The Queen v De Villiers [2007] NZCA 442 (15 October 2007)

Last Updated: 1 November 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA126/07

[2007] NZCA 442

THE QUEEN

v

ALEXANDER DE VILLIERS

Hearing: 28 August 2007

Court: Glazebrook, Baragwanath and Heath JJ

Counsel: C J Tennet for Appellant
D R La Hood for Crown

Judgment: 15 October 2007 at 4pm

JUDGMENT OF THE COURT

The appeal against convictions and sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

[1] The appellant appeals against conviction and effective five year sentence following jury trial before Judge Rollo on counts of sexual violation and indecent assault of a male complainant, A, and indecent assault of another, B.

The first ground

[2] The first of three grounds of appeal against conviction – refusal of severance of the counts affecting the respective complainants – was abandoned when Mr Tennet learned that this Court had dismissed an interlocutory appeal on that issue.

The second ground

[3] The second was that the Crown opened on the basis that B:

...had told [another person] what had happened and together they called the police.

The Crown asked B “What did you tell him?” and received the answer “...just told him what had happened.”

[4] Following the defence objection the Judge initially ruled in the absence of the jury that B could give evidence of what he told the witness by way of recent complaint. The only further evidence in fact led was:

...where did you and [the other person] go to? We started walking back to [the local town] keeping our eyes open for any houses that may have their lights on.

What did you want a house with lights on for? So we could call the police.

Did you find one?... Yes.

And did you call the police? Yes.

[5] At the conclusion of the Crown case the topic was reconsidered in the light of R v H CA113/97 8 July 1997 in which this Court held evidence of recent complaint by the complainant alone, unsupported by evidence from the recipient, will not be admitted. Judge Rollo also referred to White v R [1999] 1 AC 210 (PC) which held that the recent complaint must be proved by the person to whom the complaint was made. In summing up the Judge first gave a direction to which no exception has been taken as to the significance of recent complaint evidence in respect of the other charges. He then directed the jury:

We have also a similar situation suggested in terms of [B], that is, that he told his comrade that night, [Mr X], about what happened. [Mr X] has been unavailable to give evidence. His whereabouts is not known, Detective Shields told us, so we have no idea what was said to him from his point of view. You must disregard that particular evidence that [B] told [Mr X] because we have not heard from [Mr X]. Put that out of your mind, just rely on [B’s] evidence.

[6] This was only evidence that they called the police and not evidence of the details of the complaint. In the light of this evidence Mr Tennet, while not abandoning the second ground, found himself unable to offer argument in support of it. We are satisfied that the direction cured any prejudice and the second ground fails. It follows that the appeal against conviction in relation to the indecent assault of B fails.

The third ground

[7] The third ground was that in terms of s 385 of the Crimes Act 1961 Mr De Villiers’ conviction in relation to A could not be supported having regard to the evidence on the grounds that the Crown had not excluded lack of reasonable belief as to consent. The learned trial Judge had dismissed a similar application made at trial under s 347.
[8] No challenge was made to the Judge’s direction: that the Crown must establish both:

• (a) lack of actual consent; and
• (b) absence of belief by the appellant based on reasonable grounds that the complainant did consent.

[9] Section 128A of the Crimes Act states:

128A Allowing sexual activity does not amount to consent in some circumstances

(1) A person does not consent to sexual activity just because he or she does not protest or offer physical resistance to the activity.

(2) A person does not consent to sexual activity if he or she allows the activity because of—

...

(b) the threat (express or implied) of the application of force to him or her or some other person; or

(c) the fear of the application of force to him or her or some other person.

...

(7) A person does not consent to an act of sexual activity if he or she allows the act because he or she is mistaken about its nature and quality.

(8) This section does not limit the circumstances in which a person does not consent to sexual activity.

[10] It is necessary to examine with care the evidence of the complainant on the basis of which Mr Tennet submits that the Crown has failed to establish either that the sexual conduct was other than consensual or that Mr De Villiers lacked reasonable grounds for belief in consent.
[11] The context is material. In February 2006 the complainant was nearly 19 years of age living in a backpackers bunkhouse in a New Zealand town, performing odd jobs for the owners towards his accommodation, food and substantial back rent. The appellant came up to him at a supermarket and asked where he was living. He said that he would offer the complainant cheaper rent and a fulltime job. He took the appellant to his car and drove to his property where he said he was starting up a backpackers’ homestay.
[12] The complainant left for a barbecue and on return was told by the appellant that they would have to share a room and rather than sleep on the floor the complainant could sleep on the other side of the appellant’s bed. He then told the complainant that he was a masseur and asked the complainant if he wanted to be massaged.
[13] In reproducing the following passages from the evidence of A we have italicised those which could suggest apparent consent; underlined those which indicate subjective lack of consent; and marked bold those which indicate objective expression of lack of consent.
[14] The complainant who had not had previous sexual experience thought that nothing out of the normal would happen and lay face down on the bed. As the appellant started massaging closer to his crotch the complainant jerked, indicating that he did not wish to be massaged there. The appellant asked the complainant to roll on to his back and put his hand under the complainant’s boxer shorts and touched his penis. He said:

...I think... he asked me to take my pants off and... I sort of like freaked out kind of thing and I just thought what have I got myself into... I don’t know, I just do what he told me because he was bigger than me and I just didn’t know what to do. I’d never been in this situation kind of thing and then he took his pants off...

