R v Sturm [2007] NZCA 175 (4 May 2007)

Last Updated: 15 February 2014

NOTE: PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 139 CRIMINAL JUSTICE ACT

_1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA212/06 [2007] NZCA 175

THE QUEEN

v

_{PHILIP DAVID STURM}

Hearing: 1 March 2007

Court: Arnold, Ellen France and Wilson JJ Counsel: P J Davison QC and I Rosic for Appellant

P K Hamlin for Crown

Judgment: 4 May 2007 at 10 am

_{JUDGMENT OF THE COURT}

_{The appeal against conviction is dismissed.}

REASONS OF THE COURT

_{(Given by Ellen France J)}

R V STURM CA CA212/06 4 May 2007

Table of Contents

Para No. Introduction [1]

Factual background [5] Issues [12] Intention under s 191 [16] (i) Relevant New Zealand authorities [18]

(ii) Equivalent overseas legislation and authority [28] (iii) General principles: crimes of ulterior intent [33] (iv) Relationship with other crimes of ulterior intent [37] (v) Policy considerations [49]

Were the directions sufficient? [53] Direction about voluntary consumption [70] Significance of the stupefying count to the other counts relating [73]

to A

Result [75]

Introduction

[1] The appellant was convicted after a retrial of a number of charges of sexual offences involving three complainants. He was acquitted on a number of charges including all of those relating to a fourth complainant.

[2] The appeal concerns the convictions in relation to the complainant, A. In terms of those charges, the appellant was found guilty of stupefying A with intent to facilitate the commission of a crime (sexual violation) contrary to s 191 of the Crimes Act 1961 and of two charges of sexual violation by unlawful sexual connection (one involving anal penetration). He was acquitted of a charge of attempting to sexually violate and was discharged pursuant to s 347 of the Crimes Act on a further count of sexual violation.

[3] On 26 May 2006, the appellant was sentenced to nine years imprisonment on the charge of sexual violation by unlawful sexual connection (anal penetration) and to seven and a half years imprisonment on the other charges, all terms to be served concurrently.

[4] The appellant appeals against his convictions in relation to the counts involving A on the basis that the jury was misdirected as to the requisite mens rea for the stupefying charge under s 191 of the Crimes Act. His case is that the misdirection on the element of intent on that charge makes all of the verdicts in relation to A unsafe.

Factual background

[5] The appellant was a restaurateur. He managed both a restaurant and a nightclub in the city in which he lived. He had a business office elsewhere in the city’s CBD.

[6] The Crown case was that the appellant sexually violated four young men over a period from November 2001 to November 2002. The Crown said the appellant gained the attention of the young men through his sports car, his businesses and lifestyle. The Crown also said that the appellant’s approach was to invite young men to his office in the early hours of the morning where he would then provide them with alcohol and substances such as MDMA (Ecstasy) and methamphetamine to stupefy them in order to facilitate his intended sexual violations of them.

[7] Two of the complainants were men who knew the appellant. The other two, including A, had met the appellant for the first time on the occasions when the alleged offending occurred. The substances said to have been employed by the appellant were alcohol, MDMA, methamphetamine and ketamine. No evidence of ketamine or any other sedative type substances commonly associated with drug assisted sexual assault were found in the appellant’s possession.

[8] In terms of two of the other complainants, the Crown case was that the stupefying involved a surreptitious administration of the drug. The case in relation to the fourth complainant involved the voluntary consumption of drugs.

[9] The appellant gave evidence at trial. He denied the alleged offending and said that all sexual activity was consensual or took place with him believing it to be consensual. He denied administering any of the substances to the complainants with

an intention of stupefying them. He said that he had offered the drugs and they had been accepted. He too had consumed and shared the same drugs as the complainants had taken. The appellant earlier admitted charges of possessing and supplying MDMA and methamphetamine.

