THE QUEEN v TERENCE LINLEY RICHARDSON [2000] NZCA 14 (17 February 2000)

IN THE court of appeal of new zealand

ca 515/99

THE QUEEN

V

TERENCE LINLEY RICHARDSON

Hearing:	15 February 2000
Coram:	Richardson P Heron J Panckhurst J
Appearances:	M T Davies for Crown M Dyhrberg for Appellant
Judgment:	17 February 2000

judgment of the court delivered by HERON J

[1] This is an appeal against conviction.The appellant was found guilty of two counts of having sexual intercourse with a severely subnormal woman, knowing or having good reason to believe that she was severely subnormal, and of attempting to have sexual intercourse with a severely subnormal woman, knowing or having good reason to believe that she was severely subnormal. These were alternative counts to two counts of rape in respect of events which occurred on 21 February 1999 and 25 February 1999 at Auckland.

[2] The circumstances were that the complainant is a 46 year old single female who is blind and who resided in a blind institute dwelling next to the appellant's home.On Sunday 21 February 1999 the appellant telephoned the complainant and asked her to unlock the door to her dwelling, so that her flatmate could get in.The appellant accompanied the complainant's flatmate to the complainant's home and asked if he could enter her room, he then lay on top of her and after a period of time intercourse took place.Seminal stains found on the bed were later shown to be those of the appellant.

[3] On 26 February 1999 the appellant was at the complainant's home and again asked her if he could go into her room.He attempted to have intercourse with her but she resisted and was told by her to leave the house.

[4] No challenge is made to the jury's finding that sexual intercourse and attempted sexual intercourse took place on the two separate occasions and this appeal is confined to the conclusion reached by the jury that the complainant was severely subnormal, and that the appellant knew or had good reason to believe that the complainant was severely subnormal.It is said, that the verdict was unreasonable and cannot be supported having regard to the evidence pursuant to S.385(1)(a) of the Crimes Act 1961.

[5] S.138 of the Crimes Act 1961 reads:

(1) Every one is liable to imprisonment for a term not exceeding 7 years who has or attempts to have sexual intercourse with any woman or girl who is severely subnormal, if he knows or has good reason to believe that she is severely subnormal.

(2) For the purposes of this section, a woman or girl is severely subnormal if she is mentally subnormal, within the meaning of the Mental Health Act 1969, to the extent that she is incapable of living an independent life or of guarding herself against serious exploitation or common physical dangers.

[6] The Mental Health Act 1969 defines mentally subnormal as "suffering from subnormality of intelligence as a result of arrested or incomplete development of mind."

[7] As it happens the Mental Health Act 1969 has been repealed and replaced by the Mental Health (Compulsory Assessment and Treatment) Act 1992, which came into force on 1 November 1992.It is plain however that the definition remains for the purposes of the Crimes Act and prescribes when a person is mentally subnormal: that is "suffering from subnormality of intelligence as a result of arrested or incomplete development of mind". Important of course, is the additional requirement prescribed by subsection 2 of S.138 of the Crimes Act, namely that the person must be incapable of living an independent life, or of guarding herself against serious exploitation or common physical dangers.

[8] The appellant acknowledged that these were matters entirely for the jury to determine on the available evidence.The complainant gave evidence as to what had occurred to her.The appellant gave evidence in his defence alleging that there had been some sexual contact between them leading to the complainant masturbating him and consequent ejaculation which explained the presence of his semen on the bedding in her room.The jury plainly rejected that version of events by finding that there was sexual intercourse and attempted sexual intercourse.

[9] The evidence included evidence from a community support person attached to the Foundation for the Blind who spoke of the four people whom she looked after for 20 hours a week, including the complainant.She was familiar with the members of the house and their rooms and possessions, describing herself as helping them in their daily lives, health wise, with medical needs, social needs, recreation, budgeting, dieting, taking them to the bank, taking them to the swimming pool or riding and helping them to organise their daily their personal affairs.

[10] The community worker had been in this position for some three years.She described the needs of the complainant in particular including treatment for epilepsy and the fact that she had not had periods for many years, describing her as sexually unaware, and in particular describing the limits placed on her by reason of her blindness.However she assisted the community worker in the preparation of meals and was described as an outgoing person including regularly going to a hotel and having a meal on Sunday afternoon on her own.

[11] It was this community worker who made enquiry of the complainant and received her complaint that the appellant had touched her and she was responsible for informing the police.

[12] The Crown called a medical practitioner and registered specialist psychiatrist with experience in the assessment of intellectual attainment, mental capability and emotional maturity who had examined the complainant on 28 May 1999.She was asked to consider whether the complainant met the definition of severely subnormal and inquired into the background of the complainant including having the complainant's brother and mother, who had regular contact with the complainant, accompany her at the time of her examination.

