The Queen v Sturm

[2005] NZCA 137

IN THE COURT OF APPEAL OF NEW ZEALAND

CA28/04
CA101/04

THE QUEEN

v

PHILIP DAVID STURM

Hearing:29 September 2004

Court:Anderson  P, Hammond and William Young JJ

Counsel:P J Davison QC and A J Lloyd for Appellant

P K Hamlin and M D Downs for Crown

Judgment:1 June 2005 

JUDGMENT OF THE COURT

A        Mr Sturm’s appeal against conviction is allowed.

B        The question on the case stated is answered in the negative.

C        The Crown appeal in respect of the case stated is allowed.

D        The convictions against which appeals were brought are quashed.

E        The directed verdicts of acquittal are set aside.

FThere will be an order for a new trial on the counts on which Mr Sturm was convicted and on the counts of stupefying on which there were directed acquittals.

REASONS

(Given by Anderson P)

Table of Contents

Para No

Nature of the appeals  [1]
The Crown case at trial  [6]
Similar patterns of behaviour  [8]
     Mr A  [9]
     Mr B  [14]
     Mr C  [15]
     Mr D  [17]
     The pattern  [20]
The Judge’s direction on similar facts  [22]
Challenge to similar fact direction  [23]
Discussion in respect of similar facts  [26]
Other grounds of appeal against conviction  [39]
What does “stupefy” mean?  [67]
Crown arguments on appeal[74]
Arguments for Mr Sturm[83]
Discussion[99]
Result  [115]

Nature of the appeals

[1]       In October 2003 Mr Sturm was arraigned in the High Court at Auckland for trial by jury before Chambers J.  He pleaded guilty to eight counts of supplying the Class B controlled drugs known as “ecstasy” and “speed”.  He pleaded not guilty to many other counts including six, laid pursuant to s 191 Crimes Act 1961, of unlawfully stupefying with intent to facilitate the commission of a crime.  The Crown alleged that Mr Sturm stupefied each of four male complainants in order to facilitate the commission by him of sexual violations or indecencies with those complainants. 

[2]       At the close of his case Mr Sturm, by counsel, applied pursuant to s 347 Crimes Act for orders discharging him on the counts of unlawful stupefaction upon the grounds that the evidence did not show that any of the complainants were stupefied.

[3]       Chambers J made a determination as to the meaning of “stupefies” in terms of s 191 and reserved a question of law for this Court.  He then directed the jury to return verdicts of not guilty on the stupefying charges.

[4]       The question of law reserved was formulated by the Judge, after submissions by counsel, as follows:

Where a person is charged with stupefying another with intent to facilitate the commission of a crime pursuant to s 191 of the Crimes Act 1961, is the Crown required to prove that the victim was placed into a “stupor” in so far as that term is generally understood within medicine and medical science.

[5]       Mr Sturm was convicted by the jury on ten other counts relating to sexual activities with the four complainants and he appeals against those convictions on various grounds.

The Crown case at trial

[6]       The Crown case was that Mr Sturm inveigled young men to indulge in sexual conduct with him by suborning their will by supplying them with drugs; that the effects of those drugs rendered what might have appeared to be consensual sex between adult males into sexual violation and indecencies without true consent on the part of the complainants; and that Mr Sturm did not believe, or in the cases of alleged sexual violation did not believe on reasonable grounds, that they were consenting.

[7]       The complainants testified expressly or implicitly that their sexual orientation was heterosexual and that what had occurred with Mr Sturm was quite out of character.  The Crown case was that the uncharacteristic conduct of the complainants was explicable in terms of the effects of drugs supplied by Mr Sturm. 

Similar patterns of behaviour

[8]       In the case of each of the four complainants there were patterns of behaviour which the Crown asserted had probative significance.  They are best indicated by summarising the evidence in chief of each complainant.

Mr A

[9]       Mr A was 20 years old when he worked at a restaurant owned by the appellant.  He said that there was an evening when he and Mr Sturm were having a conversation and Mr Sturm invited him to a night club in Karangahape Road.  Mr A was diffident about going to the night club because he felt he was dressed inappropriately.  He said that a little later Mr Sturm came up behind him, put his hand over Mr A’s mouth and popped a pill into it, saying the pill was ecstasy.  Mr Sturm then drove Mr A in an attractive black Porsche to Mr Sturm’s Grey Lynn residence where Mr Sturm changed his clothes and provided Mr A with a change of clothes.  Mr Sturm offered Mr A a snort of white powder which Mr Sturm said was K, a so-called recreational drug.  Mr A snorted some of the drug.  The two men then went in the Porsche to a night club and took part in dancing.  Mr A was in a highly elevated mood.  He consumed two more doses of ecstasy.  The men then went to one of Mr Sturm’s bars where Mr A produced some cannabis which they each consumed by spotting. 

[10]     Next, the men went to Mr Sturm’s office where they listened to music.  Mr Sturm said that he was gay and started massaging Mr A’s shoulders.  Mr Sturm then kissed Mr A on the neck.  This was immediately objected to and Mr Sturm apologised.

[11]     About one month later Mr A approached the appellant in a night club for the purpose of obtaining ecstasy.  Mr A testified that he was drunk and that his memory was blurry but he recalled going in the Porsche to Mr Sturm’s home where he waited briefly in the car while Mr Sturm went inside and returned with some ecstasy.  Each man had a half tablet and they then went back to the night club where Mr Sturm offered Mr A some K.  The offer was accepted.  Mr A said that later he began to feel unwell and he asked Mr Sturm to drive him to the viaduct area where Mr A believed he would be able to meet up with some friends.  Mr Sturm agreed to that but said that he first had to go by his office.  When the men arrived at the office Mr A asked if he could use the lavatory and while he was doing so, Mr Sturm entered and started massaging his shoulders.  This led to an incident of oral sex.

[12]     About two months after that incident Mr A approached the appellant again at a bar and asked for some ecstasy which Mr Sturm supplied.  Mr A and another friend each consumed the ecstasy.  Mr A remained drinking for some hours until, at Mr Sturm’s suggestion, they and two of Mr A’s friends drove to Mr Sturm’s office.  There the group listened to music and consumed some wine before driving the youngest member of the group, a young woman, home.  The three men then returned to the office where, again in the lavatory, oral sex occurred between Mr Sturm and Mr A. 

[13]     About a week after that incident, drugs were again taken and another act of oral sex occurred between Mr Sturm and Mr A.

Mr B

[14]     In August 2002 Mr B, then aged 24, was drinking in a bar when he was approached by Mr Sturm to whom he had spoken on previous occasions.  He was invited back to Mr Sturm’s office to which they drove in the Porsche.  The men conversed for a time as they listened to music in dimmed light and drank wine.  After a while sexual activity occurred in various ways.

Mr C

[15]     Mr C was 20 years old in November 2002 when he was approached by Mr Sturm in a bar.  The men had spoken with each other on previous occasions, one of which had led to Mr Sturm driving Mr C to a night club where he bought him some wine and offered ecstasy.  Mr C had declined the ecstasy and the men eventually drove back to the original bar. 

