R v SL CA245/03 [2004] NZCA 377 (25 February 2004)

Last Updated: 25 July 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA245/03

THE QUEEN

v

S L

Hearing: 16 February 2004

Coram: O'Regan J Goddard J Randerson J

Appearances: M F Tuilotolava for Appellant
K Raftery for Crown Judgment: 25 February 2004

JUDGMENT OF THE COURT DELIVERED BY RANDERSON J

Introduction

[1] On 20 March 2003 the appellant was convicted after trial by jury of the rape of the victim M on 11 December 2001 at Auckland. The trial Judge, Judge Gittos, sentenced him to six and a half years imprisonment on 15 April 2003 and now appeals against both his conviction and sentence.

R V S L CA CA245/03 [25 February 2004]

Background facts

[2] The rape allegedly occurred at a party at an Auckland address attended by M, her girlfriend A, and a number of others. M was aged 15 at the time and admitted deceiving her mother by telling her she was going to stay elsewhere with a friend on the night in question. Those living at the address included the appellant, his younger brother T L, and a friend J La. M was acquainted with J
La but not with the appellant who was aged 21 at the time and was married.

[3] During the evening, M admitted having consensual sex with J La
(then aged 15 years) in an upstairs bedroom. It is not in dispute that they were interrupted by the appellant knocking on the bedroom door. J La left the
room and the appellant asked him if “he could go next”. J La agreed to this
proposal although, as the Judge observed, M was not consulted on the issue nor was she aware of the discussion between the two men. The appellant and J La
agreed that the appellant would wear items of J’s clothing for the purpose (admitted by the appellant) of deceiving M into believing that he (the appellant) was J.

[4] M was asked to wait in another bedroom which she did. The appellant then entered the bedroom wearing items of clothing belonging to J La. Although the room was darkened, she quickly realised that the appellant was not J La. At this point, the accounts of M and the appellant diverge. M’s evidence was that the appellant grabbed her by the shoulders and upper arms and that she was held quite tightly. The appellant told her not to make any noise and pushed her on to the ground. He pulled her skirt up, lay on top of her, and commenced having vigorous sexual intercourse with her. She told him that he was not J
and told him to stop. He continued, notwithstanding her protests. She gave up struggling because he was too strong and was lying on top of her. He then grabbed her by the arm, pulled her out of the bedroom, and took her downstairs. He then pulled her along behind him across the grass outside. She finally managed to get away and then confronted J La, telling him what had happened.
[5] In evidence, the appellant admitted having intercourse with M but maintained that she consented. He admitted lifting her skirt up but claimed she had been responsive to his advances and gave every indication by her bodily movements and otherwise that she was consenting to and enjoyed what took place. Afterwards, the two of them went downstairs (quietly in case his sister knew that they were coming from the bedroom) and holding hands. Later, M was standing around talking to friends. The appellant denied any suggestion that he had used force on her at any stage.

[6] The account given by the appellant in evidence differed in material respects from his video interview with the police two days after the incident. In that interview, he admitted he had been drinking “heaps” of alcohol that evening prior to the incident and when asked for an explanation as to his conduct, he stated that he thought he was “too drunk”. He admitted wanting to have sex with the girl and, near the end of the interview, admitted he was ashamed of what he had done. He expressed his regret for what had happened and promised not to do it again. He asked the police officer at the end of the interview if he would apologise to M “for my wrong”.

[7] Some attempt was made in evidence to explain or diminish the impact of these admissions. For example, the appellant gave evidence that he did not mean to say that he had personally drunk a large amount of alcohol but, rather, was sharing alcohol with the others present. As well, he explained that when he apologised, he was really saying he was sorry for the deception that he and J La had attempted to perpetrate on M.

[8] There were some other discrepancies between the police statement and the evidence given in court by the appellant but, in general, the gist of the appellant’s statement was that M had not raised any objection to having sexual intercourse and was kissing him and giving him other indications of consent. It was not expressly put to him that he had forced her to have sex with him.

[9] There was recent complaint evidence called by the Crown from both A and J La. A’s evidence was that after the incident, she and M walked to some
nearby shops and M told her that the appellant had “come in and raped her”. She appeared shocked and angry although she was not tearful. At the time this statement was made, they had just left the address and were across the street. Later they went back to the address because T L had told the appellant to go upstairs.
J La’s evidence was that when the appellant and M came back downstairs
from the bedroom, M approached him and told him he was “a dick” or was “sad” and that “she got forced”.

[10] In cross-examination, he did not resile from his evidence about what he was told by M but said he had seen M and the appellant coming down the staircase slowly and holding hands, and she appeared to be normal to him. When asked whether she was smiling he replied “not till she came up to me”.

[11] Dr Christine Foley also gave evidence for the Crown following her examination of M the day after the incident. She found four areas of redness on the neck, the right lower chest wall, the left front shoulder area, and the right side of the left upper arm. An examination of the vaginal entrance revealed two areas of redness and tenderness. Her conclusions were that the findings were suggestive of some degree of recent trauma but not diagnostic of such. The remainder of the examination was within normal limits leading Dr Foley to conclude that her examination neither confirmed nor denied the history of recent sexual assault. In evidence, she explained that bruising might not appear within the first 24 hours after a sexual assault of the kind alleged and the redness or tenderness found in various places on examination could have had a variety of innocent causes.

