The Queen v Christopher Anthony Hofstee
[2003] NZCA 41
•5 March 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA304/02
THE QUEEN
v
CHRISTOPHER ANTHONY HOFSTEE
Hearing:24 February 2003
Coram:Blanchard J
Baragwanath J
Goddard JAppearances: J Aickin for Appellant
J M Jelas for Crown
Judgment:5 March 2003
JUDGMENT OF THE COURT DELIVERED BY GODDARD J
[1] The appellant was convicted by a jury of sexual violation by rape and sentenced to six years imprisonment. He has appealed against both conviction and sentence.
Grounds of appeal
[2] The appeal against conviction was advanced on the ground that the jury’s verdict should be set aside as unreasonable or unable to be supported having regard to the evidence, relying on the test in R v Ramage [1985] 1 NZLR 392 at 393:
… that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the appellant.
[3] In support of this general ground of appeal a number of particulars were put forward in argument. These concerned the complainant’s inability to clearly remember the alleged rape committed upon her; the absence of any conclusive scientific evidence confirming that she had been raped; an alleged lack of physical evidence that penetration of the complainant’s genitalia had occurred (this ground included criticism of the independent medical evidence); whether there was sufficient evidence to establish a reasonable belief on the part of the appellant that the complainant was suffering from the influence of alcohol or drugs or both at the time to the extent of being unable to rationally consent to sexual intercourse; and whether the evidence raised the reasonable possibility that any act of penetration, vaginal or anal, was initiated by the complainant with the appellant as the unwilling participant. These factors, taken wholly or partially in combination, were advanced as sufficient to raise a reasonable doubt about guilt in the minds of a reasonable jury.
[4] The appeal against sentence was advanced on the ground that it is manifestly excessive in all the circumstances.
The evidence
[5] On Saturday 19 May 2001 the complainant attended a friend’s 21st party at a bar in central Christchurch. During the evening she consumed a considerable amount of alcohol, both prior to the 21st party and during it. At about 1.30am she left the party with two of her friends and set off for a bar in Oxford Street. The evidence of her friends was that the complainant seemed to be happy at this time and did not appear intoxicated. She however has no memory of leaving the 21st party. Shortly after the group arrived at the bar in central Christchurch, one of the complainant’s friends noticed that she “was not looking good” and was “really white and clammy”. She and the complainant went to the toilets and whilst the friend was in a cubicle the complainant disappeared and was not seen again that night. However her bank records establish that a short time later, at 1.58am, a withdrawal of $40 was made from her bank account at a cashpoint machine nearby.
[6] The complainant has no memory of withdrawing this cash from her bank account nor indeed of events for a considerable period of time thereafter. Her next memory is of finding herself “sort of coming to and out of consciousness” in a strange bed and seeing vomit on her sleeve. She said that she did not know where she was and felt really dazed and confused. On one occasion as she was gaining consciousness and lying in the foetal position she could feel “someone inside her vagina” penetrating her from behind and she remembered squeezing her legs really hard because she knew that something was going on but felt really groggy. On another occasion she remembered waking and pulling her pants up because they were around her knees. She said she was not sure how long she was in this state, of slipping in and out of consciousness, but during it she dreamed that she was being raped by a prison guard. This dream reflected a fear she had developed of prison guards whilst she was doing part of her nursing training at a prison. She said:
A. … in my dream I was being raped by one of the prison guards and I … remember saying to him you can’t do this you know someone’s going to find out and it was a really horrible dream and quite vivid … because of my level of consciousness what I was doing, was I was waking up briefly and noticing what was around me because it was exactly the same and I was relating that to … my dreaming what was happening you know but because of my level of consciousness I was getting reality [and] my dreams intertwined I suppose.
Q. So from what you … were first coming to realise what was going on are you saying you initially thought that you were having a dream?
A. Well … no I mean I knew, I knew that parts of it were true, I mean I, I remember distinctly physical feelings and me closing my legs. I mean that I knew [it] wasn’t a dream and I remember waking up at certain points and, and looking at my sleeve and thinking oh what’s, what’s happened and like this isn’t good and just thinking, just being really scared so when I woke up the two times and felt. … myself being, being raped from behind and … when I pulled up my pants it was very, real physical sensation and I was conscious that I was awake at that time but then – and the dream … I mean I remember when I woke up that I was so … you know groggy for hours after I woke up and that morning that it wasn’t until I, I really pieced together what, the dream was so closely interlinked that what was physically happening to me you know to –
Q. At what point during the time that you were in the accused’s bed did you realise that you weren’t in the prison that it wasn’t a dream and that it was the accused that was having sex with you?
