Mann v R [2010] NZCA 68 (15 March 2010)

Last Updated: 4 April 2010

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA537/2009
_{[2010] NZCA 68}

BETWEEN CARL BRIAN MANN

Appellant

AND THE QUEEN Respondent

Hearing: 24 February 2010

Court: Arnold, Harrison and Fogarty JJ Counsel: A N Isac for Appellant

N P Chisnall for Respondent

Judgment: 15 March 2010 at 2.30 pm

_{JUDGMENT OF THE COURT}

A The appellant is granted leave to adduce further evidence.

_{B The appeal against conviction is dismissed.}

REASONS OF THE COURT

_{(Given by Arnold J)}

Introduction

[1] Following a jury trial before Judge Atkins QC the appellant was convicted of one count of sexual violation by digital penetration and one count of attempted

MANN V R CA537/2009 15 March 2010

sexual violation by rape. He was sentenced to five years’ imprisonment on the sexual violation count and to four years’ imprisonment on the attempted rape count, the sentences to be served concurrently.[1]

[2] Although the appellant filed an appeal against both conviction and sentence, the sentence appeal was not pursued. Accordingly, we treat it as abandoned and address only the conviction appeal.

[3] Affidavit evidence was filed in support of the appeal, although there does not appear to have been any application to file fresh evidence. There were affidavits from the Officer in Charge at the appellant’s trial, Detective Sergeant Milligen, and from the Court Crier, Mr K M Bailey. These deal with aspects of the trial that are at issue on the appeal and are clearly admissible, so we receive them. The appellant also filed an affidavit. Although it contains a good deal of inadmissible commentary, it does annex some relevant materials, so we receive it as well.

Factual background

[4] The appellant was one of a group of people who were at the complainant’s flat one evening, socialising and drinking. The group (including the appellant and the complainant) left the flat sometime between 9 – 10 pm to visit some local bars. The complainant said that the appellant had showed some interest in her, but this was not reciprocated. She had recently returned to New Zealand from England, where she had lived for several years, and her boyfriend was shortly due to join her from there.

[5] The group went from bar to bar, not always in company. At one bar a “wet tee shirt” contest was underway. One of the members of the group placed his hand on the complainant’s breast, as did the appellant. The precise circumstances in which this occurred are disputed. The complainant said that the appellant had “grabbed” her breast. The appellant said that the complainant has placed his hand on her breast,

_{after another person had touched it. The complainant denied this, saying that she had}

placed another person’s (LB’s) hand on her breast to “disarm” the appellant’s sexual advance. LB supported this account.

[6] Another witness, PS, who was a flatmate of the complainant, gave another account. He said that he and LB (and not the appellant) had touched the complainant’s breasts, at the complainant’s instigation. He said that this had occurred at a bar the group had visited before the bar which was holding the wet tee shirt contest. He said that in the course of the evening he expressed an interest in the complainant, but she had rejected his advances.

[7] Over the course of the evening, the complainant became very intoxicated. She decided to return to her flat, which she did by taxi. On arrival, she put a pot of water on the stove to boil. However, while she was waiting she went into her room and fell asleep.

[8] Meanwhile the appellant decided to leave his companions. He went to the complainant’s flat by taxi, on his own. In his video interview (the appellant elected not to call evidence at trial), the appellant said that he looked through the window and saw the pot boiling on the stove. He then knocked on the door of the flat and was let in by the complainant. For her part, the complainant had no memory of that.

In any event, when two others, ST and KW (the latter being a flatmate of the complainant), arrived at the flat shortly after the appellant (sometime between 2 am and 3 am), they found him looking after the pot of boiling water on the stove. Around this time, ST woke the complainant up to retrieve his tie and return her bra, which they had swapped at some stage during the evening as a joke. He did some tidying up around the flat and left.

[9] The appellant said that he wanted to sleep on a couch at the flat. KW gave him a sleeping bag. According to the appellant, sometime later he knocked on the complainant’s bedroom door and asked if he could go in. He said that the complainant responded “Yeah okay”. The appellant said he got into bed with the complainant and began to rub her vagina. He said she positioned herself so that she could have sexual intercourse with him, but he was unable to do so because he could not get an erection. He said the complainant then told him to leave, which he did.

