EDIRISOORIYA v R [2022] NZCA 135

EDIRISOORIYA v R [2022] NZCA 135 [27 April 2022]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA724/2020[2022] NZCA 135BETWEEN ABEYWEERA ARACHCHI PATABEDIGEAMAL EDIRISOORIYAAppellantAND THE QUEENRespondentHearing: 24 March 2022Court: Collins, Lang and Mallon JJCounsel: W C Pyke for AppellantM L Wong for RespondentJudgment: 27 April 2022 at 9.30 amJUDGMENT OF THE COURTA The appeal against conviction and sentence is dismissed.B The appeal against refusal to grant permanent name suppression isdismissed.C The existing interim order for suppression is lifted with immediate effect.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Following a trial in the District Court, Mr Edirisooriya was found guilty by ajury on two charges of sexual violation by rape. On 1 December 2020,Judge S J O'Driscoll sentenced Mr Edirisooriya to seven years three months'imprisonment.1 The Judge also declined an application by Mr Edirisooriya for anorder suppressing his name and identifying particulars from publication on apermanent basis.2[2] Mr Edirisooriya appeals against conviction, sentence and the refusal of theJudge to grant permanent name suppression.[3] Mr Edirisooriya appeals against conviction on the basis that his trial counseldid not adequately inform him of the ramifications of his election not to give evidence.He appeals against sentence on the basis that the sentence the Judge imposed wasmanifestly excessive. He appeals against the Judge's decision refusing permanentname suppression on the basis that the effects of publication on his wife and familymeet the statutory threshold to justify such an order being made.The Crown case[4] The Crown case was based in large part on the evidence given by the19-year-old female complainant. On the evening of Friday 11 January 2019 she wentto a hotel in Christchurch. Before doing so she had consumed alcohol and a quantityof the recreational drug known as ecstasy or MDMA. Whilst at the hotel thecomplainant continued to drink alcohol and became intoxicated as a result. At onestage the bar staff refused to supply her with any more alcohol for a thirty minuteperiod.[5] The complainant and a group of friends left the hotel at about midnight andwent to a residential address, where the complainant consumed more alcohol. Atapproximately 1 am, the complainant arranged to obtain a ride home using the Uberapplication on her cellphone. The Uber vehicle, driven by Mr Edirisooriya, arrived ashort time later and the complainant got into the front seat.[6] Shortly after she got in the vehicle the complainant asked Mr Edirisooriya ifhe had any cigarettes. He said he did not but asked her what else she smoked, to which1 R v Edirisooriya [2020] NZDC 25113 [District Court decision] at [52].2 At [70].she said cannabis, occasionally. He proceeded to offer her some cannabis, which sheaccepted and suggested they smoke at a nearby school. He said they would smoke itat the park instead and drove there.[7] At the park, Mr Edirisooriya retrieved a pencil case containing cannabis plantmaterial and cigarette papers from the boot of the vehicle. He then rolled a cannabiscigarette and he and the complainant consumed this whilst standing under a tree in thepark.[8] The cannabis made the complainant extremely drowsy, and she askedMr Edirisooriya to drive her to her house. They walked back to the vehicle and thecomplainant got into the back seat, feeling increasingly vulnerable due to the multiplesubstances she had by this stage consumed.[9] The Crown alleged that Mr Edirisooriya got into the back seat of the vehiclewith the complainant and put his arm around her. He then began kissing her andrepeatedly asking her if she would like to go back to his house. She said no and thatshe did not want to be raped.[10] Mr Edirisooriya then pushed his hand under the complainant's dress andrubbed her genitalia under her underwear with his fingers. He also placed his hand onthe complainant's breasts over her clothing.[11] The complainant continued to plead with Mr Edirisooriya to stop and to takeher home. He made her promise that she would not run away, then went to the driver'sseat of the vehicle and drove to the complainant's address. After parking the vehicleoutside the complainant's address, Mr Edirisooriya got into the back seat and allegedlyremoved the complainant's clothing. She was aware of what was happening, but saidshe was unable to prevent Mr Edirisooriya from removing her clothing because of theextent to which she was intoxicated.[12] Mr Edirisooriya then allegedly grabbed the complainant by the back of herhead and made her perform oral sex on him. He then performed oral sex on her andpenetrated her vagina and anus with his fingers.[13] This series of events resulted in Mr Edirisooriya being charged with fivecharges of sexual violation by unlawful sexual connection and one charge of indecentassault. The jury found Mr Edirisooriya not guilty on these charges.[14] The charges on which Mr Edirisooriya was convicted were laid as a result ofevents that then allegedly occurred. The Crown alleged that Mr Edirisooriya got ontop of the complainant in the back seat of the vehicle and penetrated her vagina withhis penis. The complainant said she pleaded with him to stop and, being terrified ofthe potential results of having sexual intercourse with Mr Edirisooriya, told him towear a condom. She reached into her bag and gave Mr Edirisooriya a condom. Heplaced the condom on his penis and continued to have sexual intercourse with thecomplainant.