R v John
[2017] NZHC 2003
•22 August 2017
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR IDENTIFYING PARTICULARS OF DEFENDANT UNTIL THE FINAL DISPOSITION OF TRIAL. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2017-085-690
[2017] NZHC 2003
THE QUEEN v
JOSEPH JOHN
Hearing: 14 August 2017 Counsel:
S C Carter for Crown
I M Antunovic for Defendant
Judgment:
22 August 2017
JUDGMENT OF THOMAS J (SEVERANCE)
Introduction
[1]The defendant awaits trial on the following charges:
(a)sexual violation of Complainant 1 by rape on 26 May 2016;
(b)sexual violation of Complainant 2 by rape on 21 February 2017; and
(c)sexual violation of Complainant 2 by unlawful sexual connection on 21 February 2017.
R v JOHN [2017] NZHC 2003 [22 August 2017]
[2] The defendant applies for the charges against each complainant to be heard separately. The Crown opposes the application for severance.
Allegations
Complainant 1
[3] The complainant in the first charge, Complainant 1, was 18 years old at the time of the alleged offending. The defendant was 22.
[4] Complainant 1 and the defendant became friendly via texting and had met on two occasions before the incident.
[5] On 26 May 2016 they met one another at the Warehouse while Complainant 1 was shopping with her mother. It was a chance encounter. The defendant asked Complainant 1 to see a movie with him later that evening and she agreed. The defendant picked up Complainant 1 from her home in his car at about 4.00 pm. They drove to a cinema in central Wellington and the defendant purchased tickets for the movie.
[6] Because Complainant 1 did not have identification with her, they were unable to see the movie for which they had tickets. The defendant suggested they park in the car and listen to music and Complainant 1 agreed. The defendant drove to a park in Upper Hutt and, once the vehicle was parked, they both moved into the back seat of the vehicle. Both consumed alcohol. Complainant 1 had the defendant’s laptop on her lap and was playing music, which they listened to for a period of time. She removed her shoes to get comfortable.
[7] It is alleged the defendant tried to kiss Complainant 1, but she rejected his advances, said no, and said she had a girlfriend and did not want to cheat on her. The defendant attempted to kiss her again, but she pushed him off. Complainant 1 was wearing a dress and the defendant began to remove her underwear. She tried to pull her underwear up, saying, “Get off me, let go of my undies”. The defendant was successful in removing Complainant 1’s underwear completely. It is alleged he pushed her into the side door of the vehicle. She was lying on her back and penetration
occurred. Complainant 1 says she punched the defendant several times in the head and was yelling, “Get off me”. She dug her nails into the skin of his back and was screaming and crying throughout. She alleges the defendant asked her, “Why are you crying?”, to which she replied, “You’re raping me”. Complainant 1 banged on the window and tried to open the car door, but was unsuccessful. At some stage, Complainant 1’s mobile phone began to ring and she asked the defendant if she could answer the phone because she needed to contact her mother. At this point, she says, the defendant got off her and she was able to grab her cellphone, kick the defendant several times in the face, open the car door and run.
[8] Complainant 1 says she ran in her bare feet along the street and knocked on the door of a house whose occupants called the police at about 9.50 pm.
[9] The police attended the defendant’s home address and located Complainant 1’s shoes in his vehicle. Her underwear was located in a small bedside cabinet in his bedroom.
[10] The defendant told the police he and Complainant 1 had sexual intercourse and when Complainant 1 told him to stop he heard her, but they kept going. He then said he only stopped when Complainant 1 started hitting him and she left the vehicle, running away barefoot.
Complainant 2
[11] The complainant in the second and third charges, Complainant 2, was 16 at the time of the incident.
[12] On 20 February 2017 at around 8.00 pm, Complainant 2 was at a friend’s address in Lower Hutt where she and her friend consumed alcohol. She says she was extremely intoxicated when she left at around 3.00 am. She went to another friend’s house in Lower Hutt but, when she knocked on the door, there was no answer. She walked to High Street, Lower Hutt, instead.
[13] Complainant 2 says as she was walking she was passed by a male riding a push bike in the opposite direction. She continued walking and then felt someone’s hands
go around her waist and she was pulled to the side of the road onto a raised footpath. Complainant 2 alleges she was pushed to the ground and the defendant forced himself on top of her and she was unable to break free. The defendant kissed Complainant 2’s face and lips and after a short period, placed his hands over her mouth. He told her she was beautiful and felt soft. Complainant 2 says she attempted to scream at him to stop, but could not as his hand was over her mouth. It is alleged the defendant left one hand over her mouth, with his arm holding her down, and used his other hand to pull her underpants to one side, when he digitally penetrated her. He then removed his pants and inserted his penis into her vagina. He continued to have sex with her while holding his hand over her mouth. Complainant 2 says she continued to struggle. It is alleged that, after he ejaculated, the defendant got off her and rode away on his bike. Complainant 2 jumped up, ran over to him yelling and trying to punch him, and chased him down the street.
