R v Tubou CA153/93 [1996] NZCA 384 (10 June 1996)

Last Updated: 13 December 2021

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.153/93}

PUBLICATION OF NAMES OR THE QUEEN

IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY

S 139 CRIMINAL JUSTICE ACT 1985

v

TONY ROBERT TUBOU

Coram: Eichelbaum CJ Gault J Tompkins J

Hearing: 10 June 1996 (at Auckland) Counsel: C J Tennet for Appellant

^{A J F Perkins for Crown}

_{Judgment: 10 June 1996}

_{JUDGMENT OF THE COURT DELIVERED BY GAULT J}

The appellant was tried in the High Court at Auckland on 12 counts alleging offending against four complainants. He was acquitted on four of five counts involving one of the complainants and convicted on all other charges. He was sentenced to terms of imprisonment totalling ten and a half years. The appeal is against the convictions.

In respect of the first complainant the convictions were of rendering her unconscious with intent to commit sexual violation, indecent assault, and sexual

violation by unlawful sexual connection involving respectively penetration of the vagina by use of a dildo and fingers. The offences were alleged to have been committed in the course of what had been arranged as a session to take photographs of the complainant.

In respect of the second complainant the offences of attempted sexual violation and assault with intent to sexually violate were said to have been committed when the complainant was invited back to the house where the appellant lived with his partner. The first offence was said to have been committed near a spa pool and the second, later the same day in his car after he pursued her from the house.

The third complainant was being driven home by the appellant when, realising she was in a rural area travelling in a different direction from that she expected to be taken, insisted upon being let out of the car. The appellant refused. The complainant jumped from the car. The charge was of kidnapping.

The fourth complainant was the appellant’s partner. The offence of which he was convicted was of assault in the course of a dispute between them.

The grounds of appeal are, except for one, of misdirections in the Judge’s summing-up. Mr Tennet in full written submissions filed in advanced addressed some

13 points of criticism of the Judge’s directions. In addition he argued that the jury verdicts on the counts involving the first complainant were unreasonable or cannot not be supported having regard to the evidence in terms of s 385(1)(a) of the Crimes Act

1961.

On that ground the evidence given by the first complainant was of meeting the appellant at a night club where she was a strip-tease dancer. She said he offered to prepare a portfolio of photographs of her and she agreed because she was interested in modelling. Three weeks or so later the appellant picked her up at her home and drove to his house at Titirangi. She had by arrangement taken a range of clothes with her. She was given drinks which she said unusually appeared to have froth on the top. She was photographed in an evening dress, then in a black nightie. She said she fell asleep, awoke briefly still in the nightie but fell asleep again. She awoke some hours later in different clothing and on a bed in a different room. Subsequently the police located photographs admittedly taken by the appellant. They included photographs of the complainant with a dildo inserted in her vagina and with the appellant’s fingers similarly inserted. The appellant gave evidence and agreed that he had taken the photographs but maintained that the complainant was fully conscious throughout and was a willing participant. He relied upon the photographs as showing that the complainant was capable of moving about, had her eyes open in some, and very obviously was not immobilised.

The Crown called evidence of the effects of prescription drugs the appellant was shown to have possessed when taken with alcohol. That was consistent with the appearance of consciousness in the photographs but with the subject co-operating and relaxed, almost asleep, following instructions but with no subsequent memory of events. The Crown also called evidence of complaints made by the complainant over the telephone to a friend the following day. In that respect there was inconsistency between the time the complainant said in her evidence that she noticed that her pubic

hair had been cut and the complaint evidence that she had mentioned it at an earlier time.

As the Judge’s summing-up makes clear, the real issues for the jury were whether the complainant had been drugged and did not consent to the indecencies. The case for the defence rested heavily on the photographs and the appearance of the complainant inconsistent with unconsciousness. It was a matter for the jury to decide whether the evidence of the appellant in conjunction with the photographs raised a sufficient doubt to warrant not guilty verdicts. They must have decided they did not. The verdicts were open. The evidence of the complainant, if accepted by the jury, supported their verdicts once the medical evidence was taken into account. We are satisfied that the convictions should not be disturbed on this ground.

The first matter on which it was said the Judge misdirected the jury was as to the standard of proof on the Crown. The Judge in a few lines described the required standard of proof as follows:

The standard of proof, as Mr Perkins said to you is a high one. It is proof beyond reasonable doubt. Now that means exactly what it says. Not some vague and fanciful doubt dreamed up to avoid an unpleasant duty. A reasonable doubt, a doubt which is rooted in reason, which is rational.

For the reasons given in the judgment of the High Court of Australia in Green v R [1971] HCA 55; (1971) 46 ALJR 545, there should be avoided in summing-up to juries attempts to define “reasonable” using expressions such as “proceeding from reason” or “rational”. But in this case the Judge went on to direct in correct and more conventional terms as follows:

In the context of this case what it really boils down to is, are you sure that each of the allegations have been made out? Putting it another way, Mr Tubou has in some cases denied that matters occurred at all; in other cases has denied that there was the lack of consent to what occurred. You have heard what he had to say. As I said to you last night it is not a case of saying do you prefer him to the woman. The test is, could his explanation, whether it is an innocent explanation or a total denial, reasonably be true? If what he has said could reasonably be true, then you must have a reasonable doubt about the matter. You cannot convict if that is the situation. We are talking about reasonable doubts. We are not talking (and let me stress this) about mathematical certainty. Life is not about mathematical certainty; life is not about absolutes. The issue is are you sure that these allegations made by the Crown have been proved. For you to be sure you will need to be able to confidently say, his denials, his explanations could not reasonably be true.

Taken overall we are satisfied that there is no risk that the jury might have been confused or have misunderstood what was required. There was no misdirection as to the standard of proof.

