R v Hogben
[2018] NZHC 2915
•9 November 2018
NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2017-009-007789
[2018] NZHC 2915
THE QUEEN v
ADRIAN RAYMOND HOGBEN
Hearing: 5-6 November 2018 Appearances:
K South for the Crown
M Starling and N R Wham for the Defendant
Judgment:
9 November 2018
ORAL JUDGMENT OF NATION J
To comply with the above suppression order, parts of this judgment have been redacted.
[1] Adrian Raymond Hogben faces a number of charges as to alleged sexual offending between 1 January 1998 and 31 December 1998.
[2] He faces four charges of sexually violating the complainant by unlawful sexual connection, occasioned by penetration of her genitalia with his finger.
R v HOGBEN [2018] NZHC 2915 [9 November 2018]
[3] To prove that Mr Hogben committed the offence of unlawful sexual connection occasioned by penetration of her genitalia with his finger, the Crown must prove beyond reasonable doubt that he did do that, that is, penetrated her genitalia with his finger.
[4] Mr Hogben also faces four charges that he sexually violated the complainant by rape. On those charges, the Crown must prove beyond reasonable doubt that he penetrated the complainant’s genitalia with his penis.
[5] Mr Hogben faces another charge of unlawful sexual connection, said to have been occasioned by connection with his penis and her mouth or tongue. That particular charge is detailed as having occurred when the complainant attempted to bite the defendant’s penis.
[6] Mr Hogben faces a further charge that he sexually violated the complainant by unlawful sexual connection, occasioned by connection between his penis and her mouth. That charge is alleged to have been committed at Christchurch and the charge was laid on a representative basis.
[7] Some of the charges have been laid on a representative basis. This means the Crown must prove beyond reasonable doubt that Mr Hogben committed those offences on at least one occasion between 1 January 1998 and 31 December 1998.
[8] With each of these charges, the Crown must prove beyond reasonable doubt that the complainant did not consent and also that the defendant did not believe on reasonable grounds that the complainant was consenting.
[9] The Crown must prove the essential elements of each charge beyond reasonable doubt. Until there is such proof, Mr Hogben is presumed to be innocent on each charge the Crown has brought against him.
[10] Although all charges were the subject of a single trial, the Crown must prove each charge separately. I cannot find Mr Hogben guilty on the basis that, if he has been proved to be guilty on one charge, then he must be guilty on another.
[11] In assessing the evidence in this case, I am conscious of a particular need for caution. There has been a delay of some 20 years in this matter coming to trial. There was a delay of 14 years between the alleged events and the complainant first recording her evidence as to what she says occurred in an evidential interview. With delays of that sort, there is potential for the evidence I heard to be unreliable, particularly so with the complainant. That is because of the way her memory may have faded with time or been unconsciously altered to a point where her recollection of events is unreliable. It is possible the defendant’s recollection of events may also have altered over that time. I am also conscious that witnesses, who might have been available if matters had been investigated soon after the alleged events, are no longer available. That is so with regard to […]. It was also clear from the evidence I heard that the house in which the offending is alleged to have occurred has been altered somewhat since the alleged offending and there was some evidence as to matters of detail that the complainant gave, particularly with regard to the placement and removal of locks, which could not be verified or discounted through any inspection of the home made by the Police during their investigation. The extent and detail of evidence which [two witnesses] could give as to the contact they had with the complainant or the defendant at the time of the alleged offending, must also have been significantly affected by the passage of time so that the evidence they gave was understandably of a rather general nature.
[12] The evidence established that, during 1998, probably during the latter half of the year, for around three months, the complainant was living with [the owner of the house] at […] in Christchurch. She turned 17 in September 1998. She was attending an outdoor education course.
[13][…]. Mr Hogben turned 42 on 11 May 1998.
[14] The complainant’s evidence was given by way of a DVD recorded evidential interview played during the trial. She also gave oral evidence at trial including under cross-examination. If accepted, her evidence would prove that the acts, which are the subject of the various charges, did take place.
Charge 1 – Sexual violation by rape near a riverbed just outside Kaikoura
Charge 2 – Sexual violation by unlawful sexual connection, penetration of the complainant’s genitalia with his fingers near a riverbed just outside Kaikoura
[15] The complainant described how, when driving her back to Christchurch from Kaikoura, Mr Hogben stopped near a riverbed just outside Kaikoura and, outside the car, took her pants down, played with her vagina with his fingers, put two fingers inside her, and then proceeded to stick his penis into her and penetrated her.
Charge 3 – Sexual violation by unlawful sexual connection, penetration of the complainant’s genitalia with his finger – the first time in the shower at [the relevant address]
[16] The complainant described a first time in the shower, when she was taking a shower at [the relevant address]. She says the defendant walked in. She asked him to leave. He advanced towards her and started touching her breasts, touched her vagina, inserted his fingers in there, heard a noise, and walked out.
Charge 4 – Sexual violation by rape at Christchurch (representative charge)
Charge 5 – Sexual violation by unlawful sexual connection, penetration of her genitalia with his finger at Christchurch (representative charge)
[17] The complainant said that what happened in the shower the first time happened quite a few times in the shower. She also described him doing things sexually to her in the bedroom at [the relevant address]. She said he would start trying to get into her pants, start rubbing around her vagina area, would push his penis inside her vagina, would put his fingers inside her and at one time tried to put his whole fist inside her vagina.
