WETERE v R [2021] NZCA 119

WETERE v R [2021] NZCA 119 [19 April 2021]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 AOTEAROACA353/2020[2021] NZCA 119BETWEEN ANARU LEIGH TUTANEKAI WETEREAppellantAND THE QUEENRespondentHearing: 15 March 2021Court: French, Ellis and Muir JJCounsel: M A Stevens QC and A C M Bligh for AppellantB F Fenton for RespondentJudgment: 19 April 2021 at 9 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Muir J)Introduction[1] The appellant appeals his conviction,1 following a jury trial beforeJudge Phillips, on two charges of rape and one charge of sexual violation by unlawfulsexual connection.2 He does so on two grounds:(a) the jury's verdict was unreasonable to the extent the jury was sure theCrown had established an absence of belief on reasonable grounds thatthe complainant was consenting;3 and(b) there was prosecutorial misconduct by inviting the jury to putthemselves in the shoes of the complainant — which the appellant sayswas not adequately corrected by judicial direction and which thereforeresulted in a miscarriage of justice.4Background[2] The appellant and complainant were [identifying particulars redacted]5 whohad spent time together as children but not extensively as adults. Their relationshipwas orthodox with no sexual contact between them.[3] On Saturday 7 July 2018 both attended a social evening at a local rugby clubin Dunedin. The appellant arrived at the club around 7.30 pm. He had been playingrugby earlier that day. He was heavily intoxicated at the time of arrival.The complainant arrived about an hour later. She had likewise been drinking,describing herself as "happy, but [n]ot drunk".[4] There was limited interaction between the two during the course of theevening, confined to a quick chat while both had a cigarette outside.1 A notice of appeal against sentence was also filed but not pursued.2 Crimes Act 1961, ss 128(1)(a), 128(1)(b) and 128B.3 Criminal Procedure Act 2011, s 232(2)(a).4 Section 232(2)(c).5 Identifying particulars of the complainant have been redacted to ensure compliance with ss 203 ofthe Criminal Procedure Act 2011.[5] The complainant had arranged for a lift home with a friend. At the point shecame to leave it was apparent the appellant was too intoxicated to make his own wayhome and also needed a ride, but the complainant's friend was unwilling to drive himthe considerable distance to his home. The complainant therefore suggested he spendthe night at her home in one of her children's beds which was not being used that night.[6] When they arrived at the complainant's home, the appellant initially made fora friend's house across the street but the complainant helped him back towards herown home and provided some assistance to him walking up the stairs. She took himto her sons' bedroom, took off his shoes and put a blanket over him. At the point sheleft him he was still in the superhero costume he had been wearing all evening.[7] At 1.26 am the complainant sent a text to a friend saying the appellant was"fucked" and "in [her son's] bed". She then went to bed herself and fell asleep. At thetime she was wearing a singlet and underpants.[8] At 2.30 am she woke, on her stomach, with the appellant, in her words,"already inside" her "having sex". At that point, her underpants were on the floorbeside the bed. She said that she could feel the appellant's hand on her thigh andrecalled it being "quiet and eerie". She did and said nothing as she "couldn't speak couldn't move" and "couldn't get any words out". After the appellant ejaculated shewent back to sleep as she "just shut down". She admitted to having "question[ed][herself] a lot" about not having told the appellant "no". She just "froze".[9] Later that morning, around 9.30 or 10 am, she said that she again woke tosexual activity by the appellant who was digitally penetrating her. He proceeded tohave sex with her. Again she said nothing. When it was over she got up and gotdressed. She felt "dirty". The appellant remained in bed for a further short periodbefore getting up and asking how he got to the house and where his costume waslocated. He asked if there was anyone else in the house. The complainant's evidencewas that he was speaking normally and "walking fine". The complainant says that shewas in shock and her mind was "noisy". She then responded to a friend's text messageasking "how are you" by saying "morning, not good at all". And to another friendwho asked "[h]ow was your night" she responded that it "was good but not feelingthat great today". She then made the appellant breakfast and dropped him home beforegoing to one of the friends' houses and telling her what had happened. The friendpersuaded her to make a complaint to the police.[10] The appellant was interviewed later the same day. He said he recalled havinga cigarette outside the rugby club at around 10.00 pm but that everything thereafterwas a "blank". He said "I've just woken up at [the complainant's], yeah, not knowingwhere I was or how I got there", the night was "just a black out".The trial[11] Defence counsel, Mrs Stevens QC, who also appeared for the appellant onappeal, closed on the basis that everything was in issue — namely, whether there hadbeen any sexual activity at all, if so whether the appellant had the requisite intentionand/or whether the complainant consented or the appellant had a reasonable belief inconsent.