A. … pretty much, … although its two occasions I was very aware that something was very wrong and that something was happening but I, it wasn’t until pretty much I was awake and I, and I remember thinking and I was really scared to roll over because I knew there was someone beside me and I knew that I didn’t know where I was and that I wasn’t going to know who it was so it was, when I sat up and I realised my surroundings and remembered the dream and I sort of knew that something wasn’t right.
Q. When you woke … finally at the end do you still remember if sexual intercourse was happening then?
A. … no, no by that stage it wasn’t.
Q.Do you remember saying anything at all out loud?
A. … I don’t remember … actually saying it while I was awake but part of my dream I remember saying you can’t do this to me you know I’m a nurse like I was saying it to the prison guard and another reason why I knew… that what I was dreaming about was actually [what] happened was because … the [accused when he] took me home actually made a bit of a joke at one stage saying yeah, yeah, you did yell out at one stage that you were a nurse … I remember only … as part of my dream but obviously it was happening at the time.
Q. [What happened] when you fully awoke and realised where you were …?
A. I remember turning over and I just absolutely freaked out because the person that was next to me just was, I mean firstly, you know, I was so scared of where I was and the fact that I couldn’t remember how I got there or what had happened, you know. I had no recollection. I mean the last memory that I had was sitting down at the 21st so that was scary in itself but waking up next to the person that was next to me and looking at him [I] just knew that it was no-one that I would ever, ever choose to be with or expect to wake up to, you know. He was really, … I suppose, he, it just freaked me out to see that it was an old guy firstly you know, much older than I would ever, I don’t know. Just –
Q. What did you have on in terms of clothing at that stage?
A. … I didn’t have my skirt on, … I had my, my underwear on and I had on just a green sleeveless shirt with a boob tube on, I remember my boob tube was way down round my waist, and … I also had a black cardigan on over the top.
[7] The complainant then went on to describe how she out of the appellant’s bed and how he eventually agreed to drive her home, after she gave him $45. Outside the house she found her rings lying on the driveway but had no idea how they came to be there. She said she did not realise until she got into the shuttle van that the appellant must be a taxi driver. She said that on the journey home the appellant made various remarks to her and at one point said, in response to a question from her as to exactly what had happened the night before, “oh well, you know, if you got pregnant I would keep the child”. The complainant said that the appellant also described performing oral sex on her and then penetrating her. She said she found him terrifying and his remarks absolutely bizarre.
[8] The appellant was subsequently interviewed by the Police and made a written statement. He also gave evidence at trial. In his statement he said that he had encountered the complainant in Colombo Street early that morning sometime between 1.50am and 2.30am. He was on duty as a shuttle van driver at the time and was parked in a loading zone. He saw the complainant standing on the footpath and looking at his van. He wound down the window and told her he was for hire and able to transport her anywhere in the Christchurch and Canterbury region. He said the complainant told him she wanted to go to Sumner. The appellant offered to drive her there for $5, a sum well below the normal fare. He said the complainant then got into the front passenger seat of the van. He then told the Police that as they were driving along the complainant suddenly said to him “I didn’t drink that much, I don’t know why I feel drunk”. He said shortly after that the complainant vomited in the van, so he stopped and got her out of the front seat. He described her as unable to stand unaided at that time and “… like jelly”. He said he had “the impression that she was on pills or something”. At this point he told the complainant that there was a $50 fee payable for having soiled the van and provided her the alternative of paying that sum or of returning to town to clean the van and staying the night with him. He said that she did not have any money so she agreed to go back to his place in Christchurch with him to clean the van. He said he then helped her into the back of the van where she lay down on the floor. His words were “I had to support her into the van”. He said the complainant did not talk to him on the way to his home and when they arrived “she threw up another three times in the back of the van” just as he was helping her to get up. He said he took her to his bedroom where he helped her to partially undress and get onto his bed. In his evidence at trial, however, the appellant departed markedly from this description of the complainant’s condition in a number of material respects. He said that she did not appear to be affected by alcohol or drugs at the time and he prevaricated about the number of occasions on which she had vomited in the van, saying he thought it was only once or twice at the most. He disagreed that he had given to the Police a description of a young woman who was grossly intoxicated or affected by drink or drugs at the time. He also said that when she first vomited and he stopped the van to check that she was alright, she had grabbed at his pants in the crotch area.
