The Queen v Kempilo Tu'ungafasi Tongotongo

IN THE COURT OF APPEAL OF NEW ZEALAND

CA313/00

THE QUEEN

KEMPILO TU'UNGAFASI TONGOTONGO

Hearing:	20 September 2000
Coram:	Tipping J McGechan J Fisher J
Appearances:	L P Iosefa for Appellant KBF Hastie for Crown
Judgment:	28 September 2000

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

The appellant was convicted in the High Court at Timaru on one count of sexual violation by rape and sentenced to eight years imprisonment. He had been charged with two counts of rape relating to two separate incidents on 1 April 2000 and 9 April 2000. The appellant was acquitted on the charge relating to the 1 April incident but was convicted on the 9 April charge. He appeals against conviction and sentence.
On Saturday 1 April 2000 the appellant and the complainant met for the first time at the Crown Hotel in Temuka. After dancing briefly they went outside into the garden bar of the hotel. There was some kissing which was undoubtedly consensual. The complainant alleged that the appellant then raped her on a picnic table. The appellant asserted that the sexual activity was all consensual. The jury acquitted him of rape in relation to this incident.
On Saturday 8 April 2000 the appellant and the complainant met again at the Crown Hotel. The complainant gave evidence that she recalled being seated in the bar of the hotel with a friend and then found herself in an upstairs television lounge with the appellant on top of her having sexual intercourse with her. Her top, bra and pantyhose were off, her skirt was hitched up and her underwear was pulled down. She could not recall anything about the passage of time between being seated in the bar and finding herself in the television lounge. At this point the complainant said she had said no several times and when the appellant did not listen she became hysterical. She struggled and eventually managed to get onto the balcony where she called for help. The appellant dragged her back into the lounge but again she managed to escape. As a result of the incident the complainant suffered a bruise to her eye, bruising and grazing to her arms and tenderness to her inner thighs.
The appellant gave evidence that he saw the complainant at the hotel and that there was mutual kissing, after which the complainant agreed to go upstairs with him. They then had consensual sexual intercourse for a number of minutes. The appellant then claimed that penetration ceased and the two lay kissing for five to six minutes. He stated that the complainant then suddenly became hysterical and ran out onto the balcony. It was the appellant’s evidence that the complainant had tripped over a table in the lounge when she was hysterical and that he had taken her hand when she went out onto the balcony in an attempt to calm her down. Beyond those suggestions, the appellant had no explanation for the complainant’s injuries.
The appellant appeals against his conviction in relation to this incident on the basis that the verdict of the jury was unreasonable in that it was not supported by the evidence. He also contends the verdict "contradicted" the trial Judge’s directions in his summing up, and that unduly prejudicial comments were made in the summing up, resulting in a miscarriage of justice. He appeals his sentence on the basis that it was manifestly excessive and failed to take into account significant mitigating factors.
The appellant’s first ground of appeal is that there was insufficient evidence of sexual violation after the revocation of consent by the complainant. The Judge directed the jury that there was no evidence on which they could conclude that sexual intercourse was not initially consensual. It was not disputed that the complainant revoked consent. Thus the only issue for the jury was whether sexual intercourse took place or continued after that revocation of consent. The appellant submits that the complainant’s evidence was not sufficiently clear to support a finding that sexual intercourse continued after she had revoked consent.
In his summing up the trial Judge directed the jury as follows:
In my view, and on this point you must act on my view, there is no evidential basis upon which you could conclude that the sexual intercourse was necessarily non-consensual to start off with on this occasion. I will come to the reasons for that a little later. The Crown case can only focus on the situation as it was from the point where the complainant gives evidence as to what happened in the room - that is the accused on top of her, having sex with her, her complaining and shouting out for help and so on.
Now I want to read you the evidence she gave as to that. She says effectively that the next thing she can remember after being in the bar and sitting at the table with Andrew was being in a room she could not remember ever having been there before and she was on the floor. She then described her state of attire and then there was this evidence:-
