crown case was that he sexually assaulted her in  the  kitchen  of  the  shop  and  then,  after  a  brief  interruption  caused  by a co-worker coming into the room, the appellant took her into a lavatory, closed and locked the door, digitally penetrated her genitalia, raped her and inserted a finger into her anus.

[5]      The appellant was interviewed by a detective on 17 August 2004.   He acknowledged that there had been sexual interaction with C involving digital penetration of her genitalia and sexual intercourse although he was not sure if he had placed his finger in C’s anus.  He maintained that all sexual activity was consensual. He was arrested and charged with abduction and sexual violation and subsequently released on bail.

[6]      P is a middle-aged woman with significant intellectual disabilities.  At about

4pm on Monday, 30 August 2004 she was in a bar in Cuba Street watching people play on the gambling machines.   She was waiting to catch a bus home.   On the Crown case, the appellant approached her and asked her to come with him.   She followed the appellant out of the bar and across the road.   They went to a public lavatory in Frank Kitts Park where the appellant touched her breasts and then raped her.  Her evidence at trial about the detail of what happened was less specific than what she had told the police and appeared in her deposition statement.

[7]      When interviewed about P’s allegations, the appellant again admitted sexual activity.  He said that P had told him that she did not feel like having sex but that if he wanted to he could go ahead anyway.

[8]      On medical examination, both complainants had genital injuries.

Was the evidence of the two complainants properly left to the jury as potentially mutually supporting?

[9]      Before the trial, counsel for the appellant sought separate trials in relation to each complainant.   This was refused on the basis that the evidence of each complainant was admissible on a similar fact basis in relation to the allegations made by the other complainant.

[10]     The similarities identified at that time were:

(a)      Chance meetings in or about Cuba Street. (b)   The two incidents being four weeks apart.

(c)      Each happening in the late afternoon or early evening. (d)     The complainants being taken into lavatory cubicles. (e)    The appellant locking the door on each occasion.

(f)       His attempts to kiss the complainants being met with resistance.

(g)      Sexual intercourse occurring with him standing up and not taking off any clothes.

(h)      Digital penetration.

(i)The use of force which in each case left the complainants with genital injuries.

[11]     There was no appeal against the ruling and at trial the Judge gave orthodox similar fact directions.

[12]     When  P  gave  her  evidence  at  trial,  she  departed  from  her  deposition statement in a number of respects: her willingness to go with the appellant;   her

participation in kissing; whether the appellant had locked the lavatory door (and indeed whether it was shut); whether he took his pants down before having sex; and whether there was digital penetration.

[13]     Given the shifts in the evidence in relation to P we think it most convenient to address the appellant’s arguments by reference to the evidence as it emerged at trial.

[14]     Obviously there were differences between what  the  complainants  alleged and, as well, the evidence about P’s intellectual disability was a very significant factor in the counts relating to her.  Further, a simple list of similarities (ie as in [10] above) is of no assistance unless the similarities are relevant to issues in the case.  It is trite, however, that similarities may be more significant than dissimilarities in this context.  What is required is a careful analysis of why the similar fact evidence is (or is not) relevant.

[15]     Similarities which have no link to an issue in the case (eg in this case the fact that both incidents occurred on a Monday) must obviously be discarded.   So too must be elements of the appellant’s behaviour which are common place with any sexual activity,  for instance kissing.    But  once  similarities  which  are  obviously irrelevant are put aside, there will remain scope for debate and perhaps disagreement as to those which may be relevant.

[16]     For ourselves, the similarities which we think are primarily material are:

(a)      Highly   opportunistic   sexual   activity   occurring   in   central   city locations.

(b)      In each case the other party was vulnerable, C because of her age and

P because of her intellectual disability.

(c)      The confining nature of the lavatory cubicles, a consideration which is still of some relevance even if the door was not shut or locked in the case of P.

(d)The nature of what occurred, in lavatory cubicles, with the appellant standing up.

(e)      The injuries which each complainant suffered to her genitalia.

(f)       The short time period (four weeks) which elapsed between the two incidents.

[17]     We do not see the dissimilarity between the complainants as particularly material.   Indeed, in a sense that dissimilarity might be thought to emphasise the other similarities, particularly the opportunistic nature of the offending in each case.

