R v Raleqe CA223/03 [2003] NZCA 365 (23 October 2003)

Last Updated: 1 January 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA223/03

THE QUEEN

v

SAMUELA MATEBA RALEQE

Hearing: 15 October 2003 Coram: McGrath J
Goddard J Laurenson J

Appearances: J Westgate for Appellant
JM Jelaś for Crown Judgment: 23 October 2003

JUDGMENT OF THE COURT DELIVERED BY LAURENSON J

[1] The appellant was found guilty by a jury in the District Court at Dunedin on 29 May 2003, on one count of rape. He now appeals against conviction.

Background

[2] The complainant is a university student. She attended a party at a friend’s flat on 26 April 2002 where she became so intoxicated that friends were required to attend to her. They took her to a bedroom where they ensured she was all right, then left her unconscious, to recover. It was alleged the appellant had gone into the room

R V SAMUELA MATEBA RALEQE CA CA223/03 [23 October 2003]

and raped her while she was still unconscious, that in the course of doing so he was interrupted by friends who had come back to check the complainant, and that the appellant had then made good his escape.

[3] The complainant was told what had apparently happened and then became greatly distressed as a result. Finally, after two weeks she decided to make a complaint to the police. The appellant when interviewed alleged that the girl had consented. The jury did not accept this defence.

[4] The appellant has now appealed against his conviction for rape, submitting that the learned District Court Judge’s summing up to the jury was wrong in a number of respects, namely:

1. The sole issue at trial was the issue of consent. Accordingly, the jury had been required to determine an issue of fact, namely whether the complainant’s evidence that she was intoxicated to the point of unconsciousness and hence unable to consent, was credible;

2. The appellant had submitted that she had, in fact, sobered up to the extent she had consented or that he had a reasonably based belief she was consenting;

100. Trial counsel had submitted that there was evidence to indicate the complainant had lied as to her condition at the relevant time by reference to her actions immediately afterwards, namely the delayed complaint; the nature of her contact with witnesses before making her complaint, and inconsistencies in statements made prior to trial;

4. Against this background this was a case where a direction was required from the trial Judge as to the significance of pre-trial admissions which would, in turn, have raised the issue of the complainant’s reliability or otherwise. No such warning was given;

5. Furthermore, it was submitted the Judge had mis-stated the evidence by referring to the complainant’s lack of recall as to the circumstances of the alleged rape when, according to the evidence, she was able to do so when cross-examined;

6. The effect of these two alleged errors was to erroneously bolster the complainant’s credibility, or at worst, tell the jury to ignore the issue of her credibility altogether and focus on other aspects of the case.
7. The position was compounded by the Judge’s direction to the jury that they should focus their attention on the point when the friend had come into the room, thereby artificially and unfairly narrowing the jury’s focus away from other surrounding circumstances which had a direct bearing on the defence of consent, or belief based on reasonable grounds there was consent.

[5] Stated simply this was a case where the issue of consent was paramount and, given the onus on the Crown, the key factor was an assessment of the complainant’s reliability.

[6] In support of the submission that the Judge had mis-stated the evidence as to the complainant’s lack of recall, counsel for the appellant made reference was made to paragraph [48] of the summing up:

[48] I just have a couple of final comments. This rape trial is a little bit unusual in the sense that it is an issue of consent and yet in effect, we only have the account from one party. We normally would have an account from both the complainant and the accused, in other words the two people involved. Here the complainant says that she has no recall. What is suggested is that the complainant cried rape and that it was a complete fabrication. Two things are interesting about [sic]. If that is the case, then you may think it is curious that she does not give any description of a rape. She claims no recall at all. Secondly, it seems that if you believe her evidence then it was the others who told her that she had been raped. So it came from the others.

[7] Under cross-examination by defence counsel, and by reference to prior statements she had made to the police and at depositions, it was put to the complainant that she did in fact have some recall of events, namely the presence of her friends whilst she was in the bedroom, and being conscious of some person’s weight upon her and someone’s penis inside her and a thrusting movement.

