The Queen v Quentin Jose Takarangi

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 121/01

CA 125/01

THE QUEEN

QUENTIN JOSE TAKARANGI
PERCY ROGERS

Hearing:	25 July 2001
Coram:	McGrath J Robertson J Randerson J
Appearances:	E R Fairbrother for Mr Takarangi A P Dreifuss for Mr Rogers K Raftery for Crown
Judgment:	2 August 2001

JUDGMENT OF THE COURT DELIVERED BY MCGRATH J

The appellants were both found guilty following a jury trial of three jointly laid charges of assault by male against female, sexual violation by unlawful sexual connection alleging oral sex and attempted rape. Mr Rogers was convicted as principal offender on the assault and attempted rape counts. Mr Takarangi was convicted as the principal offender on the sexual violation count. Mr Rogers was sentenced to eight years imprisonment. Mr Takarangi was sentenced to eight and a half years imprisonment, as he was also sentenced on other matters for which he was already in custody. Both men appeal against their convictions and Mr Rogers against his sentence.
The offending occurred on the night of 24 February and into the morning of 25 February 2000. On 24 February, the appellants attended the complainant’s birthday party at her home. They decided to leave the party around midnight and invited the complainant to join them in Mr Takarangi’s car. She agreed, assuming the appellants intended to drive to another party. It was common ground that the complainant at the time was affected by cannabis she had used during the day and that she had also consumed a considerable amount of alcohol. Mr Takarangi drove the car to an isolated area some kilometres away. On arrival, Mr Rogers got out of the car and told the complainant, “get out bitch”. The complainant then got out of the car and was forced to the ground. Mr Rogers unsuccessfully attempted to remove her trousers after hitting her on the face, before getting back into the car. This gave rise to the assault charge. With nowhere else to go, the complainant rejoined the two men in the car and was driven to a Marae. Once there she was taken to a shower block where, the Crown alleged, the sexual assaults on her took place. The complainant’s evidence was that she was there forced to perform oral sex on Mr Takarangi, in a shower cubicle, following which Mr Rogers attempted to rape her. This gave rise to the convictions for sexual violation and attempted rape. The complainant said she was able to fight Rogers off without penetration occurring and that he ultimately desisted. She was then driven home by the two men.
When the trial of the appellants commenced the indictment contained five counts each laid jointly. In addition to the single count of assault (male against female) there were two counts of rape and two counts of sexual violation by unlawful sexual connection alleging oral sex On the rape counts each appellant was charged on one as a principal and the other as a party. That was also the basis they were charged on the sexual violation counts.
At the conclusion of the prosecution case the count of rape on which Mr Takarangi was charged as principal offender was discharged as was the count of sexual violation by unlawful sexual connection in which Mr Rogers was alleged to be the principal offender. The count of rape on which Mr Rogers was alleged to be the principal offender was amended to attempted rape. The circumstances of the trial leading to these decisions by the trial judge were unusual and we now outline them.
The Crown had opened at the trial on the basis that the complainant would give evidence of having been raped by each accused in the shower block at the marae. There had been a deposition statement by her to that effect. When giving her evidence at the trial however she said that she had not had vaginal intercourse with either appellant. She gave evidence, supporting the count of sexual violation, by unlawful sexual connection between her mouth and the penis of Mr Takarangi but was firm that Takarangi’s penis did not touch any other part of her body. She did not give any evidence supporting the separate count of sexual violation involving oral sex on Mr Rogers. Her testimony supported the charge of attempted rape by Mr Rogers as the principal but, as indicated, that evidence did not establish penetration had occurred.
Subsequently an E.S.R. scientist gave evidence of analysis of vaginal samples and cervical swabs that had been taken from the complainant. The evidence was that DNA extracted was consistent with its origination from Mr Takarangi but not from Mr Rogers. As the scientist put it the likelihood that the DNA came from the complainant and Mr Takarangi was 9,500 million times greater than the alternative that it came from the complainant and another New Zealand male unrelated to Mr Takarangi who had been selected at random from the general population. Earlier, during her evidence in chief, it was put to the complainant that the scientific evidence would indicate that sperm consistent with DNA taken from Mr Takarangi had got into her vagina. She was asked if she had any idea how that might have happened and replied: “No”. The scientist’s evidence was not significantly challenged in cross-examination.