As he was leaving he knocked on KW’s bedroom door to say he was leaving. By this stage it was around 5.30 am.

[10] By contrast, the complainant’s account was that she was not interested in the appellant. She said that when she had fallen asleep, she was wearing pyjamas but when she awoke, she was naked. She could feel someone rubbing her vagina. When she turned to see who it was, she saw the appellant, naked, resting on his knees and masturbating himself. He was touching her vagina. When she asked him what he was doing, he said “Come on, you know you want it”. The appellant then attempted to have intercourse with her. The complainant yelled at the appellant to leave. The appellant gathered his things and left. The complainant then fell asleep again, waking up some hours later. After speaking to KW, the complainant contacted the police.

[11] KW’s evidence was that when she went to bed after giving the appellant a sleeping bag he was watching television and drinking a beer. Later, while asleep, she was woken by loud voices. She thought that one belonged to another flatmate, PS, and that the other was also the voice of a male, presumably the appellant. She said she went back to sleep, and did not wake again until the appellant woke her up to say that he was leaving.

[12] The evidence of PS was that he returned to the flat around 4 am. He said that

he went into the complainant’s room to say hello, to see what was going on and to tell the complainant he liked her. He said he sat down on the corner of the complainant’s bed and, when he put his hand out, came into contact with the appellant’s head. He said he “got a bit of a shock that there were two people there” and left almost straight away. He was asked if the complainant had responded when he had entered the room. He answered that “she mumbled some words at me”. He thought she was awake but could not say whether or not her eyes were open as it was dark. The complainant had no recollection of any of this.

Basis of appeal

[13] For the appellant Mr Isac advanced five grounds of appeal:

(a) The complainant was wrongly permitted to give evidence about the effect of antidepressant medication on her.

(b) The complainant improperly attacked the credibility of another Crown witness, PS.

(c) A lies direction was given, which was not justified. (d) The verdicts were unsafe for three reasons.

(e) The verdicts were unreasonable and not supported by the evidence.

Discussion

[14] We will deal with each ground of appeal in turn.

(i) Complainant’s evidence about effect of medication

[15] To put this ground of appeal in context, we must summarise briefly the

Crown and defence theories of the case.

(a) The Crown’s theory was that the complainant was in such a state as a result of a combination of excessive alcohol consumption and antidepressant medication that she did not have the capacity to consent to sexual conduct – she was effectively unconscious. The appellant took advantage of her when he knew that she was not in a position to consent.

(b) The defence theory was that the complainant had consented to the sexual contact, or the appellant reasonably believed that she had. The defence accepted that the complainant was genuine in her belief as to what had happened but said her evidence was unreliable. She had an incomplete memory of what had happened as a result of the alcohol and medication. The defence said the complainant had been flirting

with various people during the course of the evening and had recast events in her mind in order to avoid embarrassment, given the imminent arrival of her long-term boyfriend, who was about to leave England to join her in New Zealand.

[16] The Crown called an expert witness, Dr Cape, who gave evidence based on a survey of the medical literature of the combined effects of alcohol and the antidepressant drug taken by the complainant. He had not examined the complainant, so his evidence was general in nature. He said that, although the medication did carry a warning against consuming excessive alcohol when taking it, there were no significant studies on the effect of consuming large quantities of alcohol with it. He said that he was unable to say whether the combination of the medication and alcohol could affect the ability of a person to wake up as there was no research on the topic. However, he also said that consumption of alcohol in the quantities consumed by the complainant could induce a deep sleep from which it was difficult to rouse the subject. He acknowledged that excessive alcohol consumption can also cause memory loss, even though the subject is still capable of acting in the intoxicated state.

[17] In her evidence in chief, the complainant described the medication which she took. She was asked about the effect of the medication on her. In particular she was asked whether it had any impact on her ability to be roused from sleep. The complainant said:

A: I did find when I had been taking the [medication] and maybe had a few drinks that I did, like I would sort of, for example like if I had fallen asleep on the couch and someone had tried to wake me up I wouldn’t have woken up if I had had a couple of drinks to the point where my partner in the past has just left me –

OBJECTION: MR ISAC

EXAMINATION CONTINUES: [CROWN COUNSEL]

Q: Perhaps I’ll rephrase the question. If you were woken up by somebody, how easy did you find it to be woken up?

