R v Kahui HC Auckland CRI 2006 057 1135
[2007] NZHC 1940
•29 June 2007
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006 057 001135
REGINA
v
ROGER TIRA KAHUI
Hearing: 25, 26, 28, 29 June 2007
Counsel: S N Haszard and K Gray for Crown
Shane Cassidy and Stuart Blake for Accused
Judgment: 29 June 2007
[ORAL] JUDGMENT OF WILLIAMS J [on application by defence for s 347 discharge]
Applications for s 347 discharge on five counts are dismissed.
Solicitors and counsel:
Crown Solicitor, Auckland
Email: stev[email protected]
Kirsten[email protected]
Shane D Cassidy, P O Box 26-172 Epsom, Auckland
Email: [email protected]
S Blake, P O Box 55-281 Mission Bay, Auckland
Email: [email protected]
Case Officer: Rachael[email protected]
R V KAHUI HC AK CRI 2006 057 001135 29 June 2007
[1] The accused, Mr Kahui, faces an indictment containing some 26 counts of various forms of sexual offending and offences involving violence.
[2] At the conclusion of the Crown case Mr Cassidy, leading counsel for
Mr Kahui, sought the accused’s discharge under s 347 on some five counts – nos. 8,
10, 12, 14 and 17.
[3] The grounds on which the application was advanced will appear as this judgment proceeds.
Definition of genitalia
[4] Dealing first with count 8, Mr Kahui is charged that on 13 June 2006 he sexually violated the complainant by unlawful sexual connection occasioned by the introduction into her genitalia of his finger.
[5] The evidence on that appears on pp 20-21. The complainant said that the accused got onto the bed in the bedroom with her, started to lick and kiss her nipple and breast, an action with which he is not charged, and then “started to put his fingers on my clitoris and rubbed my clitoris with [his] fingers” although the accused was wearing gloves. That activity, she said, continued for a few minutes.
[6] The nub of the application is that the evidence does not disclose the offence with which Mr Kahui is charged under s 128(1B). That section, of course, creates the offence of sexual violation for having unlawful sexual connection with another person without their consent. Most of the relevant definitions were re-enacted or amended in 2005 when Parliament passed a number of amendments designed to ensure that sexual offending covered the entire gender spectrum.
[7] “Sexual connection” is now defined in s 2 as relevantly being connection effected by the introduction into the genitalia of a part of the body of another person and s 2(1)(a) provides that for the purposes of sexual connection “introduction to the
slightest degree is enough to effect a connection”. Section 2(1)(a) is, however, unhelpful in deciding the question on the s 347 application, namely, whether the evidence discloses introduction into the complainant’s genitalia.
[8] “Genitalia”, too, has been defined but not in a way which bears on the matter in issue in this application.
[9] The learned authors Robertson et al Adams on Criminal Law at para
CA2.32.01 p 1-57 say:
CA2.32.01 Connection
Prior to 2005 the acts described in para (a) of the definition required “penetration” of the genitalia or anus. At common law, and following the Crimes Amendment Act 1994 which substituted “genitalia” for “vagina” in this formula and in the definition of rape, the slightest penetration will suffice for both rape and the other forms of sexual connection. It is enough that some part of the accused’s body or the object is within the labia or anus:
3 Co Inst 59; 1 East PC 437; R v Russen (1777) 1 Grant PC 438, at p 439
“the least degree”; R v Lines (1844) 1 Car & K 393; 174 ER 861 “no matter how little”; R v Nicholls (1847) 53A Crim R 380; 55 SASR 447. The substitution of “introduction into” for “penetration” has not changed this position, and s 2 (1A) how specifically provides that for the acts covered by para (a) “introduction to the slightest degree is enough to effect a connection”.
The neutral wording of the definition of sexual connection means that it is irrelevant whether the alleged connection consists of an act done by the accused to the victim or vice versa: R v A [2003] 1 NZLR 1 (CA).
[10] As noted, in giving their opinion as to what amounts to “connection”, the authors cite some very ancient authority. That authority, however, bears out what the authors say. In R v Lines (1844) 1 Car & K 393, 174 ER 861, 862 Parke P, in relation to an application rather similar to the present, said :
I shall leave it to the jury to say whether at any time any part of the virile member of the prisoner was within the labia of the pudendum of the prosecutrix for if it ever was, no matter how little, that would be sufficient to constitute a penetration and the jury ought to convict the prisoner of the complete offence.
[11] The matter was also considered by the Court of Appeal in R v Karotu (1994)
1 CRNZ 691. That was a decision during approximately the decade when the requirement for sexual violation was penetration of the vagina, not the genitalia.
Accordingly, the learned authors of Adams are correct when they say that the binding authority of Karotu has now been diminished if not overcome by the change back to the use of the word “genitalia” in 1995 and of course its retention to the present time (Adams para CAQ128.01 p 15A-27):
[12] Nonetheless, the decision in Karotu remains instructive for present purposes. What occurred in that case was the accused practised traditional Solomon Island therapy which involved massaging women around their private parts. As the judgment records (at 692) with one woman he was “working with an instrument apparently a vibrator inside her vagina around her clitoris”. It seems from her evidence that the instrument may not have penetrated her vagina as that term is understood in its proper medical sense. The judgment goes on to record similar activity in relation to other complainants.