[16]     On a later occasion, relevant to the particular counts in the indictment, the men met again at the bar.  Mr C had already been drinking for a time and he accepted a glass of wine from Mr Sturm.  Later the men drove in the Porsche to Mr Sturm’s office where they sat around, chatted and Mr C had a glass of water.  Then Mr Sturm said he had to do a pick up from his house and he drove Mr C there, went inside briefly and returned to the car.  The men then went back to Mr Sturm’s office where Mr C was offered and accepted some ecstasy.  Mr Sturm cut a tablet in half and each man consumed a dose with a glass of wine.  After a while sexual activity occurred.  Then Mr Sturm offered Mr C a line of speed (amphetamine) which Mr C took.  Eventually he was driven home in the Porsche.

Mr D

[17]     Mr D was 19 years old in November 2002 when he met Mr Sturm for the first time in circumstances outlined below. 

[18]     On an evening in November 2002 Mr D was drinking heavily with two of his relatives.  In about two hours he consumed a large amount of spirits and then went to sleep.  He woke up at about 4 a.m. and decided to walk into town along Great North Road.  As he was walking, Mr Sturm drove by in his Porsche.  Acknowledging the attractiveness of the car, Mr D raised his arm in salute.  Mr Sturm did a U turn, stopped by Mr D, and engaged him in conversation.  Mr D asked for a lift into town.  He testified that he assumed Mr Sturm was gay but did not think much about that.  When the car reached Auckland city, Mr Sturm invited Mr D up to his office for a beer.

[19]     In the office Mr Sturm produced some white powder, explaining that it was speed.  He cut two lines and he and Mr D each snorted a line.  Mr D thinks he took another line as well.  Mr Sturm then offered ecstasy, saying that it was at his home.  Mr D said that he would give it a try and both men went in the Porsche to the appellant’s home, which Mr Sturm entered briefly, and returned to the car.  Back in the office Mr D was keen to try the drug.  He testified that he had a couple more lines of speed and then accepted an ecstasy tablet.  He testified that as the drugs took effect he felt he would do anything for Mr Sturm and told him so.  Sexual activity occurred.  More drugs were taken.  The men returned to Mr Sturm’s home where again there was sexual activity which, on one view at least, may have seemed very willingly participated in by Mr D even to the point of facilitating anal penetration.

The pattern

[20]     Thus emerges a pattern of engaging in conversation with young men, about 20 years of age, who in three of the cases were previously known to Mr Sturm.  There follows a drive in an impressive looking sports car back to Mr Sturm’s impressive looking office where an intimate atmosphere is created with lighting, music and alcohol.  Then Mr Sturm’s visitor is invited to share drugs and this is eventually followed by sexual activity which in terms of the young men’s testimony is out of character and inconsistent with their sexual orientation.

[21]     The Crown case, essentially, was that Mr Sturm caused the young men to be affected by drugs in order to facilitate intended sexual behaviour which would occur when they were not truly consenting and when Mr Sturm did not believe, or in the cases of sexual violation did not believe on reasonable grounds, that they were consenting.  The defence case, essentially, was that the activities complained of were entirely consensual, except in respect of two counts, alleging respectively digital and penile penetration of the anus, where Mr Sturm denied that the alleged incidents actually occurred.

The Judge’s direction on similar facts

[22]     The Judge put the issue of similar facts to the jury in the following terms:

[29]  Now the Crown does not merely rely on Mr A’s evidence, Professor Hindmarch, and Dr Fountain.  Indeed, the Crown, on this charge, doesn’t even rely just on evidence specifically relating to this incident.  The Crown also says, when you are considering Mr A’s case, don’t look just at what happened to him.  Consider too what happened to the other complainants.  I need to explain to you the extent to which evidence relating to the other complainants can or may be relevant when considering this charge involving Mr A.  The relevance is limited and you need to be careful about it.  We lawyers often call this sort of evidence – this other evidence relating to other complainants, other incidents – we lawyers call this often similar fact evidence, or sometimes discrete conduct evidence, that is separate conduct evidence – evidence on a separate occasion.  But at the moment, when we’re looking at issue 4.1, we are considering a charge involving what happened between Mr Sturm and Mr A in 2001, and the question is, in forming a conclusion on that, can you take into account what happened between Mr Sturm and Mr A on other occasions and indeed what happened between Mr Sturm and the other three complainants?  And similarly, later, for instance, when you are considering what happened between Mr Sturm and Mr B, can you take into account what happened between Mr Sturm and Mr A, Mr Sturm and Mr C, Mr Sturm and Mr D?  The answer to those questions is this.

[30]  When a court is considering a particular charge, evidence about what an accused is said to have done at other times is normally deliberately excluded and that is because what an accused might or might not have done on one occasion is by and large irrelevant to what he may have done on another occasion.  But there are exceptions to that general rule.  In this case, there are four complainants who say that Mr Sturm offended against them.  The Crown submits to you that the events they have each described have significant similarities, and that was really the point of Mr Hamlin’s 12 points.  The Crown notes that the four complainants are all young men, all roughly the same age.  All four say they are heterosexual.  Some of them, you may even have thought, looked alike.  All four are approached by Mr Sturm, the Crown says, and are invited back to his office.  In each case, a legitimate non-sexual reason is given for going to that office.  None of them is invited to the office for the purposes of a sexual encounter.  They get to the office.  The visits, the Crown says, all take place, it would seem, in the early hours of the morning.  At that time of the day or night, the office is private.  It has a magnificent view over the city, it is said.  It would seem on each occasion drinks are offered.  Mr Sturm, at least on some of the occasions, puts on music.  Some assert the lights are dimmed, or tuned off.  This does cause some of the invitees to question the purpose of the visit and to question Mr Sturm’s motive and sexuality.  Some question Mr Sturm about that.  But significantly, the Crown says, in no case is there any discussion about the possibility of sexual activity between Mr Sturm and any of the complainants before drugs are taken.  That does seem to be common ground, that there was no discussion of sexual activity before drugs were taken.  The Crown says that the use of alcohol and drugs is a common theme applicable to every incident before you.  These were, the Crown says, the agents of seduction.  The Crown says that it is extremely significant that none of the sexual activity with any of the complainants took place without drugs having first been taken.  In every instance with every complainant, drugs preceded the sexual activity.  The Crown points to the fact that in each case, it was Mr Sturm supplying the drugs and that he never asked any of the complainants to pay for them, even though he had never met two of them before and another of them he knew, but barely.  The Crown says drugs aren’t cheap.  According to Mr Sturm, each ecstasy pill cost him about $60.  A bag of methamphetamine about $100, and yet, the Crown says, none of these young men is ever asked to pay for the drugs.  And then there’s the sex itself.  Mutual masturbation on a number of occasions and oral sex, generally taking place on the floor of his office or in the toilets next to his office.  In Mr D’s case, of course, the sexual activity continued later at Mr Sturm’s home.

[31]  And finally, each of the four complainants come to the police and complain about having been sexually violated by Mr Sturm.

[32]  Well, what do you make of those alleged similarities?  Before you were to use the incidents involving the other complainants with respect to considering this charge involving Mr A, you would need to be satisfied about two things.  First, it is for you to decide whether you accept the Crown submission; whether you think there are those similarities in the four accounts, and whether those similarities are significant.  And secondly, you must be satisfied that the complainants have not collaborated, got their heads together, to concoct false but matching allegations.  The four, when asked, each claimed that they did not know what the others had alleged.  Indeed, they claimed not even to know who the other complainants were.  Well, that’s for you to assess.

