R v Hewes CA435/04 [2005] NZCA 385 (2 November 2005)

Last Updated: 21 January 2014

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

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA435/04

THE QUEEN

v

BRENDON PAUL HEWES

Hearing: 19 October 2005

Court: Chambers, Potter and Doogue JJ Counsel: G C Gotlieb and J R Smith for Appellant

A R Burns for Crown

Judgment: 2 November 2005

_{JUDGMENT OF THE COURT}

A The conviction for indecent assault (Count 2 in the indictment) is quashed and we direct a judgment and verdict of acquittal on that count to be entered.

_{B The appeal in all other respects is dismissed.}

R V HEWES CA CA435/04 2 November 2005

REASONS

_{(Given by Potter J)}

Table of Contents

_{Para No}

Introduction [1] Factual background [4] Grounds of appeal [10]

1. The Judge erroneously prevented cross-examination on prior

inconsistent statements [11]

b) Tension between counsel and the

Judge [22] c) Inappropriate intervention by the Judge [23] d) The summing-up was erroneous [26]

e) Incorrect response to jury question

about consent [35]

Outcome of the appeal [43]

Introduction

[1] Brendon Paul Hewes appeals against conviction on two charges of sexual violation and one charge of indecent assault. The Crown resists the appeal except in respect of the conviction on the charge of indecent assault.

[2] The appellant was convicted following trial by jury and was sentenced to eight years imprisonment on the sexual violation charges and 18 months imprisonment on the indecent assault charge to be served concurrently. This was the second trial of these charges, the first trial having been aborted because it was made known to the jury that the appellant was facing trial in relation to other alleged sexual offending.

[3] For the appellant an affidavit by trial counsel Mr Shane Cassidy was filed on

17 October 2005. By memorandum of 18 October 2005 the Crown objected to the

affidavit being accepted on the grounds that it contained inadmissible evidence. We agreed to accept the affidavit pending submissions. There is no doubt that parts of the affidavit are inadmissible and cannot be considered. We have ignored those parts but have considered the balance of the affidavit when reflecting on the issues raised by this appeal.

Factual background

[4] On the night of 14 October 2002 the complainant T, aged 18 years, was visiting a friend S who lived in Pukekohe. She arrived there at about 7.30 p.m. and began watching television with others. At about 9 p.m. the appellant and an associate arrived at S’s place. They asked T and S whether they wished to attend a gathering of friends at another address. The appellant and his associate then left for that address and shortly afterwards T and S followed. T and S remained at the other address only a brief time and returned to S’s place at about 11 p.m. T decided to stay overnight and made up a fold-out bed in the corner of S’s bedroom. She went to bed wearing pyjamas over her underwear and drifted off to sleep. S was in the same bedroom doing course homework.

[5] About an hour later the appellant and his associate arrived back and entered S’s bedroom. The associate lay down on S’s bed and fell asleep. The appellant lay down beside T on the fold-out bed. Shortly afterwards S left the room to sleep in another room.

[6] The appellant then got up, switched off the light, undressed himself, and climbed back into T’s bed under the blanket. T was facing the wall. The appellant pulled her pyjama pants and underwear down to her ankles, rubbed the outside of her vagina, then digitally penetrated her vagina. T struggled to move away from the appellant, who was both considerably older and bigger than she was, and repeatedly said “no”.

[7] The appellant then pulled T onto her back. He grabbed her two hands and rubbed them on his erect penis. He tried to force her head down towards his penis. She struggled to resist this and kept saying “no”. She turned over on her stomach

and arched her back. But he knelt on the back of her legs and forced her legs apart with his knees, then penetrated her vagina from behind and proceeded to have sexual intercourse to the point of ejaculation. The appellant then left the bedroom and had a shower in the bathroom

[8] When S entered the bedroom shortly afterwards, T complained to her that she had been raped by the appellant.

[9] The appellant did not dispute that the various sexual acts took place. He said that the sex was consensual. He did not give evidence at trial but relied on a video-taped interview with the Police.

Grounds of appeal

[10] It was submitted for the appellant that a miscarriage of justice has occurred in that:

1. The Judge erroneously prevented cross-examination on prior inconsistent statements;

2. There was obvious tension between the Judge and the appellant’s counsel;

c) The Judge inappropriately intervened in the trial;

d) The summing-up was erroneous;

e) The Judge responded incorrectly to a jury question about consent.