[13] The case went to the Court of Appeal as a question of law reserved, with the Judge asking whether he was correct in his ruling that the Crown could not succeed in proving sexual connection if the evidence had been there was no penetration of the vagina as defined by the dictionary, but only penetration of the vulva. The Court of Appeal reviewed authority, including Lines, and finally concluded that Parliament had not intended in 1985 to alter the long-held understanding of sexual intercourse as involving any penetration of the labia. The Judge Court held that the word “vagina” should be given a liberal or non-technical meaning to embrace the whole of the genital area within the labia (at 695). The judgment also records (at 696) a discussion of R v Randall (1991) 55 SASR 447 in which there was a letter from a doctor “confirming that the clitoris was not part of the vagina but part of the vulva”.
[14] All of that leads to a conclusion that Parliament, in reverting to the use of the term “genitalia” in 1995 and retaining that term now, intended the female genitalia to encompass all that part of the female anatomy as described in medical encyclopaedias as including, amongst the external genitalia, the labia, the clitoris and other similarly placed organs.
[15] In light of all of that, and following Lines, the conclusion must be that for the purposes of count 8 in the indictment against the accused, and more generally, the
term “genitalia” in the Crimes Act and in particular where it is mentioned in s 128 and the other definitions mentioned is intended to include any introduction of the part of the person of the accused into the genitalia as so defined, which includes the clitoris.
[16] In those circumstances therefore the application under s 347 is dismissed because the complainant has given evidence that the accused put his fingers on her clitoris and rubbed it.
Use of vibrator by complainant on herself
[17] The remainder of the s 347 application relates to charges of indecent assault. [18] Mr Kahui faces a number of charges of indecent assault, six of which were
laid because of doubts expressed and accepted by the Crown as to whether the circumstances could disclose sexual violation when the complainant inserted her vibrator, at the accused’s direction, into her vagina.
[19] Because the relevant definition of “manipulated by another person” was thought possibly inapplicable and was dealt with in a pre-trial ruling, the Crown sought, at the commencement of the trial, to substitute charges of indecent assault in relation to the six occasions when that activity is said to have occurred.
[20] The s 347 application is not brought in respect of two of those indecent assault counts - counts 7 and 20 – because the defence accepts that there is evidence which the jury could accept of Mr Kahui’s participation in the insertion of the vibrator on either or both of those occasions.
[21] On count 7 the complainant said (at p 20) that she pulled her knickers to one side “and I inserted the dildo as he called it into my vagina” with Mr Kahui standing alongside the bed on which she was lying watching her as she did so.
[22] Count 20 also relates to the insertion of the vibrator and took place rather later in the evening when these offences are said to have occurred. She did as she
was told (p 35): “I didn’t want to because I was really sore, very sore, he just told me to play with myself. I once again inserted the vibrator into my vagina”.
[23] The s 347 application is not brought in relation to these counts because a little later on p 35, when asked if Mr Kahui touched the vibrator at all, she said “It was while he was kissing and licking my nipple he took hold of it and moved it in and out of me quite roughly”. (See para [5] above).
[24] On the other counts however – 10, 12, 14 and 17 – there is no evidence that Mr Kahui was actively involved in the insertion or manipulation of the vibrator when it was inserted into the complainant’s vagina. The evidence on those counts is as follows:
Count 10 p 27: She was on a couch in the main room and said “I half laid on the couch with my feet up on the couch and once again inserted the vibrator into my vagina as he told me to do”.
Count 12: She said “I laid back with my head on the arm of the chair and my legs on the couch and inserted the vibrator into myself. I knew by that stage what he meant by playing with myself” and she said she inserted the vibrator “into my vagina” with Mr Kahui watching her.
Count 14: She was in the bedroom and said: “He told me to lay on the bed again and I did as I was told again. So I laid on the bed and again he told me to start playing with myself. As I said before, I knew what he meant by that so I got the vibrator. He told me back in the bedroom I once again took the vibrator and inserted it into my vagina” again with Mr Kahui apparently standing alongside the bed.
Count 17: She said that he told her to start playing with herself again and said: “At that stage when he said ‘start playing with yourself’ so I brought the vibrator with me again into the lounge and I took hold of it and inserted it into my vagina again”.
[25] As mentioned, the substituted charges are that Mr Kahui committed an indecent assault under s 135 on the complainant during those episodes.
[26] That immediately raises two matters.
[27] For the purposes of this ruling it must be assumed that the insertion by the owner of a vibrator of the instrument into her vagina to perform its designed purpose was, in all the circumstances of the matter, an insertion in circumstances of indecency. That is not contested for the purposes of this ruling.