Charge 6 – Sexual violation by unlawful sexual connection, sexual connection between his penis and her mouth at Christchurch (representative charge)
[18] The complainant described times when he made her go down on him by holding her by her hair and forcing her mouth down on his penis.
Charge 7 – Sexual violation by rape at the defendant’s bedsit at the corner of Barbadoes and Kilmore Streets (representative charge)
Charge 8 – Sexual violation by unlawful sexual connection occasioned by penetration of the complainant’s genitalia with his finger at the corner of Barbadoes and Kilmore Streets (representative charge)
[19] After describing incidents that occurred at the [the relevant address], the complainant said the defendant had taken her to his bedsit on the corner of Barbadoes and Kilmore Streets and had done “the same again” at that address. Generally, there would be touching first, then kissing around the face and neck, then insertion of fingers inside her vagina and he would also insert his penis.
Charge 9 – Unlawful sexual connection, connection with his penis and her mouth or tongue when the complainant attempted to bite the defendant’s penis
[20] The complainant described one incident when he made her go down on his penis with her mouth, holding her hair, to the point where it was sort of choking her in the throat, she went to bite his penis and he punched her on the side of the head. She said this was associated with his putting his fingers inside her, then putting his penis into her vagina and going harder and harder and that she bled. She said she bit his penis around the top area of his penis. This occurred at his bedsit at Kilmore Street.
Charge 10 – Sexual violation by rape on an occasion when she was in a car and punched
[21] The complainant described a particular incident where they were in the car, it was facing [the street of the relevant address] down a street beside railway tracks where there were small shops, and it was evening. He punched her in the head. She said she came to. He was penetrating her with his penis while sucking on her breasts and trying to kiss her around the neck, and trying to make her kiss him on the lips.
[22] Mr Hogben did not give evidence or call evidence from any witness. He did not have to because he is presumed to be innocent until the Crown has proved the elements of the charges he faces beyond reasonable doubt. He agreed, however, to be interviewed by Detective Penrose as to the allegations that were being made by the complainant. He was told the general nature of those allegations and who was making them. He knew who the complainant was. The evidence was that he attended for an
interview several days after Detective Penrose had met him and told him the Police needed to speak to him about the allegations. In that interview, he denied ever having been at the [relevant] address when the complainant was there. He denied ever taking her to, or being with her at his bedsit on the corner of Kilmore and Barbadoes Streets. He denied ever having taken her in a car to Kaikoura. He denied having a car at that time and said he cycled everywhere. He denied having any sexual contact with her of the sort which she had described to the Police.
[23] There was no dispute that the complainant went to live with [the owner of the relevant address] in 1998. She moved away from living with foster parents and went to live at [the relevant address] around the time she finished her secondary schooling. This was for a period of around three months and was likely to have been in the latter half of 1998.
[24] The complainant gave detailed evidence of her contact with Mr Hogben at the address, at his bedsit, and being in his car with him in going to and from the bedsit, when she said an incident of sexual abuse occurred outside shops near [the relevant address], and the trip to Kaikoura.
[25] She recalled their having lunch and her drinking alcohol with him in a hotel on the main street of Kaikoura. She recalled them stopping and him parking the vehicle in an area of shingle near a bridge and a river and it being on the right-hand side of the road when travelling from Christchurch to Kaikoura. She recalled their driving from the road down somewhat of a bank to the point where Mr Hogben parked his car.
[26] The complainant described being in a car in the incident outside shops near [the relevant address].
[27] Consistent with her remembering Mr Hogben having the use of a car when he visited the [owner’s] house and her credibility as to this, she mentioned his car being present not when she was being questioned directly about this but when explaining that, if the [owner] did not tell her that he would be coming over, she would have a warning he would be there “when his car was parked outside the house”.
[28] Importantly, there was evidence from [a witness …]. This [witness] was of a similar age, just one year younger, so she was giving evidence at the age of about 36 as to events when she was 16. She was then living with her mother. Their home was also on [the same street as the home where the complainant was staying]. […].
[29] The complainant, at times, visited [this witness] at [her] home. The [witness] also gave evidence that, over that time, she visited the complainant [where she was staying]. There were occasions when, in visiting the complainant, she encountered Mr Hogben at the house. She also said there were occasions when Mr Hogben was visiting the […] house and had parked a car he was driving outside. This [witness] was clear that she could remember the complainant and Mr Hogben both being at the […] house at times when she visited that house.
[30] There was nothing in the [witness’s] evidence to suggest she bore any ill will towards Mr Hogben or to indicate she had any particular desire to be supporting the complainant’s allegations. She had first spoken to the Police about what she could remember some 18 years after the visits had taken place, but her evidence was of a general nature, consistent with memories a person could normally retain over that period. It was not embellished by a level of detail that might suggest a reconstruction or any sort of fabrication.
[31] Mr Starling, in his submissions for Mr Hogben, acknowledged the defence was not suggesting that she was lying, but he did submit that, with the passage of time, she was mistaken in crucial evidence she gave, and that evidence should not be accepted as reliable.
[32] I find the [witness] was a reliable and honest witness in terms of the evidence she gave as to seeing a car used by Mr Hogben at [the relevant address] around the time the complainant was living there, and as to being with both the complainant and Mr Hogben when they were both at the […] house over that period.
[33] There was also evidence from [that witness’s] mother which contradicted what Mr Hogben had said in his interview with the Police. […]. She said, for that reason, she was not overly enthusiastic about the contact the complainant had with her daughter when the complainant was living [at the relevant address]. She was aware the complainant was living at the [relevant address] for several months. Understandably in the circumstances, in passing along the same street, she was aware of people visiting [that] house. […]. She was also clear that she had seen the defendant, Adrian Hogben, get out of a car, which she took to be his, at the house. This was at a time when the complainant was living at the […] house.
