R v Helmbright HC Nelson CRI 2011-042-979 [2011] NZHC 2072 (9 November 2011)

Last Updated: 19 February 2012

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

_1985.

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

_{CRI 2011-042-979}

THE QUEEN

v

HAROLD REREWA HELMBRIGHT

Hearing: 7-9 November 2011

Counsel: M A O'Donoghue and S K O'Donoghue for the Crown

A J Bamford and M J Vesty for the Accused

Judgment: 9 November 2011

_{JUDGMENT OF MALLON J}

Introduction

[1] Mr Helmbright was on trial in the High Court on charges of burglary, sexual violation (x2), attempted sexual violation and rape. Today, on the morning of the third day of the trial, I discharged Mr Helmbright on all counts under s 347(3) of the Crimes Act 1961 and discharged the jury from having to give verdicts. Brief reasons

_{were given in Chambers for my decision. I now set out my reasons in full.}

R v HELMBRIGHT HC NEL CRI 2011-042-979 9 November 2011

Background

[2] From 17 February 2011 the complainant had been a voluntary in-patient at the mental health unit in Nelson for treatment for her alcoholism. She was a patient following a recent drinking binge which had culminated in her calling the police saying that she was going to commit suicide and they had better find her, and then driving drunk to the police station where she was arrested.

[3] On the afternoon of 20 February 2011 she contacted a friend, from the mental health unit, to give her some alcohol. The friend arrived at the unit and gave her some alcohol. The complainant said that the friend gave her two small bottles of lemonade which her friend had already pre-mixed with vodka. The friend‟s evidence was that she gave the complainant two miniature bottles of vodka (for $4 each) and two 600 ml bottles of lemonade.

[4] Having drunk the alcohol, and taken her prescribed diazepam, the complainant climbed over the fence and left the unit. She had $40 cash, an eftpos card and a mobile phone with her. She went to a bar where she purchased a dozen Tui beer for later consumption. She consumed some alcohol. She thought she drank three jugs quickly while there. She had joined a man and woman who she did not know. The woman could not remember what the complainant had drunk but thought she was drinking bourbon. She said that she could tell that the complainant had been drinking.

[5] Later in the evening the man, woman and the complainant went back to the man‟s house by taxi, where they carried on drinking. The woman and the complainant were drinking the Tui beer that the complainant had earlier purchased. The woman decided that she had drunk enough and that it was time to go home. She remembered noticing that at this time there were four beers left of the original dozen. The woman called a taxi and she and the complainant left the man‟s house.

[6] The woman described the complainant that evening as being talkative. The complainant told them that she had jumped the fence at the mental health unit and she seemed quite excited about it. The woman said that the complainant had said

that if she got caught they would lock her up in a room at the unit. At the man‟s house the woman said that the complainant was making calls to the mental health unit, to the police and to her brother. She seemed to the woman to be happy, pretty hyperactive and possibly quite intoxicated. The woman gained the impression that the complainant was attention seeking.

[7] The taxi took the woman to the mental health unit. The woman said that this was because the complainant had asked to go back there. The woman also said that when they got there the complainant asked her to go to the door and ring the buzzer for her. The woman did this and was told that the complainant was a voluntary patient and she did not need to be there. When she turned around the taxi was gone. The woman had to call another taxi to get herself home.

[8] The complainant‟s evidence was that, having jumped the fence, she was intent on getting drunk and afraid of going back to the unit because she would be put into “the cage”. She did not recall making calls at the man‟s house but accepted that she may have. The complainant vaguely remembered that the woman and her brother wanted her to go back to the unit. The complainant did not recall being in the taxi outside the unit. She thinks that she would have just wanted to go home because that is what she wants to do when she has been drinking.

[9] The complainant did not remember where she was sitting in the taxi or what was said. The complainant recalled that when she got to her home she had to sit on her veranda and that she vomited on herself. The complainant did not have keys for her house. They were with her brother and her mother while she was in the unit. The complainant said that she gained entry through one of the French doors that was kept unlocked but which had an inside chain on it. She said that she could open the French door and remove the chain. She did not remember whether she locked the door after entering but said that she usually did. She recalled having a shower to wash off the vomit. She thinks that she wrapped herself in her towel and then went upstairs to bed. She said that she was coming “in and out”. She described this as being black outs.