[18]     At trial, P’s account of what happened to her was somewhat flatter in terms of detail than what she had originally told the police. But overall when the evidence relating to her (including the appellant’s statement to the police and the injuries she suffered) is considered as a whole, there were strong indications of non-consensual sex.  C’s evidence was of obviously non-consensual sexual activity.  Most (although not all) similar fact arguments turn on ideas about coincidence.  On the Crown case, the appellant, using a very similar modus operandi, raped two women over a period of four weeks.   On the appellant’s case these allegations were false. In assessing whether that was or might be so in relation to each complainant, the jury was entitled to take into account the evidence relating to the other complainant; this to determine whether the case in truth involved a particular pattern of conduct on the part of the appellant or alternatively him being the victim of the coincidence of being subject to two false unrelated but similar rape complaints within such a short period.

Did the approach taken by the Crown and the Judge in relation to P’s intellectual impairment result in a miscarriage of justice?

Overview

[19]     P suffers from significant intellectual difficulties.  Mr Carruthers QC made a number of complaints about how this aspect of the case was developed by the Crown and how the Judge directed the jury about it.  These complaints in part overlap and it

is, in the end, their cumulative effect that is significant.   So in this section of the judgment we will highlight what we see as the primary elements of the complaints and then address the ultimate question whether there was a miscarriage of justice.

Admissibility of expert evidence as to P’s intellectual impairment

[20]     Evidence  to  this  effect  was  given  by  Ms  Shirley  Corkill,  who  is  a psychologist.  She had carried out a number of psychometric tests on P and provided a report as to the results.  According to this report, the purpose of the exercise was primarily to determine whether P would understand and adequately answer questions at trial rather than in relation to whether she had consented to the sexual activity which the appellant carried out.  At trial, however, much was made by the Crown of P’s intellectual impairment as it was plainly relevant to whether she consented to sexual activity with the appellant.  Further, given that her intellectual impairment is apparent to anyone dealing with her, it was also material to what the appellant might reasonably have believed as to consent.

[21]     Ms Corkill did not have all the qualifications required of an expert giving evidence under s 23G of the Evidence Act 1908 and one of the arguments initially advanced by Mr Carruthers was that her evidence was inadmissible.  We note that there was no challenge to the admissibility of her evidence at trial, but this is of course not fatal to an admissibility challenge on appeal.

[22]     The  Crown  response  to  this  argument  was  that  the  admissibility  of Ms Corkill’s evidence did not turn on s 23G.  Indeed, her evidence did not address the considerations which are identified in s 23G.   Rather, it was simply general expert evidence as to P’s intellectual disability given by a person with appropriate qualifications.

[23]     We accept the Crown argument.  Ms Corkill was not giving s 23G evidence and she was appropriately qualified to give the evidence which she gave.

A mistake made by Ms Corkill

[24]     Ms Corkill carried out psychometric tests which indicated the complainant’s verbal reasoning level was in the range ten years two months and eleven years nine months on the Stanford-Binet intelligence scale.   But, in her evidence, Ms Corkill said that:

Her knowledge of language and her reasoning ability with language is at the, I guess, an upper primary school level.   So we [have] got age equivalent skills, between eight years two months and eleven years nine months.

[25]     In the course of their deliberations, the jury returned with a question which was expressed in this way:

Is there any protection in law, applicable to intellectually impaired persons, relative  to incidents  of  this  nature, ie with  [an]  assessed  mental  age  of approximately eight years, is such a person capable of understanding and consenting or otherwise to a sexual activity?

Mr Carruthers argued that the question implied that the jury had concluded that P had “an  assessed mental age  of  approximately eight  years”  a  conclusion  which involved a misunderstanding of the overall effect of the evidence of Ms Corkill which may have been contributed to by the mistake made by Ms Corkill in her evidence.

[26]     We will revert to this issue later in this section of the judgment.

The Judge’s directions

[27]     In the course of argument, there was a related focus on the way in which the Judge directed the jury in relation to P’s intellectual disability and in particular references made by the Judge to whether P had the capacity to give consent:

[18]      In this case, the Crown have raised the issue as to whether or not the complainant, [P], was capable of giving consent, and because of her intellectual limitations, she did not understand the significance of what was to happen, and was not able to make an informed and rational decision about whether to consent or not.  It asks you to consider her evidence that she did not know what sex was, what her vagina was, and it asks you to consider in that regard how she presented in court, and also to bear in mind the evidence of Shirley Corkill and [X] on the topic.  It is for you to decide whether or not [P] was capable of understanding the significance of what was about to happen to her, and in a position to make an informed consent. Of course, [trial counsel for the appellant]  on the other hand, says that she

was capable of consenting, and in that regard you need to consider how she managed in the community, how she held down a job, how she could use public transport, play at the pokies, and the fact that she was more than capable, in his submission, of expressing a view about something if she did not like it.

