R v Gao
[2015] NZHC 810
•23 April 2015
ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESS/VICTIM/CONNECTED PERSONS PURSUANT TO S 202
CRIMINAL PROCEDURE ACT 2011. IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2014-404-439 [2015] NZHC 810
BETWEEN THE QUEEN
Appellant
AND
YONG LEI GAO Respondent
Hearing: 20 April 2015 Court:
Appearances:
Lang J Whata J
S Barr and Z Hamill for Appellant
R B Keam for RespondentJudgment:
23 April 2015
JUDGMENT OF THE COURT
1. Leave to appeal is granted.
2. The appeal is allowed.
3.The proceeding is remitted to the District Court for disposition in accordance with the opinion of this Court.
This judgment was delivered by Justice Whata and Justice Lang on
23 April 2015 at 3.00 p.m., pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
REASONS OF THE COURT
(Given by Whata J)
[1] Mr Gao is a professional masseur. He was charged with indecently assaulting one of his customers. Following a defended hearing, Judge C Ryan found that
THE QUEEN v GAO [2015] NZHC 810 [23 April 2015]
Mr Gao touched the complainant’s genitalia in the way that she described.1 The Judge was not satisfied, however, that Mr Gao lacked an honest belief that the complainant was consenting to what he was doing. She therefore found Mr Gao not guilty. The Solicitor-General seeks leave to appeal to this Court against that decision. At issue in the appeal is whether there was an evidential basis for the Judge’s decision.
Background
Facts of the indecent touching
[2] The Judge’s factual findings about the indecent touching are not disputed. On
22 March 2014 the complainant and some friends went to Tao Reflexology for a massage. Mr Gao was the masseur. The massage commenced with the complainant on her stomach and with a towel covering her buttocks. Mr Gao pulled the towel down, exposing her bare bottom and underwear. He then pulled the underwear down to the middle of her thighs, and massaged her buttocks. He then spread the cheeks of her buttocks apart, exposing her anus. He moved his hands in between the buttocks, briefly touching the anal area. There was no penetration. He then rubbed her thighs in between her buttocks and her vagina.
[3] After pulling her underwear back up Mr Gao turned the light off and told the complainant to roll over. She did so. He then spread her legs wide apart, and made sweeping strokes across her vagina over the top of her underwear. The massage lasted about an hour.
The judge’s description of the elements of the charge
[4] The Judge described the charge as containing the following elements:
[11] ... (a)
Firstly, Mr Gao assaulted [the complainant].
Assault is the
intentional application of force to the person of another. The
slightest touch can be an assault. It need not be forceful or violent. A gentle caress may suffice.
1 New Zealand Police v Gao DC Auckland CRI-2014-004-003158, 25 November 2014 at [48].
(b) Secondly, the police must prove that [the complainant] did not consent.
(c) Thirdly, that Mr Gao did not honestly believe that she consented.
(d) Fourth, the assault was indecent in that it would be so regarded by right minded members of the community; and
(e) Finally that Mr Gao intended, or appreciated the existence of, those facts and circumstances that make the assault indent, or as held in R v Armstrong (2007) NZCA 221, the defendant recognised that his actions would be regarded as indecent.
The key findings on culpability
[5] The Judge then made the following key findings:
[47] I am satisfied that what she said happened to her did happen and there was too much of it to be entirely accidental. However, the touching of the anus was once and fleeting. I do note that when she was on her back, the massaging was in the dark so some of it might have been accidental but the repeated sweeping strokes across her vagina were too many to be accidental.
[48] I am satisfied that Mr Gao did do what [the complainant] said and that the pulling down of the g string, massaging of the buttock and massaging of her upper thighs in the area between buttocks and vagina was intentional. I find that the massage across the area of the vagina with repeated strokes was also intentional. These went beyond the standard massage practice with which [the complainant] was familiar and which Mr Gao the owner accepted was general practice.
[49] I am not sure about the touching of the anus and the fingers under the g string both of which were brief and occurred once. They may have been accidental. Nonetheless it must have been foreseeable to Mr Gao that this could happen if he massaged such areas of the body, which he chose to do without asking.
[50] I find therefore that Mr Gao did assault [the complainant]. [The complainant’s] reaction and behaviour in the Tao foyer afterwards, leading to the complaint to the police on the say day, her loud uncontrolled crying and saying he went too far, and her out of character drinking are matters I can take into account. They lead me to the conclusion she did not consent.
[51] I am satisfied that the deliberate actions of Mr Gao were indecent and that by his reaction and words on the DVD, he knew that such actions would be considered indecent by members of the community.
[6] The Judge then addressed the issue of honest belief in the following way:
[53] Of course Mr Gao did not give evidence. However, there are two
key pieces of evidence I must consider. First is [the complainant’s] evidence
that she said and did nothing for the duration of an hour although she may have flinched at one stage. She said and did nothing when the towel was removed and nothing when the g string was pulled down as it must have been as opposed to the top being simply rolled down. She did not attempt to leave. When asked to roll onto her back, she did so. She said and did nothing for the subsequent 20 minutes.