[10] The next thing the complainant remembers was seeing a man coming up the stairs. Initially she did not know who it was but then recognised him as the taxi driver. She said that he was in her bed and she accepted that he had removed all his clothes. She says that he put his fingers in her vagina, that he performed oral sex on her and that he also put his penis in her vagina. She says that he attempted to put his penis in her mouth but that she did not let him do that. She said that during the sexual activity she was asking him to leave.

[11] After Mr Helmbright had left the house, the complainant telephoned her friend (being the person who had earlier given her the vodka). The friend‟s evidence was that the complainant sounded really weird. She said that the complainant kept going on about a “bad man” and mentioned an “attack”. She said the complainant was going on about skipping out of the mental health unit and that the police would be looking for her and she sounded proud about that. She said the complainant said that she had got a ride home with the bad man. She said that the complainant wanted her to go to her house but that the friend had difficulty getting an address from her. Eventually the complainant gave her an address which was not in fact the complainant‟s home address.

[12] The friend said that the call ended oddly. She said that the complainant ended the call with “Okay I‟ll see you soon” and the friend described this as “all of a sudden she wasn‟t drunk anymore and she was like normal voice.” The friend was asked by counsel if she had the feeling that the complainant had been putting on the voice. The friend said “I didn‟t until the last sentence, then I was like „Oh she just talked normal.‟”

[13] The friend telephoned the police and went to the address she had been given. When she got there she sent a text to the complainant who told her that she was the first house in the cul-de-sac. The police told her that it was the wrong address. The friend sent another text to the complainant saying she thought she was there but received no reply.

[14] Meanwhile the police communications spoke to the complainant by

telephone. The complainant referred to a “bad man” who had “hurted her” and done

“mean things”. The complainant said the man had sex with her. She expressed concern that she would not be believed and referred to a rape. She said the man was the taxi driver, that he had black skin and that he had climbed through the kitchen window. The police communications person told her to lock all the doors and shut the window and to wait for the police. The complainant said she was shutting the door but was too scared to shut the window. She said she was concerned about the man‟s fingerprints being on the window, and she did not want to touch the window even with a plastic bag as the communications person had suggested.

[15] When the police arrived they were able to gain entry via the back door which was open. The kitchen window was also open and three screws from the latch were sitting on the kitchen sill. The police found the complainant lying prone at the bottom of the stairs. She was wearing her dress. Although she was warm and breathing normally, she was unresponsive. The ambulance arrived and she was lifted off the floor to be taken to hospital. When she was lifted off the ground the police saw some pills and an empty pill container lying on the floor underneath her. An overdose was suspected but this was not in fact the case. Later it was found that the pills were for a skin condition. Before leaving the house the police pulled shut the kitchen window from the inside.

[16] On the afternoon of 21 February 2011 a fingerprints examination of the doors and the kitchen window was carried out. No fingerprints were found on any of the doors. Finger prints were found on the inside of the kitchen window. With the exception of one print, these were all identified as belonging to the complainant. The one print not identified as belonging to her did not belong to Mr Helmbright. The police also noted that the French door was unlocked but had the chain on it.

[17] The defence case was that the complainant had consented to the sex (and had instigated it in the taxi on the way to her house) and that Mr Helmbright believed on reasonable grounds that she was consenting. The complainant denied that she suggested and was discussing having sex with the taxi driver on the way back to her house. The complainant did not remember having any discussion with the taxi driver about paying the $60 cab fare. She said that the question of payment would not have

even occurred to her because she was drunk and normally her brother paid for any taxi when they were out drinking.

[18] In the course of cross-examination she said that she would not have been discussing sex with the taxi driver because she was not attracted to “black” or “dark skinned” men. (I note that Mr Helmbright has dark brown skin.) She also said that she would not have discussed giving him a “blow job” because she did not like performing oral sex and did not do so even with men whom she was in a relationship with.

[19] It was put to her in cross-examination that she was currently in a sexual relationship with a man who was Maori. She said that he was darker than her but she would not describe him as “black”. She said that until her current relationship she had never had a relationship with somebody she considered to be “black”. She further said that this was the first relationship she had had with a Maori man.

