R v Ratana CA293/06
[2006] NZCA 486
•10 November 2006
NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN THE NEWS MEDIA OR ON THE INTERNET OR IN ANY OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF THE TRIAL. PUBLICATION OF THE REASONS FOR JUDGMENT IN A LAW REPORT OR LAW DIGEST IS PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA293/06
THE QUEEN
v
JOSEPH RATANA
Hearing: 25 October 2006
Court: Arnold, Baragwanath and Wild JJ Counsel: B J Horsley for Crown
G J King for Respondent
Judgment: 10 November 2006 at 2.30 pm
JUDGMENT OF THE COURT
A Leave to appeal is granted. B The appeal is allowed.
C We make an order prohibiting publication of the reasons for judgment
in the news media or on the internet or in any other publicly accessible
R V RATANA CA CA293/06 10 November 2006
database until final disposition of the trial. Publication of the reasons for judgment in a law report or law digest is permitted, however.
REASONS OF THE COURT
(Given by Arnold J)
Introduction
[1] The respondent is charged with sexually violating the complainant by unlawful sexual connection. The respondent’s defence is that he was intoxicated and mistook the complainant for her mother, who is the respondent’s partner. He wishes to lead expert evidence from a doctor as to the effects of intoxication. Judge Barry has ruled that the evidence is admissible. The Solicitor-General applies for leave to appeal against that ruling.
Background
[2] One evening the respondent was drinking with his partner and her daughter, who is the complainant, at the house where he and his partner live. All three became intoxicated. The respondent went to bed. Some time after, the complainant and her mother also went to bed, the complainant in a guest bedroom and her mother in the bedroom which she shared with the respondent.
[3] The complainant woke up early in the morning to find the respondent in her bed. He was kissing her and manipulating her genitalia. The complainant reacted. The respondent then left the complainant’s bedroom.
[4] The respondent maintains that he went to bed drunk, and got up in the night to go to the toilet. When he went to return to bed, still being intoxicated he mistakenly went into the guest bedroom and climbed into bed. He then engaged in
the sexual activity complained of believing that he was in his own bedroom and in bed with his partner. He said that the perfume used by the complainant was the same perfume as used by his partner.
[5] In support of this defence the respondent wishes to lead expert evidence from a doctor concerning the likely effects of alcohol on him.
The judge’s ruling
[6] Having referred to a textbook and several authorities the Judge found as follows:
[19] The Court of Appeal in K v R [CA 15/03 23 June 2003] indicated that the precise basis of mistaken identity as a defence may be unclear. It may be tempting to view it, in a case such as this, in terms of belief in consent because an underlying assumption may arise that if he thought the complainant was his partner that could be the basis for a belief in consent. I do not consider that to be the correct approach based on the principles and authorities cited above and I find:
• In the context of this case the act of sexual connection (as distinct from sexual violation with its importation of issues involving consent) requires an intention to penetrate the named complainant.
• If the defence can raise the reasonable possibility, on the evidence, that the accused mistakenly believed he was penetrating the genitalia of his partner, then the prosecution must fail on that element alone without reference to issues of consent or a reasonably held belief in consent.
• Such a mistake as to identity need not be a reasonable mistake as it would in relation to a reasonably held belief in consent.
• The evidence of Dr Robinson is accordingly relevant to the issue of mistaken identity induced or contributed to by intoxication.
• The evidence of intoxication is not intended to be led on the basis of the classic intoxication defence of being so drunk that the accused’s mind was no longer functioning, thus absenting all intention as per R v Kamipeli [1975] 2 NZLR 610.
• Rather it is led as evidence of at least part of the basis for confusion that, in turn, led to mistaken identity of the person with whom sexual connection was effected. I consider that is an issue confined to and relevant to the intention to penetrate the
named complainant’s genitalia. It does not touch upon issues of consent or a reasonably held belief in consent. Judicial direction may be necessary on that point at trial.
