R v Tanielu Ca409/02
[2003] NZCA 317
•6 May 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA 409/02
THE QUEEN
v
ROPATI TANIELU
Hearing:28 April 2003
Coram:Anderson J
Baragwanath J
Paterson JAppearances: T M Saseve for Appellant
K Raftery for Crown
Judgment:6 May 2003
JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J
Introduction
[1] The appellant, a taxi driver aged 38 years, was convicted by a jury in the District Court at Auckland on 17 September 2002 on one count of indecent assault on a female, aged 17 years. The major grounds of appeal are:
a)that the trial Judge misdirected the jury as to onus of proof; and
b)that he wrongly invited the jury to treat as irrelevant issues going to the fundamental question of the complainant’s credibility. We are satisfied that both are established.
[2] Certain background facts are not disputed. The complainant and a fellow school pupil were visiting Auckland and had had dinner and a few drinks with friends in Parnell. In the early hours of the morning of 4 April 2002 they wanted to return to where they were staying in Orakei. They took a ride in the appellant’s taxi and at their destination had no means of paying the fare. The complainant’s friend went to the house to try to get money but there was no response to her knock. She returned to the taxi and at the request of the two young women the appellant agreed to take them to a nearby service station to obtain money using their cash-flow cards. Their attempts to use the cards were unsuccessful. The service station attendant provided them with a telephone card to ring the occupier of the house, to whom they spoke. The appellant drove them back to the house where they asked the appellant if they could go inside to get money. He agreed but said one of them must wait with him.
[3] In certain other respects the facts were disputed. The complainant’s friend deposed that in Parnell the young women:
Were asking people that [we] never knew… for the purpose of getting a ride back to Orakei.
Her account conflicted with that of the complainant who said:
We didn’t ask anyone for a ride… We were trying to flag down taxis.
And whereas the complainant asserted that on the way back to the house from the service station she had been in the back seat of the taxi, the friend’s evidence accorded with the appellant’s that the complainant was sitting in the front and not the back.
[4] As to the alleged offending, the complainant deposed that at the house the appellant asked her to give him her handbag as security and he said it would be best if she came in the front too; she complied. Her account was that she was upset and crying. While sitting in the front seat she reached for her bag because she wanted to leave, whereupon he put his right hand on her left shoulder, pulled her towards him and kissed her on the cheek. She tried to push away but he was too strong. He then kissed her on her lips and with his tongue and then put his right hand on her breast over her clothes. She said that at this stage she managed to push away, got her bag and ran to join her friend at the house. She complained to her that the appellant had touched, kissed and felt her.
[5] The appellant’s account was that on first arriving at the Orakei house he told the young women that the fare was $14. He asked the complainant to leave her bag as security. After the young women returned to the car he agreed to take them to the service station. At that stage they were sitting in the back seat. At the service station the complainant again left her bag as security, placing it on the front seat. On his account the complainant entered the front seat, the friend travelled in the back. When they returned to the Orakei house the complainant’s friend got out and left the vehicle. The appellant said that he asked the complainant what she was going to do about the fare. She said:
I’m not going out of the car because I have no money to pay the car.
He said that she looked sad and that he felt sorry for her and said that he would waive payment as he knew she had no money. He said that she was very close to him and said:
Are you sure you don’t want to pay the money, do you forgive me?
He said:
Yes, I’m very sure, because I know you have no money to pay the fare.
She was upset and crying. When he told her she need not worry about the money:
She moves [her] head very close to me, she move like this and kiss to my lips… I was so surprised because the thing has happen on this time and I was kiss. I kiss her when she was move and kiss to my lips and I kiss at that time. When I finish it, be a second, and I just kiss back to her again and I just put my hand on the breast on the top of her bra. On that time I was maybe seconds or minutes. At that time I take off my hand. On that time when they finish she ask me, she tell me, are you make sure you forgive me about the money, and I said to her ‘Yes I forgive you, I don’t want to pay the money because I am really sure you have no money to pay the cab.’ On that time she said to me ‘Thank you’ and she said ‘I am leaving now, I go.’ She then left.