[15] The complainant took his boxers off. The appellant’s hand was touching the complainant’s testicles and penis for about five minutes. The complainant said:

...I remember him asking me if... he wanted to do the 69 position and because I didn’t know what this is, I’ve never had sex before, say “what’s this” so he showed me and, um, he made me suck his cock and he did the same to me... He told me to suck his penis and I just – I just did it – yeah.

...

Did you want to do that? Nah I didn’t want to do it. I was just thinking to myself what have I got myself into and how am I going to get out of this situation.

Why didn’t you stop? I was too afraid to talk kind of. I was speechless kind of... he was like sucking or biting my nipples and... I told him to stop biting them so he did stop biting them but he was still sucking them.

Roughly how long does that go on for, the sucking? Two, three minutes.

...

When that’s happening, you’re sucking his penis, what are his hands doing? Um he’s – he um, puts his hands up my arse and um, like he told me um, it’s okay you know – you know um, it might hurt or something and I told him that it did hurt but he kept on doing it for a little bit longer. And um, then after that we ah, he um, oh he did stop and then yeah. Then he continued – like he told me just go and suck his dick and that - so – yeah.

When he sticks his fingers up your back side your head, where’s that, is that still – are you still sucking you tell me? Um no, I don’t think I was – I think I was.

THE COURT: What was your answer there? I wasn’t sucking his cock anymore.

EVIDENCE IN CHIEF CONTINUES BY MR BRIDGES

So where’s your back side in relation to his body, where’s he? Um like we’re still in the 69 position um, and then I told him, I told him to stop when he was doing it and um, he um, he did it for a little bit longer and then he did stop and we sort of changed a little bit – position and then he told me to suck his dick, so I was facing – he was sitting kind of and I was facing towards him.

...what part of his body did he stick up your backside? His finger.

Prior to that had you said anything to him, done anything you can think of, that might have indicated a willingness for that? No, I was – really didn’t – I didn’t say anything – it was just like – shocked attitude, and just thinking why is this happening to me.

You’ve told me you again sucking his penis? Yeah, and um, this is when he was sort of – like I tried to pull away but he sort of held down a little bit – like he didn’t want me to pull away.

Just understand that a bit more – pull away you’re - ? My head.

You’re doing what at that time? Like I was letting me suck his penis and I’m trying to pull away my head, and he’s like sort of holding my head kind of, and so – like he’s telling me that he wanted me to keep doing it and I didn’t want to do it, that’s why I tried to pull away.

How long are you trying to pull away for? I tried to pull away a couple of times.

And where are Mr De Villiers hands? On my head.

What’s he doing with your hand – his hands? Oh he was sort of holding my head.

And what were you doing with your head? I was trying to pull away - ...

You’re moving back, what’s he doing? He was just sort of pulling back and then – then after a while he let go and – and so I pulled off my head... He let go after a while and then I pulled my head away.

He let go of the back of your head? Yes.

Where he was holding you and you pulled your head away from his penis? Yeah.

...

Did he ever ejaculate in your mouth? He asked me to but I said that I didn’t want that to happen so he didn’t.

When was that...? ...that was while my head was on his penis, my mouth was over the penis.

Were you saying anything to him about what you thought about it? No, but he said to me – like he spoke to me in a harsh tone, not like really harsh but in a harsher tone and he said to me “are you a dumb fucking Maori or something because you’re acting like one. I want you to be more.” – make it like I’m more interested kind of thing...

Did either of you masturbate? Um yeah, he like, probably like he masturbated and I pretended to because he said “oh let’s just masturbate” and, um, because he wasn’t enjoying it or something, but, um, and I just pretended to just so that he thought I was interested or something...

Why did you pretend? Because I didn’t want to. I wasn’t interested.

And what, for lack of better way to say it, what state was your penis? Well it was un-erect, it wasn’t hard because I wasn’t enjoying everything... We both were in the shower and he asked me to clean him clean me and then he got out of the shower.

...why did you have a shower with him? Because he asked me to follow him into the shower.

Did you want to? Nah. I just did what he – after he spoke to me in that harsher tone that I better do what he says, cos I didn’t want him to get angry with me or hurt me or anything, so.

[16] He said that after the shower they made dinner in the kitchen and then went back to bed:

Now this time are either of you wearing anything when you’re in bed or what’s the situation there? I was still wearing my boxer shorts. He probably puts his pyjamas back on. I can’t remember what he was wearing.