[33]  If you are satisfied about those two things, then it would be open to you to conclude that the evidence of one complainant about what happened to him is so related to the evidence of the other complainant about what happened to him, that the evidence of the first provides support for the other, and vice versa.  In other words, their evidence on those matters points to a pattern of conduct which may reinforce or corroborate what each of them says.

[34]  If, however, you are not satisfied that there is sufficient similarity between the versions of events to provide that degree of mutual support, then you must guard against any tendency to think along the lines of, well, in any event, Mr Sturm has a tendency to behave badly so he must be guilty.  That would be false logic and obviously unfair.

[35]  So if the two preconditions I have mentioned are met, if they are met, you could consider then, when weighing up whether to believe Mr A or not, what the other three assert happened to them.  If you were to conclude that Mr Sturm was the sort of man who was prepared to press on with sexual intimacy regardless of whether the other person truly consented with one complainant, then you may consider that it makes more likely the proposition that he was also prepared to press on without consent with another complainant.  But that is a matter for you.

Challenge to similar fact direction

[23]     Of the many grounds of appeal advanced for Mr Sturm, two relate specifically to the way Chambers J dealt with similar facts.  First, counsel submitted that the Judge occasioned a miscarriage of justice by changing his view as to the use of similar fact evidence; that having indicated on several occasions during the course of the trial that the Crown would not be permitted to rely upon discrete evidence to support individual counts he nevertheless informed counsel after the end of the defence case that he intended to direct the jury that they could have regard to similar facts in considering intent in the case of any particular complainant.  It was submitted that the change of stance had prejudiced the defence which had been deprived of the opportunity of calling witnesses in respect of Mr Sturm’s treatment of them in sexual or social situations.

[24]     The Crown response to that ground is that Chambers J had not made a ruling one way and had then reversed it.  Rather it was a case of recurrent discussion between counsel and the Judge with the latter indicating a provisional view that any use of similar fact evidence would be restricted to support for counts subsequent in time and only in relation to the issue of Mr Sturm’s state of mind, namely whether he believed there was consent.  In the Crown’s submission, the defence could have sought a ruling at an earlier state particularly since the Crown had signalled its intention in opening.  And in any event, submitted the Crown, evidence of the suggested type would have been inadmissible because it would not have been relevant.  In reality, all that counsel for the defence could have done if the ruling had been made earlier was to do what was done, to call Mr Sturm and to address the jury on the weight and significance of the similar facts.

[25]     The second ground of appeal relating to similar facts is that the Judge erred in failing to hold that similar fact evidence could not properly be used by the jury and to direct the jury accordingly.  The Crown’s response is that such evidence could properly be used and that the Judge correctly directed on its use.

Discussion in respect of similar facts

[26]     It is sometimes easier to see the shape of a factual pattern than to perceive any logical relevance to the issues.  If the defence had been at large, with a challenge to every aspect of the Crown case, similar fact evidence may have been relevant to a number of issues – whether, for example, sexual activity occurred with the various complainants; or whether drugs were ingested in relation to the occurrence of such activity.  But, Mr Sturm’s counsel made a statement to the jury, before the Crown led any evidence, that the defence position was that, except for the two counts relating to anal penetration where the acts themselves were denied, the conduct was admitted and the issues were confined to consent.

[27]     There was nothing in any pattern of behaviour which could assist the jury to determine whether or not the particular complainants’ evidence about those alleged anal penetrations was more likely to be true.  Similar fact evidence was accordingly irrelevant to those issues.

[28]     What was there then in a pattern of behaviour which, in any particular case, could inform the issue whether the complainant did or did not consent to the admitted activity; or inform the issue whether Mr Sturm did not believe on reasonable grounds that the complainant was consenting? 

[29]     As we noted earlier Chambers J said:

If you were to conclude that Mr Sturm was the sort of man who was prepared to press on with sexual intimacy regardless of whether the other person truly consented with one complainant, then you may consider that it makes more likely the proposition that he was also prepared to press on without consent with another complainant.

[30]     Implicit in the form of the Judge’s direction is if on one occasion Mr Sturm did not believe on reasonable grounds that the person with whom he was engaging in sexual activity was consenting, this could inform the question whether he did or did not believe on reasonable grounds that another person, on another occasion, was not consenting.  Chambers J did not explain how the one occasion could logically inform the other except on the impermissible basis of a general propensity to act in a certain way.  The Judge’s use of the term “the sort of man” characterises the direction as a general propensity indication of likelihood.

[31]     As this Court pointed out in R v Telea CA396/00, 4 December 2000, evidence of past conduct can strengthen an inference that the accused has repeated that conduct, but there must be some additional feature which lifts the evidence above showing only bad character or disposition to offend generally.  There must be some special characteristic or pattern emerging from the evidence or some underlying unity between the separate events.  (R v M [1999] 1 NZLR 315, 320).

[32]     In the present case, having regard to its facts, the jury could have been directed that if they were satisfied that

(a)   on one or more occasions a complainant had, by reason of drugs and alcohol, been left with no power of free will so that he was not truly consenting, and

(b)   that Mr Sturm knew this, and in fact had intended to bring about that mental state for the purpose of committing sexual acts upon or with that complainant, then

(c)   in the case of another complainant who had been subjected to the same treatment, Mr Sturm may have been similarly aware of the absence of true consent when sexual activity occurred. 

The direction was not however couched in those fact specific terms which related to the issue of a method of conduct inconsistent with an innocent state of mind.

[33]     The story that each of the complainants told was odd to say the least.  It was at least open to argument that each had acted uncharacteristically under the disinhibiting effect of drugs, later regretted what had happened and rationalised his own actions by blaming Mr Sturm.  On the other hand, it is odd that four complainants should act in so similar a way if there was no collusion.  So in evaluating the strength of the defence case in relation to each complainant, it may have been important to recognise that Mr Sturm’s defence involved the contention that he was the victim of a coincidence, namely, that four men would act in the same unusual way.  Another, but in substance identical, approach is to recognise that the apparent improbabilities in the evidence of each complainant diminish in significance in light of the fact that each complainant told a broadly similar story.

[34]     If the Judge’s direction to the jury had been along those lines, it could not have been criticised.

[35]     The approach of the Judge based on whether Mr Sturm is the sort of man to press on with sexual intimacy regardless of consent was unorthodox, as directly invoking propensity reasoning, and there are a number of associated problems:

(a)   The Judge’s direction left it open to the jury to conclude that the appellant had a propensity for non-consensual sex and then to evaluate the evidence in relation to each of the charges in light of that conclusion.   This approach did not help the jury deal with the perhaps equally plausible theory that the appellant had a propensity to supply men with disinhibiting drugs and have consensual sex with them.

(b)   It directed the attention of the jury away from the truly relevant (albeit only subtly different) respects in which the evidence of each complainant was supported by the evidence of the others.

(c)   The orthodox direction includes a warning against propensity reasoning even if the evidence in question is found to be mutually supportive. The direct resort to propensity reasoning meant that the Judge was not able to give the orthodox warning against propensity reasoning.  The warning he gave applied only if the jury were not satisfied that the evidence of the complainants provided mutual support.

[36]     The similar fact evidence could be relevant to the issue whether Mr Sturm would set out to seduce young men by getting them to take drugs which would allow him to exploit them sexually, knowing they were not truly consenting.  Whether there was such a plan, importing as it does knowledge of absence of consent, required very careful consideration of the evidence in the light of the jury’s knowledge and experience of human behaviour.

