The Queen v [ ] Waaka

[2001] NZCA 439

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IN THE COURT OF APPEAL OF NEW ZEALAND  CA260/01

THE QUEEN

V

[      ] WAAKA

Hearing:  17 October 2001

Coram:  Blanchard J

Robertson J Salmon J

Appearances:  D W Bain and T R Thoms for Appellant K Raftery for Crown

Judgment:  24 October 2001

JUDGMENT OF THE COURT DELIVERED BY SALMON J

[1]        On 11 July 2001 the appellant was found guilty after trial before a Judge and jury of one count of taking away a woman without her consent with intent to have sexual intercourse with her. He appeals against his conviction on that charge.

Background

[2]        On 4 November 2000 a wedding took place in Benneydale. The appellant was one of about 70 people who attended a party at the home of the bride and groom following the wedding. The female complainant also attended that party and became grossly intoxicated. She passed out on a couch. When she woke in a bed the following morning she had no recollection of what had happened to her, but realised that some of the clothes she was wearing were not those she had on the night before and she noted that there were dirt marks on her pants and under her fingernails. She thought she smelled of sex.

[3]        The Crown alleged that while she was comatose the complainant had been carried away by two men, the appellant and a Mr Tauroa, from an area covered by a canopy where she had been sitting on a couch, to a place outside the canopy and near a punga fence to which the canopy was attached. The Crown says that Mr Tauroa then raped and had unlawful sexual connection with the complainant while the appellant watched. The appellant was the only witness to these incidents, including that of picking the complainant up and taking her outside.

[4]        Originally the appellant and Mr Tauroa  were  jointly  charged  with  rape, Mr Tauroa as a principal and the appellant as aiding the commission of the offence. They were also charged in similar capacities with unlawful sexual connection and with taking away to have sexual intercourse.

[5]        The appellant’s statement was the only evidence which the police had which directly implicated Mr Tauroa in these charges. Because the appellant’s evidence was not admissible as against Mr Tauroa in a joint trial, he was discharged in relation to all charges on an application under s.347 of the Crimes Act 1961. The appellant continued to face the three charges in which he was said to be a party to the offences.

[6]        At the end of the week prior to the time set for the appellant’s trial his counsel advised of an intention to make an application under s.347. That application was heard on Monday, 9 July after the jury had been empanelled and then sent away for the day. Immediately prior to the s.347 application being heard, the Crown

informed appellant’s counsel of its intention to proceed against the appellant on the taking away charge as a principal party. In the event the appellant’s s.347  application was successful in relation to the rape and the unlawful sexual connection charges, the Judge upholding the principle that there cannot be a secondary party to a crime in the absence of a principal in the first degree. The principle could not be met because the only possible perpetrator was deemed to have been acquitted as a result of the successful s.347 application.

[7]        The appellant, therefore, faced trial only on one count of taking away in which he was charged as a principal party.

[8]        Mr Bain, who was counsel at the trial, complained then and again before us, of the difficulties that the change of stance by the Crown in relation to the charge had caused him, he having prepared his case on the basis that the appellant was a secondary party only. However, he did not ask for an adjournment at the time. He elected to allow the trial to proceed.

[9]        The appeal concerns alleged inadequacies in the summing up by the Judge to the jury. The trial had been a brief one. Evidence and submissions by counsel took one day and the Judge summed up the following morning. The summing up was  also brief. It commenced with the usual general matters on which a Judge addresses a jury. It is appropriate in this case to set out in full the second part of the summing up so that the matters raised by counsel can be properly understood.

[11]   I come to the second part of my summing up. It is an offence under our law to take away any woman without her consent, with intent to have sexual intercourse with her. In everyday language, the offence is sometimes called abduction. The Crown must establish  that firstly the woman was taken from the place where she was to another place. That is common ground here. The evidence is that Mr Waaka uplifted her feet to take her from this couch that we have heard about to the glade down the bank.

[12]   Secondly, the Crown must establish to the criminal standard that the woman did not consent to this removal. Consent in this context means a consent freely given by someone who is in a position to make a rational decision. The uncontradicted evidence in this case is that at the relevant time this particular woman was very drunk – so much so that it appears that she was literally out of it. It is a question

of fact for you, but you may well think that there is no real suggestion of consent in this particular case.

[13]   Thirdly, the accused must have intended, when he was carrying her off, to have sexual intercourse with her. This is the real issue which is before you. What was Mr Waaka’s intention when he was carrying Ms Matthews out to the glade? You are entitled to have regard to the circumstances in which the offence is alleged to have occurred, and you are entitled to have regard to both of his statements. At the end of the day, it is entirely for you to decide, on the evidence placed before you, including any inferences you draw, what his intention was.

