The Queen v Acre Tukorehu Keremete
[2003] NZCA 237
•23 October 2003
PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA247/03
THE QUEEN
v
ACRE TUKOREHU KEREMETE
Hearing:23 October 2003
Coram:Anderson J
Fisher J
Salmon JAppearances: I D Farquhar for Appellant
A R Burns for Crown
Judgment:23 October 2003
JUDGMENT OF THE COURT DELIVERED BY FISHER J
[1] Following a District Court jury trial the appellant was convicted on one charge of sexual violation by rape and sentenced to eight years’ imprisonment. He appeals against conviction and sentence.
[2] At trial it was not disputed that on the day in question the appellant was drinking at the house occupied by the complainant and her boyfriend. Following a visit elsewhere, the complainant returned to the house in an intoxicated condition. She went immediately to her bedroom and vomited out the window. Her boyfriend helped to put her to bed where she instantly fell asleep. When he left her she was lying face down with a blanket over her with nothing on her upper half but pants and underpants on her lower half. She was wearing a tampon.
[3] The boyfriend returned to the lounge where he continued drinking with the appellant and a third male person. Later that evening the third male left. The boyfriend and the appellant fell asleep in the lounge in an intoxicated state.
[4] During the night the appellant awoke and went into the bedroom where the complainant was asleep. She was still lying on her stomach with her legs apart and a blanket over her.
[5] The complainant and the appellant gave different accounts of the events that then followed. The complainant said that she was woken by the appellant’s request that she turn over. She found that the appellant already had his penis in her vagina and was having intercourse with her. His hands were around the lower part of her back and his legs between hers. Her tampon had been removed. On realising what was happening she swore at him. He stopped immediately and went into the lounge. She picked up a vacuum hose and chased him, swearing and abusing him. The boyfriend ejected him from the house.
[6] The appellant’s account was that nine years earlier he had stayed periodically in the same house with his girlfriend, since deceased. On the present occasion he had awoken in the lounge, felt cold, and thought that he was back in his old home. He went to the bedroom that he had originally occupied and thought that the complainant was his former girlfriend. He told her to move over on the bed, climbed on to the bed and started to wake her by shaking her shoulder with his hand. He still had all his clothes on. He did not dispute the complainant’s evidence that on waking she abused him and that he then left.
[7] At trial the complainant and the appellant each gave evidence in those terms. In addition the Crown called evidence of recent complaint and evidence as to the complainant’s depressed behaviour in the days that followed. The appellant was the only witness for the defence.
[8] The critical portion of the Judge’s summing up was as follows:
I want to turn now briefly to the legal definition of sexual violation. There are three essential issues that the Crown has to prove. First, the intentional penetration of the genitalia of a woman by the penis of a man. The degree or extent of penetration is irrelevant. If there is any penetration at all, no matter how slight, or for how short a time, that will be sufficient. There does not have to be a full act of intercourse in the sense of there being ejaculation by the male. Secondly, that the penetration occurred without the consent of the woman. Thirdly, the penetration occurred without a belief on the part of the man, based on reasonable grounds that the women did not consent.
For the purposes of this exercise, you really do not need to bother with parts two and three because this is very much a fact based case that you have to decide on. There is no issue of consent, that is not pleaded, it is not raised. The allegation is he did it, the defence is I did not do it. So all you have got to look at, is that first issue. That is, whether there has been penetration, no matter how brief or slight of the woman’s genitalia by the penis of a man.
I want to briefly summarise the Crown case and the Defence case for you. The Crown really contrasts the evidence of the complainant with the Defendant and asks you to focus on four points about the complainant’s evidence, or supporting the fact that her credibility should be sustained by you. Firstly, her reaction immediately after the event. That is the vacuum cleaner pipe, the shower, her reaction to the Accused and immediately afterwards. Secondly, the recent complaint witnesses who I have already referred you to. Thirdly, her behaviour in the days following, that is retiring to her bedroom, grief stricken, matters of that nature and fourthly, the question why would she make it up, what was her motive.
The Crown contrasts her evidence with the evidence of the Accused and points you to the fact that his explanation was that he was effectively in a deep alcoholic sleep and did not know where he was. He went down to the bedroom to make contact with his ex partner, is unacceptable for a number of reasons. The first being that he saw the partner of the complainant there asleep in the room, A. Secondly, the furniture in the room was different. Thirdly, the furniture in the bedroom was different, a different bed. Fourthly, the fact that he would not have been feeling cold, it was a March night, he was wearing tracksuit pants, a tee shirt and jacket. Fifthly, his evidence about having no sexual desire, having consumed alcohol did not stack up when his own evidence about the tap on the shoulder, when she was on the other side of the bed, didn’t rest happily with that. Sixthly, that he had lived there nine years ago and then only for an occasional period of time, after which he had four different relationships with four different other partners and finally, seventhly, why not give an explanation immediately after he had been taken to task on this issue. First of all by the complainant and secondly, by her partner A.