[12] However, given that the appellant's semen was detected in the complainant'svagina, the focus of the trial was necessarily on lack of intent and/or consent orreasonable belief in consent.[13] In respect of intent, the defence called expert evidence. The expert was,however, required to concede that a person experiencing a "blackout" from alcoholmay nevertheless, albeit disinhibited and with impaired judgment or memory loss,carry out intentional acts.[14] The jury's rejection of "no sexual activity" and "intention" defences is notchallenged on appeal.Alleged unreasonableness of verdictsThe appellant's case[15] Mrs Stevens submits that the jury's findings were unreasonable and that therewas evidence which clearly pointed to reasonable grounds for belief by the appellantthat the complainant was consenting. She says that because a jury could not have beensatisfied to the required standard that the appellant was guilty, the verdicts shouldtherefore be set aside.[16] She submits that in respect of all three offences there was no evidence of thecomplainant telling the appellant to stop, that she did not say "no" or "get off", thatshe did not push the appellant away, cross her legs, turn away or do anything fromwhich it could be inferred that the appellant could not have believed she wasconsenting. She submits that it is no answer to say that the complainant was asleep atthe beginning of the penetration because there is no evidence establishing that theappellant knew she was asleep and that his belief she was consenting is properlygrounded in the circumstances as he found them to be.[17] In respect of the offending which occurred later in the morning, she relies onthe fact that the complainant knew the appellant was in her bed and did not removehim, despite his earlier alleged violation. She emphasises that, on the complainant'sevidence, the complainant woke to digital penetration and was therefore awake at thepoint the second alleged rape commenced. She submits, relying on the Supreme Courtdecision in Christian v R, that although "something more" was required than merefailure to protest or offer physical resistance, it was unnecessary, for the purposes ofestablishing reasonable belief in consent, that there was a positive expression ofconsent and that the matters identified by her cumulatively met the "something more"test.6Discussion[18] Appeals under s 232(2)(a) of the Criminal Procedure Act 2011 face anecessarily high bar. A jury's verdict will be unreasonable only if, having regard to allof the evidence, the jury could not reasonably have been satisfied to the requiredstandard that the defendant was guilty.7 Although another jury may have reached adifferent verdict, the test is whether the verdict reached was in fact reasonablyavailable on the evidence — allowing for the fact that the weight given to individual6 See Christian v R [2017] NZSC 145, [2018] 1 NZLR 315 at [5(c)] and [32]–[33].7 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].pieces of evidence is essentially a jury function and that reasonable minds maydisagree on matters of fact.8[19] The relevant legal framework within which this assessment needs to occurincludes s 128A(1) and (3) of the Crimes Act 1961 which provide:(1) A person does not consent to sexual activity just because he or shedoes not protest or offer physical resistance to the activity.(3) A person does not consent to sexual activity if the activity occurswhile he or she is asleep or unconscious.[20] As the majority held in Christian v R (Elias CJ dissenting), the mattersidentified in s 128A are as much relevant to reasonable belief in consent as they are toconsent itself:9[32] The observation made in Tawera that s 128A did not really bear onreasonable belief in consent is difficult to reconcile with the obvious purposeof s 128A, as noted in the extract from Ah-Chong quoted above. The word"consent" must have the same meaning when referring to the existence ofconsent and to the existence of a reasonable belief in consent. If a failure toprotest or resist cannot, of itself, constitute consent, a reasonable belief that acomplainant is not protesting or resisting cannot, of itself, found a reasonablebelief in consent. It is also consistent with the decision in R v Keremete, wherethe Court found that, in a case of a rape said to have taken place when thecomplainant was asleep, reasonable belief in consent was not a viable issueon the evidence before the jury.[21] Although the reasonableness of each of the three verdicts needs to be analysedseparately, common to all is, however, the fact that there had been no sexualcomponent to the parties' relationship up until that point. The appellant could havehad no reasonable expectation of sex based on any previous history, nor did he assertit.[22] In respect of the first sexual activity at 2.30 am, the uncontradicted evidencewas that the complainant was asleep when penetrated. The fact that there was noevidence that the appellant knew she was asleep cannot be relied upon as a reasonable8 See R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [88] as cited in R v Owen, above n 7, at[13].9 Christian v R, above n 6 (footnotes omitted).basis for a belief in consent as he also did not know she was awake. At the point ofpenetration there was no evidence of any kind, either in the history between the partiesor in the complainant's actions or statements, from which any reasonable belief aboutinterest in sex (let alone consent) could be inferred. The complainant was not evenaware, until that point, that the appellant had left her son's bed and entered her own.