1. The Judge erroneously prevented cross-examination on prior inconsistent statements

[11] It was submitted for the appellant that the trial judge, Judge Deobhakta, declined to allow defence counsel to cross-examine witnesses as to prior inconsistent

statements given in evidence in the first trial and that the inability to cross-examine in this way was prejudicial to the appellant.

[12] The Judge issued two rulings, both dated 30 August 2004. The first was made during cross-examination of T when in response to a question from the appellant’s counsel, T said:

She [S] came in and wanted to know who was in the shower. Q. Are you sure that’s what she said?

A. Yes.

Q. Well just to be fair to you, on a prior occasion S has said or agreed with my proposition that she thought Mr Hewes was just having a shower ...

[13] At that point the Judge intervened and heard from counsel in the absence of the jury. Mr Cassidy for the appellant, insisted that he was entitled to cross-examine “on a prior inconsistent statement” and he wished to put to the witness T, evidence on this matter given by S in the previous trial. The Judge ruled the evidence inadmissible.

[14] The Judge gave two reasons for his ruling. The first was that S was yet to give evidence in the current trial. It was not known what she would say on this topic. This reason was correct. This line of questioning could not be justified on the grounds of “prior inconsistent statement”, the justification given by Mr Cassidy at trial and Mr Gotlieb before us. It was not a prior statement at all of the present witness.

[15] The Judge’s second reason was that, in any event, a prior inconsistent statement from the first trial could not be put because there was no way of proving the transcript. Mr Cassidy vigorously debated that reasoning with the Judge. On that point Mr Cassidy was right and the Judge was wrong. It is, of course, possible to cross-examine a witness as to what he or she said at a previous trial; as to how a trial judge should deal with that, see R v Tubou (1989) 4 CRNZ 362.

[16] The ruling was therefore correct for the first reason given by the Judge, but not for the second. We may add that there was a further reason why the evidence was inadmissible. We know that Mr Cassidy, had he not been interrupted during the course of the second question quoted in [12] above, was going to go on to say something along the lines, “because he had just had sex with you”. The point, we suppose, was that it was less likely that S would have asked “who was in the shower” if she had had that thought. It is clear that T could not sensibly be asked about what someone else may have been thinking. The question was obviously inappropriate and both it and any answer to it inadmissible. Mr Gotlieb, when asked to justify the question, was unable to do so.

[17] The second ruling was made when counsel for the appellant was cross-examining S:

Q Did you think it unusual that someone was having a shower in your house around midnight?

A Yes.

Q. Well did it cross your mind at the time that it was Mr Hewes that was having a shower?

A No.

Q Well given what you had observed earlier between Mr Hewes and T did you think that he was having a shower because he had just had sex with T?

A No.

[18] At that point counsel advised the Judge that he had an application to make and would require a written ruling. The Court adjourned for the day and the Judge heard the application in the absence of the jury. Mr Cassidy referred to the Judge’s earlier ruling. He made application to put to S an answer she had given at the earlier trial which was inconsistent with the evidence she had just given. At the earlier trial Mr Cassidy had put the following question to S:

Given what you’d observed earlier between Mr Hughes and T did you think that he was having a shower because he’d just had sex with T?

[19] At the first trial, S had answered:

I thought that, yes.

[20] The Judge ruled that the prior inconsistent statement could not be put to S because Mr Cassidy was not in a position to prove the transcript of the first trial. In saying that, the Judge was, with respect, wrong. That was not a ground for prohibiting the proposed question. But the ruling was nonetheless right for a different reason. S’s thoughts on the topic were inadmissible. The fact that evidence concerning them had crept into the first trial did not mean that a similar error should occur in this trial. S could be asked about what she saw or heard, but what she was thinking was irrelevant. In any event, whether sexual intercourse took place between T and the appellant was not an issue at this trial: this trial was all about whether or not T consented to sexual intercourse. S’s “thoughts”, even if otherwise admissible, shed no light on that issue.