[54] I certainly do not criticise or blame her for that. It is entirely understandable why she might have been too afraid but neither that nor her lack of consent was communicated to Mr Gao.
[55] Secondly, there is Mr Gao’s DVD interview in which over a short space of time, he exclaims “Why did she not stop me?” “Why didn’t she say to stop?” “If I had removed her underwear, why wouldn’t she have stopped me at that time, but later on called the report to the police?”
[56] In my view, Mr Gao was not being logical or truthful when he said he could not remember [the complainant], the young European woman with the g string who did not object when he removed the towel and her underwear and did not protest when he kept massaging her buttocks and vaginal area.
...
[58] In this case, Mr Gao began by removing the towel and underwear and when [the complainant] did not object to that then did not object to anything throughout the hour, he kept going. I have to be satisfied beyond reasonable doubt that Mr Gao did not honestly believe that [the complainant] consented and I cannot be satisfied of that on this evidence. There were no signs that [the complainant] was not consenting.
[59] Accordingly, the police have not disproved any honest belief that she consented. They have therefore not proven all five elements and accordingly the indecent assault charge is not made out.
A question of law?
[7] Section 296(3) of the Criminal Procedure Act 2011 only permits appeals on questions of law. This Court must guard against challenges to factual decisions by way of purported questions of law, even if there is a compelling argument that the District Court Judge erred in deciding the facts.2
[8] The question posed by the Solicitor-General effectively asks the Court to determine whether the Judge decided the case on a ground for which there was no evidential basis. The absence of probative evidence logically supporting a finding of fact is a well established error of law.3 We are content to proceed on that basis.
Was there an evidential basis for the Judge’s finding about honest belief?
Relevant principles
[9] In R v Alwyn,4 the Court of Appeal described the elements of the charge of indecent assault as follows:
[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.
[10] Similarly, in R v Nazif the Court of Appeal observed that where there is evidence of such belief, it will be for the Crown to negative it.5
[11] The critical issue, therefore, was for the Judge to determine whether there was probative evidence supporting an inference that Mr Gao honestly believed that the complainant consented to the indecent touching. Importantly, the belief must relate to the touching that the Judge found to have been established. This included the touching of the vaginal area and buttocks, both of which Mr Gao denied.
[12] Mr Keam accepted that this is the proper approach, but maintained that:
(a) The error was immaterial, because the Judge was satisfied that a proper evidential foundation existed to show an honest belief;
(b)The drawing of inferences from the available evidence is the task of the trial judge. So long as there was at least some evidence supporting the inference, the trial judge’s conclusion is not amenable to reversal on an appeal. Appellate intervention is only justified in respect of questions of law;
(c) The Judge only needed to be satisfied that the issue of honest (not reasonable) belief was raised on the evidence; and
(d)The absence of complaint and Mr Gao’s queries to the police about why she did not complain were sufficient to raise an evidential foundation for a defence based on honest belief.
The Judge’s decision
[13] The Judge relied on two aspects of the evidence that were said to raise the issue of honest belief, namely:
(a) The complainant did not protest at any time throughout the hour long massage;
(b)Statements made by Mr Gao when he was interviewed by the police when he repeatedly asked why the complainant had not asked him to stop touching her if she was unhappy about what he was doing.
Our analysis
Absence of protest
[14] We are prepared to accept that in some circumstances the absence of any form of protest or complaint might contribute to an inference being drawn of honest belief in consent. That can only be the case, however, where a link is established between the absence of protest and the defendant’s state of mind. In the present case there is no evidence connecting any absence of protest by the complainant with Mr Gao’s beliefs as to her view of what he was doing to her.
[15] In addition, the proposition that the complainant’s failure to register any protest contributed to Mr Gao’s belief that she was consenting to what he was doing is fundamentally different to the manner in which Mr Gao ran his defence at trial. He based his defence on an assertion that the acts giving rise to the charge never occurred. We do not see how that approach can be reconciled with the proposition that Mr Gao honestly believed she was consenting to him touching her vagina and other private parts.
[16] In the circumstances of the present case we do not consider that any absence of protest could possibly support an inference that Mr Gao believed the complainant was consenting to being touched in those areas.
Statements made in the police interview
[17] On numerous occasions during the videotaped police interview Mr Gao asked rhetorically why the complainant did not ask him to stop touching her. Mr Keam submits that the Judge was justified in concluding that these statements formed the basis for a defence based on honest belief in consent.
[18] By way of example, the following statements are recorded:6
Page 17 line 14
SYeah. Eh um,the complainant says that while, um, after the towel had been removed and she’d been massaged, um, she felt her underwear being pulled down.
…
No. I, I don’t understand why uh the underwear needs to be pulled
down if it was only the massage on legs.