[9] The appellant also denied having had sexual intercourse with the complainant. He denied this in both his statement to the Police and his evidence at trial. In his statement to the Police he said that he was the one who had been sexually assaulted by the complainant and that he had woken up the next morning with “her bum on my crotch, she had backed up to me”. He said he had found that offensive and an invasion of his privacy. When questioned further about this by the interviewing officer he said he was in a deep sleep haze but “I was well aware that my penis was in her arse”. He said the complainant then got up “real quick” and the jarring totally woke him up. He repeated these claims in his evidence at trial. In evidence in chief he said:
Q.All right and what was the next thing you remember?
A.Waking up in the morning with her embedded into me, with –
Q.How do you mean, embedded into you?
A.Well, pushed right in against me. She was, I was on my side, she was on her side, it was like a jigsaw puzzle connected in.
Q.Did you have an erection at that time.
A.Well, I woke up with an erection and … well, she sort of pulled off, sort of come from below, she went with her shoulders first and then her buttocks sort of pulled off and then I noticed that I had an erection, I was –
Q.What did you feel about that?
A.Well, quite disturbed. I’m not the type, sort of, to wake up with it but to go with it awake.
Q.So, how did you feel about her being embedded on you. Did it worry you or?
A.… no.
Q.No?
A.No.
Q.Did you intend that to happen.
A. … no.
[10] Under cross-examination the appellant further said:
Q.You’ve also said today in your evidence that when you woke up in the morning and you found out that your penis was in her anus, that it didn’t worry you at all. You weren’t concerned. Is that right?
A.… I was just a little bit – … it was a bit like a jigsaw. She was, like, pushed in against me. I was – my buttocks was like parallel to the bed edge and she had, like, a metre of bedding on the other side of her.
Q.Okay, but in terms of how your body was interacting with hers, was there, according to you, anal sex taking place?
A.I don’t know. I sort of woke up, I had a blank. I didn’t dream or anything. I sort of woke up and just from a complete dead sleep so I wasn’t aware of –
Q.Well, is your evidence today that you don’t know if your penis was in her anus?
A.Yes. I know it was between her, her … bum area or her leg area, crotch area and so forth.
Q.And in the statement that you made to the Police, you’d indicated that it was. It was inside her. Is that right or is that wrong?
A.… no, that’s incorrect.
Q.Why did you tell that to the police, do you think?
A.… don’t know.
[11] Later in his evidence the appellant said the following:
Q.Did the sexual activity between the two of you progress to the point where you had sexual intercourse with her?
A.… no.
Q.So am I correct that your evidence is a complete denial of any sexual intercourse?
A.… no. She had sexual intercourse with me. I didn’t have it with her. I couldn’t.
Q.O’kay, do you mean intercourse with her anally?
A.I’m not too sure if it was anally or vaginally or –
Q.Well, you’ve always been pretty adamant in your statements in the past that the only activity that you told the police about was your penis in her anus. Are you saying now that you’re not sure about that. It couldn’t been in her vagina?
A.… it could’ve been either area. I wasn’t 100% sure …
[12] Despite these denials of intentional sexual intercourse with the complainant and equivocation over whether this occurred anally or vaginally, the appellant did acknowledge under cross-examination that he had kissed the complainant’s leg and performed oral sex on her but said this was only in response to her provocative behaviour to him. He also admitted under cross-examination that when driving the complainant home the next morning she had asked him if it were possible that she might become pregnant and he replied “… it’s a long shot off, that you would be pregnant, but if you were, I would, yeah, yeah I would want the kid …”.
[13] Recent complaint evidence was also given at the trial by the complainant’s mother who was at home when the complainant arrived in a distressed state. The complainant told her mother that she could not understand what had happened: “that she had woken up in a strange man’s bed and was at a loss to know what had happened”; that she felt “really dazed” like she had been hit by a bus, not sober. She said she was confused as to how she could have gone home with the appellant and had no recollection of how she met him. After talking with her mother for a short time the complainant went to bed, as she was still feeling under the influence of something. As she was getting undressed she noticed that her knickers were on the wrong way and that they smelled of semen. She put them together with other clothes into the washing machine. When she later awoke, she found the cashflow transaction report in a pocket of her clothing but had no recollection of making the withdrawal.