[37]     Of crucial importance in the consideration of similar fact evidence is the existence of logically relevant similarity and the avoidance of undue prejudice.  Regrettably the Judge’s direction indicated no logical relevance to any matter in issue – generally what happened was acknowledged by Mr Sturm, by counsel at the outset and in his evidence – but it was undoubtedly unduly prejudicial.  It invited resolution of very difficult issues – free will, the extent of disinhibition by reason of drugs, the state of mind of both Mr Sturm and the complainants under the influence of the same drugs – by recourse to the largely amorphous issue of whether Mr Sturm was a nominated “sort of man”.  Mr Sturm was entitled to have such difficult issues examined by the jury in a logical way, uninfluenced by prejudicial generalisations.

[38]     We are satisfied that the Judge’s misdirection has occasioned a miscarriage of justice and that on this ground alone the appeal against conviction should be allowed.  But we will deal briefly with the other grounds of appeal.

Other grounds of appeal against conviction

[39]     As to the complaint that the Judge unfairly changed tack over the issue of a similar fact direction being given, we give this little weight.  There had been no prior ruling that there would be no similar fact direction and even if there had the implications were in terms of counsels’ addresses and judicial directions rather than evidence.  What the appellant may not have done with some sexual or social acquaintances hardly assists to show what he did or did not do with others.  If there was embarrassment created by an improvident determination by the Judge against counsel’s expectation, learned and experienced counsel such as, with respect, Mr Sturm’s, could have asked for a short adjournment in order to adjust the final address.  We would not have allowed the appeal on this point.

[40]     Mr Sturm’s next ground was that the Judge misdirected the jury as to a defence of belief on reasonable grounds of the existence of consent to sexual connection.  The Judge directed:

[56]  Now it is not for the accused to show that he did have a belief that Mr A was consenting.  Rather, it is for the Crown to prove that Mr Sturm did not believe that he was consenting.  I know the question is somewhat clumsy but to express it more simply runs the risk of inverting the onus of proof.  Now there are in fact two ways in which the Crown could satisfy you on this topic.  Either would do.  One way to satisfy you would be for the Crown to show that Mr Sturm did not in fact believe that Mr A was consenting.  If he himself did not believe that Mr A was consenting, that would be enough from the Crown’s point of view.  The other way the Crown might satisfy this element would be for the Crown to satisfy you that no reasonable person in Mr Sturm’s shoes could have thought that Mr A was consenting.  You need to look at what would have been the belief of a reasonable person in the accused’s position.  If no reasonable person would have thought that Mr A was consenting, then it doesn’t matter what Mr Sturm himself might have thought.  If no reasonable person would have thought Mr A was consenting, then that too would be enough from the Crown’s point of view

[57]  Now the material time for assessing belief and consent, whether Mr Sturm’s belief or that of a reasonable man in his shoes, that time is the time the act actually took place.  The complainant’s behaviour and attitude, Mr Sturm’s behaviour and attitude before or after the act may be relevant to the issue, but it is not decisive.  And the same comment applies, incidentally, equally to the question of consent, the issue in 4.1.  I remind you that you consider the question of consent at the time the act actually took place.  You may consider the complainant’s behaviour and attitude before and after the act itself and that may be relevant to the issue of consent but it is not decisive.  In particular, regret later expressed may carry very little weight as to whether there was consent at the time.  It’s all a question for you.

[58]  Well, how do you work out what Mr Sturm’s belief at the time was?  You see, no one can see into another’s mind, still less somebody else’s mind 2 years’ ago.  So in circumstances like this, all one can do is draw inferences from the evidence.  You work out what you think occurred based on the direct evidence you have, and then you look to see what inferences you could appropriately draw from the facts and circumstances as you have found them.  Now, of course, you will only get to consider this question if you have already found that the oral sex took place without Mr A’s consent.  If you weren’t satisfied of that, of course, you would have already found Mr Sturm not guilty on this charge.  So let me assume for the moment that you have found that the sex was done without Mr A’s consent.  That will probably mean that you have accepted Mr A’s account of the evening and you will have probably found that the incident in the toilet took place along the lines that Mr A indicated.  Now if that is the case, how likely is it that Mr Sturm could have been mistaken into thinking that Mr A was consenting when in fact he was not?  Or alternatively, how likely is it that a reasonable person in Mr Sturm’s shoes would have made that mistake?  Well, that’s a matter for you to assess on all the evidence, but do remember it is for the Crown to prove that Mr Sturm did not believe on reasonable grounds that Mr A was consenting.  It is not for Mr Sturm to establish what his belief was.

[41]     Counsel for Mr Sturm submitted that the Judge misdirected the jury by, in effect, positing a wholly objective test in relation to belief in consent.  That submission falls to be tested against the elements of the offence of sexual violation.  What the Crown has to prove, amongst other things, is:

(a)   the complainant did not in fact consent; and

(b)   the accused did not in fact believe the complainant was consenting; or

(c)   even if the accused in fact believed the complainant was consenting, such belief was not based on reasonable grounds.

[42]     The Judge’s reference to “no reasonable person in Mr Sturm’s shoes” emphasises that the reasonableness of any belief in consent has to be judged in terms of what an accused understands the factual situation to be.  Far from imposing a wholly objective test, as Mr Sturm’s counsel submits, the Judge correctly identified the hybrid subjective/objective test envisaged by s 128 Crimes Act.  That is, the legislation requires an objective evaluation of the subjective circumstances.

[43]     We do however have some concern about the scope of the Judge’s directions on consent.  The nature of the case required a more specific direction for the reasons we now explain.

[44]     The issue of consent in cases of drug affected sexual conduct can be complex and difficult.  The margin between, on the one hand, voluntary, informed acceptance of disinhibiting drugs, including alcohol, and on the other hand, absence of consent, can be indistinct.  If an alleged perpetrator and an alleged victim are equally influenced, an issue may arise whether an absence of consent by the alleged victim is mirrored by an absence of mens rea by the alleged perpetrator.

[45]     This Court dealt with issues of drug induced compliance with sexual acts in R v Isherwood CA182/04 14 March 2005.  The Court noted at [34] that proof that the influence of liquor or drugs has had a disinhibiting effect on the mind of a complainant is not necessarily incompatible with consent.  It is all a question of degree.  The situation becomes even more complex when, as arguably was the case with Mr A, who kept coming back for more ecstasy and then engaged in sexual activity, a complainant has voluntarily ingested substances knowing the likely effects and outcomes in terms of disinhibition and sexual behaviour.

[46]     The difficult legal issues arising in connection with drug induced sexual conduct are discussed in two learned papers by Emily Finch and Vanessa E Munro, “Intoxicated Consent and the Boundaries of Drug-assisted Rape” [2003] Crim LR 773, and “The Sexual Offences Act 2003: Intoxicated Consent and Drug Assisted Rape Revisited” [2004] Crim LR 789.  The authors point out that the pharmacology of certain “date-rape” drugs suggests three possible outcomes; unconsciousness, sedative-hypnotic induced inability to resist or object, and drug induced willingness to participate in sexual activity that would usually be refused or found repugnant.  The effects of such drugs are more profound when taken with alcohol, and they induce ante-retrograde amnesia, that is, impaired memory of what happened whilst under the influence of such drugs.  The relevance of these features to the present case is obvious.