[10] The appellant was found guilty of sexual violation by unlawful sexual connection in relation to the complainant B. He was found guilty of two counts of sexual violation by unlawful sexual connection in relation to the third complainant C. In terms of all of the three complainants other than A, he was acquitted of the stupefying with intent charges.

[11] The particular facts relating to A are described in the following terms by

Williams J, the trial Judge, in the sentencing remarks:

[8] As for [A], [A] had drunk so much alcohol in the early evening of 22

November 2003 that he became comatose and went to bed. At what was probably about 4 am the following morning he awoke and, probably still

affected by alcohol, started walking along [the] Road towards the city. [The

appellant was] driving [his] car in the area at the time. [The appellant]

picked him up. Unlike [the other two complainants] he was completely unknown to [the appellant]. [The appellant] drove him to the office and when [the appellant’s] acquaintanceship with him must have been only a few minutes old [the appellant was] feeding him Ecstasy, methamphetamine and alcohol to the point where the jury found he was stupefied, that is to say [the appellant] giving him drugs and alcohol caused an effect on his mind which seriously interfered with his ability to act in a way which might hinder [the appellant’s] intention to commit sexual offending with him. He graphically described the effect on him, his feeling out of control and powerless, his feeling incapable of resisting any suggestion [the appellant] made to him or anything [the appellant] suggested he do. At the office [the appellant] had him perform oral sex on [the appellant]. Later [the appellant] invited him to [the appellant’s] home. More drugs were consumed. In the lounge [the appellant] had him bend over a table, a lubricant was used – he probably went at [the appellant’s] direction upstairs to fetch it – [the appellant] penetrated his anus with [the appellant’s] penis causing a tear. The pain of that injury led [A] so to act as to end the penetration. [The appellant] finally dropped [A] at [a relative’s] house at about 3 pm that afternoon. In between times [the appellant] had taken him to a car yard while minor repairs were carried out on [the appellant’s] car and to a restaurant where [the appellant] bought meals for both ... but [A] ate virtually nothing. [A] again graphically described his feeling unable throughout the whole of that period to do anything but go along with whatever [the appellant] suggested.

Issues

[12] The primary issue on the appeal is whether on a charge of stupefying with intent under s 191 of the Crimes Act, the Crown had to prove not only an intent to facilitate the commission of a crime but also an intention to commit the act, stupefying, by which facilitation is to be achieved. In other words, whether the Crown also had to prove an intent to cause an effect on the mind or the nervous system of the complainant which really seriously interfered with the complainant’s mental or physical ability to act in any way which might hinder the intended crime.

[13] The appellant also appeals on the further ground that the Judge misdirected the jury in his directions as to the relevance of the fact that the complainants voluntarily took the drugs provided to them by the appellant.

[14] Finally, the appellant says that the effects of the misdirection in relation to the element of intent on the stupefying charge also renders unsafe the jury’s verdicts on the other two counts involving the complainant A.

[15] The notice of appeal contained a further ground that the verdicts relating to the complainant A were unreasonable and could not be supported having regard to the evidence. That ground is not pursued.

Intention under s 191

[16] Section 191 provides as follows:

191 Aggravated wounding or injury

(1) Every one is liable to imprisonment for a term not exceeding 14 years who with intent -

(a) to commit or facilitate the commission of any crime; or

(b) to avoid the detection of himself or of any other person in the commission of any crime; or

(c) to avoid the arrest or facilitate the flight of himself or of any

other person upon the commission or attempted commission of any crime –

wounds, maims, disfigures, or causes grievous bodily harm to any person, or stupefies or renders unconscious any person, or by any

violent means renders any person incapable of resistance.

(2) Every one is liable to imprisonment for a term not exceeding 7 years who, with any such intent as aforesaid, injures any person.