[34] Both the [witnesses] described the vehicles, which they said the two [men] had parked outside the [relevant] house, as being sedans, similar in shape. The [mother] recalled one car as being white and one a kind of beige. She could not recall which car she had seen Mr Hogben get out of. The [other witness] said she could recall [the other man], not Mr Hogben, having a white Toyota Corolla at the time.
[35] The complainant recalled Mr Hogben’s car as being a four door creamy looking coloured car.
[36] The [mother] did not say she had ever seen Mr Hogben and the complainant together at the [relevant] address. She did give some evidence which was consistent with there being some association between the complainant and Mr Hogben at that time. She recalled the complainant telling her excitedly one night that [Mr Hogben] was going to be taking her to Hanmer for the day.
[37] Mr Starling again said the defence were not suggesting the [witness’s mother] had lied in the evidence she gave, but he did suggest her evidence could not be accepted as reliable given the potential for memories to be fallible where there has been such a delay in recalling the matters she was giving evidence about. He submitted the evidence, as to what the complainant had said about the trip to Hanmer, was not evidence that would assist in proving the essential allegations in this case. The actual trip in respect of which the complainant had given evidence was to Kaikoura. The complainant had not given evidence as to telling [the witness’s mother]
about an intended trip. Nothing had been said to the [witness’s mother] about any sexual incident occurring on such a trip.
[38] I again accept the evidence this witness gave, as to the matters I have referred to, as being both honest and reliable. There was nothing in the way she gave her evidence or in what she said to suggest the evidence might have been a reconstruction or mistaken. It was of the general sort that could, in normal experience, remain as a reliable memory over the period that had elapsed here between the time she was speaking of and when she was required to recall it in giving evidence.
[39] Mr Hogben told the Police he had no car around the time the complainant was living at the [relevant] house. He said he biked everywhere, could not afford a car and had no driver’s licence until 4 July 1998. He said his first car was a Honda Prelude which he had when he was living in the Alpine Motor Camp in 2005. An agreed statement of facts recorded Mr Hogben was issued with a driver’s licence for the first time on 4 July 1998. He was recorded as owning a brown 1980 Mazda saloon JH9480, with the purchase date recorded as 19 November 1998. Licencing vehicle registration information obtained by the Police and produced by consent recorded that Mr Hogben had registered a white Datsun between 5 October 1993 and 28 November 1995, a cream Holden Gemini between 11 May 1995 and 26 March 1996, the brown 626 Mazda between 19 November 1998 and 4 June 2000, as well as a number of other vehicles after June 2004.
[40] In these circumstances, I do not consider the date on which Mr Hogben became the registered owner of the brown Mazda much assists in determining whether he had the use of a vehicle of the sort described by the complainant and other witnesses at the time the complainant says he associated with her when she was living at the [relevant address]. He was the registered owner of vehicles before he obtained his driver’s licence. He obtained a driver’s licence before he was registered as the owner of the brown Mazda.
[41] The evidence does establish that Mr Hogben had the use of a car at the time the complainant says he associated with her when she was living at the [relevant address].
[42] I am also satisfied the complainant did go with Mr Hogben to his bedsit in the two-storey building which is still on the corner of Barbadoes and Kilmore Streets.
[43] In her evidential interview on 16 February 2015, the complainant said Mr Hogben had taken her to his bedsit in that building. She was able to identify the building at that time as having “an organic hairdressers underneath” and she thought affordable accommodation or something similar on the top. The uncontested evidence was that the complainant had no contact with Mr Hogben when he was still living at the bedsit and after she moved away from the [relevant address] in the latter part of 1998. Mr Hogben said he had lived at the bedsit but then moved to the […] home in [the relevant address]. Through a s 9(2) agreed statement of facts, it was acknowledged there was a record of him living at 226 Kilmore Street, Christchurch from 29 May 1998 and at the [relevant] address from 17 June 1999.1
[44] In her evidential interview, the complainant could not remember much detail about the particular room he was in but she could remember there being a single bed and it being “sort of on the corner”. She remembered having to walk upstairs, there being a shed in the vicinity of the building and bicycle stands.
[45] Under cross-examination on the first day of the trial, the complainant confirmed she had entered the building from a parking area on one side of the house before going up the stairs. It was suggested in cross-examination she had to be wrong about that because there was no doorway on that side of the house. She said there “used to be a back door” and “we would walk through the building and up the stairs”.
[46] The photographs taken by the Police in October 2018 showed there were no doors at that time on that side of the house. The officer in charge of the case, Detective Penrose, gave evidence the following day that he could recall going to the address in the late 90’s. He could recall there being a door on that side of the building. He could
1 Evidence Act 2006, s 9(2).
remember going into the building from that side of the house to do bail checks. He said these visits had occurred when he was working “on the beat section”.
[47] In the course of cross-examination, the Detective was criticised for not having referred to this evidence in any brief or job sheet provided before trial. Understandably, the Detective would not have thought any job sheets or other notes as to bail checks made in relation to other defendants in the late 1990’s would have been relevant to the investigation of the complainant’s allegations. Whether there had been a door at the back of the building only became an issue as a result of the cross- examination on the first day of the trial.