[47]     The position at common law, in England, was examined by the Court of Appeal in R v Lang (1975) 62 Cr App R 50, 52 where Scarman LJ said:

We have no doubt that there is no special rule applicable to drink and rape.  If the issue be, as here, did the woman consent?  The critical question is not how she came to take the drink but whether she understood her situation and was capable of making up her mind.

[48]     Such an approach can no longer be considered appropriate with the advent and common availability of drugs which may induce uncharacteristic disinhibition in relation to sexual advances.  In such cases an apparent consent may not be a true consent in that once the drug has taken effect on the mind of the person, the ability to form an informed and voluntary consent will have been impaired to a greater or lesser degree.  On the other hand, drugs may have been voluntarily taken with awareness of, and acceptance of, the likelihood of disinhibited and otherwise uncharacteristic behaviour.

[49]     Whether there was or was not consent is of course ultimately a question for the jury.  But where the issue involves complexities such as those in this case, the jury would have been assisted by a direction that it was open to them to convict if they were satisfied beyond reasonable doubt that in respect of any particular count:

(a)   Mr Sturm had administered or provided a drug,

(b)   with the intention that it would induce in the complainant receptiveness to engaging in sexual activity with Mr Sturm,

(c)   which Mr Sturm knew the complainant would not otherwise have engaged in; and

(d)   the complainant did not take the drug voluntarily and with awareness that it was likely to lead to sexual activity with Mr Sturm.

[50]     In circumstances where the relevance scope of similar fact evidence had been wrongly explained, a failure to tailor the directions on consent to the unusual facts of the case reinforces our opinion that the appeal against conviction should be allowed.

[51]     Next, the appellant submitted that there was a prejudice to him in the Judge’s direction to return a verdict of not guilty on the charges of criminal stupefying.  This submission was annexed to a submission that it was unfair to the appellant that the stupefying charges were included in the indictment.

[52]     Whether it was appropriate to include the stupefying charges is debatable.  One would expect such charges if the crime alleged to have been facilitated was not in fact committed, or when the crime of stupefying is, in the circumstances, more serious than the crime which was intended to be facilitated.  Here, the Crown was not alleging that although complainants were stupefied in order to facilitate a crime, the stupefaction had gone by the time the sexual crimes were committed.  Any sentence upon conviction for the sexual crimes would have to take account of the method as an aggravating factor.  Here, there was such a correlation between the issues of consent and the effect of the drugs that the inclusion of the stupefying counts may have added an unnecessary complication.  But, if anything, the directed verdicts of acquittal on the counts of stupefying could only be of advantage to Mr Sturm.  Indeed, his counsel sought to exploit that outcome by submitting in his final address that the Crown case had thereby been “reduced to tatters”.  We are not therefore persuaded that, in the result, there was an unfairness to Mr Sturm.  This conclusion would not preclude an argument for severance of those counts on a retrial.

[53]     A further ground of appeal is that the jury’s verdicts were “unreasonable and against the weight of evidence”.  The relevant statutory ground is that a verdict is unreasonable or cannot be supported having regard to the evidence.  This is a test of irrationality, not weight.

[54]     We are prepared to accept that in a trial context, the defence case was seriously arguable.  But the context in which the rationality of the verdicts might be judged must include matters which cannot be captured by an appellate court.  We have not seen the demeanour of the complainants and the appellant.  We cannot, nor should attempt, to decompress a day of appellate argument into five weeks of trial.

[55]     Bearing in mind that we have decided that the appeal against conviction should succeed, and that the usual consequence of such a conclusion is that there should be a new trial, we think it inappropriate to pass comment on the strengths of the respective cases.  Each may be tenable but we should not express an opinion on the relative strengths.  It is enough to declare that the ground of unreasonableness has not been made out.

[56]     A further ground of appeal is that the Judge’s summing up lacked balance.  Convicted persons occasionally raise this ground, usually because more is said by a Judge about the case for the Crown than the case for the defence.  Because the Crown carries the burden of proof and the defence puts many things in issue as being unproved, summings up naturally deal, in terms of their relative length, with aspects of the Crown case.  Length is one thing and quality another.  The Crown’s onus of proving beyond reasonable doubt all the essential elements of charges may lead to an imbalance between the time or length a summing up deals with aspects of the Crown’s case and the defence case.  And we think such considerations apply here.

[57]     The Judge’s directions were unobjectionable in every respect except as to the issue of similar facts and consent.  Nevertheless we note that the particular ground of appeal is argued on three grounds. 

[58]     The first is that the direction on the standard of proof was inadequate.  The Judge said:

The law is that the prosecution must prove each essential ingredient of the charge beyond reasonable doubt before you can bring in a verdict of guilty.  To be satisfied beyond reasonable doubt means that you feel sure that the accused is guilty of the charge.  It does not mean, however, that the Crown must prove each charge to a point of certainty.  That is not the test.  No charge could ever be proved to a point of certainty.  The Crown must prove each ingredient of the charge beyond reasonable doubt.  If you are satisfied that a charge has been proved beyond reasonable doubt, then it is your duty to find the accused guilty.  But if you are left with a reasonable doubt as to the accused’s guilt on a particular charge, then equally it is your duty to acquit.  To acquit simply means to find ‘not guilty’.

[59]     Counsel submitted that the Judge erred in failing to explain, fairly, what reasonable doubt means.  But as Hardie Boys J said in this Court in R v Speakman (1989) 5 CRNZ 250, at 260: “Reasonable doubt means what it says”.

[60]     Counsel submitted that the Judge ought to have gone further, to have added, for example, as Hardie Boys J did in Speakman:

It is a doubt which you as the jury decide is reasonable in the circumstances of the particular case.

[61]     In practice, many Judges go the further step or steps.  But we see no necessity as a matter of law for a Judge to embark upon tautologies or analogies.

[62]     Next, counsel submitted that the Judge unfairly and inappropriately criticised the defence in respect of a closing submission that the Crown case was in tatters by reason of the directed verdicts on the counts of stupefying.  Chambers J had said:

Now before going further, I want to say a word to you about Mr Davison’s submission yesterday that the Crown case is ‘in tatters’, and that part of the reason given for that submission was my having indicated that you were to acquit Mr Sturm on six charges of stupefying with intent.  My decision in that regard is not support for that submission.  The Crown case may be in tatters – that’s a matter for you – but my decision is not a ground in support of that submission…

[63]     The fact of the matter is that, although on the trial Judge’s view as to the meaning of ‘stupefy’, the counts of alleged stupefaction were removed from the jury, that did not dispose of the issue whether, nonetheless, the complainants were not truly consenting, nor whether Mr Sturm did not believe on reasonable grounds that they were.  One does not have to be stupefied in terms of the Judge’s view of the statutory meaning of that term in order not to be truly consenting.

[64]     We do not think Chambers J acted unfairly in pointing out the legal, and obvious factual, implications of the directed verdict.

[65]     Mr Sturm, by counsel, complains that Chambers J went beyond a description of the evidence and, in effect, added a qualitative evaluation.  We do not accept that criticism, any more than we do the final ground of appeal which is that the Judge unfairly misstated the defence case.

[66]     We do not intend to burden this judgment with an over-refined analysis of how the Judge discussed the evidence, when on either the appellant’s view or that of the Crown, any conclusion can have no effect on the inevitability of the appeal being allowed for the reasons indicated earlier.  But we do not consider Chambers J dealt with the defence case unfairly or inappropriately.