[21] Mr Gotlieb did not refer us to any other instances where counsel had been prevented from putting prior inconsistent statements. Mr Cassidy in his affidavit does not refer to any questions which he would have put but for the Judge’s rulings. In these circumstances, we conclude that this ground of appeal fails. The challenged rulings were correct, if not for the reasons the Judge gave for them.

b) Tension between counsel and the Judge

[22] Mr Gotlieb submitted that “palpable tension between the trial Judge and defence counsel ... arose as a result” of the Judge wrongly preventing cross- examination on prior inconsistent statements, and this, Mr Gotlieb submitted, “caused the jury to be unfavourably disposed to the accused”. We accept that the exchange between Mr Cassidy and the Judge did become testy, especially during the hearing leading to the second ruling. But that exchange all took place in the absence of the jury. Further, the ruling was, as we have found, correct even if given for the wrong reasons. Mr Cassidy was attempting to draw out inadmissible evidence. Mr Gotlieb did not refer us to a single passage in the transcript while the jury were present as providing support for the submission as to “palpable tension between the trial Judge and defence counsel”. He did not refer us to a single exchange between the Judge and Mr Cassidy which could in any way be said to have been inappropriate

conduct on the Judge’s part leading to the jury to be unfavourably disposed to the appellant.

c) Inappropriate intervention by the Judge

[23] It was submitted for the appellant that intervention by the Judge was in some instances inappropriate. When pressed by the bench, however, Mr Gotlieb could point to only one case where he submitted that the Judge’s intervention had been inappropriate.

[24] When Detective Graeme Wood was giving evidence, Mr Cassidy addressed questions in cross-examination concerning his experience with drug related offending, drugs such as cannabis, LSD and methamphetamine and other drug related items. The Judge intervened to ask the relevance of the questioning and when counsel continued with a question about whether the Detective had dealt with people under the influence of methamphetamine, the Judge again intervened stating that the evidence was of no relevance whatsoever as to how that drug affected “this woman” T, who had admitted to having a couple of puffs of “P” earlier in the day in question, or the appellant.

[25] The Judge’s intervention was entirely appropriate as Mr Gotlieb was ultimately bound to accept. The Detective could not give evidence as to the effects of methamphetamine use by the appellant or T, as he had not seen either of them on the day in question, and cross-examination directed to his general knowledge and understanding of matters related to drugs was completely irrelevant.

d) The summing-up was erroneous

(i) Indecent assault charge

[26] In summing-up in relation to indecent assault, the Judge failed to direct the jury that honest belief in consent will be a sufficient defence to the charge of

indecent assault; nor did the directions make clear for the jury that the appellant must have intended the assault to be indecent.

[27] It was submitted for the appellant that the Judge’s summing-up on the essential elements of the charge of indecent assault was incorrect. The Crown accepted that this was so, and for that reason accepted that the conviction on the charge of indecent assault could not stand. Mr Burns confirmed that the Crown would not seek a retrial on this charge.

[28] Counsel for the appellant accepted that the summing-up was correct as to the essential elements of the sexual violation charges (by digital penetration and by rape). This concession was properly made.

[29] The charge of indecent assault was self contained as to its essential elements, and the error in the summing-up in relation to that charge had no flow-on effect for the other two charges of sexual violation. Thus, any miscarriage of justice that occurred as the result of the defect in the summing-up in relation to the indecent assault charge can be remedied by allowing the appeal in respect of that charge alone.

(ii) Errors of fact

[30] It was also submitted for the appellant that the Judge misrepresented the complainant’s evidence in directing the jury:

... if you are satisfied that the complainant in this case, and you accept her evidence, that she did not protest or allowed it to happen because she was in fear of physical force being used on her, then that is not consent, and the fact that she did not offer any physical resistance to what was happening to her does not constitute consent.

[31] It was submitted that the evidence given by the complainant about being “too scared” was in reference to why she had not cried out for help to others in the house, but she did not give evidence that she was too scared to resist. On her evidence she did offer physical resistance by pushing the appellant away and trying to move closer to the wall, and she did not say that the appellant offered any actual or threatened violence to obtain her submission.

[32] However, in answer to questions in cross-examination by Mr Cassidy, T gave replies that could have left open to the jury the view that she allowed these things to happen (by not protesting more vigorously or calling out to other people in the house for help), because of fear of what the appellant might do to her. Mr Cassidy asked T why she did not just get up and leave the room, to which she replied:

Because I was too scared.

When counsel then put to her:

Mr Hewes wasn’t armed with a knife or anything like that was he?

She said:

No but he had been drinking.

When later asked how she was going to make the situation worse by calling out, she replied:

He could of got forceful and aggressive.