How close were you to each other in the bed this time? Um, he was holding me in bed. I was on the left side of the bed, he was on the right side of the bed and, um, he, um, moved my hand down to his genitals and that and he was going “oh this makes me horny, you’ve got to stop it”, rah rah rah, and um, I pulled my hand away and he didn’t grab it or anything again and... I tried to like I was pretending to be asleep... I was hoping that he’d be asleep and a little bit later I tried to pull away from the bed because I just wanted to leave but... he must still be awake or something and he, ah, just grabbed me and – my hand put it around him and I told him I was feeling sick and I think it would be better if I switched over to the other side and so we did and, um, about two or three times I tried to pull away out of the bed but he liked, ah, just kept on grabbing me and, um, then I just – after I while I just jumped out of the bed and I told him I was sick and I had to go to the toilet.

...what were you wanting to do? I was wanting to try and run away, that’s what I was thinking.

You’ve told us you told him you were sick? Yeah I told him I was feeling sick.

Was that true? No.

[17] The complainant then went to the toilet and pretended to be sick and then another man walked in from the next room. The complainant went back into the room and dressed, went to the kitchen, grabbed a knife and ran off.
[18] The complainant was cross-examined:

So you’re on this bed, he didn’t tell you to take his pants off did he? He said that I couldn’t go into the bed unless I had the pants off.

So when you had the choice between getting into the bed with your pants off or keeping your clothes on, you chose to keep your clothes on, is that what you’re telling us? No, I got in the bed but – yeah I took my pants off when I went in the bed because he said I couldn’t sleep in the bed with pants on.

...

Now he didn’t tell you you had to have a massage did he? Nah.

He gave you a choice? Yes.

He said “do you want a massage”? Yeah.

And you said “yes”? He said he was a professional masseuse and he said “would you like a massage” and I was like whatever.

Now I just want to get this clear. Just up to this point you’ve been speaking with him in the car and he’s been chatting away. You get to the apartment... the flat and... he tells you that’s the room you’re gonna have to go in and at this point he’s still speaking to you quite normally, quite civilly, is that correct? Yeah.

Because if he hadn’t been you wouldn’t have taken your pants off or your shirt off would you? Nah.

If he had spoken to you harshly you wouldn’t have taken your pants or your shirt off would you? I don’t know, it depends.

Well you’re fully clothed when you get there? Yeah.

You were quite happy at that point to take your pants off and your shirt off weren’t you? Mmm.

Correct? Yeah I thought nothing would happen...

He then asks you if you want a massage? Yeah.

And again he asks you quite gently doesn’t he? Yeah.

He doesn’t speak to you quite as directly as I’m speaking to you now does he? Nah.

Like he’s a lot more gentle when he’s speaking to you? Yeah.

And you agreed to having a massage? Yes.

...

The bedroom door was closed? The bedroom door was closed.

...

He closed it? He closed it.

So the bedroom door’s closed, you’ve got a movie playing, you think the room light’s on and he’s massaging you? Yeah.

And you’ve invited him to massage you? Yeah.

You told us that when he was massaging you he massaged your legs? Yeah.

And that caused you to twitch a bit you said? Yeah when it started getting higher up my leg I was twitching.

You didn’t tell him to stop did you? Nah.

And you didn’t push him away did you? No I was just twitching.

You didn’t try and clamp your legs closed to stop him massaging your legs did you? Nah, could of.

You didn’t though did you? I don’t know. Don’t remember it. I could of done it, I don’t know.

...The reality is that up to this point you’ve done or said nothing to tell him you don’t want this to happen have you?... You have done and said nothing to indicate you don’t want this to happen, correct? Nah.

[19] The jury had the advantage of seeing and hearing A. The appellant elected not to give evidence. We have noted that the underlined passages provide an evidential basis for the jury to have found subjective lack of consent. The bold passages provide a similar basis for the jury to have found objective expression of lack of consent. Whether the italicised passages should be regarded as detracting from the other passages was a matter of fact for the jury to assess. Relevant to this are the circumstances of the encounter and the age differential. We reject the contention that a reasonable jury could not have been satisfied beyond reasonable doubt of guilt.
[20] It follows that the third ground also fails.

Sentence

[21] In R v Tranter CA 486/03 14 June 2004 and R v RHA [2007] NZCA 301 this Court noted that, while there are no tariff or guideline judgments for sentences for sexual violation other than rape, they are often dealt with more leniently. Everything depends on the circumstances of the offending, including the indignities inflicted on the victim. In Tranter a three year term was increased to four years on a Solicitor-General’s appeal for a single episode of digital penetration of a school-girl on her way to school which did not involve skin to skin touching.
[22] The six months for a single act of indecent touching of B and a cumulative four and a half years for the conduct affecting A were well within range.
[23] The appeal against sentence also fails.

Solicitors:
Crown Law Office, Wellington