[17] There is nothing in the legislative history of s 191 which assists in determining the question before us. The predecessors to s 191 were found in ss 175 and 176 of the Criminal Code 1893 and re-enacted as ss 195 and 196 of the Crimes Act 1908. As to those sections, this Court said in R v Tihi [1989] 2 NZLR 29 at 31:

[T]he differences in wording are such that it would be unsafe to draw any conclusions, except to remark that the earlier provisions either required a specific intent to do harm or covered actions such as stupefying or violently rendering the victim incapable of resistance which, as noted above, inherently suggest intentional conduct.

(i) Relevant New Zealand authorities

[18] The question of the intent required to be proved under s 191 was left open by this Court in R v Akuhata CA129/86, CA131/86 3 September 1986 and in R v Claridge (1987) 3 CRNZ 337. In R v Claridge at 340, the Court observed that:

Whether, as may be the case, the several acts themselves require any intent was left open in R v Akuhata and Edwards CA129/86, 131/86, 3 September

1986 and need not be decided in this case for if what Claridge did answers the description “violent means” and the causal link between such means and

incapability of resistance is present the necessary intent is self-evident.

[19] The matter was however considered in R v Tihi. The appellant in that case along with three co-offenders (who pleaded guilty) planned to take a taxi by force. One of the co-offenders, Darryl Bristow, put his arm around the taxi driver’s neck and held a small knife against it. The driver was unaware of the knife but received a small cut near his eye. Mr Bristow gave evidence that he did not intend to cut the driver and did not realise he had done so until he saw the driver outside of the taxi wiping his cheek with a handkerchief. There was evidence that the appellant knew Mr Bristow had the knife and would use it. The appellant was convicted as a party to the offence of aggravated injury in that he and his co-offenders, with intent to commit the crime of unlawful taking of a motor vehicle, injured the taxi driver. The

appellant appealed against this conviction on the ground that the trial Judge had misdirected the jury in telling them that the case against Mr Bristow was proved as long as he acted with the intent to commit the crime of unlawful taking of a motor vehicle even though he did not intend to commit actual bodily harm to the driver.

[20] The Court noted at 31 that s 191 could achieve the “rational” object of imposing criminal liability on an offender for the harm specified in s 191(1) or (2), if the offender exposed others to that risk “by actions undertaken in the course of conduct intended to achieve the purposes set out in” s 191(1)(a), (b) or (c), whether or not he meant to cause that harm. However, the Court continued (at 31):

[W]e think the preferable view is that the section does not impose strict liability. The introductory phrase “with intent to” in subs (1) establishes a connection between the harm and the conduct described in paras (a), (b) and (c), in that it must have been inflicted as part of the offender’s purpose of implementing that conduct, tending to the conclusion that he must at least have turned his mind to the risk of harm. Strict liability would run counter to the well-established presumption in favour of mens rea in all criminal offences especially in the light of the maximum sentence of 14 years under subs (1). Accordingly, before he can be guilty, it must be shown that the accused either meant to cause the specified harm, or foresaw that his actions were likely to expose others to the risk of suffering it. This would preserve the subjective test of liability, giving “likely” the meaning favoured by this Court in R v Gush [1980] 2 NZLR 92.

[21] The appeal was dismissed in that case because the Court concluded that it could not be disputed that Mr Bristow must have foreseen a likely risk of injury to the taxi driver from his action in holding a knife against his neck while he tried to immobilise him with his other arm. Because it was never a real issue, the Court did not consider the Judge misdirected the jury in failing to mention that aspect in summing up. In any event, the Court would have treated this as an instance for the application of the proviso.

[22] The Crown submission is that the Court’s decision in Tihi has been overtaken by the more recent decision in R v Sturm [2005] 3 NZLR 252 (CA), an earlier appeal by the present appellant. The relevant part of that judgment addressed a question of law which focused on what it was the Crown had to prove to show that the victim was placed into a “stupor”.