[14]   The Crown case is quite straight-forward. The Crown says  this man, on his own admission, gave the game away. He said his intention was to have sex, but he either chickened out or changed his mind when she had been put to the ground. The fact that he changed his mind does not matter. I direct you that the offence is complete if he had the requisite intent when he was carrying her away. The Crown does not have to prove that he went through with his intention. Really, this offence in our law is prophylactic. It is designed to discourage persons from carrying women away against their will, for sexual purposes.

[15]   the defence say this was not his intention, ever. At the very least, you will recall Mr Bain said to you, there must be a reasonable doubt as to what his intention was.

[16]   Counsel have emphasised the passages in the evidence that they see as being important to their interests. There would be nothing to be gained by my simply repeating those passages again here. This has been a short, single issue, trial, and you have the statements available to you to take into the jury room.

[17]   But in brief, Mr Wilson contends that both in his second statement, towards the end of it, and again before you when he gave evidence, Mr Waaka unequivocally accepted that he did intend to have sex with this woman, but then changed his mind only when they got down to the back to the place which has been described to you.

[18]   Mr Bain sought to persuade you that, taken in its entirety, the evidence before you does not support that proposition.

[19]   There is nothing unusual in having to decide what a person’s intent was in the criminal law. All the serious offences in our law require an intent of some kind, and judges and juries routinely have to accept that burden. Of course you cannot get inside Mr Waaka’s head at the relevant time, but you do know what the circumstances were, and you have his own statements to consider. As I have suggested to you, it is for you to determine, on the evidence, what his intent was, and that is why the matter has been placed before you as a jury. Quite

rightly, twelve of you, drawn from a wide walk of life, will do far better on a factual question of that kind than me sitting up here all alone, somewhat in isolation. This is a typical jury question which is best determined by the twelve of you, and it is the kind of thing, as I have said, that juries have to do every day.

[20]   There is one final point I would like to make to you. You may wonder what happened to Mr Tauroa. You should not concern yourselves with that at all. Your task is to deal with the criminal liability of this man on this charge, and it is only that that you are asked to look to.

[10]      Mr Bain told this Court that at the conclusion of the summing up and after the jury had retired, he had advised the Judge that in his view the defence case that the appellant was only helping the principal party had not been put adequately to the jury. The Judge was not prepared to bring the jury back to give them any further direction.

The Appeal

[11]      The offence of which the appellant was found guilty is created by s.208(1)(a) of the Crimes Act:

208 Abduction of woman or girl

(1)   Every one is liable to imprisonment for a term not exceeding    14 years who takes away or detains any woman or girl, whether she is married or not, without her consent, or with her consent obtained by fraud or duress, with intent—

(a) To marry her or to have sexual intercourse with her; …

[12]The five grounds of appeal set out in counsel’s submissions are:

[a]That the learned Trial Judge failed to direct the jury at all, or adequately, in all the matters relating to the taking away of the complainant.

[b]That the learned Trial Judge failed to direct the jury at all, or adequately, in all matters relating to intention and specifically failed

to put to the jury the appellant’s defence in regard to intention, specifically:

[i]The legal requirements for the formation of intent were not adequately explained for the jury.

[ii]That the intent required pursuant to s.208(1)(a) of the Crimes Act 1961 is subjective.

[iii]The intent required for there to be a taking away.

[c]That the trial Judge in summing up or direction to the jury failed to give any or adequate warning on the issue of lies or falsehoods spoken by the accused.

[d]That the Judge in summing up or direction to the jury failed to put the defence case in that the accused was only ever assisting his associate, that he was not a principal offender in his own right.

[e]That the Judge in summing up or direction to the jury was too brief and did not focus the attention of the jurors on all the relevant issues for the defence.

First Ground of Appeal

[13]      The essence of the appellant’s complaint is that taking away is a matter of fact and degree for the jury to decide. In this case the complainant had been moved a distance of only some three to four metres from the couch under the canvas canopy to the outside of the area covered by that canopy and behind the wall made of punga logs. He submitted that this could not constitute a taking away in the sense intended by the section. He submitted that the Judge was wrong to say that the taking away was common ground in this case.

[14]      We agree that the question of whether there was a taking away is a matter for the jury, but in this case we consider that the facts are so clear that the failure to make it clear to the jury that it was a decision for them has not led to any miscarriage of justice.