[23] As this Court observed in Keremete v R:10[17] Regardless of her relationship to the man involved, a woman who isasleep [cannot] consent to intercourse. The appellant could scarcely haveremoved the clothing and tampon from the complainant, and commencedintercourse, without being aware that she was asleep. Consequently we donot think that reasonable belief in consent was a viable issue on the evidencebefore the jury. While the Judge's withdrawal of that issue from the jury wasnot best practice, we are satisfied that it could not have caused any miscarriageof justice in the present case.[24] Likewise, in this case, the appellant could not have removed the complainant'sunderwear and positioned himself on his knees to engage in intercourse without beingaware that the complainant was sleeping.[25] The absence of protest from the complainant, whether verbally or, asMrs Stevens suggests, by pushing the appellant away or crossing her legs, takes thematter no further. Such a response could only have occurred after the point ofpenetration and, by virtue of s 128A(1) of the Crimes Act, cannot in any event founda reasonable belief in consent. Indeed it strikes us as a rather unattractive submissiongiven contemporary understanding about how victims of sexual assault may react —and more particularly so where a victim awakes to an assault in progress.[26] In respect of this charge, therefore, not only do we consider the jury's findingthat there was no reasonable basis for belief in consent to have been one reasonablyavailable to it, we consider it is the only conclusion to which it could reasonably havearrived. There was simply no evidence of the "something more" prescribed inChristian.1110 Keremete v R CA247/03, 23 October 2003.11 See Christian v R, above n 6, at [5(c)] and [32]–[33].[27] Similar considerations inform the second (digital) violation. Again, thecomplainant woke to the activity.[28] Mrs Stevens emphasises that the complainant remained in the bed after theactivity at 2.30 am and, more particularly, that she did not require the appellant toleave. She invites the conclusion that having regard to the earlier sexual activity, thecontinued lack of protest and the fact they both remained in the bed, reasonable beliefin consent could not be excluded by the jury.[29] We regard that as a problematic submission. Essentially, it assumes that oneviolation might lay the groundwork for a belief in consent in respect of later violationsin the sense of founding a reasonable belief that subsequent sexual acts wereaffirmatively consented to. We agree with the Crown that, in the circumstances of thiscase, such a submission effectively elevates a lack of protest to consent despiteMrs Stevens' disavowal of that proposition.[30] Again, therefore, we regard the verdict as one reasonably available to the jury.[31] In respect of the penile penetration which followed, the position is no differentother than that the complainant was awake at the time. But there is no evidentiarybasis to suggest the appellant knew that, still less that by the complainant's words orconduct there was any legitimate basis to infer consent. Again his argument isnecessarily that the combination of the complainant's previous lack of protest, herdecision to remain in the bed and the absence of protest or physical resistance tointercourse gives rise to a reasonable belief in consent. In that respect, he again facedthe obstacle identified in Christian12 that a reasonable belief that a complainant is notprotesting or resisting cannot, of itself, found a reasonable belief in consent and againhe was in the problematic position of having to contend that previously unprotestedintercourse provided reasonable grounds for belief in consent to a second similarlyunprotested act. Indeed, even if the previous intercourse had, contrary to the evidence,been consented to, that would not, without more, provide reasonable grounds for beliefin consent to the later activity.12 At [32].[32] We are some distance from being persuaded that a jury could not reasonablybe sure that the appellant did not have a reasonable belief in consent in thesecircumstances.Alleged prosecutorial misconductThe appellant's case[33] Mrs Stevens focuses on the following passage in the Crown's closing address:My learned friend, of course what was raised by my learned friend with [thecomplainant's friend], about how [her friend] was the one it will be said whowas pushing for her to go to the police. You might think that's irrelevant herewhen it comes down to it because the bottom line is she says, "We contactedthe police, yes." And you might think [the friend] is right. Doesn't matterwhether that's your family member or anyone else that does these acts orsexually assaults you, at the end of the day if that occurred they're a crime.That's what the Crown says they occurred they're a crime and just think, putyourself, the Crown says, in her shoes, [the complainant's] shoes. Ifnecessary, sit