R v Phillips
[2020] NZHC 2884
•4 November 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2019-027-1253
[2020] NZHC 2884
THE QUEEN v
KIRIHI BOB PHILLIPS
Hearing: 2-3 November 2020 Appearances:
M B Smith and T Needham for Crown
W McKean and S Plaistead for Defendant
Verdicts:
3 November 2020
Reasons:
4 November 2020
REASONS FOR VERDICTS OF LANG J
This judgment was delivered by me on 4 November 2020 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Whangarei
R v PHILLIPS [2020] NZHC 2884 [3 November 2020]
[1] Mr Phillips faces charges of burglary1 and indecent assault.2 He elected trial by Judge alone. For the reasons that follow I found Mr Phillips not guilty at the conclusion of the trial on the burglary charge and guilty on the charge of indecent assault.
Onus and standard of proof
[2] Mr Phillips faces criminal charges. The Crown therefore bears the onus of proving each element of each charge beyond reasonable doubt. This is a high standard and will only be met if, after careful and impartial consideration of all the evidence, I am sure of his guilt. It is not sufficient for the Crown to prove that Mr Phillips is probably guilty or even very likely guilty.
[3] Furthermore, Mr Phillips enjoys the presumption of innocence. This means he is presumed innocent unless and until the Crown has proved guilt beyond reasonable doubt. As a result, he bears no onus to give evidence or prove anything to answer either of the charges. He elected to give evidence but in doing so assumed no onus to prove anything at all. He also underwent a reasonably lengthy videotaped interview with the police on 21 October 2019 in which he gave his version of events. He confirmed when he gave evidence at trial that everything he said during the interview was the truth. This forms part of the overall pool of evidence from which I am required to determine whether the Crown has proved either of the charges beyond reasonable doubt.
Undisputed evidence
[4] Much of the evidence is not in dispute. I therefore set it out by way of background before considering whether the Crown has proved the individual elements of the charges beyond reasonable doubt.
[5] The charges were laid as a result of an incident that occurred in the early hours of 21 October 2019. On the afternoon of the previous day Mr Phillips and his cousin, Mr Jim-Adams Kopa, travelled to Paihia and decided to stay the night at a backpackers
1 Crimes Act 1961, s 231(1)(a).
2 Section 135.
hostel or lodge. The complainant, a 27 year old female tourist from Germany, was staying at the same hostel that night. She was sharing a bunk room with two other female German tourists who had met on the journey to New Zealand and decided to travel around New Zealand together. Mr Phillips and his cousin were staying in a separate building a few metres away.
[6] On the evening of 20 October 2019, the complainant went for a walk on the beach and returned to the hostel shortly after 9 pm. As she walked into the driveway of the hostel she passed Mr Phillips walking in the opposite direction. The pair exchanged greetings and then went their separate ways.
[7] When the complainant returned to the hostel she went to bed and spent the next hour or so browsing the internet. She then went to sleep. The complainant had not consumed any alcohol during the evening.
[8] The complainant’s roommates went to the bar in the hostel and remained there until it closed. Whilst they were there they met Mr Phillips and his cousin and played a drinking game called “beer pong” with them. When the bar closed one of the complainant’s roommates went to bed whilst the other went down to the beach with a group of those who had been in the bar, including Mr Phillips and his cousin. The group returned to the hostel and went to bed at about 2.30 am.
[9] The complainant was woken by her roommates coming into the room and going to bed. After her second roommate returned at about 2.30 am the complainant was woken some time later by a female who returned to an adjoining unit and vomited loudly in the bathroom. Some minutes later the complainant awoke again when she felt somebody touching her hand. There is no dispute that this was Mr Phillips. There is, however, a dispute regarding the events that followed and, in particular, the number of times Mr Phillips touched her and on what areas of the body.
[10] The incident came to an end when the complainant called out to her roommates and one of them activated the flashlight on her cellphone. When the light was turned on, the three occupants of the room saw Mr Phillips near the complainant’s bed. One
of the complainant’s roommates told him to get out of the room and he left immediately.
