R v Tawera CA208/96 [1996] NZCA 392; 14 CRNZ 290 (2 September 1996)

Last Updated: 13 December 2021

TAWERA Monty Te Mauri v R

_{Status Court of Appeal Judgments (Archive)}

Court of Appeal

208/96

2 Sep 1996

Henry J - Tompkins J - Heron J

Appellant: Monty Te Mauri TAWERA Respondent: The Queen

Coram No.: 3

Appellant's Counsel: S Lance Respondent's Counsel: P J Davey Filing date: 13 Jun 96

Hearing Year: 1996

Keytitles: Criminal Law, Offences, Sexual, Rape, Grounds, Unreasonable verdict

Statutes: Crimes Act 1961 - Law Reports: (

Orig. Sentence: 5 Years Imprisonment

Judgments: 20896

Criminal Law - unreasonable verdict - sexual violation and unlawful sexual connection - whether absence of belief in counsel established - 16 yr old complainant - no outward demonstration of unwillingness - verdicts set aside.

Appeal against conviction allowed - convictions on count 1 & 3 quashed and verdict of acquittal entered. New trial ordered on count 2. Bail to continue.

_{IN THE COURT OF APPEAL OF NEW ZEALAND CA 208/96}

_{THE QUEEN}

V

_{MONTY TE MAURI TAWERA}

_{Coram: Henry J}

Tompkins J

Heron J

_{Hearing: 20 August 1996}

_{Counsel: S J Lance for the Appellant}

P J Davey for the Crown

_{Judgment: 2 September 1996}

_{JUDGMENT OF THE COURT DELIVERED BY HENRY J}

Monty Te Mauri Tawera appeals his conviction on one charge of sexual violation by rape and one of sexual

violation by unlawful sexual connection. No verdict was taken on an alternative charge under s.131 of having sexual intercourse with a girl under his care and protection. The appellant was 48 years of age at the time of the incident giving rise to the charges. The complainant was 16 years of age. Two grounds of appeal are advanced. First, the verdicts are unreasonable and cannot be supported having regard to the evidence; second, complaint evidence was wrongly admitted at trial.

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In late November or early December 1994 the complainant, who had been living with her mother in Hokitika, came to Whakatane to live with the appellant. She was a daughter of a cousin of the appellant's. The complainant referred to the appellant as Uncle Monty, and in evidence said she regarded him as a guardian. Her purpose in coming to Whakatane she said was to learn about the Maori side of her family, although the appellant said his understanding was that she was there on holiday. The charges related to one incident which occurred in the early part of January 1995 in the appellant's home, where he resided with his partner and her daughter. On the evening in question the complainant was babysitting two of the appellant's foster children who were also then in the home. The appellant's partner was not at home, and her daughter was at Opotiki. The appellant had been at work and returned home during the course of the evening at a time when the only others present were the foster children and the complainant. When the complainant went to her bedroom which she and the daughter occupied she found the

did telling her she did not get much affection. She regarded that observation as being true.

The appellant left the room briefly and the complainant got into her own bed. He returned and got into the same bed. There was a further brief discussion about affection and the appellant started to hug and kiss her. He rubbed his hands down her legs, then kissed her on the lips and put his tongue into her mouth. He then touched and kissed her breasts. He then pulled her pants down and licked her vagina. The complainant said that the appellant then "flipped" her on top of him and said "Honey can I stick it in can I stick it in?" He then inserted his penis into her vagina. After the act of intercourse concluded the appellant got a flannel to enable the complainant to wash herself. He then left the room and the house, picked up his partner, and returned again to the home. The complainant left the home the following day and stayed at the appellant's sister's home. She returned to the appellant's home from time to time

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thereafter, but not staying overnight. The appellant was interviewed by the police on 20 March 1995, the interview being recorded on videotape. He admitted the sexual activity described by the complainant but said that she was a consenting party to that activity. He gave confirmatory evidence at trial.