SYeah that’s, that’s her complaint. She’s saying that she has been, she’s had her underwear taken off.
…
No I haven’t done such a thing I I have given massage to a lot of clients and it never this never has happened. If I had really done this, why did she not stop me, or stop the massage. Uh but instead she came after the incident. I I don’t understand her logic.
6 Commencing at page 17 of 37 of transcript of DVD interview.
S Okay. Does he um, do you know, um the incident I’m talking about
now?
…
I know what you’re asking me about.
S And you know the massage I’m referring to?
…
No. But because I I never took underwear off any client. So I
couldn’t think of any client, in that situation.
S Okay. Its um, cos you said um, why didn’t um, she say to stop.
…
Yes.
S And I hadn’t mentioned that at this stage.
…
Its uh I am thinking it through with my own logic. Um if I had, removed her underwear, why wouldn’t she had stopped me at that time, but later on call the report to the Police.
SOkay. Um, so, basically at this stage y—you can’t remember, um, the massage, um, but you’re saying that, regardless that you, during the time you’re working TAO you’ve never done anything like that?
…
This kind of thing never happened. And I have not done such things. S Okay. Um, what I’m gonna do is I’m just gonna outline um, what,
this, um, what else the complainant has said.
…
S Okay so …
Page 20 line 8
SAnd um, as you did long sweeping strokes up her leg, um, your fingers, um, went down under her underwear (indicates) and touching her vagina.
…
No. I didn’t do things like that.
SOkay. Um she claims that um, you, while you’re massaging her um, sort of legs and feet, you um, which were together you deliberately, um, (indicates) pulled them apart.
…
No.
SUm she also claimed that um, um, you rolled her underwear down, at the front, and while massaging her stomach, um, your hands were, um, rubbing over, gone done over her vagina.
…
I.. I never did things like this. This never happened.
…
Page 31 line 4
SI just don’t understand why you can’t remember, a an attractive, tall, blonde, female, that you spent an hour with, just weeks ago.
…
S It seems quite, convenient that, you’ve got no recollection of that,
massage.
…
Uh if I had done things like this I I would of course have a particular recollection of this client. But, but I didn’t do this and there is a lot of, he goes through a lot of large volume of client.
I’m very surprised myself that such a horrible thing is happening to me. I feel its very uncalled for and its interfered with my study, study, and work and life, severely.
I stick to the point that um, if I had done such a thing why did not she stop me on the stop but report complaint about me later. I don’t think this is the logical thinking of a normal person.
…
Page 32 line 1
S Just because someone, doesn’t say anything it doesn’t mean that, its
alright to keep doing something.
…
The thing is that I didn’t do it.
S Okay. Um, do you always massage in the same, room?
…
No.
SSo, during the time that I’ve been talking to you, you still can’t, you can’t picture the female that we’re talking about?
…
No I can’t picture.
I uh its not that I can’t picture her I just can’t think of such a thing that, such a happening, uh just like our workmates they, tend to forget their, client, on, after the day they finished working. We don’t have to have any particular recollection of any particular client.
…
Page 33 line 9
S If um, if someone is happy with the way they are being touched, um,
in your mind, do you think they won’t say anything?
…
It never crossed my mind, um because I never thought about touching, them, like that.
To give a massage is to touch someone’s body. I am a professional, I know where to touch, where not to touch. I wouldn’t have done that kind of thing.
SDo you think if you were, if you were touching someone, and, could you accidentally touch them somewhere, in the private area?
…
No. Page 34 line 13
SDo you think if um, if you are massaging a woman and, you, you make contact with her vagina, and, she didn’t say anything, do you think that would mean, that she may, want you to continue?
…
I believe I wouldn’t do things like this.
SI’m gonna put it to you, that I think, during the course of the massage, you became, you got closer and closer to her private area. Um, she didn’t say anything, so you thought that you could continue on with your actions. And touching her in her private areas.
…
I didn’t do things like this.
I I didn’t even think the way that you, you said, because I have my
professional eth-ethics.
[19] Careful analysis of the statements shows that Mr Gao made them in support of his blanket denial that he had committed any of the acts that the complainant was alleging. He did not make them to support his contention that he believed the complainant was consenting to what he was doing. Viewed in that light, the questions have no probative value in relation to the issue of Mr Gao’s belief at the time he committed the acts the Judge found to have been established.
Conclusion
[20] There was no evidential basis to support the Judge’s conclusion regarding honest belief in consent. That defence was not open to Mr Gao given the way in which he chose to defend the charge. It follows that the Judge erred in law when she found the defence to have been made out.
Result
[21] Leave to appeal is granted. The appeal is allowed. The proceeding is remitted to the District Court for disposition in accordance with the opinion of this
Court.
Lang J Whata J
Solicitors:
Crown Law, Wellington for Appellant
Public Defence Service, Auckland for Respondent
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