The Queen v Martin Henry Thomas Alexander

IN THE COURT OF APPEAL OF NEW ZEALAND

CA444/99

THE QUEEN

MARTIN HENRY THOMAS ALEXANDER

Hearing:	2 February 2000
Coram:	Richardson P Thomas J Blanchard J
Appearances:	P J Mooney for Appellant J C Pike for Crown
Judgment:	2 February 2000

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

Mr Alexander appeals against his conviction in the District Court at New Plymouth on a charge of indecent assault under s141(a) of the Crimes Act 1961. The charge was laid indictably but on the application of the defence trial was by Judge alone. The trial occurred on 15 October 1999 and judgment was given the same day.
The complainant was a male aged 16 at the time of the offending. Mr Alexander was 55. There is no dispute about some of the central facts concerning what occurred between them. Both swam regularly at the Aquatic Centre at Kawaroa in New Plymouth. Mr Alexander befriended the complainant who is physically handicapped as a result of a childhood accident. There was evidence from a medical specialist that he is also, for the same reason, less mature than his actual age and functions emotionally more as if he were 14 or 15. There was also evidence called for the Crown from a swimming pool attendant who thought the complainant was “about 14.”
On an occasion on which they met downstairs at the pool and after they had gone upstairs to a private changing room and were alone there together, Mr Alexander showed the complainant some photographs of naked females and of naked males. The complainant became aroused. Mr Alexander touched the complainant’s erect penis through his swimming togs and then pulled down the togs and masturbated the complainant causing him to ejaculate. Evidence was also given that the two met again at the swimming pool about a week later in similar circumstances when the appellant performed oral sex on the complainant. That was repeated on two further occasions at the same venue. Mr Alexander did not face any charge in relation to any of the acts of oral sex.
The act of masturbation being admitted, and the complainant being of an age where he was capable in law of consenting to it, the issue at trial was whether he had indeed consented or, if not, whether the appellant honestly believed that there was a consent.
The complainant’s evidence was that he was interested in looking at the photographs but had not anticipated anything more than that and because of his inexperience in sexual matters was taken by surprise and unsure about what was happening to him; that he “froze” and although he did not protest, he did not want the touching to occur and was not agreeing to it. He explained his subsequent meetings with Mr Alexander on the basis that “I was scared if I didn’t go, I didn’t know what he might do.” He explained that he had not told Mr Alexander not to do it to him because “I never knew it was a crime.” He also said: “I wasn’t quite sure if he was allowed to or not. I didn’t know that, I didn’t know what rights I had, so I wasn’t quite sure.”
The appellant gave evidence. He said that he thought from his conversations with the complainant that the latter was “of at least average intelligence.” He claimed to have befriended the appellant out of admiration for his determination to overcome his physical disability. They had had a discussion about the Internet and the adult material available on it. The complainant had told Mr Alexander his age and had “a very knowing smile on his face” when he did so, which the appellant described as a “nudge nudge, wink wink, sort of smile.” The complainant had responded positively to Mr Alexander’s inquiry about whether the complainant would like Mr Alexander to find him some of the “hot stuff on the Internet.” They had agreed that they should look at it in one of the private changing rooms.
When they were looking at the pictures the complainant got an erection. When Mr Alexander fondled him the complainant giggled a little and took a step back. The appellant said he paused and asked the complainant whether it was “okay with you.” The complainant had nodded his head and “stepped back to be within my reach”, showing no resistance at all. It was at that point, said the appellant, that he performed the masturbation. Throughout all his contacts with the complainant there had been no indication of a lack of consent.
In his oral judgment the District Court Judge noted that there was no dispute that there had been active and deliberate masturbation of the complainant by Mr Alexander. He described the two versions of what occurred and said that there were obviously issues of credibility to be determined. He described the way in which the complainant had presented to the Court in the witness box. There were obvious physical disabilities and the complainant “presented as unsophisticated and naive” and somewhat younger than his years. The Judge noted that this was not only his own observation but that of the medical specialist, and the pool attendant had the same impression, thinking that the complainant was about 14. He accepted that the complainant had at the relevant time “virtually no sexual awareness.”
The Judge referred to the fact that the appellant in his evidence had described himself as having considerable experience with young people in a counselling role and as someone who had got to know the way young men think and act. He had described the complainant as being someone of at least average maturity for his age. His evidence had been that he did not see the complainant as in any way vulnerable.
Clearly the Judge rejected this view. He said:
I have considered the position of both the key witnesses. The complainant was obviously naive, with a very limited knowledge of sex and apparently completely inexperienced. He had maturity and sophistication under his chronological age, other than in the ways that I have indicated he had a significant awareness, and those characteristics in my view, would be quickly obvious to all around him.
The Judge found that the complainant’s evidence on
clear issues is clear, unshaken and consistent with the observations able to be made by me and which were made by others. On the other hand the accused’s evidence on key issues, is contradicted by other evidence, and unconvincing and implausible in many respects.
There was in my view no possibility, having regard to the conclusions I have drawn as to the complainant’s behaviour, of the complainant having raised his age in a sexually suggestive way, and no possibility that he would have presented himself in a sexually suggestive manner or in body language which would have in any way deliberately suggested he was available for sexual experimentation.
I am satisfied that despite the memory problems which he acknowledged, his core memory about the key events was correct and I prefer generally his version of events as to what happened. There was no consent by him to the activities of the accused. When he was approached, in effect, he froze. He confirmed in his evidence that he didn’t know what was going on. He plainly, in my view, did not understand the nature and quality of acts which were being performed on him and when those matters became clear in later times, his concern manifested itself, it seems, in epileptic seizures or episodes, such that he was no longer required [by his parents] to go to the swimming pool.
The Judge then found as a fact that there was no consent by the complainant.
He proceeded to consider whether the appellant could have had an honest belief in consent but did not accept the appellant’s evidence that he honestly so believed. He said he was satisfied on the balance of the evidence that the Crown had established beyond reasonable doubt that there was no honest belief and no consent.
There are three grounds of appeal:
[a]The verdict was unreasonable and cannot be supported having regard to the evidence;
[b]The Judge misdirected himself on the question of whether there was an honest belief in consent; and
[c]A miscarriage of justice occurred because the Judge failed to give defence counsel an opportunity to make a closing address.