[15]      The appellant admitted that he assisted in moving the complainant from the inside of the canopied area to the outside. She was, as the Judge said, taken from the place where she was to another place. Factually that must constitute a taking away. Mr Bain referred to R v Smith [1970] NZLR 1057 which concerned an offence under

s.210 of the Crimes Act. In that case the Court of Appeal said that:

The substance of this offence in respect of the “taking” must be a matter of fact and degree. (p.1059)

Allowing that is so, we have no doubt that on this factual issue, in the circumstances of this case, the only conclusion available to the jury was that the complainant was taken away.

Second Ground

[16]      The complaint was that the summing up did not sufficiently explain the legal requirements for the formation of intent. It was the defence case that so far as the appellant was concerned any thought that he had of having sexual intercourse with the complainant was of a fleeting nature and not sufficient to constitute an intent for the purpose of the section. It was, therefore, important that intent be clearly defined to the jury. Counsel submitted that the reference in paragraph 13 of the summing up set out earlier in this judgment, was not sufficient and that was the only reference made by the Judge. That submission is not entirely correct, because the issue was addressed again in paragraph 19.

[17]      Counsel noted that the jury had difficulties with the issue of intent. During the course of their deliberations they asked a question. The question and the Judge’s answer are set out in a trial minute as follows:

…

(i)Can we please have a legal definition of intent?

(ii)At what stage does the accused have to have intent to be guilty. When he picked her up; when he was carrying her, or both?

2.I now respond to those questions as follows.

3.As to question (i), the word “intent” refers to the accused’s state of mind. In this context it refers to his will, or  inclination.

4.As to question (ii), the accused will have the necessary intent if at some point during the time he was carrying Patricia away he was of a mind to have sexual intercourse with her. In this case this could be at any point from the time he picked her up, until he lowered her to the ground.

[18]      Mr Bain submitted by reference to R v Burke [1990] 2 WLR 1313 HL, that where an explanation is required intent should be given its ordinary meaning of purpose and that the question for the jury could have been restated as, “did the accused take away the complainant without her consent for the purpose of having sexual intercourse with her?”. He referred to the test in R v Mohan [1976] 1 QB 1 at 11 where it was said that specific intent requires:

… a decision to bring about, in so far as it lies within the accused’s power, the commission of the offence …

[19]      In our view the reference to intent as “will” and to the appellant being “of a mind to have sexual intercourse” with the complainant is substantially in accordance with the suggestions as to definition made in these judgments although perhaps the word inclination does not express the concept strongly enough.

[20]      As will become clear later in this judgment however, it is our view that in the circumstances of this case the Judge should have gone further and drawn a distinction between a firm intent or a firm purpose to effect an act and a fleeting or passing thought. In other words, we agree with Asquith LJ in Cunliffe v Goodman [1952] KB 237 at 253 that intention:

…connotes a state of affairs which the party “intending” … does more than merely contemplate: it connotes a state of affairs which,  on the contrary, he decides, so far as in him lies, to bring about …

[21]      In this case, in our view the Judge’s direction on the meaning of intention was sufficient but he should, as we record later, have drawn the distinction noted above.

[22]      Counsel also submits that the subjective nature of the concept of intent was not sufficiently put to the jury. We do not accept that submission. Both in his summing up and again in answer to the questions, it was made clear that intent was a subjective concept.

[23]      Mr Bain argued that it was necessary that the intent be formed at the time the taking away commenced. He referred to R v Mohi [1982] 1 NZLR 240 at 241 where Qulliam J said in relation to a s.208 offence:

It seems to me clear that the offence is committed at the time of taking away, so long as there is, at that moment, the necessary intent.

[24]      Counsel submitted on the basis of that statement that the intent had to exist at the commencement of taking away.

[25]      In our view that is not an appropriate conclusion to draw from the judgment in Mohi. It is clear from the following sentence in the judgment that the Court was making the point that it was not necessary for the Crown to show that the intent was carried out and that the time of importance is that of the taking away. In our view  the intent may be formed at any time during the taking away. If a taking away commences without the intent to have intercourse, but that intent is formed during the taking away, then that is sufficient for the purposes of the section.

[26]      Mr Bain suggested that such an approach was inconsistent with the view of the English Court of Appeal in R v Reid [1972] 2 All ER 1350 where that Court said at page 1351:

We can find no reason in authority or in principle why the crime (in that case kidnapping) should not be complete when the person is seized and carried away, or why kidnapping should be regarded, as

was urged by counsel, as a continuing offence involving the concealment of the person seized.