The defence took the approach and indeed, this is consented or agreed to by the Crown that everyone was intoxicated, but the question that the defence put to you is why would the Accused indulge in such a high risk strategy? Why wouldn’t he have shut the door? There was some submission to you that he appeared to have laid on top of her. You need to be careful about that submission made to you, because there was no specific evidence at all in relation to that point. That is a speculation that you have been asked to make. It is suggested to you by the Accused that the motive for the complainant making the complaint was that she was embarrassed, she had painted herself into a corner and that she was sick and hung over. Whether that sits happily with the fact that this behaviour continued apparently for a week, is a matter for you to determine. Finally, it was submitted to you that he had been consistent throughout in his denials. You may consider that relevant or not, that in this context you need to look carefully about the allegations that he had made to the Police in his denials and the allegations with regard to her having had sex with her partner for a good p art of that day.
[9] Upon conviction the appellant was sentenced to eight years’ imprisonment. In his sentencing remarks the Judge noted the major ongoing mental consequences for the complainant and the fact that the appellant had a “thirteen page criminal history spanning nearly 30 years … in excess of 40 fulltime custodial prison sentences, resulting in approximately 11 separate terms of imprisonment”. He identified as aggravating features the facts that the rape occurred in the complainant’s own home and bed, that the appellant had abused his position as a guest in the home, the vulnerability of the complainant given her heavy intoxication and sleep, the effect on the victim, and the extensive criminal record.
[10] A number of matters advanced for the defence by way of mitigation – that the offending was opportunistic, the absence of threats or violence other than those inherent in the act itself, the brief duration of the offence and the fact that the appellant desisted immediately when requested to do so – the Judge categorised as an absence of aggravating features rather than as mitigating ones. The Judge could see no reason for departing from the usual starting point of eight years imprisonment for a contested sexual violation by rape.
[11] In this Court the first ground advanced by Mr Farquhar in support of appeal against conviction was that the Judge misdirected the jury in instructing them that they “did not need to bother with parts two and three” of the essential elements of the offence of sexual violation by rape. He submitted that the Judge was wrong to withdraw from the jury the issues of consent and reasonable belief in consent. These issues were not conceded by the defence. The appellant’s evidence was that on awakening intoxicated in the middle of the night he thought that he was in his old house and that the woman in the bedroom was his former girlfriend raised the possibility that he had reasonable grounds to believe that the woman on the bed was consenting to sexual intercourse until she told him otherwise.
[12] We agree that a trial Judge is under a duty to direct a jury to consider all issues which are reasonably open to the jury on the evidence. That remains the case even where defence counsel has elected not to address on the issue in question. If there is a sufficient evidential foundation for a potential defence, and there is no relevant concession, the Judge must leave it to the jury to resolve: R v Tavete [1988] 1 NZLR 428 (CA).
[13] In the present case the appellant denied that intercourse had occurred. This was the sole focus of counsels’ addresses to the jury. That did not relieve the Crown of the obligation to prove that the complainant had not consented, and that the accused had lacked a reasonable belief in consent, if a reasonable doubt was possible on those aspects. Rejection of the appellant’s evidence that intercourse had not occurred did not, of itself, relieve the Crown of the obligation to prove the other two elements. The safer course for the Judge would have been to leave all three issues to the jury, while commenting that, although it was a matter for them, the second and third elements might not detain them for very long given the circumstances which could have been briefly summarised by the Judge. We think that in the absence of express concessions, trial judges ought to be very cautious indeed before withdrawing from the jury the possibility that an element essential to the Crown case is left unproven.
[14] In the present case the question is whether, on the whole of the evidence, any reasonable doubt was possible in relation to the second and third elements of sexual violation by rape.
[15] We do not think that actual consent was such a possibility, given that the complainant’s evidence that she did not consent was unchallenged by anything in the evidence of the appellant.
[16] The position as to reasonable belief in consent is less obvious. The complainant was not, of course, in any position to give direct evidence on that issue. As Mr Farquhar pointed out, the appellant said that he mistook the identity of the woman concerned. Theoretically he might have had a reasonable belief in consent and lied as to intercourse through embarrassment or fear of incrimination. But the uncontested evidence was that when the appellant entered the complainant’s bedroom she was asleep and wearing pants, underpants and a tampon, and that intercourse had already commenced by the time she woke up. That presupposes that the appellant must have removed those items, and commenced intercourse, while the complainant was still asleep.
[17] Regardless of her relationship to the man involved, a woman who is asleep can not consent to intercourse. The appellant could scarcely have removed the clothing and tampon from the complainant, and commenced intercourse, without being aware that she was asleep. Consequently we do not think that reasonable belief in consent was a viable issue on the evidence before the jury. While the Judge’s withdrawal of that issue from the jury was not best practice, we are satisfied that it could not have caused any miscarriage of justice in the present case.
