The Queen v Eric Rapata Pihema

IN THE COURT OF APPEAL OF NEW ZEALAND

CA318/01

THE QUEEN

ERIC RAPATA PIHEMA

Hearing:	22 July 2002
Coram:	Tipping J Ellis J Panckhurst J
Appearances:	G King and G L Melvin for Appellant B Horsley and A Markham for Crown
Judgment:	24 July 2002

JUDGMENT OF THE COURT DELIVERED BY ELLIS J

This is an appeal against conviction and sentence. After a trial by jury in the High Court the appellant was acquitted on one count of unlawful sexual connection by digital penetration and on one count of rape. He was convicted on one count of unlawful sexual connection by penile penetration of the anus and on one count of unlawful sexual connection between penis and mouth. On 19 July 2001 he was sentenced to six years nine months imprisonment on each of these last two counts.
The prosecution’s summary of facts reads as follows:
At about 6.30pm on Sunday 15 October 2000 the complainant in this matter was drinking at the Corner Bar, which is a licensed premise situated on Karangahape Road, Auckland City.
While at the bar, she met up with the accused, who was also drinking in the bar.
The accused and the complainant were previously unknown to each other.
Over the next four hours, the accused and complainant drank and socialised with each other.
At about 11.00pm that night the complainant invited the accused back to her hotel, being the Kiwi International Hotel, situated at 411 Queen Street, Auckland City.
On arrival at this hotel, the accused and complainant had a drink together in the main bar on the ground floor of the hotel.
During this time the accused met up with two other females who were drinking at this bar. In the meantime the complainant went to room 157 of the hotel, which is the room she was checked into.
The accused then followed the two females he had met in the hotel bar up to their room. They refused to allow him entry into this room, shutting him into the corridor outside.
The accused objected to this and began making some noise outside in the corridor, serenading the two women and calling out.
This commotion attracted the attention of the Hotel duty manager, who approached the accused and told him he would take him to the accused’s girlfriend’s room.
The Hotel manager led the accused to the complainant’s room.
The accused knocked on the complainant’s door, and the complainant let him into her room.
Once inside the room, both the accused and complainant took off their clothes, had showers, and then got into the double bed.
At this time the accused and complainant began kissing and cuddling in the bed.
The accused then became violent with the complainant, grabbing her by the hair and choking her. He said to her, ‘You’re my bitch, I’m going to fuck you’.
At this time, the accused forced his fingers up into the complainant’s vagina. He then inserted his erect penis into her vagina and proceeded to have sex.
The complainant protested and said ‘No’, she didn’t want to have sex with him.
The accused then told the complainant, ‘I’m going to fuck you up the arse’. The complainant told him on numerous occasions that she didn’t want this to happen.
The accused ignored the complainant’s plea not to have anal sex with her. He grabbed her by the hair and forced her to turn onto her stomach.
The accused then placed his erect penis into the complainant’s anus, and proceeded to have sex.
After this the accused then forced his penis into the complainant’s mouth, again without her consent.
After the accused had completed his act, the complainant told him that she wanted to go and take a shower so that they could make love again.
The complainant feared for her life, and told the accused this, to stop him violating her again. The complainant then grabbed a towel and ran from the hotel unit leaving behind her clothes, money and valuables behind.
The complainant ran to the downstairs lobby where she summonsed help from the hotel staff.
As a result of the sexual attack, the complainant sustained injuries to her anal area, which required medical treatment.
When spoken to by Police, the accused stated that the complainant had consented to vaginal sex.
The accused denied that he had anal or oral sex with the complainant.
The trial proceeded and the complainant’s evidence followed the above account. She frankly admitted she was keen to have sexual intercourse with the accused and that she could have announced that in colourful language to those in the bar. It is plain that her attitude was unchanged until the accused became violent. The accused gave evidence. Although he had initially denied anal and oral intercourse to the Police, he told the Jury that he had fingered her genitals, had ordinary sexual intercourse, anal intercourse and oral sex had taken place. He maintained all this was consensual and this claim was put to the complainant in cross-examination. She responded that she had refused the accused’s advances once he became violent. As the trial Judge recorded when sentencing:
[4]       In terms of the two charges on which I am sentencing you today in respect of which guilty verdicts were returned, clearly your evidence was disbelieved by the jury. For sentencing purposes I assess the jury’s verdicts on the basis that they were satisfied beyond reasonable doubt that anal intercourse and oral sex took place without the victim’s consent, and that there were no reasonable grounds for you to believe that she was consenting.