What does “stupefy” mean?

[67]     Mr Sturm was charged pursuant to s 191(1) Crimes Act with stupefying each of the complainants with intent to facilitate the commission of a crime.  The terms of s 191 are as follows:

191     Aggravated wounding or injury

(1)     Every one is liable to imprisonment for a term not exceeding 14 years who with intent—

(a)     To commit or facilitate the commission of any crime; or

(b)     To avoid the detection of himself or of any other person in the commission of any crime; or

(c)     To avoid the arrest or facilitate the flight of himself or of any other person upon the commission  or attempted commission of any crime—

wounds, maims, disfigures, or causes grievous bodily harm to any person, or stupefies or renders unconscious any person, or by any violent means renders any person incapable of resistance.

[68]     Having considered the evidence of medical experts for the Crown and for Mr Sturm, and having received submissions from counsel, Chambers J came to the view that to “stupefy someone” means “to put that person into a stupor” and that “stupor” carries the meaning attributed to it in the disciplines of clinical pharmacology, psychopharmacology, neurology and psychiatry.  The standard medical textbook definition is a state in which the patient can be awakened only by vigorous stimuli.  On a descending scale from conscious awareness of the self and awareness of the environment, stupor is the penultimate stage, the next above coma, where the person shows no external evidence of mental activity and little motor activity other than breathing.

[69]     Chambers J also referred to the evidence of Dr Karl Jansen that in the discipline of psychiatry “stupor” can have a second possible meaning, which is a condition in which the patient is immobile, mute and unresponsive but appears to be fully conscious, usually because the eyes are open and follow external objects.  The Judge noted, however, that that sort of stupor cannot be caused as a result of taking drugs.  It is caused by non-organic conditions, such as catatonic schizophrenia and severe depression.  Because of that, it is considered by psychiatrists to be a functional mental illness.  It is not entirely clear whether Chambers J envisaged that second medical definition of “stupor” to be relevant to the issue of statutory interpretation.

[70]     Chambers J referred to R v C, CA359/97 29 October 1997, where an offender had put halcion tablets in a victim’s coffee and had thereby drugged the victim who was not able to be roused.  He also referred to R v Arvand, HC ROT T23861, 14 April 2003, where the offender was found guilty of several counts of stupefying.  That offender had spiked the drinks with valium, as a result of which the victims became drowsy, wobbly, uncertain on their feet and began losing control of their movements and their minds.  Various offences were committed on and in respect of the victims who later did not know what had happened to them.  Chambers J noted that in these cases the victims had been stupefied in terms of the medical definition but that the cases did not elucidate the interpretation of s 191 in respect of which, the Judge noted, there was a “dearth” of authority.  He concluded:

In short, therefore, I decide this case in the absence of binding authority.  In those circumstances, it is surely sensible to adopt a definition which conforms with clear scientific and medical understanding.  Mr Downs submitted that that was not important and he instanced the fact that the legal test for insanity does not necessarily coincide with modern psychiatric opinion as to insanity.  That is so, and it is surely unfortunate.  There is no way around that problem, however, because the current legal definition of insanity is statutory.  But for that, I have no doubt that the courts would adopt a definition of insanity which conformed with current medical and scientific understanding.  This anomaly is surely no justification for adopting a non-scientific definition in the present case.  The statute does not in its express terms spell out the meaning of or test for stupefying.  In such circumstances, it is to be presumed that Parliament intended the word to bear its normal medical and scientific meaning.

[71]     The Judge observed that his finding as to the meaning of “stupefy” did not mean that those who, for example, spiked a victim’s drink but without causing the victim to go into a state of stupor or coma, could escape scot-free.  This was because of s 200(2) of the Crimes Act which provides:

Every one is liable to imprisonment for a term not exceeding 3 years who with intent to cause inconvenience or annoyance to any one or for any unlawful purpose, administers to, or causes to be taken by, any person, any … noxious substance.

[72]     The Judge held that a controlled drug would clearly come within the category of a noxious substance.  Therefore, one did not need to strain the language of s 191 so as to criminalise acts such as those Mr Sturm was alleged to have done in the particular case.

[73]     Accordingly, Chambers J directed verdicts of acquittal on each of the stupefying counts and reserved for the opinion of this Court the question set out earlier in this judgment at [4] and which, for convenience, we repeat:

Where a person is charged with stupefying another with intent to facilitate the commission of a crime pursuant to s 191 of the Crimes Act 1961, is the Crown required to prove that the victim was placed into a “stupor” in so far as that term is generally understood within medicine and medical science.

Crown arguments on appeal

[74]     Counsel for the Crown were unable to find New Zealand or Commonwealth authority directly on the issue of construction.  They submitted that there were two possible approaches.  The first was to adopt the medical or scientific definition, as Chambers J had done.  The alternative was to adopt a definition based on common dictionary definitions and such approach, the Crown submitted, would result in a jury direction in the following terms:

A person will be stupefied within the meaning of s 191 if the person is so deprived of the ability to function normally and sensibly as to be incapable of resistance.

[75]     We interpolate that similar phraseology had been rejected by Chambers J when it was advanced in argument before him.  He was concerned about what could be meant by depriving a person of his or her “ability to function normally and sensibly”.

[76]     Notwithstanding the diffidence expressed by the High Court, the Crown advanced a similar approach before this Court, submitting that it should be preferred on the following grounds:

(a)    It is consistent with the standard usage of the word in question, as evidenced by common dictionary definitions;

(b)    It is consistent with the actual wording of s191, affords the provision a meaning that is “always speaking” and is consistent with legislative intention;

(c)    It properly incorporates culpable criminal behaviour which would not otherwise be adequately covered;

(d)The definition can be expressed in sufficiently clear terms, such that it will be proper to leave to the jury the question of whether or not a person was in fact stupefied.

[77]     The Crown’s submissions also examined standard dictionary definitions of “stupefying” and “stupor” some of which, such as “to stun with amazement” and “admiring wonder” could not be in the least relevant to the issue under discussion.  Other definitions, however, do not seem inapt.  The Oxford English Dictionary (2^nd Edition 1989) defines “stupor”, as, amongst other things, “a state of insensibility or lethargy”.  The Oxford English Reference Dictionary (Revised 2^nd Edition 2002) refers to “stupor” in terms of a dazed or torpid state.  Webster’s Third New International Dictionary (Unabridged, 1976) defines “stupor” in terms which include “a physical or mental condition characterised by diminution or suspension of sense or feeling.”  The Crown submitted that s 191 is intended to catch conduct which considerably interferes with the ability of a complainant to resist someone intending to commit any crime in the section and that to limit the term “stupefies” to unconsciousness would defeat the parliamentary purpose.

[78]     Further, the legislature could not have intended “stupefies” to mean “renders unconscious” because s 191 refers specifically to rendering a person unconscious.  “Stupefies” must therefore have a different meaning.  The Crown also submitted that a medical definition of “stupefy” would require proof that a victim had been unconscious or had been in a state from which they could be awakened only by vigorous stimuli, and that such definition would be inapt because:

The medical definition of “stupefy” would require proof that the complainant had either been unconscious, or had been in such a state that they could only be awakened by vigorous stimuli.  Therefore, this definition would not seem to cover any of the following situations:

(a)    where a person is heavily sedated by a depressant type drug but is still able to move and/or speak;

(b)    where a person is sedated to the point of being effectively asleep, but requires less than vigorous stimuli to then awaken them;

(c)    where a person is excited by a stimulant type drug such that they are deprived of normal sensibility so as to be incapable of resistance, up to and including a drug-induced state of psychosis;

(d)    where a person is temporarily deprived of some sensory or motor function so as to be incapable of resistance (eg such as might be caused by tear gas).