[8] The complainant had also agreed that she had, at first, declined to give the police the names of witnesses until after she had spoken to them, her reason being that she didn’t know who the witnesses were.

[9] In support of the submission that the jury had been incorrectly directed to focus on the point when the friend had entered the room when intercourse was taking place, counsel for the appellant referred to paragraph [34]:

[34] It seems in this case that what is really important for you to decide is what was the complainant’s state, particularly at the point when [her friend] came into the room and found the accused having sexual intercourse with her. This is really where you need to focus your attention. I mean it is all very well I suppose to say what she was like a couple of hours before, but this is a case where we have evidence of people who saw her at the relevant time. So I am suggesting that you should really concentrate on her position at that point because that is when the issue of consent clearly arose.

[10] In reply counsel for the Crown submitted:

1. The absence of a direction regarding the complainant’s reliability was not required, nor did it result in a miscarriage of justice;

2. Pre-trial references by the complainant as to the actions of her friends putting her to bed, and later checking on her, in fact arose as a result of what her friends told her later;

100. References by her to someone lying on her and a penis being inside her were not as a result of any overall memory of the event, but rather as glimpses of events during her state of intoxication;

4. The jury would have been aware that the credibility of the complainant was the central issue to be determined because her evidence and that of the appellant were irreconcilable. In particular it had been put to the complainant that her evidence was a deliberate attempt to save her embarrassment when she was found to be participating in what was a consensual act of intercourse;

5. The summing up was not such that the jury would have been left in any doubt as to what was the central issue;

6. There was other independent evidence which corroborated the complainant’s evidence as to her state when found, and that this was inconsistent with her being able to consent or to have appeared to be consenting,

Discussion

[11] There can be no dispute but that the central issue in this trial was that of consent. It is equally apparent that the evidence of the appellant and the complainant were irreconcilable. The appellant had said he had found the appellant on a bed in a bedroom. They started talking after she sat up giggling and laughing. This had progressed to cuddling and kissing. The complainant had then acted promiscuously which had led to them having sex. He said “we had just started having sex when I
realised someone was standing next to the bed”. The appellant said he was shocked and embarrassed and had then left.

[12] The complainant, on the other hand, said:

1. She had got intoxicated;

2. She learned afterwards that friends had put her to bed;

100. She remembered nothing until she was woken up and told she had been raped;

4. She had no clothing on below her hips;

5. She was still drunk, screaming and hysterical. She left the flat to find her boyfriend and eventually met her friends and returned to her own flat;

6. She had no recollection of intercourse other than momentary glimpses, but realised later that this had occurred;

7. Afterwards she had felt too ashamed to remain around the university and was scared of meeting the appellant. She had delayed her complaint to the Police until she returned to Dunedin about two and a half weeks later.

8. The complainant was able to provide plausible explanations as to the apparent inconsistencies in her previous statement;

1. Her memory of having had someone’s weight on her and a penis inside her was explicable in the circumstances and did not necessarily imply she had a recollection of the full circumstances of the event.

10. The summing up, at paragraph [48] did not misstate the evidence as to the complainant’s recall because this part of the summing up had to be read in the context of the preceding paragraphs which had encompassed the submissions made on behalf of the appellant, including those as to the complainant’s lack of reliability.

11. The acceptance by the complainant of pre-trial statements made by her did not detract from her position that she had no recollection of the intercourse at trial;

50. The trial Judge was quite entitled to direct the jury that the issue of consent was to be determined at the time of intercourse given that a witness observed intercourse actually taking place.

13. In the context of the whole summing up the direction to concentrate on the observed act of intercourse would not have resulted in the jury disregarding the evidence of the appellant.

[13] Under cross-examination the complainant accepted that in an earlier statement, and in her deposition statement, she had said:

I don’t recall how long I was in bed for. I remember people coming in to check on me. [Three named friends, including her boyfriend] came in. They would say are you OK? I would just mumble some reply.

Sometime during the time I was in bed I felt someone lying on top of me. I just felt the pressure on top of me. I felt a penis inside my vagina. I remember feeling thrusts inside me. Just one and then I must have gone out to it again. I could feel his body on top of me. I cannot say whether he was clothed or not.