[27]      The conclusion we have reached is not inconsistent with that statement. There the Court of Appeal was rejecting an argument that the offence of kidnapping involved some secreting of the victim. The Court was not addressing the question of whether intent could be formed during the course of a carrying away.

[28]      Next under this head, it was submitted that the intent to take the complainant away to have sexual intercourse with her must coincide with the belief on behalf of the accused that she was not consenting. Counsel submitted that the Judge erred when he indicated that the issue as to consent was not a live issue. He said that it  was a live issue and that the jury should have been more specifically directed on the point.

[29]      As will be seen from paragraph 12 of the summing up the Judge did leave the issue to the jury. He was correct that the uncontradicted evidence was that the complainant was very drunk at the time. It is of relevance to note the following exchange in cross-examination of the appellant:

She didn’t want you carrying her out of the tarpaulin area did she, she didn’t consent to you doing that?….. No she didn’t.

[30]There can be no criticism of the summing up in this regard.

Third Ground

[31]      Mr Bain submits that a lies direction should have been given in this case.  The appellant made two statements to the police. In the first he denied any involvement with what happened to the complainant. He denied helping the  principal offender carry her out of the covered area. In the second statement he said he wanted to correct some of the things said in his first statement and he acknowledged that he did help the principal offender carry the complainant outside.

[32]      In  cross-examination  counsel  for  the   Crown   traversed   this   change.  Mr Raftery submitted that the purpose of that was to make it clear to the jury that they should concentrate on the second statement, not the first.

[33]      Mr Bain relied upon the decision of this Court in  Ibrahim v R  (CA.20/98,    4 May 1998) another case where an earlier statement was later partially retracted and where the Court held that a lies direction should have been given. In R v Koia  [1982] 1 NZLR 555 at page 559 this Court said:

So whenever lies by an accused figure in a case, it is customary and desirable to give a warning to the jury, on the lines that people may have various motives for lying and that a lie does not necessarily mean guilt.

[34]      Mr Bain submits that because the Crown in its final address challenged the appellant’s credibility a lies direction should have been given. There is sometimes a fine judgment call required as to whether a lies direction is appropriate. Such a direction is not necessary in every case where an accused admits in a second statement that he lied in an earlier one. In each case the relevance of the issue should be considered.

[35]      Having read the transcript of cross-examination in this case we consider that the Judge was justified in not giving a lies direction, although had he done so, that could not have been the subject of criticism either.

Fourth and Fifth Grounds of Appeal

[36]      These grounds may be taken together. Both challenge the adequacy of the summing up in relation to issues relevant to the defence. As already noted, Mr Bain raised this question with the Judge after the jury had retired. He submitted that the Judge should have put to the jury the defence case that the appellant was just assisting his associate and was never a principal and that if satisfied of that they should bring in a verdict of not guilty. The Judge should have told the jury that the defence case was that there was never a formed intention on the appellant’s part to have intercourse with the complainant.

[37]      It will be seen from the record of the summing up that the defence case was put mainly in the form of denials of the Crown case. Mr Raftery reminded the Court that the trial was brief, that the summing up was on the day after the final addresses and submitted that the economy of the summing up was justified by these factors.

[38]      The purpose of the summing up is to focus the attention of the jurors on the matters relevant to their decision. As Lord Goddard CJ said in R v Clayton Wright [1948] 33 Cr App R 22:

He [the Judge] must give to the jury a fair picture of the defence, but that does not mean to say that he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given by experts or anyone else.

[39]      Our concern in this case is that in the respects referred to, a fair picture of the defence has not been given.

[40]      We conclude that the summing up was too economical. In paragraphs 17 and 18 the Judge points to the two possibilities of intent or no intent without making it clear that a thought not developed into a firm intent was not sufficient. This was an important plank in the defence case and was a subtlety which could easily have been overlooked by the jury. As already noted, the jury was concerned with the question of intent. Even when the question was asked, the opportunity was not taken to draw the distinction between a firm intent and a thought not reaching that level. It was open on the evidence for the jury to find that the appellant, whilst having the thought that he would like to have sexual intercourse with the complainant, had not formed an intent to do so. The jury should also have been reminded that the defence case was that the appellant was just assisting Mr Tauroa and was not a principal offender.

[41]      Accordingly, we conclude that in these respects there was an inadequacy in the summing up which makes the verdict unsafe. The appeal is allowed and a retrial ordered.

Solicitors:

Wallace Bain Law Office, Te Kuiti Crown Solicitor, Auckland