[15] Whilst this was occurring the complainant pretended to be asleep in the hopethat Mr Edirisooriya would realise she was unconscious and would stop. She wasafraid that if she resisted or tried to run away, matters would escalate. Mr Edirisooriyaturned the interior light of the car on and said her name. When the complainant madea snoring sound, he turned the light off and continued to have sexual intercourse withher. He turned the light on and off at least twice more, each time finding thecomplainant unresponsive. At some point Mr Edirisooriya removed the condom andcontinued to have sexual intercourse with the complainant. After he finished, he toldthe complainant to get dressed.[16] These events led to Mr Edirisooriya facing two charges of sexual violation byrape. One related to the period during which Mr Edirisooriya was wearing a condomand the other related to the period after he removed the condom. The jury foundMr Edirisooriya guilty on both charges.[17] The police went to Mr Edirisooriya's address the following day at about 10 am.After establishing his identity, they told him they had received a complaint about arecent Uber trip. They said the complaint was one of sexual assault. Mr Edirisooriya'swife, who was five to six months pregnant at the time, was present when the policeadvised Mr Edirisooriya of the nature of the complaint.[18] The police then searched the address and asked Mr Edirisooriya for his clothes,car keys and cellphone. He cooperated with the search and also agreed to undertakean interview the following week.[19] Mr Edirisooriya duly went to the police station and undertook a videotapedinterview on 16 January 2019. During the interview he denied engaging in any formof sexual activity with the complainant.The defence case[20] On 9 September 2019 Mr Edirisooriya outlined his version of events in ahandwritten statement that he gave to counsel then acting for him, Mr Richard Maze.At this stage Mr Edirisooriya had not seen the videotaped interview the complainanthad undertaken with the police and he had not read the transcript of that interview.[21] Mr Christopher Lange was assigned to act as Mr Edirisooriya's trial counselon 27 May 2020. On 5 September 2020 Mr Edirisooriya sent an email to Mr Langesetting out his version of events in greater detail. This expanded on matters containedin the handwritten statement he had earlier provided to Mr Maze. Mr Lange convertedthe email into a formal brief of evidence and returned it to Mr Edirisooriya forcomment on 22 September 2020. Mr Edirisooriya made minor amendments to thebrief and returned it to Mr Lange by email on 30 September 2020.[22] At trial Mr Lange cross-examined the complainant broadly along the lines ofthe matters contained in Mr Edirisooriya's brief of evidence.[23] Mr Edirisooriya said he picked the complainant up at about 1 am on themorning of 12 January 2019. He said the complainant was talking "very friendly"after she got into his vehicle. She removed her boots and placed her feet on thedashboard. She also asked him for a cigarette.[24] Mr Edirisooriya said they started talking about personal things. Thecomplainant told him about the recent breakdown in her relationship and said herboyfriend had left her because he caught her cheating on him. He said she was alsoasking him questions about himself. He said that by the time they reached thecomplainant's address she was leaning in close to him.[25] Mr Edirisooriya said he notified Uber that the job had been completed but hada feeling that the complainant was interested in him. He then asked her if she wantedto spend more time with him. The pair then started kissing. A short time later thecomplainant suggested they go to a nearby school. Mr Edirisooriya said he thoughtthe complainant was inviting him to have sex with her at the school and suggestedthey go to a nearby park instead.[26] He then drove to the park where he parked the vehicle. He and the complainantthen walked into the park holding hands. They began kissing for three or four minutesbut it was raining heavily. They went back to the vehicle where things resumed in thebackseat. The complainant was touching his penis on the outside of his clothing andhe was touching her breast under her dress.[27] The pair then exchanged numbers and made plans to meet the next day for adrink. He asked her if she would like to have sex and she said yes. He then asked ifshe knew a place they could go. She said yes and directed him to drive around nearbystreets. He got into the driver's seat and she into the front passenger seat.[28] Mr Edirisooriya understood that she did not have a place in mind and wassimply trying to find a place. He told her there was no point and they would meettomorrow as planned. She then asked him to drive her to her house, which he did.[29] He stopped the car outside the complainant's house and she climbed into theback seat. He joined her and they began kissing and touching one another. Heremoved his trousers and helped her remove her dress. She then performed oral sexon him and he digitally penetrated her.[30] He initiated sexual intercourse but she suddenly told him to stop, leaned overthe front seat and retrieved a water bottle and a packet from her bag. She had a drinkof water, handed him the packet and told him to put it on, and then realised she hadgiven him fudge instead of a condom. She then reached back in her bag and retrieveda condom that she gave to Mr Edirisooriya.