[48] With the information Mr Hogben provided as to how he came to be living at that particular address and the sort of accommodation available there, there was nothing implausible as to the Detective’s evidence that he had, on occasions, needed to make bail checks at that address. I accept the evidence he gave as to there having once been a door on the side of the building adjacent to the carpark. The fact the complainant gave evidence as to having entered through such a door was consistent with her giving that evidence based on her memory of going to that address in 1998 rather than on a false reconstruction based on what the building now looks like.
[49] Importantly too, when the Police first took photographs of rooms inside that address, the photographs included photographs of a particular bedroom. When these were shown recently to the complainant, she said the photographs did not appear to be of the room where she said the alleged offending had occurred. The Detective then went with her to the address. He pointed out to her the room that had been photographed. She pointed to a room that was slightly more to the right with a number 2 on the door. She identified that as being the room where things had happened. The Detective said, prior to that time, he had never told the complainant which room Mr Hogben had said he lived in.
[50] In his interview with the Detective in July 2015, Mr Hogben had told the Police his room at the address was room 2, the same room the complainant identified as the room she was taken to by Mr Hogben.
[51] I do not accept that Mr Hogben was telling the truth when he said to the Police he had no contact with the complainant when she was living [at the relevant address], that he had no car at that time, never took her anywhere in his car, and never took her to his bedsit on the corner of Kilmore and Barbadoes Streets. I find he lied to the Police.
[52] I remind myself that, just because someone has told lies as to matters which are the subject of investigation, this does not mean they are necessarily guilty of any of the offences with which they are charged. People, in a situation such as Mr Hogben was when he was interviewed, may lie for a variety of reasons. In this case, it is possible that he is now embarrassed at the sort of relationship he might have had with the complainant. He may have been fearful of how he could be the subject of suspicion if he acknowledged any association with the complainant. Those could have been reasons why he denied any association with her at all.
[53] Nevertheless, because I reject much of what he said in his interview as not being true, I put what he said to the Police in his interview as to those matters to one side in deciding whether or not the Crown has proved the actual charges they have laid against Mr Hogben. Whether or not the Crown has been able to meet the burden they have, to prove the charges beyond reasonable doubt, requires me to make an assessment, first and foremost, of the complainant’s credibility.
[54] I am conscious that, in her evidential interview in 2015 and later at trial, the complainant, in 2015, was giving evidence as to ways she says Mr Hogben interfered with her sexually many years previous. In February 2015, she was aged 33. She was describing events which occurred in the latter part of 1998 when she was around 16 or early 17. It accords with normal human experience that memories as to whether or not certain events occurred and as to the detail of those events can change with the passage of time. The longer the delay in having to remember events, the greater potential there is for reconstruction, memories to be affected by other experiences, perhaps discussion as to the events with other people or other information that she obtained in the intervening period. There is a particular difficulty with the detail of sexual interaction in that some or all of what is described may have been the subject
of normal human experience in intervening years and that experience could potentially be used to provide detail as to what is said to have occurred many years previous.
[55] I am also conscious that, when participating in the evidential interview of 16 February 2015, the complainant would have been aware she was participating in that interview for the purpose of providing an account of alleged criminal sexual conduct on the part of Mr Hogben. The interviewer also began the interview by saying she was there to assist the complainant with the memory. She began by lowering her voice and saying she wanted the complainant to focus on what was her strongest memory, think about where it had happened, what she was doing, what she could see, etc, so that the complainant could tell her, in as much detail as she could, what happened. Such an introduction was obviously intended to make it easier for the complainant to remember and recount what she had to say about the allegations.
[56] At the outset, the complainant promised to tell the truth. The interview proceeded with the assumption the complainant would be telling the truth. If the complainant’s memory was however a reconstruction, if she had come to invent a story of offending allegedly committed by [Mr Hogben], or if she had developed an unreliable or false memory of what had happened, it might have been expected, with the way the interview proceeded, that she would nevertheless have been able to provide information as to the allegations she was making.
[57] For that reason, I have taken particular care in assessing precisely what she had to say in the interview, how she came to say it and also what she had to say when giving evidence at trial.
[58] There were several points when, in giving evidence, the complainant was visibly upset at what she was being asked about or giving evidence about. I remind myself however that the demeanour of a witness when giving evidence is not necessarily a good indicator as to the reliability of that evidence. Someone who has a false or unreliable memory of abuse may be as upset by that memory as someone who has been truly abused. Having said that, there was nothing about the complainant’s demeanour when giving evidence that suggested to me I should discount either her reliability or honesty as a witness. My assessment of her credibility is based squarely
on what she said in relation to the allegations, in the context of how she was questioned, and how that evidence emerged.
[59] In response to the interviewer’s initial invitation for her to concentrate on what she remembered best, the complainant did not describe just one incident, but recalled a first incident in the shower. She then differentiated that from other offending which occurred in the bedroom, the incident she said occurred on a drive back from Kaikoura and then offending which occurred at Mr Hogben’s bedsit. At that point in the interview, the description she gave of events was largely of a general nature but with some detail, not detail of the sort that might have been suggestive of a subsequent reconstruction. As the interview progressed, further detail did emerge. It included detail which would not have been essential to her alleging sexual abuse but there was very little, if any, information as to what she said happened which was inherently improbable or unlikely, in the context of the evidence which emerged during the trial, as to the sort of person she was at that time or as to what emerged through the evidence as to aspects of Mr Hogben’s character at the time.