[11] The next morning the complainant and her roommates reported what had happened to the hostel staff. As they were doing so Mr Kopa came into the reception area. The complainant’s roommates recognised him from the previous evening and they told him what Mr Phillips had done. Mr Kopa immediately set out to find and talk to Mr Phillips. By that stage Mr Phillips had left the hostel to get some breakfast.
[12] A short time later Mr Kopa met Mr Phillips and the two men became involved in an argument about what Mr Phillips had done. The hostel staff also notified the police of the incident and they began making efforts to contact Mr Kopa and, through him, Mr Phillips. Mr Kopa ultimately took Mr Phillips to the Paihia Police Station later the same day. There he telephoned the detective in charge of the investigation and complied with his request that they go to the Kerikeri Police Station, from where the investigation was being conducted.
[13] At the Kerikeri Police Station Mr Phillips underwent a videotaped interviewed that lasted for approximately 50 minutes. He described how he had encountered the complainant at the entrance to the hostel during the evening of 20 October 2019. He said he then spent the rest of the evening drinking and socialising with others who were in the bar, including the complainant’s roommates.
[14] When people started going to bed after returning from the beach Mr Phillips said he saw the complainant lying in her bed. He said that some time later he checked the sliding door of her room and found it was unlocked. He then entered the room and went over to the complainant’s bed. He recalled one of the other girls getting up to shut the door. He did not alert this person to his presence. A few minutes later he said he touched the complainant twice on the hand to wake her up. He said he was going to “hit her up if she wanted to have sex”. He explained this in greater detail as follows:
KG Okay. And what, why did you, what made you go after that girl?
KP Um because I, I just got out of jail and was just feeling horny. I just wanted to have a fuck and I was just trying to wake her up to ask her if she was keen for a fuck. That’s it. Just um some sex. Cause I haven’t had sex for about five years. Yeah. No intention of sexual
assault or anything. I was just trying to wake her up and ask her, and that’s, that’s it. End it there. Just a night.
[15] Mr Phillips told the police that the complainant got a fright when she woke up and that he must have “spooked her very much”. At that point one of the complainant’s roommates told him to get out of the room and he left immediately. He then went back to his room, where he went to bed.
Elements of the charges
The burglary charge
[16] In order to prove this charge the Crown must prove the following elements beyond reasonable doubt:
(a)The defendant broke and entered a building without authority;
(b)He did so with intent to commit an imprisonable offence therein.
[17] Mr Phillips acknowledges he opened the unlocked door of the room in which the complainant and her roommates were sleeping and entered it. This is sufficient to constitute a breaking and entering. There is no suggestion Mr Phillips had any authority to be in the room. The issue in dispute is whether Mr Phillips had the necessary intent to commit an imprisonable offence when he entered the room. The Crown contends he intended to commit the imprisonable offence of indecent assault.3 The defence contends he had no such intent and that he merely wished to ascertain whether the complainant wished to have sex with him.
Indecent assault
[18] In order to prove this charge the Crown must prove the following elements beyond reasonable doubt:4
(a)Mr Phillips assaulted the complainant by deliberately touching her; and
3 Indecent assault carries a maximum penalty of 7 years imprisonment.
4 R v Aylwin [2007] NZCA 458 at [55].; Khalid v R [2020] NZCA 489 at [49].
(b)The assault occurred in circumstances of indecency in the sense that it would be so regarded by right-thinking members of the community generally; and
(c)Mr Phillips intended or appreciated those aspects of the touching, and the surrounding circumstances, that rendered it indecent.
[19] Where consent is raised it is also necessary for the Crown to prove that the complainant did not consent to the assault and the defendant did not honestly believe the complainant was consenting.5 The touching in the present case began whilst the complainant was asleep and was therefore incapable of consenting. There is no suggestion by the defence that she consented to any of the touching that occurred thereafter. It is therefore not necessary to consider the issue of consent further.
[20] There is no dispute in the present case regarding the fact that Mr Phillips assaulted the complainant by touching her. There is, however, a dispute as to the nature of the touching and the number of times on which it occurred. The remaining elements are also in dispute.