[31] By this stage he had lost his erection. The complainant performed oral sex onhim before assisting him in putting the condom on. However, he lost his erection againwhen attempting to have sexual intercourse with her. He said he then removed thecondom and digitally penetrated her. The complainant then continued to play withMr Edirisooriya's penis, and he ultimately masturbated until he ejaculated.[32] He said they stayed together in the vehicle for about five more minutes and heeventually had to ask her to get dressed and get out of the vehicle, because he knewthat she had work in the morning and he had to keep working too. During this periodthe complainant was busy sending messages on her cellphone. Eventually they gotout of the vehicle, hugged, and the complainant went inside her address.[33] Mr Edirisooriya then drove away and continued working. He woke up at about10 am the next day to find two missed calls and a message from Uber on his cellphone.The message from Uber was to advise Mr Edirisooriya the company had received acomplaint about him. He assumed this must have related to the complainant becausenothing else unusual had happened whilst he had been working the previous evening.A few hours later Mr Edirisooriya said he left his house and called the complainant ona number she had given him. He asked her if she had made a complaint about him toUber, and she told him she was going to make a complaint to the police. He then hungup.Part one: The appeal against conviction[34] It appears to be common ground that both Mr Edirisooriya and Mr Langebelieved before the trial commenced that it would probably be necessary forMr Edirisooriya to give evidence. However, they agreed that a final decision wouldnot be made until the end of the Crown case.[35] Mr Lange said he considered Mr Edirisooriya may need to give evidence toexplain why he had told the police during the interview on 16 January 2019 that hehad not engaged in any sexual activity with the complainant. His evidence might alsobe necessary to place his version of the events that occurred in the early hours of12 January 2019 before the jury. As recorded in Mr Edirisooriya's brief of evidence,this was to the effect that any sexual activity that occurred between himself and thecomplainant was entirely consensual.[36] At the end of the first day of the trial Mr Lange reviewed the position withMr Edirisooriya. Mr Lange considered he had made good progress in his cross-examination of the complainant. He said Mr Edirisooriya indicated at this time thathe would prefer not to give evidence.[37] At the end of the Crown case Mr Lange discussed the position again withMr Edirisooriya. At this point Mr Edirisooriya confirmed he would not give evidence.Instead, the defence would rely on the inroads into the Crown case that Mr Lange hadmade through his cross-examination of the complainant. This would avoid the risksinvolved in Mr Edirisooriya giving evidence. Mr Edirisooriya then signed a writtenacknowledgement confirming that he did not wish to give evidence.[38] Mr Edirisooriya contends he made the decision not to give evidence on anuninformed or ill-informed basis. He says Mr Lange did not inform him that, if hefailed to give evidence, the jury would be left without an explanation as to why he hadtold the police that no sexual activity had occurred between himself and thecomplainant. Mr Lange also failed to advise him that he needed to give evidence ifhe wished to establish an evidential basis for defences to the rape charges.[39] Mr Edirisooriya also contends his failure to give evidence meant that Mr Langewas forced to advance defences to the two rape charges for which there was noevidential basis.Appellate approach[40] Mr Edirisooriya's appeal is to be determined under s 229 of the CriminalProcedure Act 2011. This Court may only allow the appeal if it is satisfied that thejury's verdict is unreasonable, or a miscarriage of justice has occurred that creates areal risk that the outcome of the trial was affected.3[41] It is now well established that it is for the defendant to decide whether or notto give evidence at trial.4 However, it is the duty of trial counsel to ensure that beforemaking that decision the defendant is informed of all matters that are materiallyrelevant to it.5 Furthermore, a decision whether or not to give evidence is fundamentalto fair trial rights. As a result, where trial counsel fails to ensure that the defendant isfully informed of all material matters relevant to the decision, a miscarriage of justiceis likely to occur.6Decision[42] We preface our decision by observing that in general terms we preferred theevidence given before us by Mr Lange to that given by Mr Edirisooriya regarding thescope and nature of their discussions prior to and during the trial. Mr Lange was ableto rely on notes he had made during his discussions with Mr Edirisooriya and thesegive his evidence a greater degree of reliability than Mr Edirisooriya's recollection ofevents.