THE QUEEN v EKUETA NASERI AFELE [2002] NZCA 305 (10 December 2002)

IN THE court of appeal of new zealand

ca330/02

THE QUEEN

V

EKUETA NASERI AFELE

Hearing:	2 December 2002
Coram:	McGrath J Baragwanath J William Young J
Appearances:	B Davidson for the Appellant S P France for the Crown
Judgment:	10 December 2002

judgment of the court delivered by mcgrath J

Introduction

[1] The appellant was convicted of 2 counts of sexual violation by unlawful sexual connection respectively involving oral sex by him on his victim, and causing her oral connection with his genitalia.He appeals against conviction only.

Background

[2] On 2 March 2002 the complainant, a 21 year old woman, had gone into central Wellington to meet friends and socialise at the flat of one of them.She later went to a housewarming function in Willis Street where she had an argument with a male friend involving his failure to keep an appointment with her earlier in the day.Around 11pm the complainant left the Willis Street flat and began walking across the city to another friend's flat in Tory Street. She took a short-cut through Holland Street, an alleyway between Taranaki Street and Tory Street.It was in this area that the events the subject of this appeal took place.

[3] The appellant and his co-accused were standing in the alleyway.Both had been drinking.While the appellant was walking past them the co-accused spoke to the complainant and this, it was alleged by the Crown, lead to her having successive non-consensual sexual encounters with both accused.It was the defence case that the complainant consented to the first encounter with the co-accused and after that she consented to the second sexual encounter with the appellant.

[4] At the trial the complainant's evidence was that as she was walking past him in the alleyway the co-accused grabbed her by the shoulder, turned her around, and started kissing her.At the same time he pushed the complainant back into a doorway.She said she believed the co-accused was going to her rape her and told him, more than once, he had to use a condom.She also said that she did not want to have sex but in light of her previous experience, when overseas, of being raped, and because she did not want to be hurt, she neither protested nor resisted the co-accused.She said that he pulled down her trousers and underwear while she was on the ground, digitally penetrated her, and at some point had put his penis in her mouth and then in her vagina.When he had finished he left.

[5] At this point the appellant, who had earlier walked away, returned to where the complainant was on the ground.She was in the process of pulling her pants up. He started kissing her forcefully.She said that at some point he put his penis inside her mouth and his mouth on her vagina and that he was licking her. She also said she could not recall if there was any digital sexual connection by the appellant with her.

[6] The complainant said she did not agree to him doing what he did to her. She had not actively resisted the appellant and when asked the reason replied "shock, fear - I don't know."She did not accept she had sent signals that she was willing to participate in the activity.She also recalled running down Tory Street, crying, to the place she was to meet up with her friends.Later that evening one of them telephoned the police and after a discussion between the complainant and an officer she made a formal complaint.

[7] The following day police found a used condom in the alleyway. As a result of a DNA match with the co-accused, the police interviewed him, and then the appellant, some nine months after the incidents.The videotapes of the interviews were played at their trial.In his statement the appellant said he had observed the co-accused having sexual intercourse with the complainant and was waiting for him around the corner when he emerged.The co-accused had gestured to the appellant to go to the complainant who remained in the alleyway, which he did.The transcript of the interview continued:

I go, "Oh," so I went to her and then she goes, "Where's that guy? and then I go, "Oh, he took off," and then she goes "What are you doing to me?" and then "Oh, I was just coming to talk."She goes, "Oh, I'm no good to her if I'm not, if I'm not gonna, if I'm not gonna fuck her, that's what she said.She said that I'm, that I wasn't any use to her if I wasn't gonna fuck her.Then I go "Oh," (laughs) then I go, "Oh, okay I'll fuck you then."That's what I said...

IS:(Nods)

HS:...an she goes "Oh, have you got a condom?"and I go "Oh, nuh, "and she goes "Oh, well then you're no, you're no use" and then I go, "Oh, (Laughs) I can suck you" is what I said and she goes, "Oh, oh yeah" and she goes, "Are you, are you good with your tongue (laughs)?Then I go, "Oh, yeah," and then she goes, she just laid back and she goes "What are you waiting for?" and then we started, oh I started in there having oral sex with her with her and then we were going for about fifteen, twenty minutes an then I stopped and then she, she um, oh, an I helped her put up her pants and button up her shirt an I asked her where she was going after that.She goes `oh, she's going to a party' or something and I asked her if I wanted, if I could go with her and she goes. "Oh, no.Stay here."Then I go, "Oh yeah, sweet as."Then I just watched her walk down the street.

