R v Nelson

[2016] NZHC 1236

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL [RETRIAL]. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2015-021-000255 [2016] NZHC 1236

THE QUEEN

v

NIGEL ALLAN HAUAURU NELSON

Hearing:	31 May 2016
Appearances:	C E Clarke for Crown K M Marriner for Defendant
Judgment:	9 June 2016

JUDGMENT OF DUNNINGHAM J

[1]      The defendant has been charged with various offences, mostly sexual in nature. He has applied under s 147 of the Criminal Procedure Act 2011 for the dismissal of 24 of the charges, involving six complainants,1 on the ground that a properly directed jury

could not reasonably convict him.2

1      The specific charges which are the subject of this application are listed in a schedule to this decision.   Charges 53 and 58, which were charges of dealing in people under 18 for sexual exploitation against two other complainants, have now been removed from the application.

2      Criminal Procedure Act 2011, s 147(4)(c).

R v NELSON [2016] NZHC 1236 [9 June 2016]

[2]      The Crown case is that the complainants only consented to the sexual activity because each believed that it was required for them to gain employment in the prostitution and/or pornography business that the defendant said he owned or recruited for.  In fact, there was no prostitution or pornography business.  However, a broadly similar story was told to each of the defendants, in order to get them to engage in sexual activities which they all say they would not otherwise have engaged in.  The Crown says, therefore, that the complainants’ consent was vitiated because it was obtained by the defendant’s fraudulent representations, and was not full, free and informed consent to the sexual activities.3

[3]      The defendant’s position is, however, that the Crown cannot show a lack of consent to the sexual acts which took place between the defendant and the complainants.  The law has traditionally held that deception as to the benefits which would follow from the sexual activity does not vitiate consent as long as the person understood the sexual nature of the activity they were participating in. As a result, the Crown has failed to adduce credible evidence to show that, as a matter of law, a properly directed jury could reasonably convict.

The issue

[4]      The critical issue in this case is whether, in the circumstances as disclosed in the statements of the complainants, a properly directed jury could find that the complainants were not consenting to the sexual activity.  That turns on whether fraud of the type allegedly perpetrated on the complainants is a circumstance falling within either s 128A(7) or (8) of the Crimes Act 1961. Those subsections provide:

(7)       A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and…