[60] The complainant recalled wrapping a shower curtain around herself in an attempt to stop Mr Hogben touching her when a first incident occurred in the shower. She recalled putting a duchess in her bedroom up against the bedroom door in an attempt to stop him coming in. She said she had a clear memory of his bottom half because he had one testicle. She differentiated between the sexual contact that occurred in the bathroom to what occurred in the bedroom. She said, in the bathroom the contact was with his hands or mouth but never his penis. She said that sexual activity would take place on her bed if [the owner] was out but, because the bed made a lot of noise, if the [owner] was home, the activity would be on the floor. She described the carpet that had been made into a rug which was on the floor. She described him touching her when she was in the kitchen, touching her breasts and trying to kiss her neck but said the more invasive sexual contact did not occur there.
[61] She described him having her on her hands and knees and having sexual intercourse with her from behind and remembering his sweat dripping down onto her back. She recalled a specific incident when she had bit his penis. She also remembered that he did not have intercourse with her when she was having her period.
She described the sexual contact which occurred at times when she was in the car, how he would take off her seat belt and put her mouth on his penis and how he would have her masturbate him.
[62] She gave evidence specifically of the occasion when he had parked the car by some shops near [the relevant address] after they had been driving back from his bedsit. He had become angry, had struck her and of her being aware that his penis was inside her.
[63] She described specifically the contact that occurred when they stopped near a river on returning from Kaikoura, how he laid a blanket down on the stones, and the digital penetration and sexual intercourse that occurred.
[64] She said that, after what happened when they had pulled off the road, she had sat in the back of the car and, on arriving back at Christchurch, had immediately showered because she felt dirty and wanted to wash everything away. She described the way she felt when driving to Mr Hogben’s bedsit as being “daunted”, consistent with her being apprehensive as to what was going to happen. Consistent with her always remembering what she says Mr Hogben did to her, she says she felt ashamed of what happened, that it had haunted her for years and years, and because of what had happened she could not bring herself to go to [a] funeral. On the information provided by Mr Hogben, this was around or soon after 1999. She had participated in counselling in respect of the sexual abuse as alleged in 2004.
[65] No evidence emerged during the interview to suggest the complainant had not always remembered the events she described. There was no evidence and it was not suggested that she had come to think of what she was alleging only at some considerable time after the events had occurred.
[66] The essential allegations were made without suggestive or leading questions. When the interviewer did bring her back to something the complainant had said previously, with only one minor exception (as to the locking of a bedroom door), what she had said earlier was referred to accurately.
[67] I have considered the criticisms Mr Starling made as to aspects of the complainant’s evidence and issues as to her credibility the defence attempted to make through cross-examination. Through cross-examination, the defence attempted to highlight the significant number of occasions on which the complainant alleged the sexual abuse occurred, thus the extent to which she had appeared to tolerate what was occurring, comments she made suggesting the contact occurred only when [the owner] was not at the house with some evidence that the [owner] rarely left the house, and the inconsistency between the complainant saying the incidents occurred on numerous occasions but, at another point, saying that on a couple of occasions he had used a condom and on a couple of occasions he had not.
[68] I do not consider any apparent inconsistency as to those matters detracts from the complainant’s credibility as to the core allegations. Given how long ago the events occurred, comments as to the number of occasions have to be seen as general indications rather than precise evidence as to such matters. Overall, there was no significant inconsistency. The complainant did, at some point, say the offending occurred when [the owner] was not at the house. There was some evidence that the [owner] did not often leave the house but there was also evidence from the complainant that offending occurred when the [owner] was in the house but in a room, such as her bedroom or somewhere else, where Mr Hogben and the complainant would have been away from the [owner] and the [owner] would not have known what was going on.
[69] Through cross-examination and in submissions, Mr Starling made much of the fact that, in her evidential interview, the complainant said the first time anything happened was when she was in the shower, that it happened again when he came into her bedroom, that this went on for a couple of weeks, then there was the drive to Kaikoura and the incident which she described as to that. In evidence during the trial, the complainant was definite that the first time anything sexual happened was on the Kaikoura trip, even when confronted with what she had said in the evidential interview.
[70] There was an inconsistency. There is a possible explanation for it in that, at the beginning of the interview, the interviewer asked the complainant to concentrate on thinking about, not the first incident, but what was the “strongest in her mind”. She then talked about what happened in the shower, mentioned things happening in the bedroom and then talked about the Kaikoura trip. She was not, at any point later in the interview, asked to again clarify just what was the first occasion. It is possible that she described the events on the Kaikoura trip in the way she did as part of a narrative. That is however speculation. She was clear during the trial the first incident was on the Kaikoura trip. That would be consistent with the evidence given by [the witness’s mother] as to the complainant being apparently excited when telling [her] she was about to go on a trip away from Christchurch with [Mr Hogben]. While there was a potential inconsistency, and there remains some uncertainty as to just what was the first incident, that uncertainty does not cause me to doubt the fundamental evidence she gave as to the core allegations and what actually happened between the complainant and Mr Hogben.
[71] The complainant gave evidence that Mr Hogben had removed locks on the inside of the bathroom door. The toilet was also in the bathroom. She said that Mr Hogben had removed a lock on an internal door of the kitchen. Mr Starling suggested this evidence should be rejected because there was no suggestion that anyone else had commented on the removal of the locks at the time. Mr Starling also suggested it was inherently unlikely there would have been a lock on an internal door from the kitchen.
[72] The only witness who gave evidence about the state of the house in 1998 was the complainant so the absence of any other evidence about the house at that time does not take matters further either way as far as the complainant’s credibility is concerned. Because it was only the complainant who gave evidence about locks being removed, what she said about that does not independently corroborate her evidence as to the core allegations.