What was the accused doing when you were on the floor and he was on top?… had my legs apart and he was really pushing them apart, really hurting and he was having sex with me. Again I am sorry to be specific but when you say having sex with you what was happening?… Well his penis entered my vagina. How were your legs being held apart?… With his legs. I don't know how he managed to do it. He kept pushing them and there was a lot of pressure. It was really sore. When you realised what was happening what did you do?… I was trying to get away from him. I told him no several times. He just didn't listen. Did he say anything to you?… He told me to be quiet. Did you call for help at all?… Yes I tried to. That was when I was trying to get away from him. At one stage I did get away from him and that was when I got on to the balcony.
In his address to you Mr Iosefa suggested that the complainant did not allege that sex continued after she began to complain. Well, the evidence which I have read to you on this point is certainly not entirely explicit. But it is, I think, open to you to conclude that in substance what the complainant was saying was that while she was on the floor with the accused he was having sex with her, it was painful, she complained and said no and he did not listen (ie continued to have sex) and told her to be quiet and that eventually she tried to get away, cried out for help and did get away. Whether you conclude that that is what she meant and, if so, whether it is correct, is a matter for you. Because it is a point raised by defence counsel and I have read it to you once, but now that I have really put the crux of the matter to you, I think I will read it to you again so you can get it clear in your mind just what you think she meant in terms of what was happening in the early hours of 9 April:-
What was the accused doing when you were on the floor and he was on top?… had my legs apart and he was really pushing them apart, really hurting and he was having sex with me. Again I am sorry to be specific but when you say having sex with you what was happening?… Well his penis entered my vagina. How were your legs being held apart?… With his legs. I don't know how he managed to do it. He kept pushing them and there was a lot of pressure. It was really sore. When you realised what was happening what did you do?… I was trying to get away from him. I told him no several times. He just didn't listen. Did he say anything to you?… He told me to be quiet. Did you call for help at all?… Yes I tried to. That was when I was trying to get away from him. At one stage I did get away from him and that was when I got on to the balcony.
So that is about as good as it gets.
While the evidence on this point was not entirely explicit, it was, as the Judge said, open to the jury to conclude that sexual intercourse continued after the complainant had made it known that she did not consent. The complainant’s evidence was that she asked the appellant to stop and that he would not listen. The appellant on the other hand gave evidence that sexual intercourse was no longer taking place at the time the complainant began to scream and became hysterical. The question was thus one of credibility for the jury, which they clearly answered in favour of the complainant.
What is also significant is that the complainant’s evidence as to revocation of consent was never really tested in cross-examination and the appellant’s evidence, that sexual intercourse was not taking place at the time she began to protest, was not put to the complainant. We consider that the complainant’s evidence was sufficient to support a finding that sexual intercourse continued following her revocation of consent and thus the appellant’s first ground of appeal cannot succeed.
The appellant’s second ground of appeal is that the jury’s verdict contradicted the direction of the trial Judge to be cautious about convicting on a pick and choose basis, accepting some of what the complainant said but rejecting other parts. The Judge directed the jury as follows:
Now although this is not explicitly what counsel for the Crown said, that is, I think, is the thrust of his case- it is that the accused and the complainant went upstairs conceivably, on the Crown case, consensually, and that the accused then insisted on, or persisted with, sexual intercourse against the complainant's will and used violence to achieve this end. Now that would be a theory that has some plausibility. It would seem to fit with the facts and it is, I suppose, psychologically in tune with reasons why the complainant may have claimed to have a memory loss.
What I am going to say to you is this - if you reason along these lines, you are accepting parts of the evidence of the complainant and parts of the evidence of the accused and rejecting other parts of each of the stories they gave. You are entitled to do that. But I must sound a note of caution. If you think that the complainant has not been completely frank with you as to significant aspects of the case, or that this is reasonably possible, then you should be very cautious of convicting on a pick and choose basis, accepting some of what she says but rejecting other parts. Do not convict on the basis of the hypothesis that I have put to you - or, indeed, any other hypothesis - just because it seems likely or plausible or fits the facts. You must only convict if you are satisfied beyond reasonable doubt that the accused is guilty.
