R v Win

[2007] NZCA 370

NOTE:  PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA215/07 [2007] NZCA 370

THE QUEEN

v

RICHARD DUNCAN WIN

Hearing:         20 August 2007

Court:            Arnold, Gendall and Priestley JJ Counsel:     J C S Sandston for Appellant

K B F Hastie for Crown

Judgment:      29 August 2007         at 10 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Gendall J)

R V WIN CA CA215/07  29 August 2007

Introduction

[1]      The  appellant  was  found  guilty of rape  by  a  jury  in  the  High  Court  at Wellington on 9 March 2007.  He appeals against that conviction.  He contends there was insufficient evidence to enable the jury to properly convict and, further, that a miscarriage of justice occurred because of the manner in which the trial Judge dealt with publicity and protests occurring in relation to the rape verdicts in high profile trials of current and former police officers.

The issues

[2]      The appeal is concerned with two issues:

(a)       Should the jury’s verdict be set aside on the basis that it was unreasonable or could not be supported having regard to the evidence (s 385(1)(a) Crimes Act 1961)?;

(b)      Did the Judge adequately direct the jury on the issue of any prejudice arising from protest action and publicity, occurring at the time of the trial, about verdicts in other rape trials?

Background evidence

[3]      The complainant was aged 33.  She and the appellant spent two months on a commercial fishing vessel as Ministry of Fisheries observers.  During their time on the vessel they had not got on well together.   There were elements of discord and disharmony.

[4]      When  the  vessel  returned  to  shore  they  were  required  to  undergo  a “debriefing” on their trip.   They were booked into  separate rooms at  a hotel in Wellington.    At  about  8pm  in  the  evening,  on  the  day  of  their  arrival,  the complainant, at the invitation of the appellant, went to his room.   She said it was reluctantly.  The appellant had purchased a chicken burger for her, and a bottle of vodka.  The complainant had two small drinks of vodka and orange in his room.  She said it was her intention to return to her room at 10.30pm to receive a telephone call

from her mother but that she did not do so.  She had no memory of any event after consuming the second glass of vodka until she awoke the next morning.  She found herself to be naked, in the appellant’s bed and, because of physical signs and the presence of semen, concluded she had been raped by the appellant.

[5]      She was nauseous with a headache and went to her room and telephoned her mother.  She made a prompt complaint to the police, who, at 2.30pm that day, had her examined by a medical practitioner.   She provided  blood and urine samples which were the subject of expert analysis.  The evidence was that from midnight to the early hours of the morning her blood alcohol level would have been very high and inconsistent with the consumption of two small glasses of vodka.  The analyst’s evidence was that the level would have been equivalent to about 13 drinks.   The complainant was adamant in her evidence that she had no memory of consuming anything more than two glasses.

[6]      The urine sample analysis revealed the presence of a prescription drug known as dextropropoxyphene, an ingredient of a medicine known as “Capadex”.  It is an analgesic drug, related to opiates, with narcotic effects.  The complainant said that she had not knowingly taken any such substance.  The appellant had been prescribed Capadex by his general practitioner prior to going to sea.  The Crown case was that he had administered that drug to the complainant, without her knowledge, so that when combined with a substantial amount of alcohol she became unconscious, or stupefied so as to be incapable of consenting to sexual intercourse.

[7]      In a lengthy interview with the police the appellant denied administering any drug to the complainant or raping her.  His explanation was that she initially came to his room at 8pm, consumed a small amount of vodka, but then left only to return in the early hours of the next morning when he was asleep.   She was exuberant and intoxicated, further drinking occurred, and she initiated and demanded sex with him, which, despite his initial reluctance, occurred consensually.   His position was that she was drunk, but conscious, and actively instigating sex.

[8]      The indictment contained counts of rape and stupefying the complainant with intent to commit rape.  The appellant elected not to give or call evidence, and at the

conclusion of the Crown case applied for a discharge under s 347 Crimes Act on the count of stupefying alone.  Simon France J granted the discharge.

[9]      He did so because the Crown evidence from the expert pharmacologist was that although the narcotic drug was in the complainant’s body during the 18-hour period between when she first went to the appellant’s room and when the sample was taken the next afternoon, it was clinically possible for it to have been administered up to 24 hours before the sample was taken.   That is, about six hours before the complainant first went to the room.  The Judge held that it was open to the jury to conclude that the appellant must have administered the drug.  But the jury had also to be satisfied that the drug was a substantial and operating cause of the stupor or unconsciousness of the complainant.   On the evidence, this meant that the complainant would have had to consume more than two capsules.   The Judge said that  normally  the  inference  that  the  administered  drug  was  a  substantial  and operating contributor to the stupor is drawn either from the nature of the drug or its known effects on the victim on the particular occasion.  He considered that, because there was an equally credible explanation for her lack of memory and subsequent illness, that is, from the excessive amount of alcohol in her system, the jury could not be satisfied beyond reasonable doubt that it was the drug rather than the alcohol alone which must have contributed to her condition in a substantial way.