[73] To accept the complainant’s evidence as to the elements of the charges, I do not have to accept all the evidence she gave. There has been a significant period between 1998 and her giving evidence. With her having to respond both to the questions put to her in the evidential interview and during the trial, there was potential
for her to speculate as to how or why things happened and to phrase answers in ways that might be misleading. There was potential for her to provide detail because, with the questions asked, she might have been thinking she had to provide some detail rather than simply say what she could accurately remember. In this way, the evidence she gave as to the precise form of a knife which she said had been held to her throat might well have not been accurate or reliable. To the extent I am left with uncertainty as to such matters, it is as to matters of detail but they are not of such significance as to cause me to reject the honesty and reliability of the complainant’s evidence on the core allegations.
[74] The defence made much of the fact the complainant moved out suddenly from [the relevant] house, very soon after another [person], a young male, had come to stay at the house. The [owner] had taken the mattress off the complainant’s bed so this [person] could sleep on the mattress, leaving the complainant to sleep on the floor. The defence argued that, if this was sufficient to cause her to leave the house, surely she would have moved away if she had been sexually abused at the house by [Mr Hogben] as she claims. I do not accept this.
[75] As Judges are required to tell juries, there can be good reason for a victim of sexual abuse not telling others about what happened. The complainant had a difficult background before going to stay at [the relevant] house. She had been fortunate to have the care of foster parents for most of her life but had been unwilling to accept the rules that applied in that home when she was a teenager. She had been given the choice of staying in that family and abiding by their rules or casting herself adrift. She had chosen the latter and was endeavouring to re-establish a relationship with her [birth] family. She obviously hoped to be able to make a home with [the owner]. […]. Had she chosen to leave [the relevant] address because of what she said [Mr Hogben] was doing to her, she would have lost that home. Had she left, she would have risked losing any affection [the owner] had towards her. She had reason to be afraid of what the consequences would be if she told [the owner] of why she was leaving. She might also have been ashamed herself at what had happened.
[76] The complainant said, for her, the way she was not able to carry on using the mattress was the final straw that caused her to leave. On top of everything else that
was happening in the home, to a troubled teenager, it might well have seemed [the owner] was rejecting her in favour of another [person]. It could rationally have been “the final straw”.
[77] The complainant and Detective Penrose gave evidence as to how the complainant had travelled with the Detective between Christchurch and Kaikoura on 12 October 2018 to see if she could identify the area where she said they had stopped on the drive back from Kaikoura. The complainant had identified, and the Police had photographed, an area on the inland side of the road, just south of Kaikoura, close to the Kahutara River bridge.
[78] Mr Starling suggested the complainant’s evidence, identifying this as the place where the alleged offending occurred, could not be accepted as reliable, given the lack of detail in her evidence as to what she could remember of the precise location when she was first giving evidence about this, the lack of evidence as to the condition of that area and the state of the road in 1998.
[79] To find the charge relating to this proven, I do not have to be certain as to the precise location where it occurred. It is however of some relevance that the complainant was able to identify an area which she considered could well have been where that incident took place. In assessing her honesty, it is also relevant that, when giving evidence about the location, she did not attempt to bolster her evidence or add to her memory through what she had seen of this area when travelling to it with the Detective. In that regard, I also noted she did not try to suggest that someone in a car travelling along the nearby bridge would not have been able to see where Mr Hogben had parked his car below the bridge near the river where she said the offending occurred.
[80] I am however satisfied, having viewed the way the interview was conducted, having heard the detailed evidence the complainant gave in that interview and then having seen her evidence tested through cross-examination, that, as to the crucial elements of the charges, the evidence she gave was honest and reliable.
[81] It follows that the evidence the Crown has put before me has proven beyond reasonable doubt that the acts that had to have occurred for Mr Hogben to be guilty of the charges he faced, did occur. It is however all elements of the charges which have to be proven. With each charge, the Crown has to prove beyond reasonable doubt that the complainant did not consent and the defendant did not believe on reasonable grounds that the complainant was consenting. Both the Crown and defence counsel said that consent, or a reasonable belief in consent, were not issues in this case. Mr Starling said, that because of what Mr Hogben had said in his statement, the only issue on each charge was whether the alleged conduct had occurred.
[82] Despite the way the case was argued by both the Crown and the defence, with the evidence, I do need to deal with the issue of consent. It could have been argued for the defendant that the complainant did consent to some or all of the offending because of the period over which the sexual activity occurred, the number of occasions on which it occurred, and the way the complainant must have travelled to and from the bedsit where sexual activity occurred. There was also some evidence that some of Mr Hogben’s conduct might have been consistent with his thinking that he was in a consensual sexual relationship with the complainant. There was her evidence as to how he would kiss her in ways that might have been taken as displays of affection. There was her evidence as to his using a condom on occasions. She also said Mr Hogben had talked to her about how she might earn money from what she was doing and his talking about how she would be good at it and talking about being a pimp and putting girls to work on the street.
[83] Consent means true consent, freely given by a person who is in a position to make a rational decision. Lack of protest or physical resistance does not, of itself, amount to consent. Relevantly, there will not be consent where sexual activity is allowed because of the application of force to the complainant or the threat or fear of such application or force. It is essential for valid consent that the complainant had an understanding of her situation and was capable of making up her own mind. Consent given reluctantly and later regretted is nonetheless true consent. The material time when consent and belief in consent is to be considered is at the time the sexual connection took place.