A: Well I was taking a double amount so that I would stay asleep, I would usually wake up in the middle of the night by the driving of a car or some noise outside, I found that taking double the medication I would stay asleep.

[18] The complainant went on to describe a little further the impact on her of taking the medication and consuming alcohol. She said that instead of becoming intoxicated slowly, she experienced a “brick wall” effect of total intoxication.

[19] Mr Isac said that the complainant’s evidence about the effect of the medication on her when taken in conjunction with alcohol “constituted both hearsay and inadmissible opinion evidence on the side effect of a drug when she was not qualified to comment on its side effects..., particularly where the side effects of alcohol in large volumes were indistinguishable”.

[20] In our view, there is a short answer to this submission, and it lies in the latter part of the extract which we have just quoted from Mr Isac’s submissions, that is, “particularly where the side effects of alcohol in large volumes are indistinguishable”. On the evidence it was indisputable that the complainant had consumed a large amount of alcohol over the course of the evening and had become very intoxicated. Dr Cape confirmed that a person who consumes as much alcohol

as the complainant had could fall into a deep sleep from which he or she would be difficult to rouse. This was the state that the Crown said the complainant was in, and that was what the jury had to focus on. As the Crown put it in closing, the Crown case was that the complainant had “been woken after effectively passing out to find the [appellant’s] fingers inside of her vagina and the [appellant] attempting to thrust

his penis into her”. Whether the complainant’s state came about wholly as a result of her consumption of alcohol or from the combined effect of alcohol and the medication was not the critical point.

[21] When the jury came to consider whether the Crown had established beyond reasonable doubt that the complainant was asleep or unconscious when the sexual contact occurred and therefore not capable of consenting, it had to consider all the evidence. This included the accounts given by the other witnesses about the complainant’s state, as well as those given by the complainant and the appellant in

his video interview. In assessing the complainant’s reliability on the central point, the jury would have taken surrounding matters into account. For example, the appellant said in his video interview that when he and the complainant were in bed they were both naked from the waist down but he could not remember whether or

not the complainant was wearing a top. The complainant said that when she woke

up on the morning of the incident she was naked and her pyjamas were scattered about. She found that her pyjama top had been unbuttoned. She thought this was odd because she never unbuttoned it. As it was too large for her she simply left it buttoned up and slipped it over her head whenever she put it on or took it off. If the jury accepted this, it supported the view that she had not removed the top.

[22] The complainant’s evidence about the combined effect of alcohol and medication on her was not supported by Dr Cape’s evidence, although neither did his evidence undermine it. Dr Cape simply said that there was no relevant research. But, as we have said, his evidence was certainly supportive of the proposition that someone who was as intoxicated as the appellant could have fallen into a deep sleep from which she could not easily be roused. Mr Isac submitted that the complainant’s evidence might have led the jury to believe that the presence of the medication would have had an additional impact on her level of consciousness (ie, beyond that caused by the alcohol). But given the amount of alcohol that she had consumed, we do not accept that this created any risk of a miscarriage.

[23] Accordingly, we reject this ground of appeal.

(ii) Complainant improperly attacked credibility of another Crown witness

[24] Mr Isac said that the evidence of a Crown witness, PS, was critical to the defence case, given what he said at the preliminary hearing. This was because it provided support for the proposition that the complainant was awake and unconcerned when the appellant was in (or on) her bed at the time PS entered the bedroom. PS had said that he had spoken briefly to them both, although he could not remember what was said.

[25] After the incident, PS and the complainant had a falling out. Mr Isac said he advised Crown counsel that the Crown should not attempt to explore the subsequent acrimony between PS and the complainant to further the Crown case, on the ground that the Crown was not entitled to ask one Crown witness to impugn the integrity of another.

[26] Mr Isac complains that during the course of the complainant’s evidence in chief, Crown counsel asked the complainant a question about her relationship with PS. She responded that PS had propositioned her several times during the evening but she had told him that she was in love with her boyfriend and he was due to arrive

in New Zealand shortly. Crown counsel then asked how PS had reacted to that. The complainant replied:

Very badly, he went off and sulked. He didn’t talk to me for the rest of the night, and in later weeks he became very angry about it.