[43] However, we do not consider this case turns on the credibility of either man asa witness. As we have already observed, they agree that Mr Edirisooriya was to makehis final decision as to whether to give evidence at the conclusion of the Crown casewhen the overall strength of the Crown case could be properly assessed. When thatpoint was reached both were also of the view that the complainant had not presentedas a credible or reliable witness. The Crown case was therefore not nearly as strongas it may have appeared before trial. This factor clearly played a key role in thedecision that Mr Edirisooriya would not give evidence. Mr Edirisooriya's argumentthat Mr Lange failed to fully inform him of the ramifications of not giving evidenceneeds to be viewed in that light.3 Criminal Procedure Act 2011, s 232.4 Tarring v R [2016] NZCA 452 at [26].5 Chambers v R [2011] NZCA 218 at [5].6 Weston v R [2019] NZCA 541 at [26].[44] Against that background we now examine Mr Edirisooriya's complaint thatMr Lange failed to inform him of the ramifications of not giving evidence. The firstof these arises from the fact that Mr Edirisooriya lied to the police when he said hehad not engaged in any sexual activity with the complainant.The lies Mr Edirisooriya told to the police[45] Mr Edirisooriya had told Mr Lange that in his home country of Sri Lanka hewould go to prison immediately if he admitted being involved in sexual activity witha young woman such as the complainant. He had no knowledge of the criminal justicesystem in New Zealand and assumed the police in this country would treat him in thesame way as the Sri Lankan police would do if he admitted having sex with thecomplainant.[46] Mr Edirisooriya accepted in cross-examination before us that Mr Lange toldhim he may need to give evidence to deal with the fact that he had lied to the police.He said that Mr Lange also told him the risk in doing so was that his evidence couldchange the outcome of the case if he made any errors.[47] Mr Lange's concern was that, if Mr Edirisooriya elected to provide thisexplanation to the jury, the prosecutor would be entitled to cross-examine him. Theprosecutor could use this opportunity to suggest that Mr Edirisooriya had beenprepared to lie to the police to get himself out of a difficult situation in January 2019and was now doing the same by giving evidence.[48] An election to give evidence would also have exposed Mr Edirisooriya to themore general risk that he may not acquit himself well in the eyes of the jury,particularly under cross-examination. This could weaken the prospects of acquittal.Mr Lange had conducted a "mock cross-examination" of Mr Edirisooriya during theweek before the trial. This revealed that Mr Edirisooriya had a tendency to answerquestions when he did not fully understand them. He responded best to simplequestions. This posed an obvious risk if he gave evidence. Mr Lange suggested thatMr Edirisooriya should obtain the services of an interpreter for the trial butMr Edirisooriya did not want to do this. These factors meant that Mr Lange hadconcerns about how Mr Edirisooriya would handle cross-examination by theprosecutor. However, he accepted in answer to questions from Mr Pyke thatMr Edirisooriya's performance during the mock cross-examination was not so poorthat he could not be called as a witness under any circumstances.[49] Mr Pyke also asked Mr Lange whether he was familiar with judgments of thisCourt confirming that the Crown would not have been permitted to cross-examineMr Edirisooriya about the earlier lies to the police. Mr Lange said he was not.[50] Mr Pyke relied for this proposition on the judgment of this Court in R v Leef.7The Judge in that case had made the following observations to the jury in his summingup:8[77] The Defence argument is to the contrary, as we have discussed, but ifyou look at the question of motive, why would the complainant make theallegations she has in all of those circumstances? Then compare that with theaccused's situation. Of course, it is trite to say that an accused person has thebest motive to be giving an untruthful account, because he is the person ontrial. That ultimately is a matter, which you must determine in yourassessment of the facts. Remember that Mr Leef does not have to prove hisinnocence. He does not have to prove anything at all. It is for the Crown toprove that he is guilty of each of the counts in the indictment.(Emphasis added)[51] The Court held that the italicised portion of the above passage amounted to amisdirection because a jury should not be told a defendant has a motive to lie merelybecause he or she is the person on trial.9 However, this case is not concerned with thatissue. Rather, it relates to the use that may be made of lies told by the defendant priorto the trial. We therefore consider Mr Pyke's reliance on Leef was misplaced.[52] In the present case it became clear during the trial that Mr Edirisooriyaaccepted he had lied to the police in his videotaped interview. This would havebecome obvious to the jury from the way in which Mr Lange cross-examined thecomplainant. Given that background we consider the prosecutor would have beenentitled to cross-examine Mr Edirisooriya about the lies had told to the police. Thejury was entitled to take them into account because they were relevant both to his7 R v Leef CA14/06, 24 August 2006.8 As set out at in R v Leef at [19].9 At [29] and [32].credibility as a witness and, subject to matters we are about to discuss, to the issue ofhis guilt. We therefore consider Mr Lange correctly advised Mr Edirisooriya of therisks involved in giving evidence.