THE QUEEN v SIMON MARK ABBOTT [2000] NZCA 216 (26 September 2000)

IN THE court of appeal of new zealand

ca 261/00

THE QUEEN

V

SIMON MARK ABBOTT

Hearing:	25 September 2000
Coram:	Gault J Ellis J Robertson J
Appearances:	J C Pike for Crown
	D H Quilliam for Appellant
Judgment:	26 September 2000

judgment of the court DELIVERED BY ELLIS J

[1] An appeal against conviction on one charge of male assaults female and one of rape.

[2] The complainant, a 20 year old woman went to town with her boyfriend on the night of 20 December last and visited two bars.At the second they met the appellant.They had not met before.They struck up a friendship and the appellant and a friend of his invited them to a party.They went to the party some time after 1 a.m.By that time they had consumed a great deal of alcohol.At the party a fight broke out between the boyfriend and another man and the complainant tried to intervene.The appellant dragged the boyfriend outside and left him there.The appellant went inside again.He and the complainant went into the bedroom.The complainant did not recollect how she came to be there.She said the appellant suggested they have sexual intercourse and she refused.He insisted and held her down on the bed, lying on top of her and holding her arms down and her legs down with his legs.She says she continued to protest but he ripped her jeans off and punched her in the face.She screamed and he threatened to punch her again.In all she said he punched her four or five times, and had sex with her.In the meantime the boyfriend had become alarmed and hailed a police car.The police arrived at the scene, found the complainant who said, "Thank goodness you're here" and ran over to them.

[3] The appellant gave a videotaped interview and gave evidence at trial.His account was that the black eye and bruising she exhibited came from her being accidentally hit by the man who was fighting with the boyfriend.That man gave evidence also to that effect.The appellant admitted having sexual intercourse with the complainant, saying she consented.He denied any assaults, threats or violence.

[4] Mr Quilliam dealt with the appeal under four heads:

1. There was a misdirection on the effect of the accused giving evidence.

2. There was an associated misdirection on the burden of proof.

3. There was a misdirection on the meaning of consent.

4. There were factual errors in the summing-up.

[5] We deal with the first two together.There are three passages in the summing up which bear on the accused giving evidence:

"The fourth point and perhaps this is the most important is that question of the onus and standard of proof.As I said yesterday, the onus or the responsibility or it is sometimes called the burden of proving a charge that is brought against an accused person rests on the Crown, and it rests on the Crown from the beginning of the trial to the end.There is no burden on an accused person in New Zealand to have to come to Court to prove their innocence.An accused person simply is entitled to sit back at the back of the Court and say nothing at all.

"In this case obviously the accused has chosen to give evidence and has called a number of witnesses on his behalf, but that does not mean to say that he has taken over the responsibility to prove his innocence.That responsibility rests with the Crown as I said from the beginning of the trial to the end."

"Well in this case the accused has given evidence and I will just pause here to explain to you the effect that that can have.First of all it can have this effect, that you can accept what the accused says and what his witnesses say, that is that this young lady consented to the sexual intercourse that took place, and that there was no assault by the accused.If you accept what he says as being the truth then obviously he has proved his innocence, in which case you would bring back a verdict of not guilty.

"On the other hand, having heard his evidence and that of his witnesses you may be left in a position of doubt;well in that case the Crown has not proved the charges so again you would bring back a verdict of not guilty.

"A third alternative is that you might not accept the accused's evidence, you might reject his evidence or you might say to yourselves we cannot really make up our minds whether he is telling the truth or not.So if that is the case what you do is you go back to what the Crown have to say;look at the total pool of evidence that has been adduced to you and ask yourselves has the Crown proved the charges to the standard beyond reasonable doubt."

And near the end of the summing-up:

"Right, well now you then today heard from the accused, he gave evidence and as I said earlier he did not have to do so, he elected to do so but by giving evidence he did not assume any responsibility for proving his innocence.He gave you his account of what happened on that night, met the complainant Sarah Jones, taken her back to the party, that they were drinking at the party.He said that as far as his state of intoxication he was border line, he was getting pretty jolly but as far as she was concerned he said she was 'pretty wasted'.He said that he got into a fight at some stage with one of the drivers from Napier Seafoods."

[6] No exception is taken to the first or the last, but in the second the Judge includes the words "you might say to yourselves we really cannot make up our minds whether he is telling the truth" which Mr Quilliam submitted were appropriate in the immediately preceding paragraph but not in the paragraph in which they appear.Mr Pike was inclined to agree.In our view the basic propositions are that the accused who gives evidence carries no burden of proof, and the jury's decisions must be based on the whole ("the total pool") of the evidence.This is so whether the jury cannot decide whether the accused tells the truth or whether they think he does not.The second extract of three paragraphs is couched in terms of the accused proving his innocence although the substance is not.In our view the jury would take the Judge to mean that if it was in any doubt about the accused's truthfulness it must nevertheless decide whether the Crown has proved the case by considering the whole of the evidence including that of the accused.We do not think the passages we have quoted would leave the jury in any doubt that it was at no stage the obligation of the accused to prove his innocence.

[7] As to consent, Mr Quilliam confirmed that the defence case was that the complainant consented.It is accepted that the summing-up correctly addressed what was required to be proved, but did not contain a direction about "drunken consent being real consent".It is true that the defence at trial set out to establish that the complainant was heavily intoxicated, and that the Judge did not mention her intoxication when giving his directions as to the ingredients of consent.He did however review the evidence after that and said that the complainant and her boyfriend were "getting pretty drunk" and later he referred to the claim by the appellant as to her provocative intoxicated conduct.In summarising the Crown case he said that while the Crown conceded they were both drunk her intoxication had not led her to consent to sex.

[8] The thrust of the defence was that the accused did not hit this complainant and she consented to sexual intercourse.The jury accepted the complainant's evidence that he did hit her and so disbelieved the accused and found him guilty of the assault charge.Mr Quilliam was unable to mount a challenge to this verdict.Once it was established that he committed the assault the absence of consent surely follows on the facts of this case regardless of any question of intoxication.Even if a direction on the effect of intoxication may have on the issue of consent may have been desirable, no possible injustice can have resulted from its absence.

[9] Finally the claimed errors of fact in the summing-up were not pursued by Mr Quilliam and do not need mention by us.

[10] The appeal against conviction is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington

Callinicos McDowell, Napier