Verdict unreasonable/unsupported by evidence

Mr Mooney had a realistic appreciation of the difficulties confronting the appellant on this ground particularly where so much turned at trial upon the Judge’s perception of the demeanour and credibility of the complainant and the appellant. He argued that the Judge had been overly influenced by the impression he himself and witnesses had formed regarding the complainant’s level of sophistication. He said that the Judge should not have preferred the complainant’s evidence when the complainant had admitted memory difficulties, in particular failing to recollect the number and detail of meetings which took place in or around the pool on occasions prior to that upon which the complainant and Mr Alexander first went upstairs to the private changing room.
It is true that the complainant had difficulty with his memory of detail but it was open to the Judge to take the view that he had an accurate recollection of the matters which were essential to the charge. The Judge was entitled to accept the complainant’s evidence that he had frozen when sexually touched by Mr Alexander and to reject the latter’s evidence about the circumstances in which that touching occurred.
Mr Mooney submitted that there was significance in the complainant’s failure to remember some earlier meetings because it was as a result of Mr Alexander’s observations at those meetings that he held the belief that the complainant was of average maturity for his age. However, as it does not appear from Mr Alexander’s account that sexual matters were raised at the meetings which are said to have been forgotten, we do not see that this argument assists the appellant’s case. There is a considerable difference between the reaction of a youth to a meeting in an ordinary social context and his reaction when exposed to a sexual advance by a man some 40 years older than himself, particularly when the youth in question is lacking in any sexual experience. In any event, as we have said, it was open to the Judge, even allowing for the memory difficulties of the complainant, to reject Mr Alexander’s account of what had occurred prior to the incident to which the charge related.
It was also open to him to conclude on the basis of his own observations of the complainant in the witness box and of the evidence of the medical practitioner and the pool attendant that the complainant plainly functioned at an emotional level below his actual age. On that basis the Judge could properly take the view that it was most unlikely that the complainant would have consented to be masturbated by a middle aged man and that it was equally improbable that Mr Alexander would honestly have thought that there was a consent.
Mr Mooney referred in this context to a matter not mentioned by the Judge - that the complainant had been willing to have further meetings with Mr Alexander after the incident in question and that even more gross indecencies had then occurred in respect of which no charges have been pursued. It was argued that the fact that these meetings had occurred showed consistency with what the appellant had said in evidence, especially as the complainant had acknowledged that he may have obtained a key to the private changing room for at least one of those meetings.
However, we are satisfied that the Judge could readily conclude that the fact of the further meetings did not create a reasonable doubt concerning the absence of consent at the time when the act of masturbation occurred. It is unfortunately all too common that young persons who suffer sexual abuse find themselves drawn into further involvement with their abusers and are seemingly unable to break off the relationship. The fact of the subsequent meetings does not in our view indicate that the initial act of indecency was consented to. It was not of course necessary for the Judge to refer to this matter if, as was open to him, he did not see it as supporting the evidence of Mr Alexander concerning the circumstances in which the masturbation occurred.

Misdirection on honest belief

Mr Mooney accepted that the Judge correctly stated the test but he argued that the Judge had misapplied it. It is not necessary that the belief be reasonable, for an unreasonably held belief in consent can still provide a valid defence if that belief is nevertheless honestly held.
It is to be noted, however, that nowhere in the judgment does the Judge say otherwise. He is not to be taken as having overlooked the theoretical possibility – rare in practice – that an unreasonable belief in consent may be actually and honestly held. As we have said in the earlier portion of this judgment, based on his own observations and upon the evidence, the Judge was entitled to conclude that Mr Alexander had no such honest belief in consent. The Judge gave his reasons for being of that view. He did not accept the appellant’s evidence.

No closing address

It is unfortunate that counsel for the appellant did not raise this question with Crown counsel at an early stage in an endeavour to reach agreement on what occurred, nor was the Court asked for a report from the Judge. In this respect there was failure to comply with the Practice Note.
However, it would seem that what occurred was that at the close of the evidence the Judge indicated that because it was a very short trial, and of course there was no jury, he would not need to hear closing addresses. He then retired for an hour or so before returning to deliver his judgment. Defence counsel therefore had a period to consider the position. Mr Mooney told us that he had prepared himself to give a closing address. But he cannot have thought the matter important enough to convey to the Judge that he believed his client might be disadvantaged if counsel was not given an opportunity of addressing the Court. It is, we think, significant that he did not at the time feel it was necessary to press the point even though he had an hour’s opportunity of doing so. Crown counsel had for his part accepted the position and did not seek to address.
It would have been better if the Judge had inquired whether counsel wished to address, notwithstanding the indication he had given. But in the circumstances of this case we think that the Judge’s view that he would not be particularly helped by closing addresses was a reasonable view. Having heard the arguments pursued by the appellant on this appeal which of course fully traversed the matters that would have been included in any closing address, we are not persuaded that its absence has led to a miscarriage of justice.

Result

All grounds of appeal having failed, the appeal is accordingly dismissed.

Solicitors

Gordon & Mooney, Stratford, for Appellant

Crown Solicitor, Wellington

[2000] NZCA 3

2 February 2000