• Upon that basis I find that while the evidence of Dr Robinson is open to attack as to reliability and weight the evidence itself is relevant to the issue of mistaken identity and is admissible.
[7] In reaching this view, the Judge differed with an earlier ruling on the same point given by Judge Mackintosh in the course of the respondent’s trial. Judge Mackintosh aborted that trial and ordered a retrial.
Discussion
[8] Section 128 of the Crimes Act 1961 relevantly provides:
(1) Sexual violation is the act of a person who –
…
(b) has unlawful sexual connection with another person.
….
(3) Person A has unlawful sexual connection with person B if person A
has sexual connection with person B -
(a) without person B’s consent to the connection; and
(b) without believing on reasonable grounds that person B
consents to the connection.
[9] The Supreme Court in L v The Queen [2006] NZSC 18 considered the mental element required for attempted sexual violation. Tipping J, delivering the judgment of the majority, summarised the ingredients of sexual violation as follows:
[6] A completed offence of sexual violation of the present kind involves:
(i) intentional penetration of the genitalia by the penis; (ii) without the consent of the complainant; and
(iii) without the accused believing on reasonable grounds that the complainant was consenting.
[7] The first element requires the Crown to prove the physical act of penetration accompanied by the necessary mental state, namely the
intention of the accused that there shall be penetration. The second element requires proof of the fact that the complainant did not consent to the penetration. The third element requires the Crown to prove either that the accused did not believe that the complainant was consenting to the penetration; or, if the accused did or might as a reasonable possibility have so believed, that the accused had no reasonable grounds for that belief.
[10] In his written submissions on behalf of the respondent Mr King summarised his argument in this way:
The respondent submits that if there were a reasonable possibility that he believed that he was in bed and engaging in intimate touching with his partner (to whom he was entitled to so act), then he must be acquitted. The respondent submits that the issue over his mistake of fact, being the identity of the person he was touching, is a distinct element of the offence.
[11] Mr King said that because there was a mistake of fact as to the identity of the person he was touching it could be said that the respondent “accidentally” touched the complainant’s genitalia. Because the respondent’s mistake went to identity and not consent, the decision of this Court in R v Clarke [1992] 1 NZLR 147 was, he said, irrelevant. In Clarke this Court held that the because the adequacy of the grounds for belief in consent must be judged objectively (as the use of the words “on reasonable grounds” in s 128(2)(b) and (3)(b) requires), there was no room for intoxication as a factor in determining whether reasonable grounds existed for an accused’s subjective belief that the complainant was consenting (at 149).
[12] Mr King drew support for his argument from the oral judgment of Blanchard J in Hastie v Police HC ROT AP22/95 24 July 1995. The appellant was at a party and was quite drunk. He had been “dirty dancing” with a young woman of
17, who appeared to be encouraging his advances. Later in the evening the appellant entered what he thought was the 17 year old’s bedroom and made sexual advances to a person in bed there. He thought the person was the 17 year old. In fact it was the
12 year old complainant. The appellant was convicted of indecently assaulting a girl aged between 12 and 16 years.
[13] On appeal Blanchard J quashed the conviction and substituted a conviction for indecent assault simpliciter. The Judge said:
I accept the [contention that] this man could not properly be convicted under s 134. [However, as] he had the requisite intention of touching in a sexual way the girl with whom he had been dancing and of doing so without her consent, he could be convicted on indecent assault under s 135. It is clear from the evidence however that he had no intention of indecently assaulting the complainant and therefore I do not see that he could be convicted under s
134. This is not a situation of the kind which is the subject of comment in paragraph CA.134.19. of Adams on Criminal Law. That comment is related to a situation in which an assault has been committed on the person whom the accused intended to touch indecently and a mistake has been made about the age of the girl. Here however there was no mistake about age. The person whom the appellant thought that he was touching was 17 years of age. The mistake was as to identity, not age.
[14] We reject the respondent’s arguments.