[5]       The not guilty verdicts on the first two counts suggest that in respect of the sexual activity which preceded the two counts on which you were found guilty, either the jury believed your story, or more likely they had a reasonable doubt arising out of the victim’s intoxication and her clear willingness to spend a night with you for sex in that hotel.
[6]       It is quite clear on the evidence that the anal intercourse which you inflicted on the victim without her consent caused her considerable pain and distress. She was bleeding immediately in the wake of that activity and was distressed to the extent that she fled naked from her hotel room and went down into the hotel lobby for sanctuary.
The appellant claimed in his Notice of Appeal that after the incident the complainant returned to the bar and said that what she had told the Police was untrue and that he had witnesses to support this. After counsel had been assigned, this became a claim that he had instructed his trial counsel prior to trial that the complainant had returned to the bar on several occasions, accepted, indeed demanded, drinks at his expense and had fabricated a claim that he had taken her to dinner and left without paying and asked that he brief witnesses to confirm the conduct of the complainant on the basis that it would support his claim that she now said that the activity was consensual, and that counsel had not carried out these instructions. Mr King submitted that in the alternative, counsel had enough information to the same effect to oblige him to carry out the same enquiries, and that his failure to do so was such a radical mistake, and his failure to put these matters before the Jury by cross-examination of the complainant and in the appellant’s own evidence led to a miscarriage of justice.
Before proceeding further we record that in his written submissions filed in March, Mr King elaborated five grounds of appeal:
(1)The guilty verdicts of the jury were unreasonable and/or cannot be supported having regard to the evidence;
(2)The guilty verdicts of the jury were inconsistent with the not guilty verdicts on the related charges;
(3)Trial counsel for the appellant did not follow the appellant’s instructions, thereby depriving him of the opportunity for a complete acquittal. Specifically witnesses were not called who should have been called and whom the appellant wanted called and the complainant was not cross-examined on matters relevant to the appellant’s defence. It is further claimed that the appellant was not provided with any of the disclosure or depositions material by his counsel and was therefore deprived of the opportunity to properly prepare his own defence/testimony.
(4)That evidence is available that was not before the jury that would demonstrate conduct by the complainant that was inconsistent with her claims. Specifically that she continued to have contact with the appellant after the incident by frequenting his place of work and continually asking him to buy her drinks and by lying to police over an unrelated incident where she had apparently left without paying from a restaurant, only to claim to police that she had been with the appellant at the restaurant and that he had ‘done a runner’ and left without paying.
(5)At the date of preparation of these submissions no copy of the learned Trial Judge’s Summing Up to the jury has been received by counsel for the appellant (who was not trial counsel), accordingly we are not able to say whether any grounds arise from the said summing up. We respectfully reserve our position on this point at this time.
In our view and on the analysis of the Judge we have already quoted the verdicts of the Jury are neither unreasonable nor inconsistent. These first two grounds were not strongly urged before us and we reject them. The fifth ground was not pursued. We will deal with the third and fourth grounds directly, but record that we are satisfied the appellant was afforded access to the written statements of evidence, although he may not have been given them to take away. We conclude he was properly informed of the case he had to answer and observe he gave evidence on the voir dire conducted five days before trial to test the admissibility of his statement to the Police. In it the facts of the incident were traversed.
In this Court the appellant filed an affidavit in support of his claims. His counsel at trial filed an affidavit in response (privilege being waived) and the appellant filed an affidavit in reply. We allowed each deponent to be cross-examined. The appellant named three possible witnesses who could have been called, but two did not feature in submissions before us. The third, X, provided a brief of evidence wherein he confirmed the presence of the appellant and the complainant in the bar after the incident, that the complainant acted in a proprietarial manner towards the accused. He says the appellant had told him about the charges pending against him and that the appellant had bought the complainant drinks. As to the relationship he said the appellant was friendly and the complainant demanding. He said he believed that what happened (referring to the incident) would have been more accidental than deliberate. However, he also said he had spoken to the complainant about what happened and he believed she said what the appellant did to her was “fucking bad”.