[53] Once the risks of giving evidence had been identified it was necessary forMr Lange to advise Mr Edirisooriya whether they were likely to outweigh the adverseconsequences of not giving evidence. Importantly in this context, the fact thatMr Edirisooriya had told lies to the police meant that s 124 of the Evidence Act 2006required the Judge to address the issue in his summing up if the Judge thought that thejury may place undue weight on the lies. The Judge would be required to warn thejury that, if they were satisfied Mr Edirisooriya had told lies to the police, they neededto bear in mind the fact that people lie for various reasons.10 The Judge would also berequired to direct the jury that they should not conclude that the fact of the lie meantMr Edirisooriya was guilty of the charges that he faced.11[54] Mr Lange plainly anticipated the Judge would provide the jury with a directionof this type because he dealt with the issue of lies in his closing address as follows:The next matter I want to talk about is lies. [The prosecutor has] raised it andit has to be addressed. As was apparent from my cross-examination somesexual conduct occurred and the defendant when he spoke to the police deniedthat it occurred. Was it correct? No it wasn't.His Honour will give you some directions about this but again, it's really nomore than common sense. People may not be upfront about things for anumber of reasons but a lie does not mean a person is guilty. Here we haveheard that the defendant was first confronted and it was about 10 o'clock whenthey went round for that search warrant, at his home where he was with hiswife, with his pregnant wife. The police arrived at his door and in front of hiswife say that there is an allegation of sexual intercourse, in fact non-consensual sexual intercourse between her husband and another woman.Applying common sense, isn't this sort of the obvious situation wheresomebody might lie and deny that it occurred? Now we can each have ourviews about the morality of what occurred, the appropriateness of a marriedman engaging in sexual conduct with someone other than his wife. We'reentitled to those views but those views play no part in the jury room.10 Evidence Act 2006, s 124(3)(b).11 Section 124(3)(c).[55] The Judge then addressed the issue in the following passage of his summingup:[41] I want to raise with you the issue of lies because the Crown says whatthe defendant said to the police is a lie and the Crown say in particular that thedefendant lied when he told the police he didn't have any sexual contact withthe complainant. The point that I want to emphasise with you is that I do notwant you to think that if you find that a lie was told by the defendant, he mustautomatically be guilty of the charges that he faces because he lied. You needto consider first if a lie was told by the defendant was it a deliberate lie for thepurposes of deception? There may be possible reasons why the defendant mayhave lied. It may have been because he was in the presence of his wife whenthe police arrived to execute the search warrant. It is a matter for you to decideif you find that the defendant did lie what weight you attach to that lie.Consider how big or significant the lie was if you find that a lie was told. Youwill know from your experience of life that people lie for a variety of reasons.Sometimes people lie to exaggerate. Sometimes people lie out ofembarrassment. Some people lie out of fear. Sometimes people lie to minimisetheir involvement in a particular activity. It has been suggested as I've said thatthe defendant may have lied because he did not want his wife to know aboutconsensual sexual activity with the complainant. So if you find that thedefendant did tell a lie then it is a matter that you are entitled to take intoaccount and consider in assessing the defendant's credibility. You need toconsider the reasonable and possible motives for a person to lie and why thedefendant may have lied in this case but the point, as I've said, that I want tomake is that you should guard against a tendency to think that solely if thedefendant has told a lie he must be guilty of the charges for that reason alone.The Crown says that the defendant has told a lie and you should take that intoaccount in assessing the evidence, in assessing his credibility and the Crownsay to you that that is a factor that you are entitled to take into account in thisparticular case in assessing his guilt.[56] The passages set out above clearly made the jury aware that Mr Edirisooriyamay have lied to the police for reasons entirely unconnected with guilt. BothMr Lange and the Judge also suggested he may have lied because the police hadconfronted him with the allegations in front of his wife. Taken together, we considerMr Lange's closing address and the Judge's summing up mitigated any adverseconsequences arising out of the fact that Mr Edirisooriya had not given evidence toexplain why he had lied to the police.[57] We are therefore satisfied the manner in which Mr Lange elected to deal withthis issue meant it was not necessary for Mr Edirisooriya to give evidence on thispoint. Had he done so he would have exposed himself needlessly to cross-examinationby the prosecutor with all the risks this entailed. We therefore consider Mr Lange wasnot required to advise Mr Edirisooriya that he needed to give evidence to explain whyhe had lied to the police.[58] This argument fails as a result.Failure to provide an evidential foundation for defences based on consent and/orreasonable belief in consent[59] The next issue is whether a miscarriage of justice has occurred becauseMr Lange failed to advise Mr Edirisooriya that he needed to give evidence in order toprovide an evidential foundation for his defences to the two rape charges.