Can I emphasise this last point by making one other point and it is really just a matter of common sense. Where sexual activity begins on a consensual basis and then the woman wishes to terminate it, there may be a period of time before that message gets through. During that period of time, the sexual intercourse will not be consensual, but the man will probably have a reasonable belief that the woman is consenting. You may think, and it is a matter for you, that there is a possibility of misunderstanding, with perhaps slightly volatile people affected by alcohol, where the sex might stop but the situation gets out of control with hysteria and perhaps a bit of violence. It is a matter for you. If that was a reasonable possibility then you would have to acquit.
Counsel for the appellant submitted that it was inconceivable that the jury convicted on anything other than a pick and choose basis, as certain parts of the complainant’s evidence could not have been accepted by any reasonable jury. In particular counsel for the appellant focussed on the complainant’s inability to recall how she got upstairs and how the sexual activity commenced. He submitted that no reasonable jury could have convicted on her evidence in the light of the caution from the trial Judge.
In effect counsel for the appellant elevated the Judge’s direction to be cautious as to convicting on a pick and choose basis to a prohibition against doing so. However, this was not the effect of the direction. The Judge was directing the jury not simply to settle on a plausible hypothesis but to consider the evidence of the witnesses carefully and to be cautious in accepting some parts while rejecting others. While the jury’s verdict potentially involved the acceptance of some portions of the complainant’s evidence and the rejection of others this is not a ground for challenge in itself. It was not inconsistent for the jury to conclude that the complainant was initially a willing participant but that at some point she changed her mind and made that clear to the appellant, who continued regardless. The complainant’s evidence was sufficient to support such a finding. The jury accepted it and their verdict cannot be said to have been an unreasonable one.
The appellant’s third ground of appeal against conviction relates to allegedly prejudicial comments made by the Judge about the character and credibility of the appellant in summing up. The matters raised were:
[a]Repeatedly summarising the complainant’s evidence in chief on the issue of consent without reference to her evidence in cross-examination, or to the appellant’s evidence;
[b]Referring to the appellant’s character and credibility, predisposing the jury against the appellant and conveying an unbalanced and unfair view of the credibility of the appellant’s evidence; and
[c]Suggesting that the appellant had to give an explanation for the complainant’s actions or injuries thereby placing a burden on the appellant to prove those things.
The passage of the summing up referred to in (a) above is that reproduced at paragraph seven of this judgment. Counsel for the appellant submits that repeating the complainant’s evidence in this way reinforced the Crown’s position and in not referring to cross-examination evidence gave the impression that the evidence went unchallenged. The effect was that the Judge placed a lot of weight on the evidence and by interpreting it would have strongly suggested to the jury that this was the evidence which they should have accepted on the point.
We consider that the effect of the repetition was not to place undue weight on the Crown’s case but to focus the attention of the jury on the contentious issue, whether sexual intercourse continued after the complainant withdrew her consent. The Judge outlined the complainant’s evidence, then the defence’s contention before repeating the evidence so that the jury could consider it in light of the opposing contentions. Given this approach it cannot be said that any prejudice to the appellant arose from this aspect of the summing up.
Counsel for the appellant also noted the Judge’s omission to repeat the complainant’s evidence in cross-examination as indicative of some form of imbalance against the appellant. However, as we noted earlier in this judgment the appellant’s version of events was not put to the complainant in cross-examination so it is difficult to see what part of the cross-examination should have been referred to the jury. For the reasons outlined we do not consider that this aspect of the summing up was prejudicial to the appellant.
Counsel for the appellant also challenged comments in the summing up relating to the character and credibility of the appellant. The Judge said at paragraph 56 of the summing up:
On any view of the case, some of the accused's behaviour has not been very flash. His very casual attitude to sex, the taking of the watch and bra for instance are obvious examples. He either is or should be ashamed of what happened on these two occasions and this on any view of events. So there was occasion here for embarrassment. As well as embarrassment about talking about the case to you, he also had members of his family (including, I suspect, his wife) in the back of the court when he was giving evidence. He did not strike me as being a very sophisticated man. In light of all this, it would not be altogether surprising if he put his own spin on some of the events to portray himself in perhaps a slightly more favourable light.