[23] The Crown relies first on this Court’s description in Sturm of the mischief to which s 191 is directed, that is:

[101] [C]onduct which is aggravated by specific criminal purposes. The purposes may or may not be achieved; indeed the conduct need not necessarily amount to an attempt. But all of the proscribed conduct is of a kind which does or could seriously interfere with a person’s ability to do something which might impede or prevent the commission of a crime.

[24] We do not read that passage as saying that the offender did not have to intend the conduct i.e. stupefying. Rather, the passage focuses on the concern underlying the prohibition on stupefying where the purpose of stupefying is to facilitate the commission of a crime.

[25] The Crown also relies on the following passages from the Sturm decision:

[112] It is a common aspect of human behaviour that people take recreational drugs, including alcohol for example, in order to experience relaxation or excitation or disinhibition, often for intended sexual gratification. There is no policy reason to restrict the meaning of “stupefy” in order not to criminalise that type of common human behaviour. To administer a drug with that expectation does not necessarily come within the scope of s 191(1) or s 200(2). To do so, there must be a criminal intent. In sexual cases the criminal intent would be to carry out behaviour with someone who is not consenting and in respect of whom the offender does not believe there is consent.

[113] We conclude that in s 191(1) to “stupefy” means to cause an effect on the mind or nervous system of a person which really seriously interferes with that person’s mental or physical ability to act in any way which might hinder an intended crime. Whether any such interference is really serious is a matter of fact and degree for the jury or other trier of fact to determine, just as it is a jury matter whether, in a case of alleged grievous bodily harm, the bodily injury is really serious.

[114] It follows that the answer to the question of law reserved, set out at para [4] of this judgment, is in the negative. What the Crown is required to prove is that an accused, with any of the intents specified in s 191(1)(a), (b) and (c), has deliberately done something which has caused on the mind or nervous system of another an effect which really seriously interferes with that person’s mental or physical ability to act in any way which might hinder the intended crime.

[26] We do not take the Court there to be describing the only intent that has to be proved. That issue was not before the Court and that perhaps explains the way in

which the matter has been addressed in passing. If the matter was directly before the

Court, the Court would have had to deal with the earlier decision in R v Tihi.

[27] On its face then, R v Tihi governs the matter and the Crown was required to prove both an intention to stupefy and an intention to facilitate the commission of a crime. The appellant takes issue with the view in Tihi that subjective recklessness will suffice. We see no good reason for taking a different position on this aspect either.

(ii) Equivalent overseas legislation and authority

[28] As was the case in Tihi (at 31), we have not found anything that throws much light on the question in equivalent legislation in various overseas jurisdictions.

[29] Section 191 has its genesis in ss 21 and 22 of the Offences Against the Person Act 1861 (UK), 24 and 25 Vict, c 100. There are comparable provisions in all of the state jurisdictions in Australia (including the common law states), in Canada (s 246 of the Criminal Code) and in Hong Kong (s 121 of the Crimes Ordinance). The latter provision explicitly requires the prosecution to prove an intention to stupefy.

[30] There is some support for the view that there is no requirement to prove an intention to stupefy in R v Lansbury [1988] 2 Qd R 180 (CA). That case dealt with s 315 of the Criminal Code (Qld) which is in similar form to s 175 of the Northern Territory Criminal Code.

[31] Section 315 reads as follows:

315 Disabling in order to commit indictable offence

Any person who, by means calculated to choke, suffocate, or strangle, and with intent to commit or to facilitate the commission of any indictable offence, or to facilitate the flight of an offender after the commission or attempted commission of an indictable offence, renders or attempts to render any person incapable of resistance, is guilty of a crime, and is liable to imprisonment for life.

[32] The Court of Criminal Appeal in Lansbury held by a 2-1 majority that “calculated” in s 315 had an objective meaning of likely and not a subjective meaning of “intended”. We do not consider the case is of much assistance given the differences in wording between s 315 and s 191.