[84] In this case, the alleged sexual violation is said to have occurred in 1998 when the complainant was either 16 or had recently turned 17. In late 1998, Mr Hogben was aged 42. Mr Hogben, although short, was obviously a fully mature man. The complainant was a relatively slight and troubled teenager.
[85] It was the complainant’s evidence that the first time something happened in the shower, she had told him to leave the bathroom. She had wrapped the shower curtain around her. The complainant said that, on the occasion when the sexual activity occurred on the return trip from Kaikoura, he had told her not to tell anybody, with the threat that, if she did, he would kill her family. She described this as being the most normal threat he made. In talking about events in the bedroom, she said he would be very very forceful and, if she did not do what she was told, Mr Hogben would whack her around the face with the back of his hand or his fist. She said that one time he had a knife in his hand and held that up to her throat while he did it and she could remember him saying that if she screamed he would cut her throat. She said it was because of his threats that he would hurt people and kill her family if she told anybody that she was too scared to speak about it. She talked of the specific occasion when she bit his penis, when she said he had started punching her in the side of the head and of occasions when he said “now be a good little girl and don’t bite it off, you know you want it”. She gave evidence of the specific occasion when there had been intercourse near the shops on [the relevant address] when she said he had punched her in the head and of the occasions when she had pushed a duchess up against the door of her bedroom. As mentioned, she described him forcing her down on his penis and of grabbing her hand and putting it down his pants to masturbate him. She talked of his putting fingers in her vagina to a point where it hurt and of thinking, if she did not let him do it, he would beat her up. She mentioned him putting his hand over her mouth so she could not scream when he came into her bedroom at night when she was about to go to sleep and the [owner] might be sleeping.
[86] The complainant said she had gone to his bedsit, knowing what he had done to her when they went to Kaikoura and at the [owner’s] house, because she was scared and because of the times he had hit her around the head and said he would hurt family members. She said she told him, during times when he was doing things sexually with
her at his bedsit, that she did not want this but he just carried on and would not listen, and made his normal threats about hurting family members if she said anything.
[87] Under cross-examination, the complainant said Mr Hogben’s threats were that, if she told anyone, he would hurt her family. She understood this to be the family, including […], a family she depended on because she was no longer living with her foster parents.
[88] The complainant said in her evidential interview that Mr Hogben said the reason he was doing it was that he wanted to put her to work on the street so she could make him money. In talking about such a situation, he would have been talking about a situation where she was working for him and under his control.
[89] It is the complainant and Mr Hogben’s state of mind at the time the sexual acts took place which is relevant as far as issues of consent are concerned. Nevertheless, in considering how they both thought at those times, it is relevant that, after the complainant moved out of [the relevant] address, she had no further contact with Mr Hogben and he had no further contact with her. The fact that neither had any further contact was consistent with her not having consented to what he had done to her while she was living at [the relevant address] and with his knowing she had not consented.
[90]The difference in age and maturity at the time of these events is also significant.
[91] The evidence establishes beyond reasonable doubt that the complainant did not truly consent to what Mr Hogben was doing with her. I find he did use force, including the threat of using a knife to obtain her submission and, associated with what he was doing, were threats that her family would come to harm if she told anyone about what happened. I am satisfied she told him she did not want to be a party to the sexual activity and she made that clear through the actions she took in putting a duchess against her bedroom door and, on one occasion, biting his penis when he had used pressure to put her mouth on his penis. This sort of resistance probably did not occur on every occasion but all the sexual activity occurred in the context of his having used force and threats to obtain her submission, and of her having made it clear she did not want to be participating in these activities. With that evidence, I am satisfied beyond
reasonable doubt that the complainant did not truly consent to what Mr Hogben was doing. I am also satisfied beyond reasonable doubt that Mr Hogben could not have and did not believe on reasonable grounds that she was consenting to what he was doing.
[92] It follows, on the evidence of all the witnesses I have referred to, that the Crown has proved beyond reasonable doubt the essential elements of the charges.
[93] There was however additional evidence which provides further proof. Through a judgment of Dunningham J of 1 June 2018, the Crown was permitted to lead propensity evidence of previous sexual offending. That evidence was put before me by way of an agreement as to admitted facts which includes the summary of facts that had been accepted with regard to the previous convictions. The evidence as to that earlier offending is set out in the relevant summaries of facts.
[94] In September and October 1996, Mr Hogben became closely acquainted with [a 14 year old]. He took her on trips out of Christchurch and was introduced to her friends. He supplied alcohol to her and her friends. At the time, this complainant was aged 14 and her friend, the second complainant, was aged 13. During that time, Mr Hogben paid both complainants money in return for sexual intercourse. In November 1996, he travelled with the two complainants to Ashburton where they consumed alcohol. On their return to Christchurch, Mr Hogben had sexual intercourse with [the 14 year old]. She became distressed and complained to her mother and later to the Police. That offending occurred at different specified periods between 1 October 1996 and 7 November 1996. Mr Hogben initially denied the offending but later admitted it and pleaded guilty to three charges of unlawful sexual connection with a girl aged 12 to 16.