[27] Mr Isac then applied for a mistrial. Judge Atkins declined the application in a written ruling. He said that there had been no deliberate attempt by the Crown to lead evidence from the complainant to undermine the evidence of PS and that Mr Isac accepted this. Further, the Judge considered that the complainant’s evidence was relevant and therefore admissible. Although the Judge did not say why he considered it to be relevant, he presumably had in mind that it both supported the complainant’s account that she did not want a sexual relationship with the appellant or anyone else given that she was already in a long-term relationship and undermined the defence case that the complainant was being flirtatious and seeking a sexual partner that evening.

[28] Before us, Mr Isac said that the sequence of question and answer just discussed showed that the Crown was attempting to undermine another Crown witness improperly. He said that in closing the Crown had invited the jury to treat PS’s evidence as unreliable. As to the breast touching incident, the Crown suggested that PS had imbibed a great deal of alcohol. In addition, in relation to his brief visit

to the complainant’s bedroom, the Crown argued that his evidence as to the complainant’s state was highly equivocal.

[29] We see nothing in this ground. The Crown called a number of witnesses who gave evidence about the events of the night. The Crown was not obliged to give equal value to everything that every Crown witness of fact said in evidence. Inevitably there were conflicts and inconsistencies in the evidence of the various witnesses, and the Crown went no further than suggesting that to the jury that limited weight should be placed on the evidence of PS given his heavy intoxication. There

is no rule prohibiting the Crown from inviting the jury not to accept evidence given

by a witness it has called.[2] Further, if the defence regarded the evidence of PS as critical, it could have called him as its witness. Finally, as it ultimately emerged at trial, the evidence of PS as to what occurred in the bedroom, in particular as to the state of the complainant, was not particularly helpful to the appellant.

(iii) Lies direction wrongly given

[30] In his video interview, the appellant gave an explanation as to how he came

to touch the complainant’s breast in the pub. As we note,[3] he said that the complainant had placed his hand on her breast. For her part, the complainant denied the appellant’s account, saying that he grabbed her breast uninvited.

[31] In closing the Crown said that the appellant’s explanation was a lie, and invited the jury to reach the same conclusion about his version of what occurred in the complainant’s bedroom. The Crown asked the Judge to give a lies direction pursuant to s 124 of the Evidence Act 2006.

[32] In his summing up, Judge Atkins said:[4]

It was said by [the Crown] that the [appellant] had lied during the course of that interview when he suggested that it was [the complainant’s] flatmate who went to pinch her nipple and that [the complainant] had grabbed [the appellant’s] hand and placed it on her breast. The defence position is that this was not a lie. It is for you to determine if you are able to, whether or not this was a lie, keeping in mind that you must be satisfied that it was a lie before you consider giving it any weight. If you conclude that you are satisfied that this was a deliberate lie, and it was not merely forgetful, mistaken or confused, you should keep in mind that people may lie for various reasons, and if you are satisfied that he did tell a lie, then you should not conclude that just because he told a lie, he is guilty of one or both of the offences with which he is charged. So you can give lies the weight – if you find a lie has been told – you can give a lie the weight you think is appropriate, but you should be keeping in mind that people may lie for all sorts of reasons, such as panic or confusion or fear, and you should be careful about the weight you give to any lie which you find to have been told.

[33] Mr Isac said this instruction was unfairly prejudicial to the appellant. On the evidence it was not open to the Crown to submit that the appellant had lied.

[34] In our view the Judge’s instruction was entirely appropriate. The Crown submitted to the jury that the appellant was lying. There was clearly a basis for that submission on the evidence. Having noted the Crown’s position and that of the defence, the Judge said that the jury would have to determine the point. However, he warned the jury that if they did conclude the appellant was lying, they should be careful not to jump to the conclusion that he was therefore guilty of the offending charged. We see no prejudice to the appellant in this.

[35] When referring to the weight the jury might attach to the lie if they considered it proved, the Judge obviously had in mind that, as a result of s 124(2) of the Evidence Act, the jury was entitled to use a proved lie about a material matter told by the appellant as circumstantial evidence of his guilt.[5]

[36] There is nothing in this ground of appeal.

(iv) Verdicts unsafe

[37] Mr Isac submitted that the jury’s verdict was unsafe because:

(a) It was apparent from a question they asked that the jury members had predetermined their verdict on one count.

(b) During an adjournment the appellant’s mother approached a member

of the jury to ask how the jury’s deliberations were going.