(iii) General principles: crimes of ulterior intent

[33] The approach in Tihi is consistent with the general principles relating to crimes of ulterior intent like s 191. Crimes of ulterior intent are those crimes where the “mens rea includes an intention to produce some further consequence beyond the actus reus of the crime in question”: Ormerod Smith & Hogan Criminal Law (11ed 2005) at 112; see generally Horder “Crimes of Ulterior Intent” in Simester and Smith (eds) Harm and Culpability (1996) at 153. For example, as Smith & Hogan note at 112 - 113, for burglary it is not sufficient that the accused intended to enter a building as a trespasser (the basic intent corresponding to the actus reus), the Crown must go further and show an intention to commit one of a number of specified offences in the building (the ulterior intent).

[34] The mens rea requirements for crimes of ulterior intent were considered by Lord Simon of Glaisdale in Director of Public Prosecutions v Morgan [1975] UKHL 3; [1976] AC 182 at 216 – 217 (HL):

I turn to examine, first, the distinction between crimes of basic and of ulterior intent, having taken the latter expression from Smith and Hogan. ... I take assault as an example of a crime of basic intent where the consequence is very closely connected with the act. The actus reus of assault is an act which causes another person to apprehend immediate and unlawful violence. The mens rea corresponds exactly. The prosecution must prove that the accused foresaw that his act would probably cause another person to have apprehension of immediate and unlawful violence, or would possibly have that consequence, such being the purpose of his act, or that he was reckless as to whether or not his act caused such apprehension. This foresight (the term of art is “intention”) or recklessness is the mens rea in assault. ...

On the other hand there are crimes of ulterior intent – “ulterior” because the mens rea goes beyond contemplation of the actus reus. For example, in the crime of wounding with intent to cause grievous bodily harm, the actus reus is the wounding. The prosecution must prove a corresponding mens rea (as with unlawful wounding), but the prosecution must go further: it must show that the accused foresaw that serious physical injury would probably be a

consequence of his act, or would possibly be so, that being a purpose of his act. (Our emphasis.)

Lord Simon’s earlier dissent in Director of Public Prosecutions for Northern Ireland v Lynch [1975] 1 AC 653 at 698 (HL) is to the same effect.

[35] While Lord Simon’s observations in these two cases were made using wounding with intent as the example, it is apparent that the approach is a more general one. In Director of Public Prosecutions v Majewski [1976] UKHL 2; [1977] AC 443 (HL) at

479 Lord Simon quoted with approval the following passage from the judgment of Fauteux J, with whom Taschereau J concurred, in R v George (1960) 128 CCC 289 at 301 (SCC):

In considering the question of mens rea, a distinction is to be made between (i) intention as applied to acts considered in relation to their purposes and (ii) intention as applied to acts considered apart from their purposes. A general intention attending the commission of an act is, in some cases, the only intent required to constitute the crime while, in others, there must be, in addition to that general intent, a specific intent attending the purpose for the commission of the act. (Our emphasis.)

[36] That approach was followed in New Zealand by Fisher J in Police v Bannin [1991] 2 NZLR 237 at 245 – 246 (HC). In that case it was held that under the now repealed s 242 of the Crimes Act, entering with intent, it was necessary to prove both the basic and the ulterior intents, although only the ulterior intent was specified in the statute.

(iv) Relationship with other crimes of ulterior intent

[37] The Crown submits that a comparison with other sections in the Crimes Act shows that there is one stated intent in s 191. The Crown relies first on ss 188 and

192.

[38] Section 188 of the Crimes Act provides:

188 Wounding with intent

(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to any one,

wounds, maims, disfigures, or causes grievous bodily harm to any person.

(2) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.

[39] Section 192 deals with “aggravated assault” and provides:

315 Aggravated Assault

(1) Every one is liable to imprisonment for a term not exceeding 3 years who assaults any other person with intent-

(a) to commit or facilitate the commission of any crime; or

(b) to avoid the detection of himself or any other person in the commission of any crime; or

(c) to avoid the arrest or facilitate the flight of himself or of any other person upon the commission or attempted commission

of any crime.