[13] Early psychological and medical reports revealed that as an infant the complainant had been born some weeks prematurely and treated with full saturation oxygen, a treatment used in those days, but now found to be associated with the development of blindness.As she was growing it was recognised that she had significant additional handicaps and significant brain damage was found following a CAT scan performed in 1980.As a consequence the doctor said that she had blindness, epilepsy, personality and intellectual disturbance and she carried with her serious residual brain damage.She thought, on examination that she displayed a very superficial if any understanding of what was meant by sex, and her sexual knowledge was almost non-existent.She knew that what the appellant was trying to do to her was sex, but she had had no instruction about sex.

[14] Having given extensive evidence as to her examination the doctor concluded that the complainant fitted the definition of severely subnormal.She considered that she was incapable of living an independent life or of guarding herself against serious exploitation or common physical dangers, and therefore came within the definition.She observed the complainant giving evidence and confirmed the earlier findings as to her subnormality.She felt that in giving evidence, the complainant was socially at ease, quite skilled, could be assertive and articulate, but at the same time the behaviour that she demonstrated was not perhaps entirely what you would expect of someone in the circumstances at the time.

[15] Under cross-examination she acknowledged that her IQ of about 55-66 could be described as mildly subnormal but ventured the opinion that these were only guides and did not deflect her from her view that the complainant's subnormality was severe.She did not think that a more recent IQ test was of significance and what she considered was important was the functioning at a day to day level, a practical assessment rather than a theoretical approach.She agreed that the complainant may present socially and verbally as if she functioned at a somewhat higher level, but any prolonged contact or conversation would demonstrate the levels of deficit, which were there.She considered the brain damage was fixed and could never improve, and therefore more recent IQ tests if administered would be unlikely to detect any improvement.

[16] The appellant in his evidence considered that her only disability was that she was blind.He agreed that he had carried out certain tasks for all the residents.He agreed that he had been a regular visitor and had been in their living room at least 20 times, and had socialised with all the residents.He knew that the residents had the services of a community worker regularly during the week.

[17] The defence called evidence of a clinical psychologist.She had not previously examined the complainant but had been supplied reports and observed the complainant in court.She considered the IQ test that had been done was out of date and that the complainant's IQ was probably in the mild range or better, but could not confirm that unless testing that had been done by an appropriate qualified psychologist within the last 12-24 months.She described other tests that she could have taken or administered, including the Weschler Adult Intelligence Test (3^rd Edition).She would have conducted interviews with the complainant, her caregiver and family members. She said that to assess exploitation questions, she would interview the person concerned as to whether there had been any occasions they had got themselves into trouble or things had gone wrong.She commented on a number of aspects of her mental capability pointing out positive aspects in that respect.She described an event where the complainant had resisted exploitation by the workshop where she worked, when they had asked her to pay for her travel expenses.Her ability to express emotions seemed within the normal range. Having reviewed the tasks that she did, she thought that a further IQ test would have been appropriate and good professional practice, but that that alone would not have been enough for a final diagnosis.Having had put to her, the contrary opinions expressed by the prosecution psychiatrist she considered that the complainant was not severely subnormal but qualified that by saying that she could go no further than state an impression only.In her view there was not enough information for her to make a conclusive diagnosis.She agreed that she was not in a position to really assist the Court with a conclusive answer as to the issue of subnormality.

[18] It isclear therefore that the jury werefaced on this issue with a positive diagnosis from the prosecution witness of severe subnormality, and another witness who regarded the material on which that assessment had been made as incomplete, but without necessarily reaching a contrary conclusion.As with all matters relating to expert evidence, in the end it was for the jury to select the view they preferred.It was open for the jury to accept the defence proposition that the conclusion reached by the prosecution witness was one based on inadequate material.On the other hand the jury may have felt that the prosecution evidence, coupled with their own assessment, including the very incident itself, and the appellant's explanation, satisfied them beyond reasonable doubt that the complainant was suffering from subnormality in the terms and to the extent required by S.138.

[19] Ms Dyhrberg in careful and detailed submissions took us to the various authorities relating to appeals under S.385(1)(a) of the Crimes Act 1961.See R v Ross [1948] NZLR 167 and R v Kira [1950] NZLR 420 and R v Ramage [1985] 1 NZLR 392.

[20] We do not accept the appellant's submission that the evidence given by the prosecution psychiatrist was insufficient to show that the complainant was severely subnormal.It is common ground that this is a matter for the jury who were no doubt told that they were the judges of the facts, and they must reach the factual conclusions required on the particular elements of the case.

[21] In our view there was ample evidence particularly having regard to the finally inconclusive view reached by the appellant's expert witness on this topic.The jury were entitled to find that on the evidence they had there was sufficient to establish severe subnormality in terms of the Crimes Act.

[22] The next question, namely the appellant's knowledge or good reason to believe had to follow from the extent of the acquaintanceship that the appellant had with the complainant and members of this household.He must have known of the considerable support and assistance that was given to this household and in particular the complainant.Whilst the jury would have been told to look at the questions separately, it is plain that he gave an explanation of his conduct which was rejected by the jury, and the jury may have felt that the deficiencies under which the complainant suffered were patent.

[23] It follows that there is no merit in this appeal against conviction upon the grounds that it is unreasonable or cannot be supported having regard to the evidence and it is dismissed.