[14] When spoken to by the police, the defendant said he thought Complainant 2 was a prostitute. He admitted having sex with her, but thought she was consenting and was confused as to why she was yelling at him.
The application
[15] The defendant applies for severance on the basis the allegations are unconnected in time, place or circumstance and it is conducive to the ends of justice that the charges are heard separately.
[16] The Crown opposes the application, submitting the evidence in relation to both sets of charges is admissible on a cross-propensity basis and it is in the interests of justice the charges are heard together.
The law
[17] In Churchis v R,1 the Court of Appeal summarised the principles of joinder and severance.
1 Churchis v R [2014] NZCA 281 at [28].
[28] Counsel were agreed that the principles applicable under s 138(4) are materially the same as those under the former s 340 of the Crimes Act 1961. These are well settled and include the following:
(a)Offending that is unrelated in time or circumstance should not be tried together, unless the evidence of one incident is relevant to another to an extent that its probative value outweighs its prejudicial effect. That relevance may arise in a variety of circumstances, such as where the facts are so similar or the allegations interconnected to a point that it would be artificial to present them separately.2
(b)Joinder may be granted if evidence relevant to one count is also relevant to one or more other counts.
(c)The practicalities of the criminal process may be taken into account including the degree of connection between the charges; the impact of successive trials on the accused and witnesses; and the likely effect of publicity of the first and subsequent trials.3
(d)Prejudice to the accused is a factor to be taken into account. The fact that the accused may be obliged to give evidence is a relevant but not a decisive consideration.4
(e)The discretion is wide. In the end, what is required is a balancing between the legitimate interests of an accused and the public interest in the fair and efficient despatch of the Court’s business.5
[18] The Crown also refers to the following observation in Adams on Criminal Law:6
Severance should not be ordered if separate trials would be an “affront to common sense” or, in respect of jury trials, it would be “needlessly artificial and contrary to the requirements of justice to deny the jury the advantage of the full picture”.
[19] Relevant too is the principle that if charges are cross-admissible on a propensity basis, it is not in the interests of justice to order separate trials.7 If evidence falls within the definition of propensity evidence, its admissibility must be considered in accordance with s 43 of the Evidence Act 2006 (the Act).8
2 R v W [1995] 1 NZLR 548 (CA) at 555; R v Accused (CA208/87) [1988] 1 NZLR 573 (CA) at
576; and R v Te Pania [2007] NZCA 429 at [7].
3 R v Mullany CA232/05, 21 November 2005 at [11].
4 Herrick v R [2012] NZCA 202, [2012] 2 NZLR 520 at [16].
5 R v Anderson CA144/01, 1 August 2001 at [10].
6 Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at [CPA 138.03], citing R v Accused, above n 2, at 576 .
7 Banks v R [2011] NZCA 469 at [12].
8 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.
[20]The approach is:
(a)identify the alleged propensity and its relevance to the issue in dispute;
(b)consider the probative value of the propensity evidence to the issues in dispute, taking into account the matters identified in s 43(3) of the Act; and
(c)consider whether the value of the propensity evidence is outweighed by the risk of any unfairly prejudicial effect on the defendant in accordance with the mandatory considerations in s 43(4).
[21]There is a distinction between legitimate and illegitimate prejudice.9
What is the alleged propensity and what relevance does it have to the issues in dispute?
[22] In respect of both cases, the key issue will be consent, not identity. This immediately narrows the matters in dispute. The defendant’s position is that both complainants were consenting. In respect of Complainant 1, he says he stopped the sexual activity when he was aware she no longer consented. In respect of Complainant 2, he believed she was a prostitute and consented.
[23] The issues for the jury will be whether or not the complainants were in fact consenting and whether the defendant had a reasonable belief in consent.
[24] In the Crown’s submission, an unusual common feature in respect of both allegations is there was nothing in the circumstances to indicate to the defendant the complainants were consenting. In respect of Complainant 1, the defendant accepts she told him she had a girlfriend and to stop. In respect of Complainant 2, the defendant says he believed she was a prostitute on the basis of the location in which she was walking.
9 R v Tui [2010] NZCA 243 at [19] and [21].
[25] It is alleged both complainants yelled and screamed at the defendant to stop, Complainant 2 being prevented from making noise by the defendant putting his hand or hands over her mouth. The defendant says he did not consider Complainant 1 to be serious. He says the reason he put his hand over the mouth of Complainant 2 was because she was being too loud.