[12] Dr Foley deposed that the redness on the neck was non-tender to touch. Her conclusion was that it was “non-specific” in that it could have been caused by a birthmark, a skin infection, or recent pressure or trauma to that area. Dr Foley was able to say that the redness and tenderness to the left upper arm was more likely to have been caused by trauma or some degree of pressure on the skin than from other causes. She was able, therefore, to put more weight on trauma or pressure as a cause for the marks found on the upper arm than the lower chest wall area where there was tenderness but no surface abnormality.
[13] Apart from his own evidence, the appellant called his younger brother T L who was 16 at the time of the incident. After the alleged incident, he
saw M come downstairs. She seemed normal to him and did not make any complaint to him either then or subsequently. He did not know at the time that she claimed to have been raped by the appellant and he did not see her crying at any stage.

Grounds for appeal against conviction

First ground

[14] The first ground of appeal is that the summing up was unbalanced and over-emphasised the Crown case at the expense of that of the defence. We are not persuaded that this submission has any substance. It is true that the Judge spent more time in the summing up on the Crown case than that of the defence. That is not unusual and generally stems from the fact that the Crown tends to call rather more evidence than the defence. This case was no different in that respect. What is important is that the case for each side is adequately and fairly put, even if less time is spent on the latter than the former.

[15] Here, the key issue was that of consent upon which the evidence of M and the appellant diverged. For the jury, it was essential to determine whether they could accept M’s account as truthful. On her evidence, if accepted, there could be no doubt that she did not consent and the appellant could not reasonably have been under any misapprehension that she was consenting. The Judge correctly explained to the jury the elements the Crown was required to prove and correctly reminded them of the onus and standard of proof.

[16] Dealing with the defence case, the Judge:

1. Dealt at some length with the defence submission that M had lied comprehensively to her mother about where she was going that

evening and observed that there did not seem to be much doubt about the fact that M and A were out looking for a party that night.

2. Stated that the doctor was not able to say with clarity that the marks found on M on examination were caused by blunt trauma, only that they were consistent with pressure or trauma. He correctly noted, however, that they were also consistent with other medical conditions. The Judge said the jury could not say definitely that she had bruising, only that she had marks which might develop into bruising but might equally be some other thing; the medical evidence was neutral about what caused these marks and that “the only significance of it is that there are marks in a number of places on her body that you may find relevant to the evidence that she gave”.

100. Referred to counsel’s submissions that there were no injuries or scratches to the appellant, suggesting forceful resistance, and no evidence of cries or screams from M.

4. Referred to counsel’s submission that it was not necessarily ridiculous that two complete strangers might have agreed to a sexual encounter in these circumstances and the reasons for that submission.

5. Stated there was support for aspects of the appellant’s account from J La and T L.

6. Mentioned counsel’s submission that the plan of deception did not work and so there was no question of consent being obtained through deceit.

7. Referred to the appellant’s account of what happened and instructed the jury that if they accepted that account, then they would conclude “that there was every reason for him to believe that she was consenting, even if in her own mind she was not”.
8. Reiterated counsel’s submissions about the admissions made in the appellant’s police statement and to the difficulties for the appellant given that English was not his first language.

1. Concluded with a conventional direction about the three possibilities open to the jury where an accused person gives evidence.

[17] In relation to some of the issues raised by the defence, the Judge mentioned counterveiling factors which the jury would need to take into account. But we are not persuaded that he did so unfairly or in an unbalanced way. For example, after referring to the evidence of J La and T L, the Judge observed that
the jury would need to think about how reliable they were as witnesses, bearing in mind that the jury might think that they were quite closely connected to the accused’s household. We do not see any unfairness arising from these remarks.

[18] It was not in dispute that both these witnesses were either related to or were friendly with the appellant and that they were living in the same household with him. That was clearly a factor for the jury to weigh. We see no unfairness in the Judge pointing that out. He was careful to leave it to the jury to reach their own conclusions.

Second ground

[19] The second ground of complaint, which is really an aspect of the first, is that the Judge over-emphasised the medical evidence in his summing up. It was said that in view of the fact that the medical evidence was equivocal, the Judge should have simply drawn the jury’s attention to that fact quite briefly and made it clear that the evidence was neutral, neither supporting the Crown case nor refuting it.

[20] We have already dealt with Dr Foley’s evidence in some detail and it is unnecessary for us to repeat what she said. While, in general, her findings were neutral, she was able to say that the redness and tenderness observed in relation to the upper arm were more likely to have been caused by trauma or pressure on the skin in that area. While, by itself, the evidence could not prove beyond reasonable
doubt that the appellant had caused the redness by holding M’s upper arm during the alleged rape, it was evidence which the jury was entitled to put alongside M’s own evidence and to take into account to that extent. We do not see anything improper in the Judge’s summing up in that respect.