(2) Every one is liable to imprisonment for a term not exceeding 3 years who assaults any constable or any person acting in aid of any

constable, or any person in the lawful execution of any process, with the intent to obstruct the person so assaulted in the execution of his

duty.

[40] The Crown submission is that under s 188 it has not been suggested that the Crown must prove the “second intention” because the words in s 188, “wounds...to any person” are the result of the offender’s conduct and do not import a second mental element. Mr Hamlin argues that this analysis is supported by the terms of s 188(2) and of s 189 which deals with injuring with intent.

[41] In terms of s 192, Adams on Criminal Law (looseleaf ed.) at CA192.03 suggests that a charge under s 192(1) requires proof of both the intent explicit in the definition of assault (the basic intent) and one of the further intents specified in the section (the ulterior intent). There is no reason in principle why the same approach would not apply to s 188.

[42] The Crimes Act contains a number of other crimes of ulterior intent. For a number of these offences, the commentary in Adams suggests that the prosecution must prove a basic and an ulterior intent. For example, on a charge under s 210(1), abduction of a young person under 16, the prosecution must prove that the taking, enticement or detention was deliberate or intentional (the basic intent) and that it was

done with intent to deprive a parent, guardian or other person having lawful care or charge of the young person of possession of that person (the ulterior intent): Adams CA210.01. Similarly, under s 210(2) the prosecution must prove that the receiving of the young person was deliberate or intentional (the basic intent) in addition to the specified ulterior intent: Adams CA210.01.

[43] In relation to a smaller number of the crimes of ulterior intent, it is apparent from the wording of the section that both the basic and the ulterior intent must be proved. An illustration of these cases is found in s 272 dealing with providing an explosive to commit crime. Section 272 reads as follows:

Every one is liable to imprisonment for a term not exceeding 2 years who knowingly has in his or her possession or makes any explosive substance, or any dangerous engine, instrument or thing, with intent to use or enable another person to use the substance, dangerous engine, instrument or thing to commit a crime.

[44] The wording suggests that both a basic intent (knowledge) and an ulterior intent (to use or enable etc) are required.

[45] Accordingly, there is nothing out of the ordinary in requiring proof of both intentions in this case.

[46] Second, the Crown contrasts the wording of s 192 with that in s 197. Section 197 states:

197 Disabling

(1) Every one is liable to imprisonment for a term not exceeding 5 years who, wilfully or without lawful justification or excuse, stupefies or renders unconscious any other person.

[47] The Crown says that the absence of the words “wilfully” or some equivalent in s 192 is important. However, we consider it would be odd at least if it was necessary to prove intention for the basic offence but not for the aggravated offence. That difference would also sit uneasily with the much higher (14 year) penalty under s 191(1) and the five year penalty under s 197.

[48] Further, the absence of the word “wilfully” needs to be read in light of the general proposition that mens rea will be implied: Sweet v Parsley [1970] AC

132 (HL); R v Strawbridge [1970] NZLR 909 (CA); and see Millar v Ministry of

Transport [1986] 1 NZLR 660 (CA).

(v) Policy considerations

[49] Finally, the Crown argues that the intention of s 191 is to catch those cases where the offender intends to commit another crime by in fact stupefying. Whether or not stupefying has occurred is a question of fact. The stupefying must be deliberate and not accidental but there is no suggestion, the Crown says, that what occurred here was accidental. Mr Hamlin argues that any different approach conflates the actus reus and the result of the conduct.

[50] The example Mr Hamlin gives to illustrate the submission is where an offender supplies a powerful sedative to the complainant which the complainant ingests. The complainant becomes unconscious. On the appellant’s approach, the Crown says the accused might successfully argue as a matter of law that he only intended to help the complainant sleep better despite the fact that the complainant was in fact stupefied or rendered unconscious. The example is not a credible one in that if the accused’s intention was only to assist the complainant to sleep better, that would not constitute an offence under s 191 as it is not consistent with having an intention to, for example, sexually violate the complainant.