This version of events was repeated by the appellant later during his interview.

[8] A medical examination of the complainant had revealed grit over the surface of her genital area and in her vagina along with vaginal abrasions.During cross-examination the complainant was asked if she had deliberately rubbed grit inside herself to make it appear that she had been involved in a forceful incident.She denied that.The outcome of the trial was that the appellant was convicted on the two counts of sexual violation by oral sexual connection and acquitted on the count of digital penetration.The co-accused was acquitted on the two counts he faced of sexual violation by oral sexual connection, but the jury disagreed on the count of rape.

[9] The appellant's appeal against his conviction is based on the contention that the trial Judge's summing up to the jury was unfair to the extent that it was equivalent to a direction to the jury to reject the appellant's defence of consent or reasonable belief of consent and to convict him.

The summing up

[10] The Judge commenced his summing up with standard directions.At the outset he told the jury:

My function of the Judge is to simply deal with matters of law, so when I talk to you about matters of law I am going to ask you to accept what I say as authoritative because the law is my province, but as the Judge I play no part in making any decisions about the facts that is the province of you the jury. So if I say anything to you which you might interpret as a view about the facts then you should ignore it unless it coincides with your own independent view.

[11] Following directions as to how the jury should approach the evidence against the two accused the Judge dealt with the charges each faced.He then addressed intent and the crucial question of consents and reasonable belief in consent.Then he addressed the evidence as it related first to the co-accused, and then the appellant.The summing up continued:

[42] So in respect of counts 4 and 5 Afele confirms what the complainant said that there was a licking by him of the vagina and he had his penis in her mouth.There is no mention however in the video of putting his fingers into the complainant's vagina and this of course was not put to him by Detective Kearns.

[43] So in essence, there is in respect of counts 4 and 5 an acceptance by Afele that there was sexual connection as described in those counts.He says this was consensual, it was something the complainant asked for and wanted. That she was a very willing participant, that she has lain back and asked him what he was waiting for, there was no indication that she was resisting him in any way or said no.

[44] In respect of these charges, therefore, the issue for you to determine is that of consent.If you accept the evidence of Afele that what occurred was consensual, then you must find him not guilty.If you however accept the complainant did not consent then you must go on to determine whether the Crown has been able to satisfy beyond reasonable doubt there was no grounds for the accused to believe the complainant was consenting to what occurred between them.So again it is entirely a matter of fact for you to decide having observed the complainant giving her evidence and watching a fairly long video. You may feel that his comments to Detective Kearns as to what happened between him and the complainant lacked a sense of reality and that the version of events given to you by the complainant are more credible and is a more likely explanation of what in fact happened.If that is so you may well be satisfied beyond reasonable doubt that Afele could not have believed on reasonable grounds that she was consenting to the acts between them.

[45] Again it is a matter of using your common sense, drawing the appropriate inferences from the evidence, and having seen and observed the complainant it is up to you of course to decide just how likely it would be that the things that attributed to her by Afele or the fact that she was willing to indulge in the sexual acts as suggested by Afele for appears to be 20 minutes or so in a dirty gritty little back street in Wellington could have occurred.However, that is a matter for you to decide on the evidence that you have heard.

[12] At this point in the summing up the Judge interpolated his discussion of the Crown case without making any critical comment concerning it.He then returned to continue his discussion of the defence case, adding as he did so an expression of his own view on each aspect.His first comment was concerning the possibility, raised by defence counsel, that the complainant's vaginal injuries were self inflicted in order to gain the attention and sympathy of her friends on arrival at Tory Street.The Judge said it was difficult to understand why she should inflict injuries on herself to bolster a complaint when she did not seem to want to make a complaint in any event.

[13] The Judge next referred to defence counsel's reference to evidence of two passers-by who had seen the complainant at 11.30pm in Holland Street appearing comfortable and not distressed.His countering observation was that the jury might consider a lot had happened between then and when the complainant arrived at her friend's place just after midnight in a dishevelled and upset state. Counsel had also suggested a link between the complaint made by the complainant to her friend and the argument she had had with the male friend earlier in the evening over his failure to keep an appointment.The Judge's observation on that was that she did not have a sexual relationship with the male friend (which was undisputed) and that he, the Judge, did not have the impression that the complainant was a woman who had been rejected by a lover and who was walking down the street looking for revenge against him.