[28] The second question is whether what occurred can amount to an assault within the meaning of s 2(1) of:
“Assault” means the act of intentionally applying or attempting to apply force to the person of another directly or indirectly or threatening by any act or gesture to apply such force to the person of another if the person making the threat has or causes the other to believe on reasonable grounds that he has present ability to effect his purpose.
[29] Once again, in the recent amendments of the definitions of sexual offences, Parliament has included s 2(1)(b) which reads:
For the purposes of this Act one person does an indecent act on another person when she or she :
(a) does an indecent act with or on the other person; or
(b) induces or permits the other person to do an indecent act with or on him or her.
[30] The learned authors of Adams express the opinion (para CA135.01 p 1-884)
that s 2(1)(b) is inapplicable to s 135 because the section requires an actual assault.
[31] Whilst, of course, s 135 comprehends actual assault, it may be the case that the learned authors were overlooking in that comment that part of the definition of assault of threatening to apply force.
[32] The real question, however, is whether in all the circumstances when the complainant inserted the vibrator into her vagina on those four occasions, the situation was that Mr Kahui was threatening by any act or gesture to apply force to
her in the sense of becoming involved in the insertion of the vibrator if she failed to comply with his wishes.
[33] Citing Adams again (para CA2.03.06 p 1-39):
If there is proof of a threat or gesture to apply force then provided the person making the threat has the present ability to effect his or her purpose or causes the victim on reasonable grounds to believe that he or she has such ability there is an assault although no physical contact occurs.
[34] The authority cited is Fogden v Wade [1945] NZLR 724 where a man hid in bushes near a women’s hostel and as a woman passed close by made an indecent suggestion to her. The question was whether he had been rightly convicted of assault. His appeal against conviction was dismissed, Blair J reviewing authority that went back as far as 1669 to reach the view (at 728):
Our definition expressly recognises that there may be an assault although no physical force has been applied to the person of the person assaulted. It constitutes the attempting or threatening by any act or gesture to apply force an assault if the person making the threat has or causes the other to believe on reasonable grounds that he has present ability to effect his purpose.
[35] The results of that review of authority means that in deciding the s 347 application concerning these four counts, the question is whether a jury, properly directed on the evidence given to this point, and would be able to reach the view that the insertion of the vibrator on those four occasions resulted from the threatening by Mr Kahui to apply force to the complainant by inserting the vibrator himself if she failed to comply.
[36] The circumstances include at least the following :
a) There was the one occasion, it seems, when Mr Kahui did take hold of the vibrator and manipulate it within the complainant’s vagina and, according to whether the jury regards that action as having been part of count 7 or count 20, the jury could reach the view that it happened earlier or later in the four or five hours when the offending is said to have occurred. That is certainly a circumstance which they could take into account in considering the evidence including evidence of
Mr Kahui’s proximity to the complainant when she inserted the vibrator on the other occasions.
b) More broadly, however, the circumstances are that on the evening in question, Mr Kahui forced entry into the complainant’s house, the house of a woman he had never met, and it seems common ground that he was armed with a hammer and some scissors as he did so, and that a struggle immediately occurred in which Mr Kahui acknowledged inflicting moderately severe injuries on the complainant by punching her about the head, injuries which are supported by his statement to the Police and by the photographs.
c) The circumstances also include the fact that Mr Kahui put a pillowcase over the complainant’s head shortly after his arrival because, as he said in his videotaped statement, he did not want her to see him. It seems that later in the episode she could have perhaps removed the pillow case but preferred to leave it over her head as what she termed a “security blanket”. But nonetheless that is part of the circumstances the jury could take into account in their evaluation of the necessary threat.
d)There were also the other circumstances including Mr Kahui wearing gloves throughout and his attempts, as he acknowledged to the Police, to ensure he left no DNA in the premises by directing the complainant to shower twice and particularly to wash between her legs after two of the alleged rapes.
e) There is also evidence of his telling her on a number of occasions to “Shut up, bitch” and the use of similar phrasing and the complainant asking him on a number of occasions “Please don’t kill me” because she said she was in fear of death. Mr Kahui certainly said throughout and to the Police that he did not intend to kill her providing she co- operated, but nonetheless those are all part of the circumstances the jury might properly take into account.
f) There is also evidence of the accused knowing the complainant lived alone, that she had pornographic movies, and that she owned the vibrator and the like. All those are matters the jury could properly take into account.
[37] Therefore, there is evidence available to the jury to conclude, if it thought it appropriate, that in all the circumstances, including Mr Kahui’s proximity to the complainant when he directed her on those four occasions to insert the vibrator into her vagina, that if she failed to comply he would assault her and that he had the present ability to effect that purpose because he was standing so close by and because of everything that had occurred.
[38] In all those circumstances the appropriate conclusion is that the s 347 applications should be dismissed and the matter proceed for the jury to decide whether Mr Kahui did threaten the complainant by his acts or gestures such that she inserted the vibrator in advance of him inserting it had she not complied with his demands.
[39] All applications for discharge under s 347 are accordingly dismissed.
………………………………..
WILLIAMS J.
29 June 2007
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