Verdicts unreasonable and not supported by the evidence

The argument on appeal centred on the issue of the appellant's belief on reasonable grounds that the complainant consented to both the act of intercourse and to the earlier oral sexual connection. This was also the position at trial

- the complainant's evidence that she was not in fact a willing participant was not under challenge. There was no dispute as to any matters relevant to the events which occurred in the bedroom. The issue therefore falls to be determined on an analysis of that evidence, keeping in mind that the jury had full opportunity to hear and observe both the complainant and the appellant give evidence and be subjected to cross-examination. The jury was also entitled to regard the complainant as a credible witness. Mr Davey for the Crown properly emphasised that the background against which her description of the activity was to be considered included a number of factors. The complainant was 16 years of age, and had recently come to Whakatane from Hokitika. She regarded the 48 year old appellant as a person in a position of trust and responsibility, with whom she had no previous relationships involving adult intimacy although there was a degree of affection between them.

The first act of significance after some initial kissing was when the appellant put his tongue in the complainant's mouth, in response to which she tried to move her head to the wall, but was unable to because he had his hands on her cheeks bringing her face towards his. He then lifted her upper clothing, touched and kissed her breasts after having shut (but not locked) the bedroom door. Her lower clothing was then removed (undamaged) and the appellant licked her vagina. This activity continued for

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some time, estimated by the complainant at 10 minutes although the accuracy of her assessment must be doubtful. The previous activity described also occupied an appreciable period of time. Up until this time the complainant had not requested the appellant to stop, nor had she been threatened in any way. The complainant did not attempt to

together as they were being held by him.

The complainant then described being flipped over so she was on top of the appellant, who then made the request for sexual intercourse earlier described to which she made no reply. She made no attempt to get off the appellant before the act was completed, nor did she give any overt indication that the appellant should desist. Apart from what could be described as her passivity, Mr Davey was unable to point to anything else said, done or exhibited by the complainant from the time the sexual advances commenced down to the conclusion of the incident which would outwardly demonstrate she was not consenting. The appellants own evidence at trial was throughout consistent with a belief in consent.

A perusal of the videotape interview does not disclose any admission by the appellant which could properly be construed as indicative of an absence of belief in consent, although he did accept that he was unable to say whether the complainant was enjoying herself.

Having read the whole of the relevant evidence, which we have endeavoured to summarise above, we find it difficult to see how on an objective appraisal it can be said absence of belief in consent on reasonable grounds has been established beyond reasonable doubt. On analysis, there is nothing in the complainant's evidence, the surrounding circumstances or the appellant's evidence which objectively indicated the complainant was not consenting. The indications are all to the contrary. It may be

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that the jury became unduly concerned about the direction (correctly given) on s.128A and the fact that a failure to protest or offer physical resistance does not by itself constitute consent. That kind of consideration may of course be highly relevant to whether there was consent, but it does not really bear on the critical issue of belief in consent.

We are persuaded that this is one of those rare cases when the verdicts cannot be supported, and that a reasonable assessment of the relevant evidence as a whole must have left a tribunal of fact with a reasonable doubt on this essential element. Accordingly the convictions cannot stand. There is no suggestion that further Crown evidence may be available, so a new trial on these charges is inappropriate. The alternative charge under s.131 however remains for determination.

Admissibility of complaint evidence

Mr Lance also submitted that evidence of a complaint of rape being made to a relative some 9-10 days after the incident was inadmissible as not having been made at the first reasonable opportunity. In the light of our findings on the first ground of appeal it is unnecessary to consider this question. It is common ground that the evidence, even assuming admissibility, can have no relevance to the remaining alternative count.

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Conclusion

For the reasons stated the appeal is allowed, the convictions on Counts 1 and 3 are quashed and verdicts of acquittal are directed to be entered on those charges. There will be an order directing a new trial on Count 2 of the indictment.

The appellant is on bail, and will be required to surrender to the High Court at Rotorua on a date and at a time to be notified by the Registrar of that Court.

_Solicitors

McKechnie Quirke & Lewis, Rotorua, for the appellant

_{Crown Solicitors, Rotorua, for the Crown}

Appellant's Counsel: S Lance

Respondent's Counsel: P J Davey

End of Document