The burglary charge
[21] As I have already observed, the issue in dispute in relation to this charge is whether Mr Phillips entered the room with the intent of indecently assaulting the complainant.
[22] I am satisfied that Mr Phillips’ intent when he entered the room was to ask the complainant whether she would have sex with him. Without more, however, that is not an imprisonable offence.
[23] I find I am left in a state of reasonable doubt as to whether Mr Phillips had formed any intent to indecently assault the complainant, or even to assault her by touching her, when he entered the room. He obviously needed to wake the complainant up so he could ask her whether she wished to have sex with him. He
5 R v Aylwin, above n 4, at [35].
could have done this by talking to her and this would not have constituted an assault. Ultimately Mr Phillips tried to wake her up by touching her. I doubt, however, that he had formed any intent to do this at the point where he entered the room. At that stage he may well not have known how he was going to wake her up. This is demonstrated by the fact that he did not go immediately to the complainant’s bed and begin touching her after he entered the room.
[24] I have therefore concluded the Crown has failed to prove an essential element of the burglary charge beyond reasonable doubt. I enter a verdict of not guilty on that charge.
The charge of indecent assault
Did Mr Phillips assault the complainant by deliberate applying force to her person?
[25] Mr McKean submits on Mr Phillips’ behalf that it is not possible for me to reconcile the differing versions of events given by the complainant. He also submits she was an unreliable witness generally and that I could readily conclude she was being evasive. He also submitted her versions of events did not make sense. He therefore submits the Crown cannot prove beyond reasonable doubt that Mr Phillips assaulted the complainant.
[26] For the reasons that follow I accept the complainant was mistaken regarding aspects of her evidence. I also accept she wrongly described the clothing and shoes Mr Phillips was wearing and also erred in describing the location of a tattoo on his arm. Those errors are understandable given the fact that she only observed Mr Phillips for a matter of seconds after her roommate activated the flashlight on her cellphone.
[27] Overall, however, I did not find the complainant to be an untruthful or evasive witness. Her evidence at trial was complicated significantly by the fact that it was relayed to the Court almost entirely through the medium of an interpreter. The interpreter did his best to translate what the complainant was saying but on several occasions he was unable, or found it very difficult, to do so. I am unable to ascribe a reason for this because I did not explore it with the interpreter at the time. I have no
basis, however, to conclude the complainant was being deliberately untruthful or evasive.
[28] The complainant said in evidence that Mr Phillips touched her on three occasions. The first was on her hand. She said she pushed his hand away and did not think too much of it. A few minutes later she said she felt a hand touching her on the upper arm over the top of the shirt she was wearing. On this occasion she said “No” and again pushed the hand away. A short time later she felt the hand reach under her blankets and touch her hip, again on top of her clothing. This prompted her to say “No” again, and to raise the alarm with the other occupants of the room. At this point one of her roommates activated her cellphone flashlight and the complainant was able to see Mr Phillips sitting beside her bed. He left the room immediately after being told to do so by one of her roommates.
[29] Mr McKean points out that neither of the complainant’s roommates heard her say “No” when she pushed Mr Phillips’ hand away. Nor, for that matter, did Mr Phillips hear those words said. It is not surprising one of the roommates did not hear anything because she was asleep until the other roommate activated the flashlight on her cellphone. I accept it is perhaps surprising that the other roommate heard nothing but it may be explained by the fact that she was dozing whilst trying to go back to sleep after closing the door. In any event I do not ascribe great significance to this issue because there is no dispute that at least two forms of touching are acknowledged to have occurred and there is no suggestion the complainant responded positively to either.
[30] The version of events given by the complainant at trial differs in some respects from what she told Detective Constable Brothers when he took a written statement from her at the hostel on 21 October 2019. This was produced as an exhibit at the trial. The detective compiled the statement with the complainant’s roommates acting as interpreters on occasions where the complainant did not understand what was being said. In her written statement the complainant said she woke up after she heard the door opening and somebody entered the room. Approximately ten minutes later she felt somebody rubbing her hand. She immediately pushed the hand away but did not
think too much of it because she thought it was the drunk person who had vomited trying to get help to get to bed. She said she did not open her eyes during this incident.