[14] The Police were contacted and the complainant examined later that day by Dr Batchelor, an experienced member of Doctors for Sexual Abuse Care. Dr Batchelor’s evidence was that the complainant exhibited recent suction injuries on and above her left breast, consistent with injuries commonly described as “love bites”. She also had recent abrasions and a tear to her genitalia. Dr Batchlor’s opinion was that “a deep split in the complainant’s internal genitalia area with multiple small abrasions were consistent with excessive force to the posteria genital area and non-consenting sexual intercourse”.
[15] Various items of clothing and bodily samples were collected from both the complainant and the appellant and examined by Institute of Environmental Science & Research Limited (“ESR”). No semen or DNA originating from the appellant was found on any of the samples obtained from the complainant. At trial, Ms Brennan of the ESR explained that the absence of semen on such samples could be due to the use of a condom, no ejaculation, or few sperm. In his evidence in chief the appellant had said that he did not believe he had ejaculated. A used condom was found in a bag in the appellant’s bedroom but no human DNA was detected on the outside of it. The fact that the complainant washed her underwear when she got home is another factor that could be added to Ms Brennan’s list.
[16] Analysis of the complainant’s blood and urine found no detectable alcohol in her blood and a small amount of alcohol in her urine. This result was however consistent with her having consumed alcohol over 15 hours earlier although it was impossible to estimate the amount of alcohol she had consumed. No trace of illicit or medicinal drugs were found in her blood specimen. The possibility that she may have ingested a stupefying agent which had broken down or been excreted from her body could not be scientifically excluded and it was an open inference at trial that the complainant may have drunk a ‘spiked’ drink during the evening. However, there was never any suggestion that the appellant had been responsible for this or had administered any stupefying agent to the complainant.
[17] The central issue for the jury was whether the appellant had sexual intercourse with the complainant, without her consent, whilst she was under the influence of alcohol, or a drug unwittingly ingested. The Crown’s case was the complainant could not have consented to intercourse due to her affected state, and for those same reasons the appellant could not have reasonably believed that the complainant had consented.
The Crown and defence case at trial
[18] The trial Judge commenced his directions on the elements of the charge of rape by giving the jury a general overview of the competing Crown and defence cases, in order to provide a context for his legal directions. Mrs Aickin accepted that this overview adequately and accurately stated the case for the defence, as it had been put:
… The Crown case is that the complainant became intoxicated either by having too much to drink or by having a drug, which she had not voluntarily consumed and which may have been administered to her without consent. It may be important, I do not know, but the Crown does not allege that Mr Hofstee in any way was responsible for her condition. She wanted to be driven home and [the appellant], the Crown says, saw that she was drunk and offered to take her to Sumner for $5.00 which was a lot less than the normal fee. The Crown says that he saw a sexual opportunity in this and persuaded [the complainant] to agree to return to town on the pretence of cleaning up the shuttle. Because of her condition the Crown says, she was biddable and Mr Hofstee persuaded her into his room and into his bed where he had intercourse with her with his penis in her genitalia at a time when she knew that she was not consenting because she was unconscious or between consciousness and sleep and the Crown says in those circumstances, he could have no reasonable grounds to think that she was consenting.
In short the Crown says that Mr Hofstee had intercourse with an unconscious or nearly unconscious woman without her consent and without believing on reasonable grounds that she was consenting. So that is the way the Crown are pitching the case to you.
Now the defence says firstly that it has no dispute about the way in which Mr Hofstee and [the complainant] happened to meet. But the defence says at no time did [the complainant] appear to Mr Hofstee to be “out of it” on alcohol or drugs. The defence says that after she had vomited at Redcliffs, Mr Hofstee gave her the alternative of paying for the soiling of the cab or returning to town to clean it up and staying the night with him. The defence says that she had by this time shown herself to be forward by touching Mr Hofstee between the legs and the defence says that [the complainant] elected to return to town on that alternative. The defence says that Mr Hofstee was too tired to clean the cab and that [the complainant] agreed to stay the night in his bed and that he helped her take off her skirt and shoes because they were covered in vomit and that she took of her knickers and lay on the bed with her legs apart and that was tempting and a clear come on to Mr Hofstee who then as he put it, “kissed her on the vagina”.