…

[53]     In relation to [P], the Crown submits to you that it is important to consider the way in which she answered her questions, and that she was not willing to  give  an  answer to  something that  she  was  not certain  about. [Crown counsel] submits that she was really pretty much a girl’s mind in a woman’s body, that your first impressions of her were important, and he asks you to be honest with yourselves in relation to that.   He then went through and gave you a narrative of her evidence and, really, described her to you as a simple soul who had been used by the accused.  He submits to you there are serious issues as to whether or not she is, in fact, even capable of consenting and, when you look at the photographic evidence, and the circumstances, the two of them hardly look connected, let alone that they are going off for some consensual sexual experience together in the toilet.  He asks you to consider whether or not she even knows what sex is, but he submits to you that the accused knew what she was like and that he would have  known  that  she  was  not  in  a  position  to  be  giving  consent,  or consenting at all.

(Emphasis added)

[28]     When the Judge answered the jury’s question (see [25] above), she did so in this way:

[2]       In answer to the first part, “Is there any protection in law, applicable to intellectually impaired persons, relative to incidents of this nature?” The answer to that is: Yes, if they were regarded as being severely subnormal. However, I am telling you in this case that it is not being suggested that [P] was severely subnormal.

[3]       In relation to the second part of the question [ie with assessed mental age of approximately eight is such a person capable of understanding and consenting or otherwise to a sexual activity?], that actually is a question of fact for you to determine in this case, so you have to make the decision on the evidence before you whether or not [P] is capable of understanding and consenting or otherwise to a sexual activity, in terms of focussing on the issue on the charges before you.

(Emphasis added)

Was there a resulting miscarriage of justice

[29]     The key issues of consent turned on whether the Crown had proved beyond reasonable doubt that P did not consent to sexual activity with the appellant.  In

theory at least, the Crown could have established this fact by proving that P did not have capacity to consent to any sexual activity.  At one stage, the prosecutor seems to have suggested that this might be the case, see what was said in [53] of the summing up. Such a contention seems to us to be at best doubtful in the case of P and to involve issues (including human rights considerations) which might not be easy to explore fully in a criminal jury trial. In this context, any focus on the general question (whether P had capacity to consent to any sexual activity) carried the risk of distracting attention from the far more important particular question (whether the Crown had proved that she did not consent).

[30]     On the whole, however, we conclude that there was no relevant misdirection by the Judge.  What the Judge (and indeed the prosecutor) said can only fairly be construed in the context of a brief encounter with a man P had never met before and resulting sexual activity in a public lavatory. Given this, it was legitimate for the jury to address the issue whether P’s intellectual disability meant that she did not fully understand what was happening and its implications and in this sense did not have the capacity to give meaningful consent to the particular sexual activity which had occurred.  The suggestion that P might not have had capacity to consent to sex at all seems to have been a throw-away line and not to have been part of the Crown case. It was certainly treated that way in [53] of the summing up.

[31]     In terms of whether the mistake made by Ms Corkill was material, a little further context is required.

(a)      Ms Corkill did make a mistake, as Mr Carruthers said, in relation to where P was placed on the Stanford–Binet Intelligence Scale (measuring verbal reasoning ability), in that the true lower level was ten years two months and not the eight years two months which she mentioned in evidence.   On the other hand, her description of P’s level (“upper primary school level”) was correct.

(b)      On abstract visual reasoning skills, P worked at the level of a 10 year

5 months student.

(c)      On  short  term  memory  tests  involving  the  repeating  of  spoken sentences, P scored at the level of a child of four years six months. Ms Corkill attributed this low score to her language difficulties that meant that she struggled to replicate the sentences which had been spoken to her.

(d)On short term memory tests involving pictures, P scored at the level of a child of six years nine months.  This low score was a function of her difficulty with sequences.

(e)      On a reading test, P scored at the level of a child of seven years five months with comprehension at the level of a child of six years three months.