Mr Tennet next submitted that the Judge did not give a sufficient direction as to the need to consider each count separately. His principal point was that the Judge did not tell the jury that consideration on each count was to be by reference only to the evidence relevant to it.

This was a case where the evidence was of separate events on different occasions involving separate complainants. The potential for evidence relevant only to one count being improperly used in relation to another was not significant. The Judge did instruct the jury not to transfer a determination of guilt from some charges to others in these terms.

It is important throughout that you remember there are 12 separate trials. It does not follow that if Mr Tubou is guilty of one he is guilty of all or because he is guilty of 2 or 3 he is guilty of 8 or 9. Each one has to be looked at alone. It is a matter for you. I would have thought that the strength of the evidence may vary, but that is a matter for you and for your assessment.

At the end of his summing-up the Judge said:

In respect of each of the counts you will have to reach a unanimous decision. Each of them is a separate matter which requires its own independent assessment.

We do not accept there was any misdirection on this issue in the circumstances of the particular trial.

Mr Tennet was critical of the use by the Judge of a reference to “an awful lot of coincidences” and submitted this might have been understood as an invitation to the jury to associate the strength of the case against the appellant on one charge with others. But the context in which the expression was used leaves us with no concern. It appears in a sentence overall favourable to the accused dealing with the evidence he gave and reading:

If you say, well there is an awful lot of coincidences in all of this, it seems fairly strange, but I suppose that could reasonably be true, then you must acquit him.

Next it was submitted that the Judge failed to adequately put the defence case to the jury. The argument was that a series of points taken cumulatively carried some denigration of the case for the defence and did not summarise the points made in the address of defence counsel in the same fair manner as the case for the Crown had been summarised.

It should be borne in mind of course that so long as it is made clear that it is for the jury to determine factual issues it does not amount to misdirection for a judge to comment on the evidence in a manner that tends to indicate his or her view. Further, even the most fair summary may appear less than balanced if the case for one side is much stronger than that on the other.

In this case the aspect of real concern to Mr Tennet was that after having summarised the points made in the address of counsel for the Crown the Judge, when summarising the address of defence counsel, interposed points made for the Crown. In some instances this gives the impression of simply identifying the point in the Crown case to which the defence submission was related and in others the effect was to highlight the competing contentions for the jury.

Each of the points raised was canvassed with counsel in the course of argument after which we were satisfied that the defence case on each count was placed fairly before the jury.

One particular criticism was reiterated as a separate ground of misdirection. It was that self defence effectively was removed from the jury on the count of assault on the fourth complainant. The direction on the law of self defence was accepted as correct. That concluded with the Judge identifying the essential issue for the particular case as whether the Crown had established that the appellant’s response to being struck by the complainant with a torch was disproportionate and in all the circumstances unreasonable.

Earlier in the summing-up the Judge had said:

I will come specifically to count 12 where even on his own evidence I am not sure that a defence is available although that is a question of fact for you.

In summarising the defence case the Judge later said:

As far as the last count is concerned, Mr Edgar says, yes there clearly was hitting between them. Anything he did was merely a follow on from her attack with the torch. He says the broken torch was there, seen by people. I suggest to you that the real matter for your consideration is whether the Crown have satisfied you that the amount of violence which he inflicted was not in self defence. That as I perceive the evidence is really all it is about.

The appellant in his own evidence had described the complainant picking up the torch and attacking him. He referred to three or four blows one on the corner of his eye. After that he agreed he reigned blows on her, that she ran outside screaming (it was about 4.00 am). He pursued her, jumped on top of her and pinned her down. He said he was trying to calm her down. He was found by a house guest sitting on top of her. The guest separated them and assisted the complainant who later developed a pronounced black eye.

We consider on the summing-up overall that self defence was left to the jury. The Judge’s comment expressing doubt as to whether it was available was not unreasonable.

The judge dealt with the significance of evidence of distress and of recent complaints. He dealt first with evidence of distress, correctly explaining its limited

significance and pointing out that it was not independent or separate evidence of the offending but can show consistency. He said complaint evidence is of similar significance. These directions were correct. They did not, as Mr Tennet submitted, elevate evidence of distress to some form of corroboration.

The Judge did not mention corroboration. That was appropriate in light of s 23AB Evidence Act 1908. Mr Tennet did not press a submission that this was a case calling for the direction contemplated by s 23AB(2).

In relation to count 2, alleging indecent assault against the first complainant (cutting of the pubic hair), Mr Tennet advanced the submission on the direction as to intent. In the course of argument however it became apparent that the point really was as to the direction on consent. The Judge had directed correctly with reference to charges of sexual violation as to the need for the Crown to establish absence of consent or of belief on reasonable grounds that there was consent. He did not separately direct in relation to this indecent assault count that a belief in consent - even without reasonable grounds - would warrant acquittal. But this was not a case where there was any suggestion of mistaken belief in consent. The appellant’s evidence was that there was actual consent. The complainant said she did not consent. There was simply no room for any injustice arising from the possibility of the jury taking the direction given with reference to other offences as applicable here.

The next point was that the summing-up appeared to negative the defence to the kidnapping charge by treating with distain the appellant’s evidence explaining the reason for taking the complainant in the direction he was travelling. Quite apart from

the implausibility of the explanation, we are satisfied the Judge ensured that the competing assertions were before the jury for consideration. We have no concern for the safety of the verdict on this count.

Mr Tennet presented a number of other arguments on the summing-up but, after analysing them in the course of the hearing we were satisfied they were without merit.

In spite of the full argument we heard, we are not convinced that there were any material misdirections and the convictions must stand.

The appeal is dismissed.

Solicitors

Crown Solicitor, Auckland