[79]     To the above might be added, of course, the act of hypnotising a person in order to facilitate a crime. 

[80]     The Crown’s point was that any definition of “stupefy” must be sufficiently wide to cover a range of conduct that might be utilised to facilitate crimes of many types.

[81]     The Crown further submitted that s 200(2) was not wide enough to catch an intention other than to cause inconvenience, annoyance, or the attainment of any unlawful purpose.  Section 191 is concerned with conduct in the nature of or equivalent to serious assaults on a victim in order to facilitate a crime, whereas s 200(2) is concerned with conduct of lesser criminality.

[82]     Finally, the Crown argued in the following terms:

The question of whether a person has in fact been “stupefied” is a jury question, and so long as the wider definition can be expressed in sufficiently clear terms, there is no reason that such a question cannot be properly left to a jury.  An analogous concept is that of consent, a concept which though difficult for a jury to grapple with, can be expressed in such a way that each of the jury members will be applying the same test and addressing the same criteria.

Certainly, there is nothing in s191 to suggest that Parliament intended medical evidence to be decisive of the issue of whether a person was “stupefied”.  Arguably, the Courts should and have shied away from equating statutory words exactly with medical definitions, to avoid the “trial by experts” that might then result.  Several examples might be cited of words which have an accepted meaning in common law, which meaning does not necessarily equate with a definition used in medicine or science – eg “wound”, “maim” or “disease of the mind”.

There is also a danger that medicine or science has utilised a word use in common English to describe or label a specific physiological state, which specific state does not encapsulate the original meaning of the word utilized, but is only perhaps a subset of that wider definition.  This may well be the case in the present instance, and there is nothing in s191 to suggest that Parliament intended that the narrower and specific medical definition should be preferred.  Indeed, the purpose and import of s191, as well as the other considerations cited above, would seem to suggest otherwise.

Arguments for Mr Sturm

[83]     Counsel for Mr Sturm criticised the jury direction proposed by the Crown on the grounds that such a direction broadens the application of s 191 to such an extent that it amounts to a change in the law.  On the other hand, the definition adopted by Chambers J is supported by five propositions.  These are:

(a)    A proper construction of s191 itself;

(b)    The legislative history of s191;

(c)    A consideration of the case law in this area;

(d)    A consideration of the dictionary definitions for “stupefy” and associated words and phrases; and

(e)    Public policy consideration.

[84]     Counsel also criticised the Crown’s reliance on common dictionary definitions, submitting that it is too simplistic for the Crown to urge reliance on the same.  This is because the range of possible meanings for the word “stupefy” is such that it would be impossible to identify precisely what behaviour will be captured by s 191.  Because “stupefies” is a subset of the ways in which someone can be rendered incapable of resisting, according to the terms of s 191, in order for the words of the section to be given effect it is necessary to identify what actions would constitute stupefying, and not simply resolve that issue by determining whether or not a complainant has been rendered incapable or resisting or not.  The Crown’s broad interpretation was not consistent with the structure of s 191.  When properly analysed the section indicates that the word “stupefies” is intended to convey a state of affairs similar or close to unconsciousness.

[85]     As to the Crown argument that had Parliament intended stupefaction to amount to a state of unconsciousness or some similar state, the phrase “stupefies or renders unconscious” would have been superfluous, this was rejected by counsel for Mr Sturm.  It was argued that if Chambers J had found that to stupefy someone was to render them unconscious, then the Crown submission might have weight, but that is not what the High Court found.  Counsel submitted Chambers J found that to stupefy someone was to put that person into a stupor, which is a state approaching unconsciousness, and accordingly the phrase is not superfluous.

[86]     This Court doubts, however, that Chambers J found that stupor is a state approaching unconsciousness.  It seems to us that he found that stupor is a state approaching coma and is itself in the nature of unconsciousness in that the patient can be awakened only by vigorous stimuli.

[87]     Turning to the types of proscribed conduct in s 191(1), counsel submitted that in the same way that “wounds, maims, disfigures or causes grievous bodily harm” constitute related concepts on a continuum, so too do the words “stupefies or renders unconscious”.  They submitted that to stupefy someone is to do something to them that puts them into a state that is similar to, but not necessarily the same as, rendering them unconscious, in the same way that to wound someone is to do something similar to, but is not quite the same as, maiming, disfiguring, or otherwise causing grievous bodily harm. 

[88]     Turning to the legislative history of s 191, counsel referred to R v Claridge (1987) 3 CRNZ 337 where, at 340, this Court noted:

Section 191 is a compilation and amendment of two earlier provisions.  The Criminal Code Act 1893 provided in s175, that everyone was liable to the penalties stated who, with intent to commit or facilitate the commission of any crime, or the flight of the offender upon the commission or attempted commission thereof, by any violent means whatever renders or attempts to render any person incapable of resistance.  Section 176 provided that everyone was liable to the penalties stated who with that like intent causes or attempts to cause any person to be affected by chloroform, laudanum, or any other stupefying or overpowering thing.  The Crimes Act 1908 repeated these provisions in ss195 and 196.

[89]     Counsel pointed out that s 191 did not repeat references to chloroform or laudanum which the legislature, by the terms of s 176, for example, recognised were stupefying or overpowering things and that such omission amounted simply to the removal of superfluous language.

[90]     Counsel referred to overseas legislation, pointing out that s 22 of the Offences Against the Person Act 1861 (UK) also referred to “chloroform, laudanum or other stupefying or overpowering drug, matter or thing”.  Similarly, s 246 of the Canadian Criminal Code refers to “a stupefying or overpowering drug, matter or thing”.

[91]     Counsel submitted that the various legislative examples indicated a notion of “stupefy” which is closely related to that of overpowering and to the substances chloroform and laudanum, both of which render a victim overpowered through placing them in either unconsciousness or a state close to unconsciousness, such as stupor.  We think, however, that such submission does not dispose of the possibility of the administration of laudanum (an opiate based compound) or chloroform, in a dose which has some effect on the senses but not to the extent of near unconsciousness.

[92]     The limited case law in New Zealand had involved depressant, sedative and/or an anaesthetic type drugs and had not in any case involved a stimulant.  Counsel’s table of cases identified such drugs as diazepam, halcion, alcohol, cannabis, antihistamine based sleeping pills, for example.

[93]     We have difficulty understanding the cogency of this part of the argument as the schedule only indicates historical patterns of use which come within a legislative intent but do not define its limits.

[94]     Counsel for Mr Sturm then examined a number of dictionary definitions of “stupefy” and related concepts to support a submission that overall, a review of the language shows that the certain and ascertainable meaning of the word “stupefies” is consistent with the principal submission on behalf of Mr Sturm, that to stupefy someone is to place them in a stupor and that such envisaged a state close to unconsciousness.  This was to be distinguished from the Crown’s suggestion that a broader interpretation can be held to include putting a person into a state of over arousal or excitement that includes an increase in their wakefulness, alertness and activity.