[31] The complainant said she then felt a hand rubbing her hand again. On this occasion she opened her eyes but could not see anything because it was so dark. She could, however, make out the silhouette of a person sitting on the floor by her bed. She could not tell whether this person was male or female. She firmly said “No”, and pushed the hand away. Approximately a minute later she felt a hand rubbing her hand again. On this occasion she felt the hand move up her arm and then down her back. She said “No” again and called out to her roommates that there was somebody in the room.
[32] Both versions given by the complainant need to be viewed against Mr Phillips’ version of events, in which he acknowledges touching the complainant’s hand on two occasions but says he immediately desisted when the light came on and he was told to leave.
[33] Mr McKean submits it is significant that the complainant told her roommates and Mr Kopa that Mr Phillips had touched her hand and arm. I accept that this differs to some extent from what she said in her written statement because it does not refer to the final touching extending to the complainant’s back. It needs to be remembered, however, that the complainant was not speaking to those persons formally as she was with the detective. It is not surprising she may not have gone into any detail with Mr Kopa and her roommates.
[34] I consider the complainant is mistaken when she says the second touching was to her upper arm and the third touching was to her hip. This differs from what she said in her written statement. One explanation for the discrepancy may be found in the following passage of the evidence when she was cross-examined about this issue:
Q. Do you accept you said that to the police?
A. Yeah.
Q. Do you accept you made no mention of the touching of the hip?
A. (Foreign speech). The last word is, it was the hips, (I wouldn’t like
to be drawn into the argument about back and then hip, where does it start where does it end, it makes it complicated for me).
[35] Given the language difficulties encountered with the complainant when she gave evidence at trial I consider the complainant’s written statement provides the greatest assurance of accuracy because it was made just a few hours after the events she described in it. It was also compiled with the interpretative assistance of her roommates, who obviously spoke in a manner that she understood. It is highly unlikely that either the complainant or her roommates would have mistakenly told the interviewing officer that the third touching extended to the complainant’s arm and back if it involved an unrelated touching of her hip.
[36] I am therefore sure the complainant correctly described what happened when she told the police in her written statement that the third incident began with touching of her hand and then moved up her arm and ultimately to her back. I do not accept it involved touching to the hip, unless by that term the complainant was referring to her lower back.
[37] This means I do not accept aspects of Mr Phillips’ version of events as recorded during the police interview and re-iterated in his evidence at trial. I accept that he touched the complainant twice on the hand because this accords with what the complainant said in her written statement. I am also satisfied, however, that Mr Phillips persisted in touching the complainant after he was rebuffed on the second occasion.
[38] I have reached this conclusion for several reasons. First, the passage from his interview set out above6 makes it clear that he was keen to have sex that night and the complainant had plainly caught his eye when he encountered her in the driveway of the hostel earlier in the evening. The complainant said that he appeared to be “too friendly” at that time and looked at her in a way that made her feel uncomfortable. Secondly, both the complainant’s roommates described how Mr Phillips began asking one of them personal questions whilst they were with him in the bar. These made her feel uncomfortable and she made it clear she was not interested in him. He also made
6 At [14].
one of them uncomfortable by filming her whilst she was dancing in the bar. These actions suggest Mr Phillips had a desire to engage in sexual activity throughout the evening.
[39] In addition, Mr Phillips decided to enter the complainant’s room to ask her for sex even though he had never had any dealings of substance with her and knew others were present in the room. This suggests a degree of determination on his part. It is also clear he had been drinking alcohol over an extended period. It is likely that his judgment, and his subsequent recollection of events, were clouded by that factor.