[15] The respondent seeks to introduce a mental component (knowledge of identity) into the first element of the offence identified by the Supreme Court in L, namely the actus reus. While it is true that that there is a mental component to the actus reus in the sense that the proscribed action must be voluntary or deliberate (ie, there must be an intention to perform the physical act), to build in a further mental element going to knowledge of identity is contrary to principle and would require a gloss upon the statutory language.
[16] Mr King said in oral argument that where an accused raised mistaken identity, it would be open to the Crown to prove that the person with whom the accused believed he was engaging in sexual activity would not have consented and that the accused could not reasonably have believed that she would have consented. The effect of this, however, would be to build an additional element into the offence, which the Crown would be required to prove. Plainly it would involve a degree of speculation.
[17] Further, the argument, if accepted, would produce an anomalous outcome. A person who engaged in sexual activity with A, knowing that the person was A but believing, erroneously as a result of self-induced intoxication, that she was consenting, would not be able to rely on the effects of intoxication to raise a reasonable doubt on the issue of his belief in A’s consent. By contrast, a person who engaged in sexual activity with A, erroneously thinking as a result of self-induced intoxication that she was B, would be able to rely on the effects of his intoxication to
raise a reasonable doubt, even if his mistaken belief was unreasonable. Characterising the first situation as one involving a mistaken belief in consent and the second as a mistaken belief in identity neither explains nor resolves this anomaly.
[18] Apart from Hastie v Police there is little authority on this point. An argument of this type was raised in K v R CA 15/03 23 June 2003. The appellant appealed his conviction for indecent assault of his daughter. The sole ground of the appeal was that the Judge had failed to direct the jury on the possibility that the assault occurred because the appellant mistakenly believed that the complainant was his wife. The Court found that in the circumstances the possibility of mistake by the appellant was never an issue. The Court said:
[9] The precise legal basis of the defence based on mistaken identity is not clear to us; it could not be consent as consent is not a defence to a charge of indecent assault on a girl under twelve years of age (s 133(2) Crimes Act). Regardless, however, of how the issue might have been formulated, the appellant’s express disavowal of a defence based on mistaken identity precluded the need for any direction from the Judge on the subject.
Plainly this provides little in the way of support for the existence of such a defence.
[19] The mistaken identity defence was raised in R v Fotheringham (1989)
88 Cr App R 206 (discussed at [1988] Crim LR 846). The appellant had been convicted of raping a 14 year old girl who was babysitting at his home and had slept over. His defence was that he made an honest mistake as to the complainant’s identity. Because he was very drunk he mistook her for his wife. The appellant’s counsel accepted that where the issue in a rape case is consent, the accused’s self-induced intoxication is not a matter which the jury may take into account in deciding whether there were reasonable grounds for the accused’s belief that the complainant consented. He argued, however, that a mistake as to identity was in a different category (at 210-211). The Court of Appeal rejected this argument, saying (at 212):
[The argument] in our view clearly runs counter to authority, which is that in rape self-induced intoxication is no defence, whether the issue be intention, consent, or, as here, mistake as to the identity of the victim.
Despite the different statutory context, this decision is of assistance.
[20] We consider that a mistake as to identity goes to the question of consent in a sexual violation case, and not to the physical (or first) element of the offence. In the present case the respondent’s sexual conduct was deliberate or intentional, not involuntary. Accordingly he had committed the physical element of the offence. His defence is that he had a reasonable belief in consent on the basis of his mistake as to identity. As a result of this Court’s decision in Clarke, the effects of self-induced intoxication are not relevant to that defence. Accordingly, the expert evidence of the doctor is inadmissible.
[21] It follows from what we have said that we consider that Hastie v Police was wrongly decided.
Decision
[22] We grant leave to appeal and allow the appeal. The evidence of the doctor is inadmissible. We make an order prohibiting publication of the reasons for judgment in the news media or on the internet or in any other publicly accessible database until final disposition of the trial. Publication of the reasons for judgment in a law report or law digest is permitted, however.
Solicitors:
Crown Law Office, Wellington
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