there and close your eyes and think about things like, "Whatwould I do if I saw a family member at a function, a family member that'sintoxicated, [identifying particulars redacted] and I took him home because hewas clearly very intoxicated, needed [looking] after and some hours later Iwake up to him penetrating me in my bed?" Perhaps close your eyes and thinkabout how you would feel about that, the Crown says. How you might reactto that? How you might or might not do because it's very easy to say, "oh youwould do this, you would do that, you could do this, you might say that", butunless you put yourself in that position in your home and the dark at night andthat happens to you how do we know how anyone is going to react and that'sthe great thing about human nature. We will act in all sorts of ways, we mightexpect you'll do a, or b or c or say this or say that. But what the Crown saysbe careful when you look at comments like, "you should've done this or youcould've done that or you could've said this or you could've done that". Infairness to her, the Crown says, put yourself in her shoes.[34] Mrs Stevens says that what the Crown was asking the jury to do was to usetheir emotions and feelings, to suffer like the complainant did, unwanted sex.Mrs Stevens further submitted that although the trial should properly have miscarriedat the point this invitation was issued, there was certainly, and at a minimum, anobligation on the part of the trial Judge to strongly correct what she described as anappeal to the jury's own "sensations and emotions" in deciding whether the chargeswere proved. She says that it was insufficient for the Judge simply to repeat theinvocation in his summing up about the necessity to put emotions to one side.13Indeed, she goes further and says that the Judge compounded the problem bysummarising this aspect of the Crown's closing in the following terms:He suggested, you may recall, saying put yourself in the complainant'sposition, that she finds herself in a situation she did: intoxicated familymember in her home; looking after him and then these acts occurring, and herreaction is explainable.[35] She says that the problem was then further exacerbated by the way in whichthe Judge described the jury's duty of impartiality and fairness:You are sitting as Judges and as Judges we are expected to put aside ourpersonal feelings and it is necessary you approach your task in a way that isalways impartial and fair. Fair to the defendant, Mr [W], but also fair to thecommunity which was represented here by Mr Power.[36] She submits that the characterisation of the prosecutor as "their man", and thestated requirement to be fair to "their man", was "corrupting and insidious" — it wasnot "the people of the country of New Zealand" against the appellant but the Crownagainst the appellant.[37] As a result, she says that there is a real risk that a miscarriage of justice hasoccurred.Discussion[38] We note at the outset that defence counsel did not take any issue with theCrown's closing at trial. Mrs Stevens says that she did not hear the invitation andpresumably neither did her co-counsel.[39] Nor, despite the Judge's invitation at the conclusion of the summing up forcounsel to identify any issue which concerned them, was any point taken in respect ofany of the matters now identified.13 In summing up the Judge referred to the jury approaching its task "to put all such personal feelingsto one side absolutely. Emotions; prejudice; sympathies cannot and must not [play] any part inyour decision-making process". He went on to say "[y]ou are expected to decide the case with acool and logical detachment; without fear or favour to either side. I sum that up as your task mustbe clinically done and dispassionately carried out".[40] The principles relating to the obligations of prosecuting counsel areuncontentious. This Court most recently summarised them in Porter v R:14(a) The prosecutor should lay the facts before the jury with professionaldetachment and advance the Crown case clearly and analytically;(b) The prosecutor should not advance factual contentions for which thereis not a foundation in the evidence, or make submissions that arelegally impermissible and unfair;(c) The prosecutor may not treat a witness in an overbearing ormisleading way, and must not put any proposition to a witness incross-examination that lacks a foundation in credible information inthe prosecutor's possession;(d) Within these boundaries the prosecutor is a participant in anadversarial process and enjoys discretion about how to play that part.He or she may act, indeed is expected to act, as a strong and forcefuladvocate;(e) The opening address is not the place for argument or opinion. Bycontrast, the closing address is an exercise in advocacy. A degree ofrhetorical passion is permissible;(f) The prosecutor should act with dignity and fairness throughout,including in the closing address. The prosecutor may not at any timemake inflammatory or demeaning or emotive comments or engage inintemperate or emotional attacks on the defendant.