[51] As to any concerns about difficulties of proof, we consider those difficulties will generally be addressed by the illicit nature of the administration of the drug. If there was an intention to sexually violate, coupled with the deliberate administration of a stupefying substance, it is unlikely that there would be any issue about the existence of the necessary basic intent.

[52] Accordingly, we conclude that it was necessary for the Crown to prove not only an intention to facilitate the commission of a crime (the ulterior intent) but also an intention to stupefy (the basic intent). Applying Tihi, it will suffice to prove the basic intent if the accused was subjectively reckless. (R v Belfon [1976] 1 WLR 741

at 744 (CA) is authority for the proposition that recklessness will not suffice for the ulterior intent.)

Were the directions sufficient?

[53] The appellant says there was no adequate direction on the need for the jury to consider whether he had an intent to stupefy. The appellant’s case is that the absence of such a direction is an error of law which resulted in a substantive miscarriage of justice.

[54] We accept the Crown’s alternative submissions that, in the context of this case, the directions given were sufficient.

[55] In summing up, the Judge directed the jury at some length on the stupefying charges. The jury were given the correct definition of stupefy and were directed on the need for the stupefying to be carried out with intent that it should facilitate the commission of a crime. The jury were also directed that the prosecution did not need to prove that the intended crime was subsequently committed. Williams J said:

So far as is relevant to this case, it’s a crime in New Zealand for a person to stupefy another person with intent to facilitate the commission of a crime. To facilitate ... means ...

Providing the stupefying is carried out with the intention at the time of the stupefying, that it should facilitate the commission of a crime, it is not necessary for the prosecution to prove the intended crime was actually subsequently committed.

[56] The Judge then went on to give an example of the latter situation. Finally, Williams J said:

Whether the effect on the mind or nervous system of the complainant in the count you are considering really seriously interfered with their mental or physical ability to act, so as to hinder the intended crime is a matter for you. It is a matter of fact. It is for you to decide. In that regard it’s pertinent to note that [the appellant] has formally admitted – you have seen the form – supplying MDMA (Ecstasy) on the relevant dates to [the three complainants]. He has also admitted supplying methamphetamine (speed) on the relevant dates to [two of the complainants]. In his evidence you may find that he admitted giving [the fourth complainant] half an Ecstasy tablet (646). He admitted supplying alcohol to all four. There was no admission

of his supplying any other drugs, particularly ketamine, GHB or a GHB like drug.

[57] The directions in summing up had been preceded by a response to a jury question about the meaning of the term “stupefying”. The answer to the jury’s question reflected the definition in R v Sturm.

[58] A handout was given to the jury during the summing up which also dealt with the stupefying charges. The handout largely repeated what was said in the summing up.

[59] After the jury had retired, they returned with various questions. The first set of questions related to the basis on which the complainants and witnesses attended the trial. There is nothing relevant in those questions and answers to the appeal.

[60] On the morning of 8 April 2006, the second day of deliberations, there were further questions in relation to the two stupefying counts. In terms of two of the other complainants, not A, the jury asked:

1. Do we have to confine ourselves on count[s] 3 and 7 to drink - spiking in terms of stupefication?

2. Is the basis for the Crown’s case that the drinks were spiked on those counts?

[61] The Judge dealt with the second question first and explained that the basis of the Crown’s case was that the drinks were spiked “in the sense” that some drug or disinhibiting or disabling substance was in the drink when the two complainants drank it. But, the Judge said that had to be seen against all the evidence relating to that particular part of the case. The Judge then went back to the handout on stupefying and said:

So you need to have to look at the overall question in deciding for yourself whether [the appellant] is proved to have administered, given ... a stupefying substance, and the method of its administration, and if so whether it is proved that at the time of that he was intending to make it easier for him to commit a crime. ... Is he proved, at that stage, to have given a ... stupefying substance, with that intention?