[18] The other ground of appeal against conviction was that the Judge’s summary of the defence case was inadequate and dismissive. A judge’s summing up must identify the fundamental facts in issue, be balanced in its treatment of opposing contentions with respect to those facts, and leave the jury in no doubt that the facts are for them and not for the judge. Rival contentions with respect to the factual issues will normally be summarised (R v Miratana, 4 December 2002 CA 102/02) but there is a wide discretion as to the level of detail to which the judge descends in carrying out that task. Treatment of matters affecting the cogency of evidence is not required as a matter of law: R v Foss (1996) 14 CRNZ 1 (CA) at p 4.
[19] The judge need not, and should not, strive for an artificial balance between the rival cases if the evidence clearly favours one side or the other: R v Hall [1987] 1 NZLR 616 (CA). A judge is entitled to express his or her own views on issues of fact, so long as it is made clear that the jury remains the sole arbiter of fact (R v Hall, supra, at p 625). Any comment on the facts should be made in suitable terms without use of emotive terms or phrases which could lead to a perception of injustice. But provided the issues are fairly presented, the comment may be in strong terms: R v Daly (1989) 4 CRNZ 628 (CA). Inevitably these are ultimately matters of degree and judgment.
[20] Mr Farquhar submitted that the Judge did less than justice to the defence case by identifying the “high risk strategy”, and the failure to shut the door, as the central points. That might be so if the Judge had said nothing more in relation to the defence case. However, the Judge had earlier made it plain that the central issue in the case was whether intercourse had occurred and that the defence was “I did not do it”. Given this comment immediately following the appellant’s evidence to that effect, the jury can not fail to have understood the central issue and the defence response to it. What followed were no more than matters of detail.
[21] Mr Farquhar went on to point to other details that he had mentioned to the jury concerning the unlikelihood that the appellant would have acted in the way alleged. That, of course, was captured in the Judge’s terse reference to the question “why would the accused indulge in such a high risk strategy?”. Mr Farquhar had also criticised as unbelievable the Crown case that the appellant was able to carry out the offence to the point of penetration without waking the complainant. The Judge’s only express reference to that topic was his comment upon the incidental submission that “he appeared to have laid on top of her”. We agree that the Judge could have entered into greater detail on that subject but his summary of the Crown case was also concise. The level of detail to which the Judge descends is discretionary so long as adequate balance is maintained. In our view these tests were satisfied.
[22] Mr Farquhar also submitted that the Judge’s criticism of the defence argument that the appellant “appeared to have laid on top of her” was unjustified. The Judge had dismissed it as “speculation”. We agree that the Judge’s criticism was unjustified, given the complainant’s evidence that “I could feel him on top of me, and I could feel his penis and hands on my back”. But in the context of the summing up as a whole this slip was immaterial. If the complainant was not woken by the acts of removing the blanket, her clothing and a tampon, and the commencement of intercourse, it would scarcely have made any difference whether or not the appellant had lain on top of her while having intercourse.
[23] Finally, Mr Farquhar was critical of the manner in which the Judge made dismissive comments when traversing defence points. We accept that for all but the first two sentences of the summary of the defence case the Judge tended to depreciate the points made on behalf of the defence. However we do not consider that the comments cross the boundary into impermissible lack of balance.
[24] The grounds advanced in support of the appeal against conviction can not be sustained.
[25] As to sentence, Mr Farquhar accepted that the starting point for sexual violation by rape in a contested case is eight years’ imprisonment: R v Accused [1994] 2 NZLR 129. He submitted that the Judge erred by attaching too much weight to the following factors:
· That the rape occurred in the victim’s own home in her bed.
· That he was a guest at the house and abused his position.
·That the victim was vulnerable because she was heavily intoxicated.
· The fact that the victim was asleep at the time.
· The Appellant’s extensive record.
[26] He further submitted that the Judge ought to have made greater allowance for the following factors:
· The offence was opportunistic.
· The incident was very brief and appears to have not gone much beyond penetration.
· There was no evidence of ejaculation
· There were no threats, force or violence other than that inherent in the act.
· That the Appellant immediately desisted and left.
· There were no physical injuries.
[27] In our view each of the features identified by the Judge, including the additional point noted by him regarding the effect upon the complainant, was properly viewed as an aggravating feature. We agree with the Judge that the other matters advanced by Mr Farquhar were essentially non‑aggravating rather than mitigating. Very few rapes are planned. The submission that the incident “appears to have not gone much beyond penetration” can not be reconciled with the complainant’s evidence that the appellant was “going in and out” with his penis. Lack of evidence of ejaculation, and absence of threats, physical injuries and violence other than that inherent in the act, go no further than absence of aggravating features. The fact that the appellant immediately desisted and left when the complainant objected does distinguish this case from cases in which the offender has overcome physical resistance by force. However sexual violations of the present type deserve their own condemnation given the advantage that is taken of an unconscious woman. We can see no grounds for reducing the starting point of eight years’ imprisonment.
[28] The appeals against conviction and sentence are dismissed.
Solicitors:
I D Farquhar, Taupo for Appellant
Crown Solicitor, Auckland for Crown
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