The Queen v Kasipeani Tahaafe

IN THE COURT OF APPEAL OF NEW ZEALAND

CA100/00

THE QUEEN

KASIPEANI TAHAAFE

Hearing:	27 June 2000
Coram:	Tipping J Heron J Williams J
Appearances:	D G Harvey and G P Mason for Appellant J C Pike for Crown
Judgment:	10 July 2000

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Kaisipeani Tahaafe was convicted of sexual violation by rape after trial by jury in the District Court and was sentenced to three and a half years imprisonment. He appeals against his conviction.
The charge arose from a single incident in July 1998. The complainant was an 18 year old woman flatting in Palmerston North. Shortly before midnight she decided to go out socialising. She had something to drink at home, then went out to various establishments in Palmerston North and became extremely drunk. The appellant was a taxi driver on duty at the time. He accepted the complainant’s fare and drove her home, returned to a money machine so that the complainant could get some cash, and then drove her home again. The complainant’s evidence was that when they got to her home she had difficulty controlling herself because of her drunkenness. The appellant assisted her in getting out of the cab, helped her with the keys to enter her flat and assisted her to bed. There, the offence allegedly occurred. The following morning the complainant became aware that something untoward had occurred but she could not recall what. When questioned by her flatmate as to whether she had been raped she responded “I think so”.
The case is unusual in that there was no direct evidence of sexual activity or of the penetration of the complainant. Because of the complainant’s intoxicated state at the relevant times, her recollection of events up to the time the appellant dropped her at home was sketchy, and to some extent inconsistent with the evidence of at least one other witness who encountered her during the evening. The complainant had very little recollection of the events that occurred inside the flat and no memory of any act of penetration or intercourse. She could recall being driven home and helped through the front door. She could remember getting into bed and being naked from the waist down. She could also recall seeing the accused in the bedroom, also naked from the waist down. The complainant believed that her tampon had been removed and she subsequently located it near the end of the bed.
The appellant initially lied to the police about what had happened. In a later statement his explanation of events was that he had, due to her intoxicated state, assisted her into the house. At her request he helped her to remove her boots. He said he then went the toilet and while his pants and underwear were down the complainant grabbed his penis from behind and tried to get him to have intercourse with her.
The Crown based its case on circumstantial evidence, particularly for proof of the essential element of penetration. There was a considerable amount of medical evidence from both the Crown and the defence. The Crown relied heavily on scientific evidence and DNA profiling which established that the complainant’s menstrual blood and the appellant’s semen were found unmixed on the bed sheet of the bed where the incident occurred. In addition, vaginal and cervical swabs taken from the complainant were shown to have semen on them, although the quantities were too small to be tested for DNA. There was medical evidence that the semen must have been deposited within the preceding 48 hours. The complainant gave evidence that she had not had sexual intercourse with anyone in the 14 day period prior to this incident. The Crown asked the jury to conclude that the semen had come from the accused and that he must have penetrated the complainant’s genitalia with his penis.
The explanation proffered by the appellant was that, although the deposits on the sheets were his, they were pre-ejaculatory emissions. The appellant denied having penetrated the complainant. The defence case was that the semen found inside the complainant’s vagina and cervix either originated from another man or came to be there without penetration having taken place. The appellant’s wife gave evidence to the effect that the appellant was impotent and incapable of penetrative intercourse. He could and frequently did, however, emit pre-ejaculatory fluids without knowing it and in circumstances where there was no act of intercourse. This evidence was not challenged and was supported by evidence from a medical specialist called for the defence.
The jury by its verdict must have concluded that there was some penetration of the complainant’s genitalia by the appellant.
The first ground of appeal is that the verdict cannot be supported on the evidence available to the jury. The appellant submitted that the inferences the Crown sought to persuade the jury to draw were unsafe to the point of being dangerous; and that to reach a guilty verdict the jury must have drawn improper inferences from the evidence. The appellant’s written submissions focussed on the inferences the Crown sought to persuade the jury to draw from evidence in three main areas: the evidence relating to the complainant’s credibility; the evidence that the appellant had told lies; and evidence regarding the explanation of events given by the appellant, particularly as to whether penetration occurred. We consider each of these areas in turn.
First, the appellant submitted that the Crown made excessive and unhelpful reference to the integrity of the complainant. This was, submitted the appellant, inappropriate in these particular circumstances where the complainant was unable to give direct evidence relevant to the matters in issue. The submission was that in emphasising the complainant’s credibility the Crown essentially invited the jury to make its decision on matters other than the evidence. We find this ground to be without merit. The jury was entitled and indeed required to take account of what they made of the complainant’s credibility when assessing her evidence, albeit that evidence did not deal with the crucial issue of penetration. Her evidence of not having had sexual intercourse within the last 14 days was however an essential link in the chain of proof.
