R v Ratana CA293/06 - [2006] NZCA 486

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Ratana CA293/06

Details

AGLC: R v Ratana CA293/06 [2006] NZCA 486
Case: [2006] NZCA 486
Decision Date: 10 November 2006

CaseChat Overview and Summary

The case of R v Ratana CA293/06 involved the respondent, Joseph Ratana, who was charged with sexually violating the complainant through unlawful sexual connection. Ratana's defence was that he was intoxicated and mistakenly believed the complainant to be her mother, who was his partner. He sought to present expert evidence from a doctor concerning the effects of intoxication. The lower court judge ruled that the evidence was admissible, prompting the Solicitor-General to apply for leave to appeal against this ruling.

The legal issues before the Court of Appeal revolved around the admissibility of expert evidence regarding the effects of intoxication when the defence of mistaken identity is raised. The Court had to determine whether such evidence could be admitted in the context of proving mistaken identity and whether it should be considered in relation to the physical element of the offence or the issue of consent.

The Court of Appeal held that the expert evidence was inadmissible. The Court found that a mistake of identity goes to the question of consent rather than the physical element of the offence. In this case, Ratana's conduct was deliberate and intentional, satisfying the physical element of the offence. The effects of intoxication were irrelevant to the issue of whether Ratana held a reasonable belief in consent based on his mistaken identity. The Court concluded that the expert evidence was not relevant to the issue of mistaken identity and was therefore inadmissible. The Court also noted that the earlier case of Hastie v Police was wrongly decided in this regard.

The Court granted leave to appeal and allowed the appeal, ruling that the expert evidence was inadmissible. The Court made an order prohibiting the publication of the reasons for judgment in the news media or on the internet until the final disposition of the trial, although publication in a law report or law digest was permitted.

Orders