Counsel for the appellant submitted that the Judge went too far in indicating his own views, which were adverse to the defence. However, the Judge’s comments must be read in light of the three immediately preceding paragraphs and those that follow. Paragraphs 53 to 55 of the summing up show that the Judge was using the matters outlined in paragraph 56 as examples of peripheral matters on which the jury might consider the appellant not be telling the whole truth, but which the jury must not consider to be indicative of guilt. Likewise paragraphs 58 to 60 reiterate the proper use of such evidence. When paragraph 56 is read in this context, we consider this portion of the summing up to be generally beneficial to the appellant rather than prejudicial.

Various references to the appellant’s theft or taking of the complainant’s underwear and watch were also challenged by counsel for the appellant. It was submitted that referring to the appellant as having stolen the watch and bra incorrectly raised issues as to the character and credibility of the appellant and predisposed or prejudiced the jury against the appellant. While the appellant was not charged with theft, he was found with both the complainant’s watch and bra in his possession. The Judge’s comments were not helpful to the appellant but we do not consider that they would have had any significantly greater impact on his character or credibility than more neutral references to the articles having been taken would have had.
Counsel for the appellant next submitted that the Judge incorrectly directed the jury that demeanour was unreliable in making assessments as to credibility and undermined the argument of the defence in this regard. It was submitted that demeanour is a very important aspect of evidence and that juries are entitled to take account of demeanour when making assessments as to credibility.
The Judge’s direction as to demeanour was as follows:
Well ladies and gentlemen, those are issues for you. But as a professional and full-time judge I can tell you that demeanour-based credibility assessments are very difficult to make and are not particularly reliable. It is a pretty unnatural environment in the witness box in a case like that and if a girl gives a nervous laugh when she is giving evidence in a case of this sort or uses a colloquial expression I would not draw much from that, just as I would not draw anything from perhaps one or two of the things that happened when the accused gave evidence. It is part of the case and you consider it but there are better and, I think, more helpful ways to look at evidence.

The Judge did not direct the jury that they could not take demeanour into account. He did however suggest that it was an unreliable basis of assessment and that there were more helpful ways to look at evidence.

Viewed in isolation, and as general propositions, the Judge's directions on demeanour could well give rise to problems. They appear contrary to the orthodox direction usually given to juries on this topic, and were reinforced by the Judge's reference to his being "a professional and full time Judge". That reference might be thought unduly to have imposed the Judge's views into an area primarily of fact. The context was, however, the immediate one of the jury's assessment of the evidence of the particular complainant and accused. The jury would no doubt have understood the more general comments in that light. While we would ourselves prefer to avoid the more general connotations of what the Judge said, we do not consider there was any real risk of a miscarriage of justice arising. The Judge maintained an appropriate balance because he directed his remarks to the evidence of both the complainant and the accused.
Finally counsel for the appellant challenged various comments in the summing up, which he submitted shifted the onus of proof to the appellant to provide an explanation for the complainant’s hysteria and for the injuries she suffered. It was submitted that in making those statements the Judge suggested the appellant had something to prove.

We do not view the comments which the Judge made in that light. He was simply pointing out that the appellant had not offered much of an explanation; there was therefore nothing much which the jury had to take into account from the appellant's evidence to dispel what they might see as a natural inference from the presence of the injuries. In the context of the summing up as a whole the jury could not have been misled about who carried the onus of proof of the ingredients of the offence.
We are satisfied that the points raised in the appeal against conviction, both singly and in combination do not demonstrate any miscarriage of justice or any other ground upon which the conviction ought to be set aside. The appeal against conviction is therefore dismissed.