[40] Finally, the propensity evidence led by the Crown provides some assistance on this point.7 Mr Phillips was convicted of indecent assault following an incident that occurred on the morning of 4 April 2011. The summary of facts for this offending was produced as an exhibit. It records that Mr Phillips was riding a bicycle along a footpath. He saw a female walking ahead of him in the same direction. He approached her from behind whilst driving slowly on his bicycle. As he passed the female he reached out with his hand and squeezed her buttocks for several seconds. He then rode his bicycle past her and stopped a short distance in front of her.
[41] The female walked past Mr Phillips, but he followed her and began talking to her in a sexually explicit way. This involved Mr Phillips asking her whether she wanted to have sexual intercourse with him. The female declined and crossed the road to get away from him. Mr Phillips followed her and again asked her for sex. He also stroked her on the back with his hand on several occasions as she was walking away from him. The female told Mr Phillips to “get away” and began walking faster towards her place of work.
[42] Mr Phillips then parked his bicycle and continued to follow the victim on foot. As she was walking through the carpark of her workplace Mr Phillips approached her from behind and grabbed a handbag she was carrying over her right shoulder. The force he used spun her around to face him. She was then able to regain control of her handbag and Mr Phillips ran away.
7 This was admitted following a pre-trial hearing: R v Phillips [2020] NZHC 1713.
[43] I disregard the attempt by Mr Phillips to steal the victim’s handbag because it is irrelevant for present purposes. The relevance of this evidence lies in the fact that it suggests Mr Phillips has a tendency to touch female strangers and to attempt to persuade them to engage in sexual activity with them despite their obvious unwillingness to cooperate. It also shows a degree of persistence because he continued to harass the earlier victim well after she made it clear she did not want anything to do with him. The similarity between the acts underpinning the earlier offending and those underpinning the present charge means the propensity evidence has significant probative value even though it relates to a single incident that occurred some time ago.
[44] The propensity evidence does not lead me to reason that, because Mr Phillips acted in a similar way on an earlier occasion, he must be guilty of the current charge of indecent assault. It nevertheless forms part of the overall pool of evidence and I am entitled to take it into account. I consider it provides support for the present complainant’s evidence that Mr Phillips persisted with his advances even after being rebuffed on the second occasion.
Did the touching occur in circumstances of indecency?
[45] This issue is to be determined objectively. The issue is whether the act of touching the complainant would be regarded as indecent by right-thinking members of the community generally. It is irrelevant whether Mr Phillips knew his acts would be regarded as indecent.
[46] Several factors are relevant to this assessment. The first relates to the circumstances surrounding the touching, including its nature and extent. In this context it is relevant that the incident occurred in the early hours of the morning whilst the complainant was asleep in her bed. It also occurred at a time when Mr Phillips had no right or authority to be in her room. In addition, Mr Phillips did not know the complainant and had no grounds for believing she may be interested in having sex with him.
[47] The fact that it occurred in the context of Mr Phillips’ acknowledged desire to have sex with the complainant is plainly relevant, as is the fact that he continued to touch the complainant after being rebuffed on two occasions. The fact that the third
and final touching extended from the complainant’s hand to her arm and then to her back also suggests it was done with sexual intent.
[48] All of these factors leave me sure the third touching would be regarded as indecent by right-thinking members of the community generally.
Did Mr Phillips intend or appreciate those aspects of the assault, and the surrounding circumstances, that made it indecent?
[49] Mr Phillips knew he was going into the complainant’s room in the early hours of the morning uninvited and when he had no right or authority to be there. He also knew the complainant was likely to be asleep, and that it would be necessary to wake her to ask her to have sex with him. In addition, he knew he had had nothing to do with her in the past other than the brief encounter in the driveway earlier in the evening. He therefore had no basis for any belief that she might wish to have sex with him.
[50] Furthermore, Mr Phillips plainly intended to touch the complainant in the way that he did and in the knowledge that she had rebuffed him on two earlier occasions. He therefore knew of the circumstances that rendered the touching indecent and intended to touch her in that knowledge. These factors leave me sure Mr Phillips intended or appreciated those aspects of the touching that made it indecent.
[51]I therefore enter a verdict of guilty on the charge of indecent assault.
Lang J