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.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Can

Details

AGLC: R v Can [2007] NZCA 291
Case: [2007] NZCA 291
Decision Date: 16 July 2007

CaseChat Overview and Summary

In this case, the appellant, Mustafa Can, was found guilty of several charges of sexual offending against two complainants, C and P, in the Wellington District Court. The appellant appealed against his conviction, arguing that the evidence of the two complainants was not properly left to the jury as potentially mutually supporting, that the approach taken by the Crown and the Judge in relation to P’s intellectual impairment resulted in a miscarriage of justice, and that the Judge misdirected the jury in relation to the sexual violation counts as to what constituted reasonable grounds for belief in consent.

The Court of Appeal found that the evidence of the two complainants was properly left to the jury as potentially mutually supporting, as there were similarities in the circumstances of the two incidents that were relevant to the issues in the case. The Court also found that there was no miscarriage of justice in relation to P’s intellectual impairment, as the mistake made by the expert witness did not have a material impact on the jury’s understanding of P’s abilities, and the Judge’s directions to the jury were not misleading. Finally, the Court held that the Judge’s direction on the issue of reasonable grounds for belief in consent was not erroneous, as it involved a mixed subjective and objective test that was consistent with the statutory language and did not result in a miscarriage of justice in this case.

As a result, the appeal was dismissed, and the convictions and sentences imposed by the Wellington District Court were upheld.

Orders