[62] Williams J continued by noting that the Crown case was that the appellant stupefied these complainants by putting drugs in their drinks. The Judge said the jury need not confine themselves entirely to drink-spiking but were to look at all the evidence to decide if it was proved the appellant administered a “stupefying” substance with the intention “to make it easier for him to have sexual violation etc with them”.

[63] A communication from the jury about their progress followed.

[64] In a further response to a question later in the evening of 8 April the Judge said:

As I said when I was summing-up to you, your task is to decide if the Crown has proved beyond reasonable doubt that at the time of [the appellant’s] giving or administering the drugs to the complainants, he did so with the intention of stupefying them within the definition to facilitate the commission of the other crimes charged.

That requires consideration of all the circumstance known to [the appellant] at the time of the giving or administration of the drug and of his intention in the giving or administration of it.

[65] Mr Davison says these latter paragraphs get as close to a direction on intent to stupefy as occurred. His submission is that the absence of any earlier direction on the point is not “cured” by these passages. Mr Davison points out that there was no indication by the Judge there had been an earlier omission and, in any event, these passages relate to two other complainants, not A.

[66] The adequacy of the directions has to be assessed in the context of the case. The Crown case was put on the basis that substances were deliberately administered to overcome resistance, in other words, that this was a deliberate stupefication. In those circumstances, it is plain that the jury had to be satisfied that the appellant was intending to stupefy. All that was lacking from the directions was a further direction to the jury as to what it would mean if they concluded that there was no intention to stupefy. Given the way in which the case was put, it was plain the jury had to be satisfied of this.

[67] The cited passages in relation to the other two complainants are in this sense confirmatory of the position as it was before the jury. They make plain what is otherwise implicit.

[68] Finally, it is relevant that no complaint was made to the Judge about this aspect of the summing up. The Judge was asked to bring the jury back to address three other matters and he did that. But it appears the issue of intention in terms of the basic intent was not raised.

[69] We add that even if the directions were unsatisfactory, the appellant was clearly subjectively reckless and so the appeal would be dismissed on this basis as well.

Direction about voluntary consumption

[70] The appellant says the Judge erred in directing the jury that the fact that the complainants voluntarily took the substances was irrelevant to the stupefying counts. The appellant submits the issue of voluntary consumption must be relevant to the appellant’s intent in providing substances to the complainants. Finally, the appellant argues that the direction would have led to the jury not addressing the appellant’s intent when providing the substances.

[71] The form of the directions on this aspect is seen in one of the jury handouts in which the Judge said:

The fact the complainants voluntarily took the drugs is irrelevant to the stupefying counts. Because the charges revolve around [the appellant’s] intention in giving them the drugs, the fact that the complainants consented to taking them is not a defence to those counts.

[72] We agree with the Crown that there was no error in the direction in this respect. This was not a case in which there was any suggestion that the complainant knew that by ingesting the drugs and alcohol he would or might be stupefied. In the context of the case, the appellant’s intention was a separate issue.

Significance of the stupefying count to the other counts relating to A

[73] Our conclusion, that the directions given were adequate, also deals with the appellant’s argument that the jury’s conclusion that the appellant stupefied complainant A without a consideration of the appellant’s intention makes the convictions on the other counts relating to A unsafe. The argument is that once the jury decided the complainant was stupefied there was no room for the appellant’s defence of consent or belief on reasonable grounds of consent.

[74] For completeness, we record that we see no merit in the suggestion the verdict on the stupefying count somehow “coloured” the other verdicts. The jury was directed to consider each count separately. Further, as the jury was directed, it was possible for the jury to convict on a stupefying count and acquit on the others. The converse was also possible, as indeed occurred with the other two complainants in relation to whom there were convictions on the sexual violation charges.

Result

[75] The appeal against conviction is dismissed.

Solicitors:

Crown Law Office, Wellington