Second, the appellant submitted that it was neither tenable nor fair for the jury to conclude that the appellant was likely to lie on the basis of examples given to the jury by the Crown. The appellant sought to show that several of the examples of “lies” given to the jury by the Crown were simply not proved to be lies and it would have been unreasonable for the jury to conclude that they were lies on the evidence available to them. This ground must also fail. It is not for us to speculate on which “lies” the jury regarded as having been proven, nor to speculate on how this affected the jury’s assessment of the appellant’s credibility. The Judge gave detailed directions to the jury on the use to which they could put this evidence. He directed the jury that they must be certain that the “lies” identified by the Crown were in fact lies and that they must be careful about the weight they gave to those lies. He warned that the mere fact that a person lies is not of itself evidence of guilt and that a person may lie for a number of different reasons. Further, the Judge directed that the jury that the fact that a person had told lies was relevant only to their credibility. The jury was entitled to reach its own conclusions on this evidence and to take it into account when assessing the appellant’s credibility.
Third, and most significantly, the appellant submitted that it was not reasonable for the jury, on the evidence, to accept the Crown’s contention that the appellant’s evidence as to what happened in the house was unbelievable. The appellant objected in particular to the inference the Crown invited the jury to draw from the evidence relating to the semen found in the complainant’s vagina and cervix. This was that it was logical, fair and reasonable to conclude that the semen was deposited by the accused and that to have done so “he would have had to have penetrated her genitalia”. The appellant argues that this conclusion was completely unsupported by the evidence. Furthermore, he contends that the Crown failed to exclude three reasonable alternative hypotheses advanced by the appellant, which were that the semen found in the complainant’s vagina and cervix may have originated from another man; the semen may have entered the complainant from a deposit outside the vagina; or the semen may have been deposited by the appellant on or near the genitalia without penetration or physical contact.
As this aspect of appeal and the other ground raised can conveniently be addressed together, we turn to the second ground before stating our conclusions overall.
The issue here concerns the Judge’s directions on the drawing of inferences. It is said the directions were both insufficient and misleading in the particular circumstances of this case. The crucial issue at trial was penetration and whether the jury could properly draw the inference that the appellant penetrated the complainant’s genitalia with his penis.
The relevant directions, in the order they appeared in the summing up, are these (with the key passages italicised):
Now in this case there is no direct evidence at all of the crucial issue that is penetration. There were only two people there. The complainant, and she can not remember. The Accused and he has denied it in his statement to the Police. So the Crown says to you you have to draw the conclusion from all the facts that it submits it has proven, that there was penetration. The Crown in submitting that this is a conclusion that can be drawn from these facts, it points to you to a number of matters, and in particular it points to the fact that there was the accused DNA found on the bed sheet where the complainant said this happened, that there was live sperm found in her cervix and vagina taken as a result of the swabs which were subsequently analysed. There is no evidence that that was the accused sperm but the Crown say it was there, and you have the evidence of the complainant that she denied that she said the last occasion she had intercourse was some 14 days before and the medical evidence tends to suggest that sperm only live in their intact form for something up to six or seven days. So the Crown say to you you can draw the inference that it was the accused semen. Well members of the jury it is for you to decide whether that is an appropriate and reasonable conclusion to draw from all of the evidence you have heard or if you came to that conclusion would it just be speculation or guess work. It must not be. If you come to that conclusion you must find the facts are proven, and decide that that is a reasonable, fair and logical deduction from all that evidence. Now, in respect of any aspect of this case, and particularly that if you come to the conclusion that the evidence would support two conclusions, both of similar weight, then to choose the members of the jury would be speculating. You should not do that, and if there is an inference to be drawn there are two inferences to be drawn, and two conclusions to be drawn and you are not satisfied that one is better than the other then you must give the benefit of the doubt to the accused.
…..
Another way of approaching this very important issue in this case is for me to tell you something about circumstancial [sic] evidence. You have probably heard the word circumstancial evidence and have a general idea of what it is. Well could I say this to you, direct evidence is when somebody says I was at a certain place and I saw something happen so that is evidence from a person saying directly I saw this occurring. Circumstancial evidence is where there is nothing of that sort, no direct evidence, but it arises from a deduction, a conclusion, from proven facts, then you then draw the conclusion because you are satisfied that the primary facts have been proven but you are satisfied that it is a reasonable conclusion, a reasonable deduction, defined the third fact, the conclusion. There is nothing inherently wrong or second rate or dubious about circumstancial evidence in fact it is sometimes better than direct evidence because we know that people who see things happen often get it wrong. They believe they see something happen such as they see a motor car and two motor cars in collision. You would be surprised when I hear in this Court sometimes that the wide variety of evidence that different witnesses recall when they say they saw that happen, colours of vehicles, speed they were travelling at, the sex of the driver, things of that sort, they have got it wrong so don't just think that circumstancial evidence is something that is second rate. It is not. It simply involves the process that I have talked to you about drawing inferences and conclusions. When a series of reliably established facts connect with each other in a way that carries conviction in the minds of a jury that can result in proof beyond reasonable doubt. Taken individually each factor may not prove a great deal but when you put them all together you find a series of otherwise inexplicable co-incidences that is a matter of common sense and logic is that the only conclusion you can come to is that a person is guilty, and that is sufficient. But if the cumulative effect of all those individual facts does not reach that high standard, that there are gaps then the evidence does not amount to proof beyond reasonable doubt. It is the cumulative effect of all the circumstancial evidence leading you to the conclusion that is important, and it is for you to decide whether you are satisfied in this case that there is such a combination of facts or events that you are satisfied beyond reasonable doubt. Or are the gaps that leaves you feeling unsure and leaves you with a reasonable doubt.