(f)      On a picture/vocabulary test P scored at the level of a child between five years two months and five years ten months.

(g)      Ms Corkill’s assessment was that P’s intellectual ability was greater than might be thought on the way she presented.

(h)      Ms Corkill stressed that P’s mind worked reasonably slowly. (i)        Ms Corkill placed her IQ in the range of 58–64.

[32]     In the context of this information as a whole, we do not accept that the mistake as to the lower level of a test measuring verbal reasoning skills (skills which were not directly relevant to the issues in the case) was sufficiently material to warrant the conclusion that there was a resulting miscarriage of justice. The jury had a mass of data as to P’s abilities in relation to a number of exercises which might be thought to bear generally on her intellectual ability. They also had the opportunity to see and hear her give evidence.

[33]      We do not read the jury’s question as indicating a conclusion that P had “an assessed mental age of approximately eight years”.  There was no evidence that P had “an assessed mental age of approximately eight years” and Ms Corkill made it

clear in her evidence that she had not set out to provide such an assessment.  So in the context of the case as a whole, it does not seem very likely that the jury had attributed a particular “assessed mental age” to P.  The most plausible interpretation of the question is that the jury was endeavouring to ensure that the answer they received to the first part of the question was explained by reference to the concrete example which they gave.

[34]     For those reasons we conclude that there was no miscarriage of justice.

Did the Judge misdirect the jury in relation to sexual violation counts as to what constituted reasonable grounds for belief of consent?

Overview

[35]     Sexual  violation  is  defined  by  s 128  of  the  Crimes  Act  1961.    Under s 128(2)(b) and (3)(b) sexual violation (whether involving rape or unlawful lawful connection) is only committed if the offender has the relevant sexual connection with the victim:

(a)      without [the victim’s] consent to the connection; and

(b)      without believing on reasonable grounds that [the victim]

consents to the connection.

The purpose of the amendment was to displace the approach adopted by the House of Lords in R v Morgan [1976] AC 182 under which an honest but unreasonable belief in consent was a defence to an allegation of rape.

[36]     When the Judge came to direct the jury on this aspect of the case, she said:

[20]      … So, the fourth element is the Crown has to prove the accused did not believe, on reasonable grounds, that the complainant consented.  It is not for the accused to show that he did have such a belief.  There are two ways in which the Crown can satisfy you on that subject;  either would do.  One would be to satisfy you that the accused did not, in fact, believe that she was consenting.   That is concerned with what the accused himself thought at the time.  If he himself did not believe that she was consenting, that would be enough from the Crown’s point of view.   The other way of satisfying the fourth element would be to satisfy you that no reasonable person, in the accused’s shoes, could have thought that she was consenting.   That is concerned with the belief of a reasonable person in the accused’s position.  If

no  reasonable person  would  have  thought  she  was consenting,  that,  too would be enough form the Crown’s point of view.  On the fourth element that I have just referred to, the onus is on the Crown to satisfy one or other of those requirements.    It must satisfy you beyond reasonable doubt.   If the Crown has failed to prove that the accused did not believe, on reasonable grounds, that she was consenting, the fourth element of sexual violation would not be satisfied.   In that case, you could find him not guilty.   The material time when consent and belief in consent is to be considered is at the time the act actually took place.  The complainant’s behaviour and attitude before or after the act may be relevant to that issue, but it is not decisive. That true point is, was there true consent or a reasonably based belief in consent at the time the act took place. … .

In directing the jury in this way, the Judge largely adopted the model direction which appears in R v Gutuama CA275/01 13 December 2001 at [39].  So the summing up on this point was entirely orthodox.

[37]     Mr Carruthers, however, maintains that the direction was nonetheless wrong as involving “an impermissible truncating” of the actual legislative test.   He maintained that s 128 requires analysis of what the accused actually thought, and whether the grounds giving rise to the accused’s belief were reasonable.   Mr Carruthers therefore challenged the approach taken in Gutuama and this led him to challenge, as well, the earlier judgment of this Court in R v Clarke [1992] 1 NZLR

147.

[38]     Mr Carruthers’ complaints raise two questions:

(a)      Have the New Zealand courts wrongly adopted a purely objective approach?

(b)      Is the Gutuama formulation consistent with the statutory language?

Have the New Zealand courts wrongly adopted a purely objective approach?