[21] Linked with the way the Judge treated the medical evidence was a submission that the Judge had wrongly discounted a submission made on behalf of the appellant in counsel’s closing address to the effect that the redness found by Dr Foley on M’s neck could have been attributed to a love bite. This suggestion was not put by defence counsel to the complainant or Dr Foley but was raised for the first time in counsel’s closing address. We were told that counsel discussed this issue in chambers with the Judge after the closing addresses and before summing up. It was said that the Judge had asked about counsel’s reference to a love bite in closing and had stated that he would not comment upon it.

[22] The trial transcript shows that this issue was raised again by defence counsel with the Judge in chambers after the summing up. The Judge is recorded as responding that he had changed his mind about not commenting on that matter because he was dealing with the doctor’s evidence in total and he thought some comment about it was required.

[23] We agree that it was quite appropriate and, indeed, on one view, required of the Judge, that he should tell the jury, as he did, that there was no evidence to support the suggestion made by counsel that the mark was a love bite. He reminded the jury that what they made of it was an issue for them. We see no impropriety in that respect.

Third ground

[24] The final issue raised on behalf of the appellant was that the Judge had wrongly failed to negate or deal with remarks said to have been made by Crown counsel about the manner in which J La and T L gave their
evidence. The precise terms in which Crown counsel referred to their demeanour is
not clear but some reference was made to those witnesses giving evidence with their head down.

[25] This was another issue which defence counsel raised with the Judge after the summing up was concluded. It was said that cultural differences might account for Polynesian witnesses giving evidence in that matter and it was not necessarily an indication of reluctance or dishonesty. The transcript shows that the Judge concluded that Crown counsel was entitled to make observations about the demeanour of the witness and it was not necessary for him to balance those submissions with an observation to the contrary. We agree, particularly when it is clear that defence counsel herself responded in her closing address to the issues raised in that respect by Crown counsel. That material would have been clearly in the minds of the jury.

Appeal against sentence

[26] In his sentencing remarks, the Judge concluded there were no severe aggravating features other than the pre-meditation; the subterfuge; and the fact that the complainant was only 15 years of age at the time. In the last respect, he noted that the complainant had experienced some difficulties in her social circle as a result of the incident but he considered she was a reasonably mature 15 year old. He accepted counsel’s suggestion that the complainant was someone who, to some extent, was open to some sexual encounters that evening. In the Judge’s view, however, that did not excuse the appellant’s conduct.

[27] The Judge recorded that the appellant still held the view, as expressed to the probation officer, that M had consented to the sexual activity and the Judge expressed some concern that despite some signs of remorse, the appellant was still regarded as a person with a moderate risk of re-offending. The Judge endorsed the recommendation of the probation officer that some counselling was required to improve the appellant’s attitude in that respect.

[28] The Judge saw a number of mitigating factors including the absence of any real violence apart from that inherent in the act of rape itself; the relative youth of
the appellant; the absence of any previous convictions (which caused the Judge to take the matter as “an isolated lapse brought on, perhaps, by the opportunity and the bravado of drink”); and the likelihood that, as an overstayer from Tonga, the appellant would be deported thereby separating him from his wife and young child.

[29] The Judge then referred to the purposes of the Sentencing Act and adopted a starting point of eight years imprisonment in reliance in R v A [1994] 2 NZLR 129 (CA). The Judge concluded that having regard to the factual background and the mitigating circumstances, a sentence “somewhat below the tariff benchmark” could properly be imposed and arrived at a sentence of six and a half years imprisonment.

[30] For the appellant, Ms Tuilotolava submitted that insufficient weight had been put on the mitigating factors including, in particular, the risk of deportation. She also submitted that too much emphasis had been placed on the subterfuge as an aggravating feature, bearing in mind that it was unsuccessful. This had resulted in a sentence which was manifestly excessive. Ms Tuilotolava was unable to advance any authorities which, on similar facts, supported her submissions.

[31] We are not at all persuaded that the sentence was excessive, let alone manifestly excessive. The Judge properly weighed the aggravating and mitigating factors and the sentence was well within the range available to him. The subterfuge adopted by the appellant supports the Crown contention that there was a degree of pre-meditation and an obvious design to obtain M’s consent by trickery. The obvious inference is that the appellant knew it was unlikely M would consent to sexual relations and that it would be necessary to resort to a disguise to enable him to achieve his objectives. When M realised what was happening, the appellant used force and the unwanted sex then followed.

[32] We accept Mr Raftery’s submission that in those circumstances, it would have been open for the Judge to have adopted a higher starting point before mitigating factors.

[33] Nor do we accept the submission that inadequate weight was given to the likelihood of deportation and the other mitigating factors. As the appellant was
already an overstayer, it was by no means certain that he would be able to stay in the country in any event. We accept that if he is deported, there will be a degree of disadvantage to him (assuming that his wife and child elect to stay in New Zealand). But in the circumstances of the case, we do not consider that any greater allowance was required than that adopted by the Judge.

Result

[34] For these reasons, the appeal against both conviction and sentence is dismissed.

Solicitors:

Ferguson Tuilotolava, Auckland for Appellant Crown Solicitor, Auckland