[26] The Crown alleges the circumstances of both allegations demonstrate a propensity by the defendant to be immune to obvious acts of protest and unreasonably to believe in consent.
[27] Relevant aspects of the complainants’ evidential interviews and the defendant’s interviews are set out in the following paragraphs.
Complainant 1
[28] Complainant 1 said the defendant stopped after he tried to kiss her the first time and she told him she had a girlfriend. She said he stopped for about 10 minutes, but “he just obviously decided to do it anyway”.
[29] Complainant 1 remembered crying, trying to open the door but being unable to do so, banging on the window, screaming, and yelling out for help. She described punching the defendant in the head and clawing at his back.
[30] The defendant’s explanation was that they were in the back seat of the car and started kissing for a long time and touching each other. Then they took each other’s clothes off, she told him to put his penis in her and they started having sex after she had grabbed his penis.
[31] The defendant said he thought Complainant 1 told him to stop. He said they just kept going for two to three minutes and then he stopped. She told him she wanted to go home and he said he would drop her home, but she opened the door and ran away.
[32] The defendant said he realised Complainant 1 was getting serious when she was “screaming” and she started hitting him. He said that was when he realised they
could just stop because he was not trying to do something she did not want. He said she hit him on his chest and face, punching and scratching. He seemed to indicate that occurred when they were just talking, but then later said, when the punching occurred, he “got off her”.
Complainant 2
[33] Complainant 2 said she saw the defendant riding his bike in the opposite direction. He said, “Oh hey” and she just looked at him and kept walking. He turned around on his bike and dismounted. She kept walking and he asked her what she was doing before he grabbed her and pulled her onto the ground. She said he tried to kiss her and she pushed his face away and told him to get off. She said he then stopped trying to kiss her and covered her mouth with both his hands. She said she kept moving around. He digitally penetrated her and she tried to get his hand off her face. He pulled off her underpants and penetrated her while covering her mouth with both his hands as she was moving around. She said she was crying. After it happened, she tried to punch him, and chased him down the road yelling at him.
[34] She described him covering her whole face, including her nose and she could not breathe properly. She said she tried to take his hands off her mouth. She described pushing his face away, telling him to get off and swearing at him.
[35] The defendant said he and Complainant 2 bumped into each other. He said they were talking, sat down and she leaned on him, he kissed her and they had sex. He said after they had sex she was shouting at him and telling him to get away. At some stage he was going to get some money from the ATM, but she told him he would not have to pay for sex.
[36] The defendant accepted putting his hands over Complainant 2’s mouth, saying they were near a fence and he did not want to be too loud next to people’s houses. He said he put both hands over her mouth when she was getting too loud.
Assessment
[37] Propensity evidence is evidence tending to show the defendant’s propensity to act in a particular way or to have a particular state of mind.10 The evidence here goes to demonstrating the defendant’s attitude towards consent. He can be said to be disinterested in the consent of those with whom he initiates sexual contact. In the first case, Complainant 1 told him she did not want to have sex. He waited a few minutes, and then with no further discussion allegedly commenced sexually assaulting her. In the second case, there was no discussion whatsoever. In both cases he allegedly ignored clear signs of lack of consent, some of which he accepts were present. The propensity therefore is to be disinterested in the woman’s view of consent and to persist notwithstanding vocal and physical resistance, yet maintain there was consent.
What is the probative value of the propensity evidence to the issues in dispute?
[38] The probative value, in the Crown’s submission, lies in the failure of the defendant to appreciate the person with whom he is engaged in sexual intercourse does not consent. In both cases the complainants say they screamed or yelled (or clearly tried to) and told the defendant to stop, yet in both cases the defendant asserts they consented.
[39] Ms Carter appeared for the Crown. In her submission, particularly given the allegations by Complainant 1, the defendant should have been more alive to Complainant 2’s protestations of lack of consent. In her submission, the jury would be materially assisted in assessing whether Complainant 2 consented by considering the circumstances of Complainant 1 and the fact the defendant had been in a similar situation before. Instead, said Ms Carter, the defendant assumed Complainant 2 was a prostitute and took no steps to see if she was willing to engage in sexual behaviour with him.
[40] In Ms Carter’s submission, when the jury is considering the question of consent, it will consider Complainant 1’s credibility and her evidence that she said she did not want to have sex with the defendant and was in a relationship. It will then
10 Evidence Act 2006, s 40(1).
consider in respect of Complainant 2 that there was no attempt by the defendant to ask if the behaviour was consensual. The circumstances of Complainant 1 will assist in determining whether there was in fact consent in the case of Complainant 2 and vice versa.