[39]     In developing his submission, Mr Carruthers to some extent relied on Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) which addressed the mens rea element in the offence of driving while disqualified, but in the context of a broader survey of the approach the courts should take to mens rea “where the text and the scheme of the statute provide no real help”, see the judgment of Cooke P and

Richardson J at 664.   In the course of this discussion Cooke P and Richardson J referred  to  the  then  newly  enacted  s 128  as  involving  “a  mixed  subjective  and objective mens rea formula”.

[40]     In Clarke counsel for the appellant argued that the Judge should have told the jury that the appellant’s intoxication was to be taken into account in determining whether  he  had  no  belief  on  reasonable  grounds  that  the  complainant  was consenting.  In rejecting that submission the Court observed at 149:

The adequacy of the grounds for a belief in consent must be judged objectively; this much is clear from the use of the word "reasonable". There is no warrant for reading it down to "reasonable in the circumstances as he believed them to be" or in some other way bringing in a subjective approach to justify the accused’s belief.

…

Accordingly there was no room for intoxication as a factor in determining whether reasonable grounds existed for the accused’s subjective belief that the girl was consenting. That being so, there was no requirement on the Judge to direct the jury about the effect of intoxication in regard to that aspect of the offence … .

[41]     Mr Carruthers’ complaint was that the New Zealand courts have in effect adopted a purely objective approach instead of a mixed subjective/objective test.

[42]     Contrary to the submission advanced by Mr Carruthers, we think that the Clarke / Gutuama approach does indeed involve a mixed subjective and objective test.  If the Crown can prove that the defendant did not have a subjective belief in consent, s 128(2)(b) or (3)(b) (as the case may be) is satisfied and the jury will return a verdict of guilty.  That is the subjective component of the test.  If, however, the Crown cannot exclude the possibility that the defendant had a genuine belief in consent, the objective component of the test comes into play and it will still be open to the jury to convict if satisfied that there were no reasonable grounds for the defendant to believe that the victim was consenting.

Is the Gutuama formulation consistent with the statutory language?

[43]     The statutory language appears to require a focus on the actual state of mind of  the  defendant  and  the  reasonableness  of  the  grounds  for  any belief  that  the defendant may have had as to consent.  Mr Carruthers argued that the Gutuama test which turns on the state of mind of any reasonable person in the position of the defendant “shifts the focus from the reasonableness of the grounds to the reasonableness of the belief itself”.

[44]     In  some  Australian  jurisdictions  self  defence  is  defined  in  a  way which requires the jury to focus on whether the defendant believed on reasonable grounds that  the  actions  in  question  were  necessarily  for  his  or  her  defence.    There  is authority for the view that this requires the jury to assess whether the grounds for a belief were reasonable, and not to ask whether the belief was one which the reasonable person would or must have had:  see R v Conlon (1993) 69 ACrim R 92 (NSW SC) and R v Julian (1998) 100 ACrim R 430 (Qld CA).

[45]     One of the problems which arises with the application of s 128 is determining whether personal characteristics of the defendant are material to the reasonableness of his or her possible belief in consent.  Characteristics such as intoxication (as in Clarke), mental impairment (as in R v P (T129/92) (1993) 10 CRNZ 250 (HC)) and mental illness (R v ITC HC GIS CRI-2005-082-346 1 August 2006) have been held to be irrelevant.   On the other hand, a defendant’s age (see R v Cox CA213/96 7

November 1996) might be material.  A conceivably relevant consideration may be cultural   background,   a   factor   which   Mr Carruthers   stressed   because   of   the appellant’s ethnicity.   Similar issues often arise where criminal liability depends upon considerations of reasonableness or foreseeability, cf R v G [2004] 1 AC 1034 (HL), R v Creighton (1993) 105 DLR (4th) 632 (SCC) and Simester and Brookbanks, Principles of Criminal Law (3ed  2007) at 120–123 and 626–628.

[46]     If the “any reasonable person in the shoes of the defendant” approach is adopted it is reasonably easy to treat the personal characteristics of the defendant as irrelevant.   On the other hand, if the focus is on what the defendant may have believed followed by inquiry into the reasonableness of a claimed erroneous belief in

consent, the personal characteristics of the defendant are more likely to be seen as relevant.  On this approach the Court must consider whether it was reasonable for the defendant to believe that there was consent.  In answering this question, the actual thought processes of the particular defendant may become material and contextual considerations associated with the defendant’s personal characteristics (which may be relevant to why he or she thought in a particular way) might also be thought to be material.    The  approach  contended  for  by  Mr  Carruthers  may  thus  be  more favourable for a defendant who wishes to rely on personal characteristics than the Gutuama formulation.