[95] On 28 February 1999, Mr Hogben was driving along Worchester Street in Christchurch at 11.00 pm when he waved down a 15 year old girl who was walking with a friend. He asked her how old she was and she told him she was 15. She asked if Mr Hogben would drive her and her friend home and he agreed. The complainant got into the car but, before her friend could get in, he closed the passenger door and took off. He then offered the complainant money for sex which she declined. He took
her behind Christchurch Airport, told her to take her pants off and said he would give her money. When she declined, he became angry with her and she became scared. He told her to masturbate him. He then raped her and instructed her to perform oral sex on him. She obeyed out of fear, saying she was terrified for her life. He then stated that he was a police officer and would have to take her to a police station for what she had done. He advised her not to ask strangers for a ride home.
[96] Although he initially denied the offending, he later admitted it and entered a guilty plea to rape and sexual violation charges. The specific conduct referred to in the accepted summary of facts included Mr Hogben instructing this complainant to masturbate him, which she reluctantly did, his getting out of the front driver’s seat and climbing on top of the complainant who was still seated in the passenger seat, inserting his penis into her vagina and beginning to perform sexual intercourse with her, and of trying to kiss the complainant during this time. His conduct also included his straddling himself across the complainant, instructing her to perform oral sex on him and forcing his penis into her mouth.
[97] With his guilty pleas as to the earlier offending with the first two complainants, Mr Hogben acknowledged having sexual intercourse with teenage girls at a time close to the offending alleged with the current complainant. That admitted offending showed he had a particular and unusual sexual interest in teenage girls. He obviously did not consider […] or the fact those girls were under-age as being a bar to the sexual conduct he was interested in. The sexual conduct with those two complainants involved taking them away in his car and allowing them to become intoxicated prior to the sexual intercourse.
[98] With the third complainant, in February 1999, probably less than six months after his offending with the current complainant, he again demonstrated an intense proclivity for wanting to have sexual contact with a teenager. His admitted offending involved the use of a car, his becoming angry and scaring the complainant when she indicated she did not want him to do sexual acts with her in return for money and then instructing her to do various acts, his having sexual intercourse with her and trying to kiss the complainant in almost the precise same way as the current complainant described in her evidence.
[99] With the way the case was argued by the defence, the real issue was whether or not the complainant here was telling the truth in describing what she says Mr Hogben did to her sexually. The evidence as to the other offending was strong because of Mr Hogben’s guilty pleas and the accepted summaries of facts in relation to that earlier offending. Evidence as to the other admitted offending does add to the Crown case because of the similarity in what occurred between Mr Hogben and the teenage complainants, the particular proclivity Mr Hogben demonstrated for wanting to have sexual contact with teenagers, much younger than him, and the similarity of the precise conduct involved in that other offending.
[100] In assessing the weight to be given to this propensity evidence, I had to be mindful of the potential for collusion between the various complainants. That would have been of particular importance if there had been any suggestion that the complainant in the present case had come to remember the conduct which she complains of or had made allegations of it only after learning of what Mr Hogben had done with these earlier complainants. There was no evidence to indicate that the allegations or a memory as to the events she complains of had emerged in such circumstances.
[101] I accept her evidence that she knew nothing of Mr Hogben’s conviction in respect of the third complainant until she was asked about it during the current trial.
[102] […]. The current complainant said she had not talked with [the earlier 14 year old complainant] about anything that had happened to this [14 year old] at the hands of Mr Hogben.
[103] […].
[104] The complainant said she had never spoken to the other victim of Mr Hogben’s 1996 offending.
[105] I am thus satisfied there was no collusion or contact between the victims of the earlier offending and the present complainant which affects the honesty or reliability of the evidence the complainant has given as to the current charges.
[106] Mr Starling responsibly acknowledged the “strong propensity evidence” and the similarity of the offending to which Mr Hogben pleaded guilty and what was alleged before me in this trial.
[107] He said it was because of the strength of that evidence and the fear a jury would not be able to see beyond that evidence to properly assess the evidence in this case that the defendant had elected to be tried by a Judge alone. He asked me to have regard to the fact that, with the earlier offending, Mr Hogben did plead guilty whereas he has been steadfast in his pleas of not guilty in relation to the current charges.
[108] Mr Hogben has the benefit of the presumption of innocence in relation to the current charges but, the fact he has maintained pleas of not guilty to the current charges, is not evidence I can weigh in the balance in deciding if the Crown has proved any of these charges.
[109] Just because Mr Hogben was guilty of the other admitted offending does not mean he has to be guilty of the charges I am concerned with. The propensity evidence does however support the Crown case with regard to the current charges although this is not a situation where the propensity evidence was essential to finding Mr Hogben guilty of the charges he faces.
[110] I have considered the evidence in relation to each charge separately. Evidence on one charge is relevant and of probative value in considering another charge because, at this trial, all the offending is alleged to have occurred over a relatively short period, is with the same complainant and is of a similar nature. I have however taken care to consider the evidence on each charge separately and, for instance, to consider whether the evidence establishes there was a particular incident of unlawful sexual connection when the complainant bit the defendant’s penis, and another specific occasion when he had parked at the shops near [the relevant address], had struck the complainant and had intercourse with her. I have not proceeded on the basis that, if he was guilty of some of the offending, then he had to be guilty of all the offences with which he has been charged.
[111] Mr Hogben, please stand. For all these reasons, I find the Crown has proved beyond reasonable doubt that you committed each of the 10 offences with which you have been charged. I thus find you guilty on each charge. On each charge, you are convicted. You are remanded in custody for sentence on 7 December 2018 at 10.30 am. I am to be provided with a pre-sentence report and a victim impact report. That remand will be in custody.
Solicitors:
Raymond Donnelly & Co., Christchurch Michael Starling, Barrister, Christchurch.
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