(c) One juror was dismissed during the course of the trial, on the ground that she had met PS socially and had formed a negative view of him.

He did, however, acknowledge that these matters were unlikely, individually or collectively, to provide a basis for overturning the convictions, a sentiment with which we agree. We address each point in turn.

Jury question

[38] Mr Isac said that the conduct of the jury strongly suggested that there was predetermination on the part of at least some jurors. Mr Isac relied on the fact that after the defence closing but before the Judge had summed up, the jury asked two questions, one of which was:

If the accused was unable to get an erection, does this still technically &

legally constitute attempted rape?

There was then the following addendum:

May be addressed in directions tomorrow.

[39] We see nothing improper in this. By the time the jury posed the question, they had heard four days of evidence and the Crown and defence closings. The appellant had said in his statement to the police that he was unable to achieve an erection. The jury obviously wanted to understand what, if any, legal effect this had. Accordingly, they asked the Judge for guidance. Far from indicating pre- determination, this simply shows that the jury was going about its task in a careful and thoughtful way.

Approach by appellant’s mother to juror

[40] Mr Isac said that during the luncheon adjournment on the penultimate day of the trial, the appellant’s mother asked a passing juror “How’s it going in there”. The juror reported this to the Judge who, in the presence of counsel, sought to clarify with the juror what had happened and to determine whether the remark affected the juror’s ability to consider the case dispassionately. Clearly he concluded that it would not.

[41] In his affidavit Detective Sergeant Milligan said that on the fourth day of the trial he was asked by the trial Judge to attend a conference in chambers with counsel. The Judge said that a juror had reported that she had been approached by a woman

_{who had been sitting in the court throughout the trial, who turned out to be the}

appellant’s mother. Detective Sergeant Milligan said that, at the Judge’s request, he had spoken to the appellant’s mother, who said that she had been standing on the steps outside the courtroom shortly before Court was to resume after the luncheon adjournment when the jury walked past. She denied that she had said anything to them. Detective Sergeant Milligan warned the appellant’s mother of the possible consequences of attempting to communicate with the jury, and told her that the Judge had ordered her from the courtroom for the remainder of the trial.

[42] Again, we see nothing in this point. A juror made a report to the Judge, who instigated an investigation. The investigation did not turn up anything. It may be that the appellant’s mother had in mind a cynical attempt to cause the trial to be aborted. But in fact, there is no risk of a miscarriage of justice as a consequence of what she did.

Juror dismissal

[43] Mr Isac said that on the third day of the trial as PS began to give evidence a juror advised the Judge that she had had social contact with PS and had formed a poor impression of him. After speaking to her and confirming that she had not shared her views with any other member of the jury, the Judge discharged the juror, with the agreement of counsel. The trial continued with 11 jurors. There is nothing untoward in any of this.

(v) Verdicts unreasonable and not supported by evidence

[44] The test to be applied under s 385(1)(a) of the Crimes Act is found in Owen v

R,[6] in which the Supreme Court endorsed six principles set out in this Court’s judgment in R v Munro.[7] The essential question is whether the jury could reasonably have been satisfied that the appellant was guilty.

[45] The central issue in the present case was a classic jury question and depended largely upon the jury’s assessment of the complainant’s reliability. Obviously, there

were difficulties with the complainant’s account, given the nature of the evening’s events and the extent of her intoxication. Through his cross-examination of the witnesses and his closing address, Mr Isac drew the jury’s attention to these difficulties, with some force. Ultimately the jury accepted the complainant’s evidence. In this case, there is no basis on which we could properly interfere with the jury’s assessment.

Decision

[46] The appellant is granted leave to adduce further evidence, but the appeal against conviction is dismissed.

Solicitors:

Fitzherbert Rowe, Palmerston North for Appellant

Crown Law Office, Wellington for Respondent

---

[1] R v Mann DC Palmerston North CRI-2008-054-1953, 18 August 2009
[2] See R v Eagles [2004] 2 NZLR 468 (CA) at [22] and R v Sungsuwan [2005] NZSC 57, [2006] 1 _{NZLR 730 at [84]- [86].}
[3] _{At [5] above.}

[4] At [14].

[5] See R v Dewar [2008] NZCA 344 at [17].

[6] _{Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [13].}

[7] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87