[95]     As to public policy considerations, counsel submitted that the mischief at which s 191 is directed is the action of providing drugs or substances to a victim for the purpose of rendering the victim unconscious or a state close to unconsciousness in order to take advantage.

[96]     Next, even if the actus reus complained of by the Crown is not covered by alternative legislation, it is not for the courts to amend clear statutory language to take account of new conduct.

[97]     Were the Court to make the amendment sought by the Crown, this would derogate from the principle of legal certainty.

[98]     For all of these reasons, submitted counsel for Mr Sturm, this Court should uphold the High Court’s opinion that in s 191 “stupefies” envisages the bringing about of a mental state as understood by medical science.

Discussion

[99]     The term “stupefy” is not a foreign word or otherwise of such an esoteric nature as to warrant a departure from the principle that the construction of a statute is a matter of law, not evidence.  It has, apparently, a technical meaning in various medical disciplines but it is an ordinary English word which has had currency since at least 1611 when in Cymbeline, Act I Scene V line 37, Shakespeare referred to drugs which “will stupifie and dull the Sense a-while”; and even earlier Spenser in Faerie Queen VIII remarked “With great amazement they were stupefide”.

[100]   The meaning to be attributed to “stupefies” is one which must be ascertained from the text of the statute and in the light of its purpose – Interpretation Act 1999, s 5(1).

[101]   The mischief at which s 191 is directed is conduct which is aggravated by specific criminal purposes.  The purposes may or may not be achieved; indeed the conduct need not necessarily amount to an attempt.  But all of the proscribed conduct is of a kind which does or could seriously interfere with a person’s ability to do something which might impede or prevent the commission of a crime.  That much is obvious from the terms of the section.

[102]   The disjunctive specifying of “stupefies” and “renders unconscious” shows that the legislature intended those expressions to have different meanings.  Accordingly, “stupefies” is not intended to be equivalent to unconsciousness but to be something different.

[103]   Bearing in mind the matters referred to in para [101], s 191(1) envisages a state in which cognitive or physical attributes have been so affected that the subject has been rendered incapable of doing something to impede or prevent an intended crime. 

[104]   This may be brought about by confusing the mind, or by affecting knowledge or perception, or by paralysing or disconcerting the limbs, or by confusing the senses, as well as by depressing mental function.

[105]   These concepts are captured by some of the many conventional, non-technical meanings of “stupefy” and “stupid”.  Webster’s Third New International Dictionary, for example, defines “stupefy” in terms of making physically dull or insensible, blunting or deadening the faculties of perception and understanding.  The Shorter Oxford English Dictionary, Third Edition 1944 and later revisions gives the following as one of the meanings of “stupid”:

wanting in or slow of mental perception; lacking ordinary activity of mind.

[106]   It is the case that neither medical texts nor conventional etymology specifically envisage “stupor” in terms of an effect on the mind in the nature of disinhibition or erotic stimulation.  But where a proscribed mischief envisages interference with the mind to an extent that the victim is disabled from forming or carrying out an intent to impede the purposed crime, we see no justification for taking a narrow view which distinguishes between different physiological or chemical mechanisms by which the victim’s mind might be aberrated.

[107]   We do not think that the legislation envisages a construction of s 191(1) which captures the disabling consequences of a depressive mechanism and does not envisage similarly disabling consequences by a mechanism of mental distortion in terms of perception, hysteria or gross over-stimulation.

[108] The availability of modern, mind altering drugs, which are capable of being used to facilitate crime by interfering with the ability to resist, warrants a broader view than that adopted by Chambers J. The statute should, and by virtue of s 6 Interpretation Act does, apply to these arising circumstances.

[109]   In England, the Sexual Offences Act 203, s 75(2)(f) stipulates that consent to sexual conduct will be presumed to be absent in cases where a person has administered to or caused to be taken by a complainant, without the complainant’s consent, a substance “capable of causing or enabling the complainant to be stupefied”.  When discussing this in the second of their articles in the Criminal Law Review, mentioned earlier, the authors made the assumption that “stupefies” means “to render senseless or insentient” which they describe at the word’s “ordinary meaning”.  Whilst not necessarily accepting that is the case in the New Zealand context, we share the concerns expressed in that article about an inappropriately narrow construction which would exclude the administration of drugs which engender disinhibition and stimulate uncharacteristic behaviour, yet leave the affected person able to move, communicate or interact with others.  And we are not restricted to any one common meaning since the word in question must be construed in a legislative context.

[110]   We do not see s 200(2) as a reason to take the restrictive approach adopted by Chambers J.  Should a noxious substance be administered for an unlawful purpose but the victim not be physically or mentally disabled from impeding that purpose, then s 200(2) would aptly cover the situation; as might the law of attempts.  But s 200(2) should not be regarded as complementing s 191(1) in the sense of distinguishing between mechanisms by which a person is rendered mentally incapable of resisting an intended crime.  The distinction is in terms of purpose or intent, and the conduct and its effect. We do not accept that the legislature intended a penalty of 14 years imprisonment for disabling the mind by a mechanism of depression in order to facilitate a crime but intended a penalty of only three years imprisonment if such disablement is the product of mental distortion or over stimulation.  It just wouldn’t make sense.

[111]   It is a matter of common knowledge that some drugs produce distortions in the minds of users, for example LSD, and that others like pure methamphetamine have significantly stimulating effects.  It is not stretching ordinary language to say that users may be stupefied whilst under the influence of such drugs if their perception and understanding of their visual or other sensory context is really seriously affected.

[112]   It is a common aspect of human behaviour that people take recreational drugs, including alcohol for example, in order to experience relaxation or excitation or disinhibition, often for intended sexual gratification.  There is no policy reason to restrict the meaning of “stupefy” in order not to criminalise that type of common human behaviour.  To administer a drug with that expectation does not necessarily come within the scope of s 191(1) or s 200(2).  To do so, there must be a criminal intent.  In sexual cases the criminal intent would be to carry out behaviour with someone who is not consenting and in respect of whom the offender does not believe there is consent. 

[113]   We conclude that in s 191(1) to “stupefy” means to cause an effect on the mind or nervous system of a person which really seriously interferes with that person’s mental or physical ability to act in any way which might hinder an intended crime.  Whether any such interference is really serious is a matter of fact and degree for the jury or other trier of fact to determine, just as it is a jury matter whether, in a case of alleged grievous bodily harm, the bodily injury is really serious.

[114]   It follows that the answer to the question of law reserved, set out at [4] of this judgment, is in the negative.  What the Crown is required to prove is that an accused, with any of the intents specified in s 191(1)(a)(b)(c) has deliberately done something which has caused on the mind or nervous system of another an effect which really seriously interferes with that person’s mental or physical ability to act in any way which might hinder the intended crime.

Result

[115]   For the above reasons:

(a)   Mr Sturm’s appeal against conviction is allowed.

(b)   The question on the case stated is answered in the negative.

(c)   The Crown appeal in respect of the case stated is allowed.

(d)   The convictions against which appeals were brought are quashed.

(e)   The directed verdicts of acquittal are set aside.

(f)    There will be an order for a new trial on the counts on which Mr Sturm was convicted and on the counts of stupefying on which there were directed acquittals.

Solicitors: 

Crown Solicitors, Auckland