Asked to elaborate on the kissing episode he said:
…She open her mouth and she give me her tongue, and me too, I – on that time for the second time, and kiss.
And you say that you then kissed her, kissed her after the first kiss, you kissed her again, and then you put your hand on her breast?…Yeah, on her breast.
What did the girl do during that time?… Just nothing, just on that time I was kissing and I put my hand on the top of her bra, of the breast… She kissed to me and on that time I was kissing…
[6] The defence disputed two elements of the Crown case:
a)that the complainant did not consent; and
b)that the appellant lacked honest belief that she did.
The appellant's challenge to the complainant's credibility was crucial to each. He was entitled both to a correct direction as to onus of proof upon them and to have his challenge to the complainant's credibility considered by the jury.
[7] In challenging the credibility of the complainant the defence sought to rely on the complainant's trying to wave down cars other than taxis in Parnell, the fact that she had had something to drink, and her decision to get into the front of the taxi on the way back from the service station as tending to support the appellant's claim that she had made unorthodox sexual advances to him. Since there was evidence supporting the submission it was the duty of the Judge to leave it to the jury.
The summing up
[8] The summing up causes us concern for a number of reasons: in dealing with the onus of proof, in mixing comment with the directions in a way that did not plainly distinguish them, and in treating dismissively the defence case on the complainant's credibility, which was bound up with that of the appellant's honest belief in consent.
[9] Numbers have been added to the following passages in the summing up which began:
Well, Madam Foreman, members of the jury, this is about as simple and straightforward a trial as ever occurs. [1] As I told you at the very beginning of the trial, it would simply be a case of you deciding who was telling you the truth and who wasn’t, and that is exactly the situation. [2] A lot of the evidence does not really bear on that issue. There are a large number of things that you heard which are really irrelevant. [3] Either an assault took place in the way it has been described by the complainant,… or it didn’t, and you need to concentrate on that simple issue.
Was there an indecent assault or wasn’t there, and while I am summing up to you I want you please just to bear that in mind, but before I say anything further about the evidence, and believe me I will not be saying much, there are a number of things that I need to mention because they are important in this trial, as they are in all criminal trials.
[10] The Judge was in error in his directions in the passages numbered [1] and [3]. Because of the onus of proof on the Crown the issue was not "who was telling you the truth", but whether the Crown had established the elements of lack of actual consent and lack of honest belief in consent. As this Court noted in the sexual violation case of R v Gutuama (CA275/01, 13 December 2001):
[…] the second and third elements of sexual violation require the Crown to prove a negative. Experience suggests that it is easy to inadvertently obscure or reverse the onus of proof in explaining those elements to a jury…
The same comment may be made about indecent assault. We do not repeat the specimen direction at paragraph [39] of that judgment which is readily adaptable to the different elements for the present kind of case.
[11] Passage [2] contains the different error, accentuated in passages [10] and [11], of directing the jury to disregard material relevant to their assessment of the credibility of the complainant and of the defence of honest belief in consent.
[12] The Judge then correctly directed as to the respective roles of himself and the jury but shortly after repeated the former error, saying:
[4] Put yourself in the position of the people in the taxi on that night and make up your minds which version you think is credible and which you think is not.
[13] The Judge then gave an appropriate direction:
The onus of proving this charge against the accused rests on the Crown and it rests on the Crown from beginning to end. There’s no obligation cast on this man to prove his innocence, or indeed to prove anything at all. He was not obliged to give evidence. He elected to do so but the mere fact that he elected to give evidence doesn’t mean that he assumes some burden of proof. He doesn’t. It’s up to the Crown to prove all of the ingredients of the crime.
He then continued:
As you’ve been told, when an accused person gives evidence, there are probably three possibilities that will occur to you. First of all, you agree with everything he says and, in this case, if you believe everything that he says, subject to what I’m going to tell you about the law, then, of course, you would acquit him. You may find that you are left in some reasonable doubt about whether he is telling you the truth and, in those circumstances, you will also acquit him. But the third possibility is that you’ll be satisfied that what he has told you was just a fairy story [5] and that he did exactly what [the complainant] has told you he did. If that’s the case then, of course you will reject his evidence out of hand and you will simply look at the rest of the evidence, which really consists only of the evidence of [the complainant and her friend], and you will reach a verdict on that basis.