This highly unusual combination of events was naturally very surprising to the Judge and counsel and presented all with difficulties as to the future conduct of their responsibilities in the trial, a topic to which we will return. The immediate direct consequence however, as already indicated, was that at the conclusion of the Crown’s evidence the Judge granted applications under s347 of the Crimes Act to discharge the appellants on the jointly charged count of rape by Mr Takarangi, and that of sexual violation involving oral sex on Mr Rogers. His Honour also amended the count of rape by Mr Rogers to be one of attempted rape to which Mr Takarangi was a party.
The defence called no evidence at the trial and after counsel’s addresses the Judge proceeded to address the jury. On the first count the defence of Mr Rogers, charged as a principal, was that he was neither at the complainant’s birthday party nor at either of the scenes of the alleged assault or the alleged subsequent offending. This was in direct contradiction to the evidence of the complainant and, in relation to his presence at the party, that of her sister. Mr Rogers’ counsel, Mr Dreifuss, put in issue the reliability of all of their evidence both in cross examination and his final address to the jury. This was Mr Rogers’ defence to all counts.
Mr Takarangi’s defence, on the first count, was that at the time of the alleged assault, in the isolated area to which the complainant had been driven after the party, he was in the car and had done nothing to assist or encourage the alleged co-offender to carry out the assault.
On the second count, Mr Takarangi’s defence was that the Crown could not prove he did not believe, reasonably, that the complainant was not consenting. As the Judge put it to the jury:
…even though the complainant was not in fact freely or truly consenting to have oral sex with him because she complied he had every reason to think she was.
Counsel for Mr Takarangi, Mr Fairbrother, who was not counsel at the trial, argued that, because of the unusual circumstances, the trial judge should have put a further defence to the jury which had not been raised by counsel at the trial. It was that because the scientific evidence contradicted the complainant’s testimony that she had not had vaginal sexual intercourse with Mr Takarangi the issue of the reliability of the complainant’s evidence generally should have been put to the jury. That issue had not been raised by Takarangi’s counsel at the trial but Mr Fairbrother pointed out that it was impossible for trial counsel to explore the issue in cross-examination without incurring the real risk that the complainant would recant on her evidence in chief that she had not had sexual intercourse with Mr Takarangi. It was, he argued, unrealistic to expect counsel to make a s347 application prior to the completion of the complainant’s evidence by which time the opportunity to put the complainant’s previous inconsistent deposition statement to her safely had passed.
Mr Fairbrother said that there was simply no choice for counsel, who was unable in the circumstances even to raise the reliability of the evidence of the complainant, effectively, in counsel’s final address as there was no evidential basis to do so. In his submission the Judge should have taken that course on his own initiative. On this basis he sought the quashing of each of the convictions against Mr Takarangi.
Mr Dreifuss, counsel for Mr Rogers, also appeared for his client at the trial. In his cross-examination of the complainant and her sister Mr Dreifuss did press them on aspects going to the reliability of their testimony. His cross-examination focussed on the amount of liquor consumed by the complainant and her sister during the day along with the two cannabis cigarettes she had smoked. In his closing address he pointed out that the complainant’s evidence had differed in two major respects from what the Crown understood it would be when it opened.
Mr Rogers’ defence was that it was not him, that he was not even there. The defence case was based on Mr Rogers’ statement to a Detective Hikiwai on 27 February 2000. In that statement he denied any knowledge of, or involvement in, the offending and stated that he had not even been present at the complainant’s party. In contrast the complainant gave evidence that Mr Rogers was involved throughout and her sister confirmed that both appellants were at the party. The defence case was summarised by the Judge in his summing up as follows:
Mr Dreifuss submitted that the evidence of these two women must be suspect to the point you cannot be satisfied beyond reasonable doubt that their evidence was true. So far as [the complainant] is concerned he submits that on her own evidence, by the time she says she left the party she had no breakfast, lunch or tea. Further, she had smoked at least two cannabis cigarettes and she had drunk a large amount of alcohol.
Her evidence actually given in Court differed in two major respects from what the Crown understood the position to be when the trial started. Mr Dreifuss submitted that all these factors served to produce a reasonable doubt as to the worth of [the complainant’s] evidence, because it could reasonably be inferred from those circumstances that her memory wasn’t good, not very good at all, or she was confused, or she was mistaken, or finally she simply wasn’t telling the truth. On any of these bases it is submitted her evidence must be taken as being unreliable..
So far as [the complainant’s sister] is concerned, the defence submission by Mr Dreifuss was that her evidence should be dismissed. She too had been using cannabis on the day; she had been drinking and, in the final analysis, it was submitted to you, she was only saying what she did to support her sister.
After warning the jury to take care in respect of evidence of identification of Mr Rogers, that being in issue, the Judge said:
…Therefore, I have to suggest to you that if you reject the evidence of these two women as to the identification of Mr Rogers, it seems difficult to see that it could be because their memory was bad, or they were confused, or they were mistaken. I suggest to you it could only be rejected if you had a reasonable doubt as to whether they were telling the truth. Having gone over the evidence I have to say that so far as I can see it was not put to either of the women that they were not telling the truth. The result is that you have not been able to gauge their reaction to such an accusation and that is a factor you should take into account.
The issue is one of credibility, do you believe the two women, and particularly the complainant ….? For you to believe them you must be satisfied beyond reasonable doubt they, or either of them, were telling the truth and it is for the Crown to satisfy you of that.
This passage was criticised in his submissions to us by Mr Dreifuss as effectively an instruction to the jury that it should address Mr Rogers’ defence on the basis that the real issue was credibility, i.e. truthfulness, and not the reliability of the testimony of the complainant and her sister.
On the basis of the undisputed DNA evidence, the complainant’s testimony at trial that Mr Takarangi did not have sexual intercourse with her must have been wrong.We wish to make it plain, in view of suggestions in his counsel’s submissions to the contrary, we are not saying that the complainant must have been lying. There could be a number of reasons for the complainant’s inconsistent evidence and it is inappropriate to speculate on which are pertinent. The evidence of the scientist was that “quite a lot of male DNA” was extracted from the semen found in the region of her cervix and the witness formed the opinion that it had probably resulted from ejaculation inside the vagina rather than transference.
As we have said the surprising turn of events when the complainant gave her evidence in chief at the trial presented difficulties for counsel and the Judge. This was not merely a complainant not coming up to brief. We accept that counsel for Mr Takarangi was in practical terms precluded from pressing in cross-examination of her, the issue of the reliability of the complainant in relation to what she had said on the other charges for fear that she would revert to what she had said in her earlier depositions statement and recall that Mr Takarangi did have sexual intercourse with her that evening. Provided that did not happen, an application for discharge under s347 on the count of rape by Mr Takarangi would inevitably succeed.
Counsel might have made that application at the end of evidence in chief, but it is highly unlikely in our view that the Judge would have upheld it prior to the witness completing her evidence. The reality is that counsel had to cross-examine the complainant, as Mr Fairbrother put it, “walking on eggshells”. The tenor of the cross-examination reflected the situation and the original defence of absence of proof that Mr Takarangi did not reasonably believe the complainant was consenting.