[60] Mr Lange says that before the trial he believed Mr Edirisooriya may need togive evidence to counter the evidence given by the complainant if she came up to briefand was an impressive witness. Mr Edirisooriya also accepts in the affidavit he filedin support of the present appeal that Mr Lange told him prior to the trial that he wouldprobably need to give evidence because of the complainant's account of events whencompared with what he had told the police during his interview. Mr Edirisooriya saysthat Mr Lange did not explain that if he did not give evidence there would be noevidence to support his defences to the rape charges. These were that only one act ofsexual intercourse had occurred in the vehicle and this was consensual. The secondact described by the complainant in which he had allegedly not worn a condom hadnever occurred.[61] We begin by observing that the decision as to whether Mr Edirisooriya shouldgive evidence did not relate solely to the rape charges. Mr Lange was required toprovide Mr Edirisooriya with advice in relation to all the charges that he faced. Notsurprisingly, Mr Edirisooriya does not complain about the advice he received inrelation to the charges on which he was acquitted.[62] It is also worth remembering that it is not always necessary for a defendant togive evidence in order to raise an evidential foundation for a proposed defence. Adefendant is entitled to rely on any evidence that suggests the proposed defence maybe available. Furthermore, the defence is not subject to any evidential burden. It canput the Crown to proof and submit to the jury that it has not proved its case to therequired standard.[63] Mr Lange considered that, by the time the Crown closed its case, there wasreason to believe the jury were likely to consider the complainant's evidence lackedboth credibility and reliability. Mr Edirisooriya accepted during cross-examinationbefore us that he was of the same opinion. For the reasons that follow we agree withtheir assessment.[64] Issues with the complainant's credibility and reliability arose for severalreasons. First, she acknowledged she had consumed a considerable quantity ofalcohol, prescription and non-prescription drugs, including MDMA, over severalhours prior to meeting Mr Edirisooriya. This led the Judge to provide the jury withthe following caution:[34] I have already told you that all the facts are for you. What evidenceyou accept, or reject is a matter for you and what weight you attach to anypiece of evidence that you accept is a matter for you. However, in relation tothis case and in relation to the evidence of the complainant I need to draw yourattention to something. These are obvious matters for you but as the trialJudge I am going to give you a warning about [the complainant's] evidence.The reason for that is because you have heard evidence about her ingestion ofalcohol, prescription and non-prescription drugs and you have also heardabout the alcohol that she has had in combination with the drugs. You haveheard that she was refused alcohol at the Pegasus Arms Hotel because of herstate of intoxication. She also after she had been refused service had furtheralcohol and cannabis. In addition she indicated that there were lapses in hermemory due to both the substances she had taken and the gap in time betweenwhen the incident occurred and the evidence that she gave before you thisweek. In addition there are now a number of matters that she said particularlyin cross-examination that she could not recall about the night. In addition youwill recall that there were inconsistencies between the order and sequence ofevents that [the complainant] gave to the doctor in contrast with what she saidin her evidential interview. So it makes sense that where you have a witnesswho has been affected by alcohol and drugs, who has memory lapses and hasan [in]ability to recall certain matters and where there are inconsistencies withwhat she has said that I give you a warning that you need to be cautious abouther evidence and cautious about the weight that you attach to her evidence. Iam certainly not directing that you reject her evidence or put it to one side.What I am saying is that on the basis of the evidence that you have heard aboutthe alcohol, the prescription drug that she was taking, the MDMA recreationdrug and the cannabis that you treat her evidence with caution and take thosematters into account.[65] The trial transcript does not reveal whether Mr Lange was aware the Judgewould be giving the jury this warning before he delivered his closing address. It isclear, however, that Mr Lange had been careful in his address not to overemphasisethe effect that consumption of alcohol and drugs was likely to have had on thecomplainant. He spent some time pointing out to the jury that she was not sointoxicated as to be unable to make informed decisions about many issues on theevening in question. He provided the jury with several examples of these. This aspectof Mr Lange's closing address was no doubt designed to persuade the jury that thecomplainant was not so intoxicated as to be incapable of giving her informed consentto any sexual activity she undertook with Mr Edirisooriya. Nevertheless, the fact thatthe complainant was heavily intoxicated was a matter that affected both her credibilityand reliability.