Then in directing as to the elements he said:
I’ll tell you what the five things are that the Crown needs to prove. I ask you to listen carefully to this because the Crown has to prove every one of these things beyond reasonable doubt.
…
Fourthly, and in this particular trial importantly, the Crown must prove that Antonia didn’t consent to what occurred and that the accused didn’t honestly believe that she was consenting. Consent simply means consent that’s freely given by a person who’s able to understand the significance of what’s going to happen. In this case, if you consider that there is a reasonable possibility that Antonia did consent, or that the accused believed that she did, even if he was wrong or had no reasonable grounds for that belief, then the Crown would have failed. [6] So you need to consider that issue carefully in this particular case because, it’s the crux of the defence put forward by the accused, that she, was a willing participant to this and that she exchanged kisses and consented to having her breast fondled. Now that really is the issue here because the accused admits that he did it. So this fourth element of the crime is the one that you need to address your minds to.
Shortly after he said:
[7] The issue really for you is whether or not [the complainant] initiated this. She says she certainly did not.
He then said:
[8] You have to ask yourself is it likely that a 17 year old student, who is upset, sitting in the front seat of a taxi with a grown Samoan, is going to suddenly start kissing him. That’s where you start. Did she do that? She says she didn’t, he says she did. Somebody’s not telling you the truth.
…
If you remember, in relation to this question of consent, it is a defence if you think there is a reasonable possibility that the accused believed that she was consenting to what he was doing, but the accused didn’t say that. [9] At no stage in the accused’s evidence did he say to you that he believed that she was consent to what he was doing. So he has to rely, therefore, on you drawing an inference that she was consenting, because he certainly didn’t tell you that’s what he believed.
The summing up concluded:
[10] Mr Saseve says to you, as he is perfectly entitled to do, that you should regard the accused as a man who is telling you the truth. He asks you to accept that what he is telling you is true, that what Antonia told you is simply wrong, and that it was she who initiated this intimate exchange and not him. Stripped of all its irrelevancies, Madam Foreman and members of the jury, that’s what you have to decide. I don’t think I can help you any further than that and I will shortly ask you to retire to consider your verdict.
There are problems with each of these numbered passages.
[14] Para [5] is a misapplication of the conventional third limb of the common form direction as to the accused's giving evidence. While by itself immaterial it has potential significance as reinforcing the false idea in [1] and [3] that in law the issue is whom to believe.
[15] Para [6] is more important. The direction as to “the defence put forward by the defence” risks misunderstanding as to where the onus lies. In the context of [1] and [3] it is potentially misleading.
[16] Para [7] is a repetition of the error in [1] and [3].
[17] Para [8] maintains the misleading theme of who is telling the truth, injects an element of likelihood, and includes an unnecessary comment as to the appellant's race.
[18] Para [9] is suggestive of a reverse onus: “he has to rely on” connotes “he must establish”.
[19] Para [10] is a further example of the error in [1] and [3].
Onus of proof
[20] In summary on the point of onus of proof, first at the crucial early stage of the summing up the Judge posed the issue as:
…who was telling you the truth and who wasn’t…
he repeated that message on four occasions; and after confusing directions as to onus he concluded the summing up with a repetition.
[21] Although the Judge gave the conventional directions as to onus of proof it was imperative that the total effect of the direction should be a clear message:
a)identifying the elements; and
b)that each was to be proved by the Crown beyond reasonable doubt.
To add to the acceptable directions on those topics the erroneous directions as to the nature of the issues in the case, in terms of whether the complainant’s or the appellant’s version was “credible” (passage [4]) or “likely” (passage [8]), was to inject uncertainty of a fundamental kind. There was real risk that the jury might take the latter message as blurring or superseding the former.