Eventually, the defence case is, that the two drifted off to sleep and that Mr Hofstee awoke to find his erect penis between [the complainant’s] legs. This circumstance, the defence says, was unintended by him and embarrassed him, and that he did not have intercourse with her as an intended act on his part. As he said “she had intercourse with me”, he said. He was not sure whether his penis was in her anus or her vagina. He had got an erection when he was asleep and the defence case is that [the complainant] accommodated herself to it, unknown to him, until he woke up and permitted his penis to enter her. Whether it entered her anus or her vagina, Mr Hofstee cannot say, but he does say that she must have consented to the act because she caused it to happen. He had not intended to penetrate her because he was asleep. In other words, intercourse was unintended by him. So the defence, shortly put is, that there is no proof beyond reasonable doubt that this penis penetrated her genitalia as opposed to her anus. Secondly, that if there is proof of that penetration, the penetration was not intended, was not wanted and was not participated in by him because he was not aware of it until he woke and lastly, that any sexual activity which was commenced and engaged in was done at the instigation of [the complainant] who obviously consented to it or at least gave him to believe that she was consenting to it.
Appeal against conviction: discussion
[19] This was a trial at which both the complainant and the appellant gave evidence, so that the jury was well placed to judge the reliability and credibility of each, particularly when under cross-examination. On that basis, it was open to the jury to unanimously reject, as not reasonably possible, the appellant’s denials that he had penetrated the complainant’s genitalia with his penis or that he had done so intentionally. The jury’s verdict cannot be criticised, given the firmness of the complainant’s evidence and particularly when judged against the appellant’s equivocation over whether he had penetrated her anally or vaginally and the material inconsistencies as to whether he knew she was badly affected by drink or drugs at the time. It is inherently improbable, from the description the appellant first gave to the Police about the complainant’s state after she got into his shuttle van, that the jury could have entertained any reasonable doubt that he well realised she was under the influence of something at the time and took opportunistic advantage of this. It is also inherently improbable that the jury could have thought it a reasonable possibility that it was the appellant who awoke to find himself being sexually assaulted by the complainant.
[20] The main thrust of criticism directed at the complainant’s evidence on appeal went to the memory loss she had suffered over a number of hours and the groggy state she found herself in when she said she first became aware that she was being vaginally penetrated. Mrs Aickin made a spirited attack on this evidence as incapable of establishing beyond reasonable doubt that intentional and non-consensual vaginal penetration had occurred. As is clear however, from a reading of the transcript, the complainant was unshaken in her evidence that this experience was real and not a dream and her certainty on this issue found independent support in Dr Batchelor’s evidence. Ironically the complainant’s evidence also found support in a number of respects from the evidence given by the appellant. Examples of this were his evidence that he had said to the complainant as he drove her home, “it’s a long-shot off, that you would [be] pregnant, [but] if you were, I would. Yeah, I would want the kid”. Also, his admission under cross-examination that he had performed oral sex on the complainant.
[21] Taken in total, the evidential picture was one of overwhelming guilt, to the extent that no reasonable jury could possibly have failed to convict the appellant. The absence of any relevant scientific evidence did not detract from this picture of guilt, but the medical evidence of injuries to the complainant that were consistent with non-consensual intercourse was significant.
[22] There was no criticism directed at the Judge’s summing up by Mrs Aickin, which we find to have been exemplary in all respects. In summary, none of the criticisms advanced to support the argument that the jury’s verdict was unreasonable or unable to be supported on the evidence give us the slightest cause for concern that the jury’s verdict was unsound and should be set aside.
[23] The appeal against conviction is dismissed.
Appeal against sentence
[24] The appeal against sentence must also fail. For obvious reasons the courts will regard predatory behaviour by male taxi drivers towards female passengers as extremely serious. This was a particularly bad case. The appellant was in a position of responsibility and trust and used that position to take opportunistic advantage of a vulnerable young woman who was in need of assistance and protection. We regard his offending against her as very serious indeed.
[25] In our view the Judge took the most lenient view possible in all the circumstances by reducing the sentence to one of six years imprisonment. This was the least restrictive outcome that was appropriate in the circumstances and it expressly took into account the appellant’s schizophrenic condition. The Judge had two psychiatric reports before him as well as a report by a probation officer. The two psychiatric reports indicated that the appellant’s mental illness was not clearly linked to his offending and was, at best, indirect. His schizophrenia did not therefore wholly explain his offending. The consultant psychiatrist who examined him was satisfied that he could be adequately monitored and treated by the prison forensic service and if clinically indicated, he could be transferred under the Mental Health Act as a sentenced prisoner for treatment at some later stage.
[26] The appeal against sentence is also dismissed.
Result
[27] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
0
0
0