…..
Finally, may I suggest to you that the key points in this case are these. The Crown must prove that there was penetration of the complainant genitalia by the accused penis beyond reasonable doubt. You must feel sure before you find him guilty. There is no direct evidence of penetration. The complainant does not say it happened. No one else saw it happen. You must rely on circumstancial evidence. Circumstancial evidence there is nothing second rate about it. It is perfectly acceptable, good and valuable evidence. You must not speculate, you must not guess. You draw logical and reasonable inferences from the facts you find proven. Applying those matters and all I have earlier said to find the accused guilty you must be sure he penetrated the genitalia.
The second passage followed immediately after the first. The third passage came later, before the Judge summarised the Crown and Defence cases.
In short, the appellant's argument as presented by counsel is that in the first passage the Judge gave the impression that it was proper to draw an inference, even if it constituted proof of an essential ingredient of the offence, on the balance of probabilities. That impression is said to derive from the contrast the Judge drew between conclusions of similar weight and conclusions where one was "better" than the other. The appellant necessarily also contends that the subsequent directions were insufficient to cure the deficiency in the first.
We agree that the final part of the first direction is not happily expressed. We do not however consider that the direction would have caused the jury to mistake the need for the crucial element of penetration to be proved by the Crown beyond reasonable doubt. This the Judge emphasised both before and after the passage in question. He also reinforced the point in the final passage in which he told the jury they must be sure the accused penetrated the complainant's genitalia. The Judge's legal definition of penetration given earlier was entirely correct. The circumstantial evidence direction amounted to much the same thing as the direction on inferences which had preceded it. A very astute listener may have identified the potential for conflict between the two, but overall we consider the Judge made it perfectly clear to the jury that they must not convict unless they were satisfied of penetration to the required standard.
That brings us to whether the inference of penetration was open to the jury to that standard on the evidence. The Crown's starting point was proof of sperm being found inside the complainant's vagina and in her cervix. The accused suggested two possibilities consistent with his innocence. First that the sperm had come from another man, or if it was his, that it had been deposited outside the vagina and found its way inside by a process which did not involve any penetration on his part. It must be remembered that the Crown had to prove only some degree of penetration however slight. It was open to the jury to accept the complainant's evidence that she had not had intercourse with any other man during the past 14 days. Counsel suggested that intercourse with another man could have occurred without the complainant realising it, as was alleged on the present occasion. The jury were entitled to reject that proposition on the basis that it was not a reasonable possibility on the view they took of her evidence. By this means the jury were entitled to find that the sperm found inside the complainant was that of the appellant.
The question then becomes whether the jury were entitled to find beyond reasonable doubt that it got there through some degree of penetration or whether they must have been left with a reasonable doubt about that. There was evidence to the effect that the appellant was capable of achieving a partial erection. While there was medical evidence that sperm can migrate into the vagina from a deposit outside, the jury were entitled to decide that such was not a reasonable possibility in this case. We have taken into account the point about the blood and semen on the sheet not being mixed, but do not consider that point takes either side very far.
We consider the jury's conclusion that the appellant penetrated the complainant cannot be characterised as mere speculation or guesswork. Once the jury concluded, as they were entitled to do, that the sperm found inside the complainant came from the appellant, there was an entirely logical basis for concluding that penetration had occurred. The accused was capable of some penetration, albeit not to the point of full intercourse; but any degree of penetration suffices in law. It was for the jury to determine whether, on all the evidence, the "possibility" of sperm being found in the vagina and cervix without penetration, was such that they were left with a reasonable doubt. The medical evidence which established such possibility was not such as must inevitably have led to the jury having a reasonable doubt. The evidence was not developed to the point where that could be said, particularly as sperm was found in the cervix as well as in the vagina.
For these reasons we are satisfied that a verdict of guilty was open to the jury on the evidence. Such verdict cannot be described as unreasonable or not supported having regard to the evidence. The Judge's directions on inferences were not, overall, deficient. The appeal is accordingly dismissed.

Solicitors
Duncan Harvey, Palmerston North, for Appellant
Crown Law Office, Wellington

[2000] NZCA 120

10 July 2000