Confusion of directions and comment
[22] Moreover in passage [8] there is a point of fairness. It was clear enough from the appellant’s account that he was asserting open mouth kissing by the complainant and that she used her tongue as signifying such enthusiasm for him that he honestly believed she was displaying sexual enthusiasm for him suggesting willingness of the touching he performed. The Judge was perfectly entitled, within the limits of such authorities as R v McRoberts (CA86/99, 15 June 1999), to offer comment on the strengths and weaknesses of the parties' cases, provided he made clear that he was not giving any legal direction and was offering personal thoughts which the jury were entitled and obliged to reject if they disagreed with them. But in this case there was a failure to distinguish sharply between legal direction and factual comment.
Credibility
[23] We have mentioned the further problem of the Judge’s treatment of evidence going to credibility. It is for the jury to determine credibility and it may do so taking account of evidence outside the specific period of the alleged offending. The Judge however directed the jury:
[10] There’s been a good deal of evidence about non-payment of the taxi fare. You might think that really doesn’t have anything much to do with it at all, and that it’s simply a red herring. Anything that may have taken place prior to the time the car stopped outside this address is irrelevant, you might think.
While he added
It's for you, not me.
he did so without directing them as to its potential relevance to credibility:
[11] I suggest you put this evidence about the consumption of alcohol out of your minds entirely. These girls had a few drinks, they said they did. Don’t get sidetracked by issues that really have no bearing on what happened at that time. There’s no suggestion of any motive here, except a suggestion that the complainant, … kissed the taxi driver because she was grateful that he didn’t want the money, but on the other hand the Crown says that’s nonsense because the evidence is that they stopped outside this house for the very purpose of [the complainant's] going in to get some money. At that stage the taxi driver hadn’t said that he didn’t want the money. The Crown says clearly on the evidence he was waiting to be paid. Why would he then suddenly say “Oh well she’s going to kiss me because I don’t want the money”? The Crown says how could that possibly happen.
[24] But it was relevant to the defence to the elements of lack of consent and of honest belief in consent that the complainant and her friend, whether because they knew they had no money or because they were, as the Judge put it:
A couple of immature, silly little school girls up from [the South Island] for a bit of a blast.
The jury were entitled to consider the undisputed fact of the appellant’s kissing and touching against the back drop of the complainant’s mood that evening and to consider the defence challenges to her credibility, the fact that on her friend’s account she was waving down vehicles that were not taxis which, if accepted, had her repenting, of having done so and giving false evidence; the fact that she had had some consumption of alcohol, even if not a great deal; the fact that her friend like the appellant placed her in the front seat returning from the service station, which she denied. All were matters which it was competent for the jury to assess in deciding whether the Crown had proved its case. The Judge erred in suggesting otherwise.
The Interpreter
[25] The appellant also challenged the performance of the Court Interpreter. There were deficiencies in the translation of the appellant’s evidence, as is apparent from the transcript. Mr Saseve submitted that by reason of mistranslations and the translator entering into long dialogue with the appellant on a number of occasions, Crown counsel in her closing address submitted that the appellant was not a witness of truth; and that miscarriage of justice has resulted. To advance such argument it would have been necessary for the appellant to have put the complaint before the Court in proper form by affidavit, probably from Mr Saseve who would have had to relinquish his brief. That would have given the Crown fair opportunity to deal with the point, perhaps by calling the Interpreter. That ground is not sustained.
Failure of Crown to call witness
[26] Nor do we uphold the complaint that the occupant of the Orakei house with whom there was a telephone discussion from the service station should have been called by the Crown. It was open to either party to call a witness. As it is, there is no basis for suggesting that his evidence was material.
Juror was a police officer's spouse
[27] We also reject the final submission, which Mr Saseve did not press, that shortly before the jury returned he learned that one of the jurors was the wife of a serving police officer. Jury service is a responsibility for virtually all members of society and in the absence of any reason to believe that the juror’s husband was relevantly connected with the case the fact of his occupation provides no grounds for her disqualification.
Decision
[28] Being satisfied that a miscarriage of justice has occurred we set aside the appellant’s conviction and direct a new trial.
Solicitors:
Crown Solicitor, Auckland
Saseve, Auckland
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