Issue 1

[10]     The  essential  argument  on  the  first  ground  of  appeal  is  that  it  was  not possible for the jury to conclude that the complainant did not consent because the evidence was equivocal as to the state of her intoxication.   Counsel argued that a drunken consent was still consent and that the appellant believed that although she was drunk the complainant nevertheless consented.   Mr Sandston said that the scientific evidence did not go so far as to establish that the blood alcohol level of the complainant was such as to render her unable to consent.   Mr Sandston said that actions of the complainant the next day could have been consistent with a person who had given drunken consent about which she had forgotten.  He closely analysed the evidence of the Crown, submitting in conclusion that the jury could not safely

draw an inference beyond reasonable doubt that the complainant did not consent, or that the appellant did not hold a belief based on reasonable grounds of that consent.

[11]     A  verdict  is  unreasonable  or  cannot  be  supported  having  regard  to  the evidence, so as to justify this Court interfering under s 385(1)(a), if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the appellant’s guilt: R v Ramage [1985] 1 NZLR 392, 393 (CA). It is not enough that this Court might simply disagree with the verdict of the jury.

[12]   The issue for the jury rested upon the credibility of the complainant. Necessarily, the verdict meant that the jury believed her.  There was evidence:

(a)      of disharmony and discord between her and the appellant whilst at sea, capable of supporting the view, expressed by her, that she did not like him and would never have consented to sexual intercourse;

(b)      of some inappropriate comments –  obliquely suggestive,  and  of a sexual nature – that were made to her by the appellant whilst at sea;

(c)      of alcohol levels in her body far greater than any quantity which she had knowingly or voluntarily consumed;

(d)      of a prescription drug with narcotic properties in her urine; (e)        of the appellant having such a prescription drug available; (f)        of sexual intercourse having occurred;  and

(g)      of  the  appellant’s  explanation  contained  in  his  lengthy  interview recorded on videotape, some parts of which the jury may have regarded as incriminatory, and other exculpatory parts they may have rejected.

[13]     There was ample evidence which may have provided an explanation for the complainant’s stupor.  Indeed, Simon France J in his ruling in respect of the s 347

application, said it was open for the jury to conclude from all the evidence that the drug must have been administered at the relevant time and that she was penetrated whilst in a stupor, and obviously so by the appellant.

[14]     The  summing-up  of Simon  France  J  carefully  and  clearly  examined  the competing arguments and the pharmacological evidence.    It  was tailored  to  the evidence and the facts.

[15]     We do not accept that the evidence was left in such a state that a reasonable jury could not properly have found the rape count to be established.  It was open to the jury to accept the complainant’s evidence, which obviously they did.   Having accepted that evidence, the jury presumably concluded that the effect of the alcohol which she consumed, either independently or combined with the drug, rendered her essentially unconscious, so that she was unable to give valid consent.  The jury was properly directed by Simon France J, and the evidence was sufficient to enable them, acting  reasonably,   to   convict.     Put  another   way,   if  the   jury  believed   the complainant’s evidence, it cannot be said that, even so, they must have entertained a reasonable doubt as to the appellant’s guilt.  This ground of appeal fails.

Issue 2

[16]     During the week in which the appellant was tried there had been extensive radio, television and newspaper publicity relating to acquittals of certain former (and one serving) police officers for charges of rape.   An agreed statement of facts has been submitted to this Court relating to those matters.  A protest occurred taken by a group of people on 8 March 2007 and this carried over to an area adjacent to the High Court entrance way on the morning of 9 March 2007.

[17]     Mr Sandston’s argument was that the jury must have been aware of those protests and publicity, and that the Judge should have directed the jury in strong terms  not  to  be  influenced  by  that.    Given  the  nature  of  this  trial  involving allegations of rape, with the issue being the credibility of the complainant, a strong warning was required.

[18]     When the Judge directed the jury on 9 March 2007 he initially dealt with questions of prejudice in the conventional way, that the jury had to reach its decision uninfluenced by prejudice or sympathy, and that they must come to their verdict solely on the evidence in Court.  He went on to say:

[5]       One example mentioned by both counsel is the current debate about rape arising out of the allegations against the police officers.  It is probable that when you came to Court this morning you saw evidence of that out in front of the Court.   In so many ways that whole matter has nothing to do with this case but the important point is that whatever one thinks about all that, and that debate, it is the type of thing that is left at the courtroom door. In here we focus on the evidence in this case.

[19]     It is that passage about which Mr Sandston complains.   He says it was in insufficiently strong terms and it should have been given, in any event, much earlier during the week and in the course of the trial.

[20]     For completeness we mention that the Judge in his preliminary remarks to the jury, before the case commenced, told it that it was to reach its decision only on the evidence heard in Court.

[21]     But  the  protest  in  Wellington,  and  other  events  in  the  precincts  of  the High Court, did not occur until the evening of 8 March 2007.  That was after counsel had made closing addresses to the jury.   The summing-up of Simon France J commenced the following morning at 9.30am.  We are satisfied that the manner in which the Judge dealt with any possible prejudice was entirely appropriate.   The timing of his direction and its content was apt and adequate.  He was not required to say more or to express the direction any more strongly than he did.   He cannot be criticised for not raising the matter specifically during the course of the trial, and he had at the start of the trial told the jury to have regard only to the evidence given in Court.

[22]     This ground of appeal fails.

Result

[23]     In terms of s 385(1)(a) the verdict was not unreasonable, nor unsupported by the evidence.  There was no miscarriage of justice on any ground.  Accordingly, the appeal is dismissed.

Solicitors:

McFadden McMeeken Phillips, Nelson for Appellant

Crown Law Office, Wellington