[14] Defence counsel had also referred to the failure of the complainant, on her evidence, to report to the authorities sexual assaults against her that she said had taken place overseas.Counsel suggested that gave rise to doubt about her credibility.The Judge's comment on this point was "Who knows how people react in different ways".He added that while it was a point that counsel could make, it was up to the jury to assess whether they gave it any weight. Counsel had referred also to the events earlier in the evening saying that they had led the appellant to become emotional and upset, as well as affected by alcohol, and suggesting they may have lead her to react in the way she did. The Judge's comment was that the jury should decide whether any of those events had any significance at all.In relation to counsel's suggestion that the appellant's knowledge that she was going to a party indicated that they had some conversation, the complainant had denied this, saying she was not going to a party but simply going to have drinks with friends.The Judge's comment in putting this defence point was that whether you describe such a gathering as drinks or a party - "who knows".

[15] Finally the Judge referred to the defence general contention that the complaint was false and brought to gain attention.The Judge's comment on this was:

Though again you might want to ask yourself what was the attention she wanted to get and why would she have to go to all that trouble to get attention when she was going to her very best friend's flat for drinks when no doubt she could have got as much attention as she otherwise needed, but those are matters for you.

Submissions on appeal

[16] Mr Davidson for the appellant accepted that the trial Judge had adequately instructed the jury on their function and had put the appellant's defence to the jury.But, he said, at the same time the Judge had put down and demeaned the defence in a manner that went beyond a permissible expression of his view of the facts.Counsel especially criticised paragraphs [44] and [45] of the summing up in which, he said, that the Judge having previously referred to evidence in relation to the defence of consent or reasonable belief of consent, as good as told the jury that the appellant's version of events was unreal and that of the complainant a far more credible version of what happened.This had undermined the appellant's defence.No concern was expressed concerning the less than precise expression of the onus and standard of proof in paragraph [44].

[17] Mr Davidson was also critical of the interpolated comments of the Judge when putting to the jury particular aspects of the evidence which the defence had highlighted.We have summarised above the passages concerned.Mr Davidson referred to what he said were inaccuracies in the way the Judge had characterised the evidence concerned in his responses and submitted that the Judge's approach had re-stated the Crown case giving it unfair judicial weight.

[18] Mr France for the Crown submitted that the essential complaint of the appellant was that he had a better case than the Judge thought he had and the Judge had conveyed that view to the jury.The Judge however was entitled to comment.If he took the view that the appellant's evidence strained credibility he was entitled to put it to the jury, and such assistance as it provided them was legitimate assistance.The Judge was solicitous in reminding the jury of their respective roles and the comments he made on the defence were within acceptable bounds.

[19] He also submitted that the differing treatment of the co-accused by the Judge reflected his different position.The co-accused's alleged offending was different to the appellant involving separate events which were the subject of separate charges.The explanation of the co-accused to the police was, Mr France said, more credible than that of the appellant and there was not unfairness in a different presentation of his defence to the jury.The Judge was entitled to give the jury his view of the defence of each accused, and the balance was provided by the standard direction as to their function and the limits of his own.

[20] To the extent that the appellant's criticisms were concerned with the Judge conveying his views intermittently, at the same time as he put the defence to the jury Mr France submitted that while there might have been some reordering of the Judge's points into a more logical sequence, the fundamental elements of the summing up were all present and clearly conveyed.Accordingly no unfairness resulted.

Decision

[21] The purpose of the summing up of a Judge is to assist the jury to focus on matters of relevance to their verdicts within a structure that is consistent with the legal parameters within which the decisions must be reached. In this case the Judge commenced his summing up with a standard direction as to the functions of the Judge and jury which emphasised that to the extent the Judge gave his view of the facts it should be ignored, unless it coincided with the jury's own independent view.The Judge then directed the jury on its consideration of the evidence and what counsel had said to them about it, and on the manner in which they should draw inferences.He warned them to decide the case solely on the evidence putting aside any matters they may have heard of outside the court room and any feelings of sympathy, anger or distaste about what they had heard.He directed them on the onus of proof and the ingredients of the counts faced by the two accused.No criticism was made of the adequacy of this standard part of the summing up nor of its orderliness or balanced approach.