Trial counsel agreed he had been alerted to the possibility that X may be able to assist with evidence and he produced his diary notes. These record that on 31 October 2000 the appellant told him by telephone that the complainant had come to see him at the bar, talked and had a drink, and said that she did not want to proceed with the allegations as “things were consensual”. Of immediate concern to counsel was the fact that contact between his client and the complainant was a breach of the appellant’s bail conditions. Counsel said on 17 November 2000 the appellant told him the complainant had been to see him three times. Again on the day before depositions the appellant confirmed the complainant wanted to give evidence that the sex was consensual. Counsel denied that he was told about the free drinks being extracted from him, or that the complainant had been to see the appellant 10 or 12 times, or anything about the meal incident. Counsel’s diary note of 31 October 2000 contains the comment “said we could not act on compl’s stated position”. As far as enquiries from X are concerned, counsel produced file notes showing that on 12 April 2001 the appellant told counsel he had engaged a private investigator, and on 30 May 2001 that he would obtain a statement from “a guy at the bar”, and on 9 June 2001 that the appellant was going to see if two possible witnesses (one being X, but the other being in Australia) could come to see him. In his diary note counsel recorded concerning X:
Good mate of Eric.
Remember the day of Sunday 16 October 2000.
He working from morning. Works as security.
… (compl) in Corner Bar since before midday.
She drinking rum & cokes – doubles or triples.
Remembers her and Eric together.
Thinks they had met before that day.
He back and forth through the Bar.
They seemed to be having a good time.
She quite loud and rowdy. A regular.
Counsel also wrote his own assessment:
His evidence would be an attack on her character. Far too risky to call.
At trial X was not called. It is significant to relate that in his affidavit filed in this Court the appellant says:
11. From that time onwards I only went to the Camerons Corner Bar when I was working on Thursday nights. I would estimate that on about 10 to 12 such occasions right up to my trial, … (complainant) would come to the bar on Thursday nights and ask me to buy her Rum and Cokes. These were usually ticked up on my bar tab. … (X) witnessed this happening on many occasions. On one occasion I refused too buy her a drink. … (complainant) screamed out at the top of her voice ‘I’m going to put you away’ and ‘you’re going down man’. This was highly embarrassing for both me and the customers and so I got her another drink and put it on my bar tab. I did this just to save me further embarrassment.
We are satisfied that the appellant did not give his counsel firm instructions to call X as a witness. Not only does counsel aver that this is so, but the evidence as to what X was likely to say as to the complainant’s views expressed in the bar afterwards, which were known to the appellant, would have strongly militated against such instructions being given. On the other hand, evidence of the appellant being asked to buy the complainant drinks, and perhaps the dinner incident may on their own have been favourable to the appellant, notwithstanding they involved breach of bail, but together with the adverse declarations reported by the appellant himself and indicated in the brief of X’s evidence would have made it most unwise to call X or other evidence as to what took place in the bar afterwards. These points show equally that any failure to call X or further investigate his evidence cannot be regarded as a radical mistake on counsel’s part.
These conclusions enable the criticism to be looked at in another way. Assuming the appellant had instructed counsel as he claims and there was a failure to follow instructions, no injustice has resulted as the overall effect of such evidence would have been prejudicial to the accused. Looked at either way, the third and fourth grounds of appeal have no substance.

Appeal against sentence

The Judge said in sentencing that the starting point must be a sentence of eight years imprisonment and he considered reparation, but found that not to be a possible option because of the appellant’s lack of means. The Judge listed mitigating and aggravating facts and no issue was taken with this analysis. The Judge concluded by saying:
[24] With that all in the background Mr Pihema, I do intend to extend to you some leniency but I have very limited room to manoeuvre. I am prepared to extend to you a certain amount of leniency partly because your whanau and current de facto partner seem to have stuck by you, partly because of the background to the offending which I have referred to, partly because you have not been subjected to a term of imprisonment before (and I am quite sure you will find adjusting to life in prison very difficult), and partly too because despite your appalling list of previous convictions and your difficulties with alcohol, the pre-sentence report does suggest that you do have some positive features in your life.
On this basis, a reduction to six years nine months is if anything lenient and the appeal against sentence must also be dismissed.
The appeals against conviction and sentence are both dismissed.

Solicitors

Crown Law Office, Wellington

[2002] NZCA 177

24 July 2002