[41] The cases in which a miscarriage has been identified as a result of intemperatelanguage in a Crown opening or closing have tended to involve quite extreme facts.For example, in Hodges v R the Crown described the defendant as a kerb crawler,predator and someone who thinks females are "only good for one thing".15 In R vStewart, the prosecutor invited the jury to ask what it made of the defencepsychiatrist's "psycho babble", referred to him having been "hired just before the trialand paid to try and get a defence to these charges" and as a "malingerer's dream".16[42] The present case does not approach these levels of seriousness. We accept thatthe principles in Porter are not confined to attacks on the defendant or his or herwitnesses. We accept also the requirement for dignity, fairness and professionaldetachment on the part of prosecutors, including in the closing address. However, as14 Porter v R [2015] NZCA 448 at [11] (footnotes omitted).15 Hodges v R CA435/02, 19 August 2003 at [8].16 R v Stewart (Eric) [2009] NZSC 53, [2009] 3 NZLR 425 at [9].Porter recognises, that address is an exercise in advocacy and a degree of rhetoricalflourish is permissible.[43] We consider the Crown's invitation for the jury to place itself in thecomplainant's shoes must be assessed in light of the way the defence case was run —confirmed by the defence closing. We accept Miss Fenton's submission, on behalf ofthe Crown, that it was a cornerstone of the defence that no victim of rape would havebehaved as the complainant did, that is, by not protesting, by not pushing the appellantaway or crossing her legs, by remaining in the bed after the first violation, by notrequiring the appellant to leave her bedroom and by making him breakfast beforereturning him to his home.17[44] The Crown's answer to that was to invite the jury to consider the situation thatthe complainant found herself in — to step outside the normative lens which thedefence had endeavoured to impose and to consider the counter-intuitive. That was,in our view, a legitimate approach in the context of the way in which the defence wasrun. The invitation was not, as Mrs Stevens suggests, for the jury to use its emotionsand feelings to suffer like the complainant, but simply to consider the evidence fromher perspective. As counsel said, "put yourself in her shoes". Significantly, this isexactly as the Judge summarised the submission to the jury. He referred to the Crowncase that the "reaction is explainable". That put the matter in its proper perspective.Coupled with his clear direction that the jury should approach its task "clinically and dispassionately" and "with a cool and logical detachment", we do not consider17 The defence closing included the following remarks:You will also be aware that the defence says you could find that when she found Mr [W] was havingsexual activity with her, that she was fine about it, that she in fact consented. She of course denies thatbut look at the evidence. She simply went back to sleep after sex. That you might think is very tellingand only consistent with [the complainant] being totally fine about just having had sex. She just wentback to sleep. And you are being asked to believe that she had just been raped.[The complainant] then says there was sexual intercourse again, beginning with Mr [W] touching hervagina followed by full sexual intercourse. On this occasion she again says she's in a state of shock.It's hard to accept you're still in a state of shock, she's in bed with a man that she claims has raped her.She's in bed with a man that she had sexual intercourse with her according to her.And she's shocked? That doesn't ring true either I suggestThese things, cooking him breakfast, getting his things together, giving him a ride home, are notthings you would think you would do for somebody who you claim had raped you.there to be any real risk that the jury considered itself invited "to suffer unwantedsex".[45] We also agree with Miss Fenton that the absence of any objection byexperienced defence counsel also informs the miscarriage analysis. Even if the portionof the closing to which objection is taken was, for some reason, not heard, it wassummarised by the Judge and no point was taken or further explanation or cautionsought.[46] Nor do we consider there to have been any miscarriage on account of theJudge's association of the prosecutor with the "community". It is correct thatMr Power represented the Crown and not the community as such. But we note thateven this Court has inadvertently equated the two.18[47] We do not consider there to have been any real risk that by referring to a juryrequirement to be fair, both to the defendant and the community, and by identifyingthe prosecutor as the latter's representative, the Judge risked the jury giving preferenceto the Crown case. The point assumes a constitutional exactitude which in our viewwould escape most jurors. All that the jury would have taken from the remark is theself-evident requirement that it must be fair to both sides.Result[48] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent18 See R v Roulston [1976] 2 NZLR 644 (CA) at 654 (emphasis added) where Woodhouse J observed: it has always been recognised that prosecuting counsel must never strain for a conviction, still lessadopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack uponthe accused. Such conduct is entirely inappropriate and a basic misconception of the function of anybarrister who assumes the responsibility of speaking for the community at the trial of an accused person.