[22] The essential issue raised by the appeal is whether in putting the defence case to the jury the Judge thereafter gave a balanced and fair presentation of the defence, or whether through what he said or in the manner he said it, he departed from the requirements of fairness.The appellant says that because of the strength of the views expressed by the Judge adverse to the defence case, the marked difference in his treatment of the cases of the co-accused and of the Crown, and the technique of interpolation of the Judge's views as each aspect of the defence case was put, the summing up departed to an unacceptable extent from the well established principles.

[23] It is not of course the law that the requirement of balance in a summing up prevents Judges from indicating their views on the evidence the jury has heard.The balance the law requires of a trial Judge is achieved, not by presenting the respective cases so as to achieve an artificial balance in their apparent strength, but through meeting the fundamental requirement of making the jury aware of its responsibility to form its own view of the evidence and not to accept any expression of the Judge's views as in any respect binding on them.

[24] The point was put this way in R v Honey [1973] 1 NZLR 725, 726-727 in the judgment of Turner P:

Judges in this country are accustomed to indicate to juries fairly plainly what their own views may be on questions of fact which they are for the moment discussing, and which they must presently leave to the jury for resolution. Juries are often greatly assisted by such comments, and indeed in our experience have come to look for them in suitable cases as part of the assistance which an experienced Judge can give.

See also R v McRoberts (CA86/99, 15 June 1999).

[25] Seen in this light the passages in the summing up, and in particular those at paragraphs [44] and [45], which were very critical of the appellant's defence, cannot be considered in themselves to be excessive, in the sense of being significantly stronger than the facts justified.Nor can the subsequent critical passages in the summing up be seen in that light.In a case which was clearly going to turn on credibility in the eyes of the jury it was entirely legitimate for the Judge to invite the jury to focus on the version of events the appellant gave the police when he was interviewed.If they regarded the explanation as lacking a sense of reality, as the Judge suggested they might well think, that would be of assistance in deciding if the appellant was guilty.

[26] We have also given full consideration to Mr Davidson's submission that the Judge's comments in following passages on aspects of the defence either were simply wrong or at least failed to recognise the objective significance of particular passages of evidence.There is nothing in the comments themselves (which we have summarised in paragraphs [12] to [15] above) which causes us concern.The real issue in this case is whether first through his differing treatment of the defence of the co-accused, and of the case of the Crown, and secondly by commenting on each of the defence points as they were being put to the jury, the Judge crossed the limits of what is permissible in a fair summing up.

[27] Plainly the Judge considered the co-accused had a better defence than the appellant and he reflected this view in his summing up.But it must be borne in mind that the accused were not jointly charged in respect of any counts. They were charged in respect of separate events, both in what they were alleged to have done and when they were alleged to have done it.The way in which the Judge addressed the jury made that distinction plain and in those circumstances we do not think that the more critical approach taken to the appellant's version of the events affecting him can be said to have been unduly prejudicial.As to the criticism of the Judge's failure to be critical of the Crown case, that argument is simply another way of suggesting that the Court must strive for equality of treatment in the presentation of the cases of the Crown and the defence.As we have said, it is not and has never been the law of New Zealand that this course should be followed.

[28] We do however accept that there was a lack or orderliness in the way that the Judge presented the defence and Crown case which was unnecessary and unfortunate.Both in his interpolation of the Crown case in the course of discussing that of the defence, and through intervening to express a counter position to each of the elements of the defence, as he summarised and put them to the jury, the Judge departed from common New Zealand practice in the structure of a summing up.Nevertheless, each aspect of the defence was put in a way that was clear and the issues which the jury had to address, essentially consent and reasonable belief in consent, were on the particular facts of the case faced by the appellant straightforward.And the Judge's reminder that the facts are a question for them will have carried force with the jury. As the Court said in McRoberts such a firm if standard direction is not for jurors a "hollow rite" (para 10).In those circumstances we do not consider that the defence was compromised by the structure of the summing up nor by any other aspect of the treatment of the defence case. The contention that the summing up undermined the appellant's defence accordingly fails.The appeal is dismissed.

Solicitors

Greig Davidson Gallagher & Co, Wellington, for Appellant

Crown Law Office, Wellington, for Crown