Appeal against sentence

The appellant is a 24 year old married man with four young children. Counsel endeavoured to support his appeal against the sentence of 8 years imprisonment by reference to his domestic and other personal circumstances, his lack of previous convictions, and his otherwise good character. Counsel also analysed the circumstances of the offending, and the impact it had had on the complainant with a view to demonstrating that there were significant elements of mitigation. We have considered all the points raised. But for one point, we do not consider they would have been sufficient to show the sentence imposed was outside the range available to the Judge. As is well known, 8 years is the standard sentence for a contested rape with no significant circumstances of mitigation or aggravation: R v A [1994] 2 NZLR 129.
The one point which has brought us to the view that the sentence was manifestly excessive is the Judge's approach to the fact that the sexual intercourse was initially consensual. The appellant's offence was in failing to desist when the complainant withdrew her earlier consent. Towards the end of his sentencing remarks the Judge said:
Although the fact that I must sentence you on the basis that you were convicted of persisting with sexual intercourse without consent and without reasonable belief in consent might serve to distinguish this from most cases where there are convictions for rape, the violence and your subsequent actions in stealing the complainant's watch and bra seem to me to leave me with no option but to treat this as a case calling for the usual tariff sentence.
He had earlier described the injuries as "physical, although not particularly serious". They were caused largely by the appellant holding the complainant down rather than by punches or other more substantial violence. At the end of his sentencing remarks the Judge said that it was "a case where there is a settled pattern of sentencing to which I must adhere". He added "I am, therefore, required to, and do, sentence you to 8 years imprisonment".
We find ourselves unable to agree with the Judge's overall assessment. Women are entitled to change their minds during sexual intercourse. Persisting with intercourse after known withdrawal of a consent originally given remains a serious crime, and in the normal course it can be expected to attract a substantial term of imprisonment. However rape in the more common form of intercourse begun without consent, and without reasonable belief in consent, is even more serious. Each case will need to be considered on its own facts but all else being equal, it can be expected that persistence after known withdrawal of a consent originally given will be the less culpable of the two. In R v A itself this Court said:
On the other hand there may be features in a particular case justifying going below, possibly even well below, the eight-year starting point. Some such cases are listed in Billam and Clark. Another illustration, depending always on the particular circumstances, may sometimes occur when consent to intercourse is refused after a degree of consensual sexual stimulation. An extreme example is R v Brookes (1992) 14 Cr App R (S) 496, where a sentence of three years for rape was upheld on the basis that the accused was not aware of the refusal of consent until the act of intercourse had begun. The man's persistence in such a case is criminal but some allowance for the special facts may be made in sentencing.
In R v Everton, CA194/95, judgment 9 November 1995, the Court accepted that a genuine, albeit unreasonable, belief in consent could be seen as constituting some mitigation. Reference can also be made to the decision of this Court in R v Hollander, CA440/97, judgment 25 February 1998, in which the Court recognised, as in Everton, that an honest belief in consent, albeit not based on reasonable grounds, might bear on culpability. The present case is of course not the same as those of Everton and Hollander but there is an analogy.
The Judge's remarks suggest he saw "the violence", and the "stealing" of the watch and bra, as factors which cancelled out such mitigation as might otherwise have been present. Whether the appellant's taking of the two items amounted to theft was never an issue. He was not charged with theft. It is by no means clear that he was in fact guilty of theft. It is perhaps possible to see his taking of the watch and bra as making the rape more serious because that conduct demonstrated a degree of indifference to the complainant's rights in a further way. But we consider the point to have been of marginal relevance in the overall sentencing exercise, and best left out of account.
It was certainly appropriate for the Judge to take 8 years as the starting point but we consider he should then have made a significant deduction on account of the fact that the complainant initially consented. The degree of force which the appellant used when he persisted after the complainant withdrew her consent, means that the mitigation which might otherwise have been available should be somewhat less. Had it not been for this force, a deduction of 3 years from the starting point would have been appropriate in the overall circumstances of the present case. In the light of the force used we consider that an appropriate deduction was 2 years. This results in an effective sentence of 6 years.
The sentence of 8 years was manifestly excessive. The appeal against sentence is therefore allowed, the sentence of 8 years is quashed, and replaced with a sentence of 6 years imprisonment.

Solicitors
Iosefa & Co, Christchurch, for Appellant
Crown Law Office, Wellington

[2000] NZCA 223

28 September 2000