[41] Ms Carter referred to what she termed the escalation of the defendant’s behaviour. In the case of Complainant 1, he persisted despite a clear indication of no consent in respect of someone whom he knew. In respect of a complete stranger, Complainant 2, he made no attempt to ascertain whether there was consent or not.
[42] Therefore, in Ms Carter’s submission, the defendant showed a disregard as to whether consent had been given or not. It was compelling there were two instances of this within a short period of time.
[43] Mr Antunovic appeared for the defendant. In his submission there was nothing particularly unusual in the allegations and the alleged propensity. In his submission, consent and reasonable belief in it was frequently the issue in allegations of rape. The two allegations were completely different in context. Complainant 1 had willingly gone out with the defendant, was alone with him in the back seat of his car listening to music with her shoes off and drinking. That context, in his submission, provided a reasonable background of anticipation some sexual conduct might happen and, despite saying she had a girlfriend, Complainant 1 stayed in the car and there was therefore a reasonable basis for belief in consent. When the defendant realised she was serious, he did stop. He just took his time.
[44] In contrast, Mr Antunovic pointed out Complainant 2 was in an area frequented by prostitutes and herself agreed she looked like one, and was heavily intoxicated. Because she had gone to a male friend’s house, he suggested she was wanting male company. In his submission, the likely line of defence will be consensual sexual activity took place and this was later regretted. He referred to the fact the defendant said he talked to Complainant 2 afterwards about payment, but did not have any money on him and it was then they argued. Any noise during the sexual activity was interpreted by the defendant as a sign of enjoyment.
[45] Neither allegation was of probative value in connection with the other, in his submission.
[46] Section 43(3) of the Act sets out matters a Judge may consider when assessing the probative value of propensity evidence. I now address them in turn.
Frequency, s 43(3)(a)
[47] Each allegation is alleged to have occurred on one occasion only. The fact that there are two events does not necessarily indicate frequency and is a neutral factor.11
Connection in time, s 43(3)(b)
[48]The allegations are nine months apart. This gap in time is relatively small.
Similarity, s 43(3)(c)
[49] Both allegations involve rape. In respect of Complainant 2 there is also an allegation of digital penetration. In respect of each, the defendant alleges consensual sexual conduct. In respect of Complainant 1 the defendant acknowledges her screaming at him to stop, punching and clawing at him. In respect of Complainant 2, the defendant accepts the complainant was being loud and that he put his hands over her mouth.
[50] I accept there is a similarity in the allegations to the extent the defendant can be said to have no real interest in the question of consent. In respect of Complainant 1, he ceased his behaviour for about 10 minutes after he tried to kiss Complainant 1 and she said no and told him she had a girlfriend. Despite this, however, he then continued to pursue sexual activity and persisted when she was yelling, crying, kicking and scratching him, that is, when she was actively and loudly resisting him. In respect of Complainant 2, there was no effort at all, even on the defendant’s version of events, to ascertain whether Complainant 2 was consenting. He contends he assumed she was a prostitute and assumed she was interested in sexual activity on that basis. He pulled
11 M v R [2010] NZCA 219 at [34].
her to the ground and put both hands over her mouth when she was making noise, allegedly ignoring vocal and physical attempts to resist.
[51] As against those matters, there is no doubt the surrounding circumstances of the sexual activity were markedly different. In one case, there was what could be termed a date with someone the defendant had met twice previously; in the other there was no prior connection and the defendant pulled the complainant to the ground, at
3.00 am, believing she was a prostitute.
[52] Countering that, however, is the clear connection between other circumstances of the two allegations. Both complainants were particularly vulnerable. They were very young women – one only 16 years old. Although one set of circumstances could be described as engineered and the other opportunistic, both complainants were in isolated situations. Complainant 1 was alone with the defendant at night, trapped in a car in a secluded and deserted car park. Complainant 2 was walking alone on a deserted street in the early hours of the morning, highly intoxicated.
[53] There is also some weight to be given to the Crown’s submission the differences are explained by an escalation in offending, noting the Court of Appeal has accepted the degree of similarity is not diminished when there is a progression in offending.12 The escalation illustrates the defendant, when faced with different circumstances, has an alleged tendency to exhibit similar disregard for matters of consent. The argument is that the defendant, no matter what the circumstances, has the same reaction to clear lack of consent demonstrated by vocal and active resistance to his pursuit of sexual activity. Ms Carter made a valid observation when saying that, following the allegations of Complainant 1, the defendant should have been alive to the question of consent.