[66] The defence was also able to point to numerous examples of inconsistencies inthe complainant's evidence. Mr Lange highlighted these in his closing address. Therewere inconsistencies between what the complainant said in evidence and what she hadsaid in her evidential interview. This was despite the fact that the complainant hadviewed her evidential interview immediately before giving evidence. Furthermore,when giving evidence she could not remember several of the events she had describedin her interview. The complainant's evidence also changed in some respects betweenwhat she had said in cross-examination and what she said a short time later inre-examination. In addition, Mr Lange highlighted inconsistencies between what thecomplainant said in evidence and what she had told others shortly after the incidentgiving rise to the charges occurred. These included statements the complainant madeto the police when they first spoke to her at 9.30 am on 12 January 2019 and what shehad said to a doctor who examined her later that morning.[67] Mr Lange also pointed out areas in which he said the complainant's evidencedefied logic and common sense. One example was the complainant's assertion thatwhilst they were at the park Mr Edirisooriya repeatedly asked her to come home withhim to his house. Mr Lange asked the jury whether it was credible that a man wouldinvite a young girl around to his house when he knew his pregnant wife would bethere.[68] Mr Lange said in evidence before us that the fact that he had been able toweaken the Crown case through cross-examination of the complainant added to therisk that would arise if Mr Edirisooriya was to give evidence. His experience in suchcases is that the defendant can become the best witness for the prosecution by electingto give evidence. We accept his evidence on that point. It would not have been wisefor him to give evidence unless it was necessary to do so.[69] The thrust of the argument for Mr Edirisooriya under this ground of appeal isthat it was not possible for him to provide an effective defence to the rape chargesunless he gave evidence to place his version of events before the jury. This argumentneeds to be viewed in light of the manner in which Mr Lange summarised the defencecase in relation to those charges at the end of his closing address:Charge 7, this is rape with a condom. Well, ultimately it's for the Crown toprove that this occurred. The defence case is not denying that intercourse witha condom didn't occur, so again your focus here needs to be on the issue ofconsent and belief in consent. What you can factor in at this time importantly,is the complainant and the defendant were in the car. They had been engagingin sexual activity, before [penile] penetration occurs, she asked him to stop.What does he do? He stops. She asked him for a condom and her, she sayswell – he said he didn't have one, she remembered she had one in her bag.She gets it, she hands it to him and it's put on. Does that indicate consent?Does that indicate that somebody who does that has a reasonable belief inconsent? It's not for the defendant to prove but it's for the Crown to proveand prove beyond reasonable doubt.Charge 8, sexual intercourse without a condom. Defence say that didn't occurand it's for the Crown to prove that it did occur.[70] The complainant's acknowledgement that she had given Mr Edirisooriya acondom to wear whilst he had sexual intercourse with her provided an important pieceof evidence that Mr Lange could rely upon to advance defences to the first rape chargebased on both consent and/or reasonable belief in consent. He advanced thosedefences forcefully in the passage set out above. He had already emphasised thedeficiencies in the complainant's evidence. The combined effect of these and theevidence about the condom was sufficient in our view to enable Mr Edirisooriya tomount an effective defence to the first rape charge without giving evidence.[71] Similarly, the overall challenge that Mr Lange had mounted to thecomplainant's credibility and reliability on all the charges enabled him to defend thesecond rape charge on the basis that no second act of sexual intercourse occurred. Thisamounted to an effective defence to that charge because there was no independentevidence to support the complainant's claim that it had occurred. It rested entirely onthe credibility and reliability of the evidence given by the complainant. We considerMr Edirisooriya was able to mount an effective defence to this charge by putting theCrown to proof on it. He did not need to give evidence in order to do so.[72] It follows that Mr Lange was not required to advise Mr Edirisooriya that heneeded to give evidence to provide an evidential basis for his defences on the two rapecharges.[73] The appeal against conviction fails as a result.Part two: the appeal against sentence[74] In sentencing Mr Edirisooriya the Judge considered the offending wasopportunistic rather than premeditated.12 He found the complainant to have been avulnerable victim because of her intoxication after consuming both drugs andalcohol.13 The offending also involved a breach of trust because of Mr Edirisooriya'sposition as an Uber driver.14 The complainant only got into Mr Edirisooriya's vehiclebecause she trusted him to get her safely to her destination.