R v Wells CA68/01 [2001] NZCA 443 (2 August 2001)

Last Updated: 3 June 2023

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA68/01

THE QUEEN

V

TIA MATIU WELLS

Coram:	Keith J Blanchard J Tipping J
Judgment (On the papers):	2 August 2001

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] The appellant was convicted on two counts of sexual violation by unlawful sexual connection. He appealed against those convictions on the basis that the jury’s verdict was unreasonable or that it could not be supported having regard to the evidence. He submitted also that the District Court had erred in excluding certain evidence. The statement of grounds was prepared by the appellant’s solicitors. When legal aid was refused by the Legal Services Agency the appellant instructed them that he wished them to take no further steps in the appeal and they sought leave

to withdraw. The appellant has prepared his own submissions and the appeal has been decided on the basis of them.

Facts

[2] On 29 January 2000 the appellant attended a birthday party at which he made a number of advances towards the complainant and other female guests. He was significantly affected by alcohol. Shortly after midnight, the complainant left the function, deciding to walk into the central area of Hornby, a distance of over one kilometre, to get a taxi. At this time, the appellant was outside also and offered to walk with her. The complainant accepted his invitation, not recognising him as the same man who had acted inappropriately towards her earlier that evening.

[3] The complainant gave evidence that, while they were walking, the appellant took her hand. She said that he kissed her, pulled her to the ground and forcibly removed her trousers and underwear. The appellant then inserted his fingers into the complainant’s vagina before committing oral sex on her against her protest. After struggling unsuccessfully to get away, the complainant, in an attempt to escape, suggested that they go to her home to continue sexual activity. As soon as she was able to stand up and dress herself, she managed to run away and gain the assistance of a couple who were walking in the area. Upon returning home, she rang her sister immediately.

[4] On being interviewed by the Police, the appellant admitted the two sexual acts described, but contended that those acts were consensual. The jury, however, rejected the appellant’s defence and convicted him on two counts of sexual violation by unlawful sexual connection. He was sentenced to 4 years imprisonment.

The appeal

Was the jury’s verdict unreasonable or unsupported by the evidence?

[5] The appellant appealed his convictions on the grounds that, under s385 of the Crimes Act 1961, the jury’s verdict was unreasonable or that it could not be supported having regard to the evidence. He submitted that the jury had failed to

have regard, or to have sufficient regard, to evidence indicating that the complainant had consented, or that the appellant had had a reasonable basis for believing that the complainant had consented to the sexual activity.

[6] After giving careful consideration to the appellant’s submissions, however, we find there is nothing to suggest that the appellant’s convictions were unreasonable or unsupported by the evidence. The case involved issues of consent or reasonable belief of consent and turned predominantly on the credibility of the witnesses, particularly that of the complainant. She was extensively cross-examined about the events of the evening and especially about her interactions with the appellant. The jury also had before it the statement made to police by the appellant who did not give evidence. Matters of credibility were clearly for the jury. It was open to a reasonable jury, on the evidence before the Court, to believe the complainant rather than the appellant and to find the elements of the offence established.

Evidential ruling

[7] The appellant submitted also that the Judge had erred in refusing to allow evidence from a Mr McLauchlan, who was also at the birthday party, about contact that evening between Mr McLauchlan and the complainant. The appellant submitted that Mr McLauchlan’s evidence was relevant to the complainant’s credibility.

[8] The issue arose as a result of the following exchange during Mr McLauchlan’s evidence-in-chief:

17. Did you have anything to do with [the complainant] during the evening?

A We had a dance 8, 9 o’clockish. Q And anything other than that?

A We had a conversation where she asked me was I single.

[9] That evidence resulted in an objection from the Crown on the basis that Mr McLauchlan’s evidence as to the contents of his conversation with the

complainant had not been put to the complainant in cross-examination. The Judge’s ruling was recorded in his notebook as:

Ruling that line of questioning not permissible – 1) offends against s23A;2) evidence not put in xx’n to complainant.

[10] In a minute, the Judge accepted that he was wrong in referring to s23A of the Evidence Act 1908 because no question was put to Mr McLauchlan about the complainant’s “sexual experience”. However, the Judge said that similar considerations were relevant by analogy. The appellant’s defence did not rely on anything which he had heard or seen while the complainant and Mr McLauchlan were together. There was nothing in his statement indicating that he had even seen the two of them together that evening, let alone that anything which he observed might have given him cause to believe that the complainant might have been receptive to a sexual advance from him.

[11] We agree with the Judge to the extent that while Mr McLauchlan’s evidence might possibly have cast a different light on the complainant’s credibility, the evidence in question involved only collateral issues. And, as the Judge said, there was a real risk that Mr McLauchlan’s evidence would have become “an illegitimate character-blackening exercise”.

[12] We accept the trial Judge’s reasoning. The limited relevance of Mr McLauchlan’s evidence in relation to the issues in hand, together with counsel’s failure to put the evidence to the complainant during cross-examination, fully justified the Judge’s ruling. In any event it is difficult to see any material prejudice resulting to the appellant.

[13] The appeal is dismissed.