Had counsel been able safely to put the previous inconsistent statement at depositions to the complainant the question of the reliability of her evidence of the events of the evening of 24-25 February in relation to Mr Takarangi would have been opened up. It is true that there was no evidence from Mr Takarangi of his belief in consent. When requested to agree to an interview by the police he had simply refused to talk at all. Nevertheless we have concluded that absence of an evidential basis for the defence is not a sufficient answer to the impediment that his counsel faced in cross-examining on reliability of the complainant at the trial. Mr Takarangi had pleaded not guilty and put the Crown to proof of all aspects of the case. Nor in our view is it reasonable to say that questions of reliability could have been put by Mr Takarangi’s counsel sufficiently in the course of counsel’s final address in a complex case.
In the end the Judge chose not to deal with the potential issue of credibility in relation to Mr Takarangi’s defence, no doubt because counsel had not raised it. In our view the Judge cannot be criticised for following that course. Had he done so it would have, no doubt, formed the basis of an argument on appeal that the conviction was unsafe. Nevertheless, and we reiterate for reasons that do not reflect criticism on the Judge or any counsel involved, we have reached the conclusion that the summing up in relation to Mr Takarangi was not adequate to deal with all of the complexities of this highly unusual trial. The failure of the complainant to give the evidence she had in her deposition statement that she had been raped opened up more avenues for Mr Takarangi’s defence than the s347 application on the rape counts. It provided a further basis for a defence of the unreliability of the memory of the complainant and thus her entire testimony. This was on top of her use of cannabis and consumption of alcohol. At the least the contradiction of her testimony by the scientific evidence should have been squarely before the jury in relation to Mr Takarangi’s defence. That did not eventuate during any of counsel’s cross-examination, counsel’s address to the jury or the Judge’s summing up. While it was ultimately for counsel at the trial to decide whether to cross-examine the complainant on the reliability of her evidence we are concerned that the unanticipated and unusual course of the trial apparently deprived counsel of that opportunity. While no error can be attributed to the Judge or to counsel we take the view that the outcome of the combination of events is that the integrity of the process in relation to the convictions of Mr Takarangi is suspect. It is accordingly necessary that the convictions against him on all three counts be quashed and that there be a retrial.
The appeal in relation to Mr Rogers was put on a different ground. It was that the defence of reliability on which the complainant and her sister were cross-examined by Mr Dreifuss at the trial was effectively taken from the jury by the Judge in the passages from his summing up quoted in paragraph 15 above. The Judge had of course given a warning that the jury should disregard any view of the evidence of any witness, which he expressed in the course of his address, which did not accord with that of the jury. The warning is a standard one which, we accept, carries considerable force. The mere fact that a Judge has expressed an opinion, even a strong opinion, will usually not make a summing up unfair where it has been made clear to the jury that they need not accept the view and that the responsibility for deciding questions of fact remains with them. There is of course an exception where the Judge has intervened in such a way that the right to have the defence addressed by the jury was effectively denied an accused.
Normally we would have no great concern about the way that the trial Judge approached the questions of the credibility and reliability of the complainant and her sister. However we consider that the problems concerning the complainant’s contradiction of her earlier testimony and the inconsistency between her evidence at trial and the scientific evidence required, in the case of Mr Rogers, special care in the summing up to ensure that the jury addressed the reliability question. Whilst it may perhaps be unlikely that the jury would have accepted the defence’s contentions and rejected the evidence, we are not satisfied that they might not have done so. We also note that the evidence of the complainant and her sister was the only identification evidence led by the Crown at trial. Three other people said to have been at the party were not called to give evidence. As such the identification evidence that was given and its reliability must be seen as crucial.
We are influenced in this regard also by the concern that it would give the appearance of unfairness to Mr Rogers if our concerns over the same unusual feature of the trial were not carried through in relation to his convictions in the same way as we have decided is necessary in the case of Mr Takarangi.
For these reasons each of the convictions against Mr Takarangi and Mr Rogers must be quashed and we direct that there must be a retrial on each of the counts concerned.

Solicitors

Crown Solicitor, Auckland

[2001] NZCA 224

2 August 2001