[47]     There  are,  however,  a  number  of  perhaps  pragmatic  reasons  which  tell against the adoption of the literal approach contended for by Mr Carruthers.

[48]     It is for the Crown to disprove belief in consent on reasonable grounds and it is very easy for a judge when summing up to reverse the onus of proof and to ignore the standard of proof (something which had happened in Gutuama).  The greater the focus on a postulated erroneous belief in consent and the need for such a belief to be on reasonable grounds, the greater the prospect of such error.   Further, since the primary contest in most sexual violation cases is on consent (with the defendant asserting actual consent and not an erroneous belief in consent), it will often be unreal to examine closely a possible erroneous belief in consent and the reasonableness of the grounds for such a belief.  In Gutuama, the primary defence was consent. The model direction which appears in the Gutuama judgment was intended to provide a simple form of words which addressed the requirement for the Crown to disprove an erroneous honest but reasonable belief in consent in such a case.    Where, as is usually the case, the postulated erroneous but honest belief in consent and the grounds for it have not been articulated, it seems sensible to look at the circumstances as they presented themselves to the defendant and then assess whether there is a reasonable possibility that the defendant believed on reasonable grounds that the complainant was consenting.  Reference to a reasonable person in the  position  of  the  defendant  provides  a  relatively easy  way of  expressing  this concept.  In such a case, the  approach to the defence favoured by Mr Carruthers (ie one focusing on what were or may have been the actual thought processes of the defendant) is likely to be less favourable to the defendant because the jury will

struggle to form a view as to the reasonableness of an erroneous belief in consent where the defendant has not expressly asserted having such a belief and advanced reasons for it.

[49]     Further, in the vast majority of  cases, there will be no practical difference between the Gutuama approach and one which adheres more closely to the relevant statutory language:

(a)In many, perhaps most, cases in which sexual violation is alleged the primary contest is as to whether the complainant consented with only secondary reliance being placed on s 128(2)(b) and (3)(b).  Usually, if the jury accepts the complainant’s evidence as to the circumstantial detail of what actually happened, this will negate both consent and the possibility of honest but reasonable belief in consent.

(b)Even where s 128(2)(b) and (3)(b) are specifically relied on, it will be only in the comparatively rare cases where the defendant has a particular characteristic which could arguably be relevant to the reasonableness of an asserted erroneous belief in consent.

(c)      The Gutuama direction requires focus on what a reasonable person in the defendant’s position (or “shoes”) would have believed.   This necessarily leaves some scope for argument as to the relevance of personal characteristics as is illustrated by the discussion in Simester and Brookbanks to which we have referred.

[50]     In  light  of  these  considerations,  it  is  far  from  clear  that  the  Gutuama formulation should be abandoned.  In any event, for reasons we are about to give, we are satisfied that the appellant was not prejudiced by its use in this case.

[51]     The appellant’s primary contention was that both complainants consented. On C’s evidence she did not consent and if that evidence was accepted (as presumably it was by the jury) there was no scope for the appellant to have been in any doubt as to the absence of consent.  The Crown case as to P was perhaps more

open-textured with the Crown very much relying on her intellectual disability.  As we have noted, her evidence about what happened was rather flat and lacking in circumstantial detail.   This provided scope for Mr Carruthers to argue that in her case, it was possible that the sexual interaction was non-consensual (in light of her intellectual disability), but given the apparent lack of resistance or protest, the appellant might not have realised this, thus bringing the reasonable belief in consent defence into sharp focus.   Before us, he sought to invoke the appellant’s Turkish ethnicity and far from perfect command of the English language (which is evident from his police interviews).  But it was not argued at trial that the appellant was any less likely than a hypothetical reasonable person to recognise that P (whose intellectual disability is readily apparent to anyone dealing with her) was not consenting.  So if the Judge did misdirect the jury, as contended by Mr Carruthers, this was immaterial in the context of the particular case and  did  not  lead  to  a miscarriage of justice.

Result

[52]     The appeal is dismissed.

Solicitors:

Oakley Moran, Wellington, for Appellant

Crown Law Office, Wellington for Respondent