[54] The evidence of each complainant is probative of the credibility of the other, specifically in relation to their lack of consent and the nature of their resistance. This provides a counter to the defendant’s version of events that they both consented, and a counter to the basis for his belief on reasonable grounds in consent.
12 Hetherington v R [2012] NZCA 88 at [20]; and Rhodes v R [2012] NZCA 269 at [37].
Number of persons and possibility of collusion, s 43(3)(d) and (e)
[55]There are two complainants who are not known to each other.
Extent to which the acts or circumstances are unusual, s 43(3)(f)
[56] There is nothing particularly unusual about the general nature of the allegations. Unfortunately, sexual violation of young women is not unusual in itself.13 I accept it is, however, relatively unusual for complainants to be giving obvious signs of lack of consent, such as Complainant 1 punching, scratching, screaming, and crying, and Complainant 2 crying, moving about, trying to make a loud noise to the extent the defendant tried to subdue her by putting both hands over her mouth, and attempting to scream. Too frequently, complainants are unable to give such obvious signs due, for example, to physical incapacity from drugs or alcohol, or to the dilemma of choosing resistance when facing the threat of further physical or emotional harm.
Freezing and fright are the predominant responses, not fight or flight.14
[57] It is also unusual for a defendant to maintain the activity was consensual while also acknowledging many of the signs of protest and resistance. This has a compounding effect, rendering the circumstances around matters of consent highly unusual.
Conclusion on probative value
I am satisfied the evidence of each allegation is probative to the issues in respect of the other. To use the coincidence paradigm,15 it could be considered a remarkable
13 Vuletich v R [2010] NZCA 102at [38](f).
14 For more extensive discussion on these points see for example Elisabeth McDonald and Rachel Souness “From ‘real rape’ to real justice in New Zealand Aotearoa: the reform project” in Elisabeth McDonald and Yvette Tinsley (eds) From “Real Rape” to Real Justice: Prosecuting Rape in New Zealand (Wellington, Victoria University Press, 2011) 31 at 43; Avigail Moor, Enav Ben-Meir, Dikla Golan-Shapira and Moshe Farchi “Rape: A Trauma of Paralyzing Dehumanization” (2013)
22 Journal of Aggression, Maltreatment & Trauma 1051 at 1055–1056; Jacob Bucher and Michelle Manasse “When Screams Are Not Released: A Study of Communication and Consent in Acquaintance Rape Situations” (2011) 21 Women & Criminal Justice 123 at 125–126, and 131ff; Jennifer Temkin “‘And always keep a-hold of nurse, for fear of finding something worse’: Challenging rape myths in the courtroom” (2010) 13 New Criminal Law Review 710 at 714–716; and H Stefan Bracha and others “Does ‘Fight or Flight’ Need Updating?” (2004) 45 Psychosomatics 448.
15 Mahomed, above n 8, at [51] and [85]–[90].
coincidence that, within the space of nine months, the defendant had consensual
sexual activity with two young and vulnerable women in isolated areas, who were vocal and physical in their protest and resistance, yet apparently consented and then immediately afterwards falsely accused him. The evidence of each complainant supports the other because of the unlikelihood they would make up similar stories. Seen in this light, it would be artificial to present each case separately.
[58] The evidence will be probative to the jury’s assessment of whether each complainant was in fact consenting and to the objective assessment of whether the defendant believed on reasonable grounds in each case the complainant was consenting.
Is the value of the propensity evidence outweighed by the risk of an unfairly prejudicial effect on the defendant?
[59] Because any evidence which is probative will be inherently prejudicial,16 there is no doubt the trials being heard together would prejudice the defendant. The question is whether the prejudice would be unfair or illegitimate in that it might unfairly predispose the jury against the defendant or give the propensity evidence disproportionate weight.
[60] The trial Judge will, no doubt, give the jury careful directions. The Judge will identify the relevance of the evidence and warn the jury of its limitations, in particular against engaging in illegitimate reasoning processes. The defence will no doubt highlight the differences between the two occasions and any weaknesses of the complainants’ allegations.
[61] I am satisfied of the probative value of the propensity evidence and its relevance to the issues in dispute, and that careful jury directions would sufficiently mitigate the prejudicial effect on the defendant. As a result, any prejudice to the defendant of the charges being tried together would not be illegitimately prejudicial.
16 At [7].
Result
[62] For the reasons given, the evidence in the two charges is cross-admissible on a propensity basis and it is not in the interests of justice to order separate trials. The application for severance is dismissed.
Thomas J
Solicitors:
Crown Solicitor’s Office, Wellington
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