I was in and out of consciousness. The next thing I remember is my flatmate coming over to me in the bed. I was moaning something like, get [her boyfriend]”. She said, ‘that wasn’t [her boyfriend]’. I don’t remember my exact words, but at that point I remember being violated and lost it. I got up screaming and yelling with no pants on.

[14] The cross-examination was in detail and took some time. In summary her explanation was that she had relied on what her friends told her as to their movements and what they had done for her. As to her recollection of someone lying on her, a penis being inside her and thrusting, she denied having no recall. We note that when these matters were put to her by the prosecutor, her answer was interrupted by an objection from defence counsel. She did say, however, that those references came “from flash backs I have”. As to her dealings with witnesses afterwards and her failure to advise the Police who they were, she indicated that one of her friends had got all their names and admitted that she wanted to talk to them first.

[15] The evidence of the friends who found her was significant. In summary they said:

The complainant’s eyes were closed and she was unresponsive to Ms Tait calling her name. When she did respond she did not appear to know what had happened. When the complainant was able to comprehend to some

extent what had occurred she became upset and was crying. She tried to sit up but was having difficulty doing so. She tried to get up but stumbled. She did not appear to notice that she had [no] pants on. Friends told her she was not fully dressed and put a blanket around her.

[16] It is against the background of this evidence which we have summarised above, that the summing up has to be considered. For a start it should be noted that near the start of the summing up there was a clear direction (paragraphs [7] and [8]) that it was the jury’s function to determine what evidence they would or would not accept from a witness and how they should consider matters of credibility and reliability.

[17] Having considered the summing up as a whole, we have concluded that the direction in paragraph [48] to which objection has been taken, cannot be viewed in isolation. It followed brief, but apparently comprehensive, recapitulation of the competing accounts and those of the independent witness. In particular, specific reference was made in paragraph [37] to the cross-examination of the complainant, and in paragraph [46] the criticism levelled at the complainant. The appellant’s counsel agreed that in this latter paragraph the Judge largely and fairly encapsulated his arguments before the jury.

[18] Viewed in this light we do not consider it can be said the Judge misstated the evidence as to the complainant’s recall. He was simply stating the complainant’s position at the end of a quite lengthy review of the competing evidence. In the course of doing so nothing was said to detract the jury from a consideration of the central issue, namely the issue of consent and the issues of reliability and credibility which were, in turn, central to the resolution of this issue.

[19] We have reached a similar view in relation to the content of paragraph [34]. Having correctly directed the jury (in paragraph [31]) that the issue of consent fell to be determined at the time intercourse took place, the Judge was fully entitled to make the direction he did in paragraph [34]. There were two particular reasons why this was appropriate in this case. First, there was independent evidence as to what was observed at that time. Secondly the accused had said in evidence that the friends had arrived when intercourse had just started.
[20] As to the appellant’s submission that a direction should have been given regarding the effect of the complainant’s acceptance of the contents of the pre-trial statements, we agree that such a direction would have been appropriate. Having said this, we are also unanimously agreed that the failure to do so did not produce any injustice to the accused. Here we again refer to the fact that the nature of the evidence would have made it abundantly clear that credibility was the central issue. The competing evidence was referred to fairly and adequately and perhaps most importantly, defence counsel’s criticisms arising from the allegedly inconsistent evidence were specifically referred to.

[21] Appellant’s counsel also referred to the complainant’s actions after the incident and, in particular, her subsequent dealings with the Police. The complainant’s explanation regarding these matters is not particularly clear. However, given her uncontested evidence as to her state of distress afterwards, and her absence from Dunedin immediately afterwards, together with her professed lack of knowledge as to what had occurred, we do not see that there is any element arising from this factor which could be said to have detracted from a verdict of guilty from the jury which had, in our view, ample evidence upon which to reach the verdict it did.

Decision

[22] For the above reasons we are unanimously agreed this appeal should be dismissed.

Solicitors:

Crown Law Office, Wellington