[20] It was then put to her that she had previously been in a sexual relationship with another man who was Maori. She accepted that although downplayed the extent of the earlier relationship by saying that they had sex but it was not a relationship. She added that she said that she would not sleep with someone who was “black”, which she considered Mr Helmbright to be. She said “I would not sleep with someone who had very black skin, I would not sleep with an Asian and I wouldn‟t sleep with an Islander, by choice.”

[21] In the course of the complainant‟s evidence, it became relevant whether the complainant had had a sexual relationship with a detective. She accepted that she had. This morning the defence provided an affidavit from the detective, who is no longer with the police force. He confirmed that in 2010 he had a sexual relationship with the complainant which he described as an affair rather than a long-term relationship. He said that his experience was that the complainant “did perform oral sex on me and she seemed more than happy to do so.” He said that by oral sex he meant that “she sucked my penis.” He said that “she did this on a number of separate occasions.”

Section 347 discharge

[22] As a result of the affidavit, the Crown submitted in Chambers that in its view the point had been reached where the credibility and reliability of the complainant had been so undermined that the Crown considered that there was no reasonable prospect of a conviction; and that in the unlikely event of a conviction I would have to consider whether the conviction would be unsafe. The Crown said there was no reason to disbelieve the detective. It referred to this evidence and the evidence of her relationships with two Maori men. It referred also to the evidence from the woman the complainant had met at the bar, the evidence from the friend about the phone call and the finger print evidence. It referred to the Court of Appeal‟s decision in Parris

v Attorney-General.1 Defence counsel agreed with the Crown‟s submission.

[23] The question of whether to discharge Mr Helmbright is for me to determine. Ordinarily it is for the jury to assess credibility. However in “most unusual and extreme circumstances” it is the presiding Judge‟s responsibility to intervene.2 It is proper that the Judge do so if on the state of the evidence a properly directed jury could not reasonably convict. That may arise where “evidence in a case may be adequate if accepted but witnesses may appear so manifestly discredited or

unreliable that it would be unjust for a trial to continue.” The rationale for the discharge is “not the likelihood of an acquittal but the safeness of a conviction having regard to the evidence.”3

[24] In my view this is a situation where a properly directed jury could not reasonably convict Mr Helmbright on the charges. The evidence against him depends on the reliability and credibility of the complainant. A significant difficulty already existed about that because the complainant was unable to recall the detail of events leading up to the sexual activity in her bed.

[25] There were also reasons to doubt her version of events. These included her behaviour in calling the mental health unit and the police while maintaining in her

_{evidence that she was scared to go back to the unit (where she was a voluntary}

1 _{Parris v Attorney-General [2004] 1 NZLR 519.}

2 _{Parris at [10]-[14].}

3 R v Flyger [2001] 2 NZLR 721 (CA) at [15].

patient) and just wanted to go home. It included how she appeared to the woman she was drinking with and what the friend said about the telephone call. There was also the oddness of the complainant refusing to close the window yet her fingerprints being on the inside of the window and not on the door she said she had used. And there was the further oddness of the pills (which were for a skin condition) and the empty pill container being found underneath her which she was unable to explain.

[26] But on top of these difficulties was her evidence about not performing oral sex and not being attracted to men with black or dark skin. The complainant relied on these matters to say that she would not have consented to the sexual activity. In the absence of being able to recall the details leading up to Mr Helmbright being in her bed, these matters were critical to her evidence that she would not have consented. In respect of both matters her evidence was manifestly discredited.

[27] There was no support for the proposition that she could not consent to sex or that Mr Helmbright could not have believed on reasonable grounds that she consented, because of her intoxicated state and the effects of the diazepam. She had been conversing with the woman up to the point that the woman was left at the mental health unit without a ride home. She was able to have a shower and walk up the stairs to her bed. She was able to put on her dress afterwards, to walk downstairs and to talk to her friend and to police communications.

[28] For these reasons I considered that it would be unjust for the trial to continue because convictions on the charges would be unsafe. I therefore considered it proper to intervene at this point and to discharge Mr Helmbright.

Mallon J