[33] Thus, the Judge did not misrepresent the evidence in directing the jury that if they accepted T’s evidence that she allowed these things to happen because of fear of physical force being used on her, that did not constitute consent. It was a proper and appropriate direction on one view of the evidence. And the Judge made it very clear in his summing-up that all matters of fact were for the jury. He directed the jury that if he should express some view of the facts that did not accord with their view, they were entitled to reject his view because they were the sole judges of the facts.

[34] This submission has no merit.

e) Incorrect response to jury question about consent

[35] After they retired the jury asked the following question in writing:

There is a query on the legal interpretation of the word CONSENT. Can we be given the full definition of consent in law and are we permitted to exercise this definition in arriving at a verdict?

[36] The Judge responded by saying to the jury that he would explain again what consent is in law. He explained, as he had done in his summing-up:

In law ... it means consent which has been freely given by a person who is rational and sober, and in the circumstances where he or she is able to form an opinion, and a rational opinion, on the matter to which they are consenting.

[37] The Judge then continued with some examples of situations where a consent would not satisfy the legal definition, e.g. if a person was so heavily intoxicated that he or she did not know what was happening; or a person suffering from a severe mental disorder who does not know what is happening. He also referred to circumstances which do not constitute consent to sexual connection, e.g. if a person does not protest or offer physical resistance or if a person submits to sexual connection or allows it to happen without complaint for fear of threats of physical violence. He concluded his answer to the jury by reiterating that it is for the Crown to prove that there was not consent, and that the appellant did not have a belief based on reasonable grounds that there was a consent.

[38] Counsel for the appellant submitted that by referring to the subject of intoxication, the Judge introduced a matter that was not part of the Crown theory of the case and was not supported by the evidence. The complainant’s evidence was that she had not been drinking and that while she had had a couple of puffs of “P” during the day, they had no effect on her. There was no suggestion that this was an intoxication case. Yet, it was submitted, in the way he answered the jury’s question the Judge somehow considered the issue of the complainant’s drug taking to be of importance and provided an alternative plank on which conviction could be obtained, which was highly prejudicial to the appellant. Mr Gotlieb submitted that the answer of the Judge “skewed the case” against the appellant.

[39] We do not accept those submissions. They are based on a misinterpretation of the Judge’s answer to the jury’s question. The jury asked for a full definition of consent. The Judge in answer provided a full definition, repeating the directions he gave in his summing-up and referring by way of example to situations such as the existence of intoxication or mental disorder which would exclude free and rational

consent. He was simply providing examples to explain the meaning of consent and was not reflecting on the issues in the case.

[40] We note that while the submissions for the appellant focused on the reference by the Judge to the example of intoxication, no reference was made to the example of a person suffering from a severe mental disorder. If there was any possibility the jury might have thought that in referring to the example of intoxication the Judge might be drawing on the facts of this case, any confusion would have been immediately dispelled by the example of a person with a severe mental disorder, which clearly had nothing at all to do with the facts or issues in this case.

[41] Another Judge may well have dealt with the jury question differently. Perhaps drawing on examples from the facts of the case as Mr Gotlieb suggested, would have been preferable. But a wide discretion rests with the trial Judge in such matters, and the approach adopted by the Judge in this instance, gave rise to no unfairness to the appellant.

[42] Counsel also submitted that there was unfairness to the appellant because the Judge did not explain the second limb of consent, i.e. belief on reasonable grounds that there was consent, to the same extent as he directed concerning consent, and in particular that he provided no examples. We observe that the jury’s question did not seek from the Judge that he expand on the issue of “reasonable belief in consent”. Nor, following the Judge’s answer to the jury, was there any request from counsel that he expand on this aspect. This was simply not a mistaken belief case; the issue in this case was whether T consented to the appellant’s sexual advances. There was no need or reason for the Judge in response to the jury’s question to expand on this aspect, which had been adequately and accurately dealt with in the Judge’s summing-up.

Outcome of the appeal

[43] The appeal is allowed only to the extent of quashing the conviction for indecent assault (Count 2 in the indictment).

[44] There was no appeal against sentence but we would have granted leave to appeal had any issue arisen as the result of the quashing of the conviction for indecent assault. The lead sentence of eight years was imposed for the two convictions of sexual violation and it would have made no difference to the end sentence if the conviction on the indecent assault charge had not been entered.

Solicitors:

Fleming, Foster & Palmer, Manurewa, for Appellant

Crown Law Office, Wellington