[75] Mr Lange had argued on Mr Edirisooriya's behalf that the Judge should treatthe jury's verdicts in relation to the charges on which the jury had foundMr Edirisooriya not guilty as amounting to a finding that the activity giving rise tothose charges was consensual. The Judge did not accept this proposition. Heconsidered the jury's verdicts were explicable on the basis that the Crown had failedto discharge the onus of proof in relation to the elements it was required to prove toestablish those charges.1512 District Court decision, above n 1, at [28].13 At [29].14 At [34].15 At [25] and [36].[76] Taking these factors into account the Judge considered the offending fell withinthe lower end of Band 2 identified in a decision of this Court in R v AM.16 This callsfor a starting point of between seven and 13 years imprisonment.17 The Judgetherefore took a starting point of eight years' imprisonment.18[77] The Judge then applied a discount of nine months to reflect mitigating factors.These included Mr Edirisooriya's previous good character. At 32 years of age he hasno previous convictions. The Judge also took into account the difficultiesMr Edirisooriya was likely to face in prison because English was not his primarylanguage and he would be living within a community having a culture significantlydifferent to his own.19[78] In his written submissions Mr Pyke acknowledged that he felt unable tomaintain his argument that the sentence imposed on Mr Edirisooriya was manifestlyexcessive. He also accepted no other ground of appeal was available based on anypoint of principle. Although he had no instructions to abandon the appeal againstsentence Mr Pyke acknowledged he could not pursue it further.[79] We consider this concession to be responsibly made. The aggravating factorsidentified by the Judge plainly place the offending at the lower end of Band 2 identifiedin R v AM.20 A starting point of eight years' imprisonment was therefore unremarkable.[80] We also consider the Judge gave Mr Edirisooriya appropriate discounts for themitigating factors he identified. It follows that we consider the end sentence of sevenyears three months' imprisonment to be within the available range.Part three: the appeal against refusal to grant permanent name suppression[81] Mr Edirisooriya sought permanent suppression of his name under s 200 of theCriminal Procedure Act. Section 200(2)(a) permits an order for suppression to be16 R v AM [2010] NZCA 114, [2010] 2 NZLR 750.17 At [98].18 District Court decision, above n 1, at [51].19 At [52].20 R v AM, above n 16.made when publication of an offender's name will likely cause extreme hardship tothat person or to any person connected with the offender.[82] Mr Edirisooriya's wife had provided the Judge with a letter in which shedescribed the likely consequences for her if her husband's name was published. Sheanticipated she would be left without support within the Sri Lankan communitybecause a prison sentence is regarded as being shameful in the Sri Lankan culture. Shealso said that in this culture the community believes that everyone around the offendershould be punished. She therefore anticipated that blame would be attached to her asMr Edirisooriya's wife. It would also have significant ramifications for her17-month-old son, because he would not be allowed to play with other children.[83] The Judge referred to this Court's decision in Ratnam v R.21 That case alsoinvolved an appeal against refusal to grant name suppression for a Sri Lankan offenderwho had been found guilty of sexual offending. As in the present case, the offendersought name suppression on the basis of the likely effects on his wife if the offendingbecame known. This Court dismissed the appeal and observed that when a person isconvicted for sexual offending it is inevitable that his or her family will suffer shameand a degree of social stigma.22 The Court considered that many of the issues theoffender's wife was likely to encounter would not be avoided in any event bysuppression being granted.[84] The Judge expressed sympathy for Mr Edirisooriya's wife and son but notedthat, even if an order for suppression was made, it was highly likely thatMr Edirisooriya's offending would become known within the Sri Lankancommunity.23 He concluded that the matters raised by Mr Edirisooriya's wife did notamount to extreme hardship as required by s 200 of the Criminal Procedure Act.2421 Ratnam v R [2020] NZCA 92.22 At [18].23 District Court decision, above n 1, at [66].24 At [68].[85] The Crown supports the Judge's decision and relies on the reasoning containedin Ratnam for doing so.25 It contends the likely effects on Mr Edirisooriya's familyare not sufficient to amount to extreme hardship as required by s 200(2)(a).[86] Having read the Crown's submissions, Mr Pyke advised us during the hearingthat he could not realistically advance submissions in support of the appeal againstrefusal to grant name suppression. Again, we consider this concession to be properlymade. Like the Judge, we are sympathetic to the unfortunate position in whichMr Edirisooriya's wife and children now find themselves. We do not consider,however, that it meets the high threshold of extreme hardship that is required before apermanent order for suppression of name can be made. This ground of appeal fails asa result. The interim order for suppression of Mr Edirisooriya's name is lifted withimmediate effect.Result[87] The appeal against conviction and sentence is dismissed.[88] The appeal against refusal to grant permanent name suppression is dismissed.[89] The existing interim order for suppression is lifted with immediate effect.Solicitors:Crown Law Office, Wellington for Respondent25 Ratnam v R, above n 21.