B(CA347/2017) v R [2018] NZCA 80

B(CA347/2017) v R [2018] NZCA 80 [10 April 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OR IDENTIFYINGPARTICULARS, OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA347/2017[2018] NZCA 80BETWEEN B(CA347/2017)AppellantAND THE QUEENRespondentHearing: 28 February 2018Court: Gilbert, Simon France and Whata JJCounsel: S D Cassidy for AppellantJ E L Carruthers for RespondentJudgment: 10 April 2018 at 2.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] B was convicted of rape. He was sentenced to eight years and six months'imprisonment.1 This is an appeal against conviction. B's central complaint is thatthe Judge's summing up was unbalanced and unfair to him. Four key errors areclaimed. These are noted at [11].1 This sentence also accounted for unrelated domestic violence offending. The sentence end pointfor the sexual violation charge was seven years' imprisonment.Alleged facts[2] B and C are cousins. Between 28 and 29 December 2015, B texted C onseveral occasions suggesting they have sex. C told B that it was not going to happen.On 30 December 2015, B, C, and other family members were at a family reunion.Plenty of alcohol was consumed. C went to sleep in her grandmother's bedroom.B went into the bedroom while she was asleep, and removed her pants andunderpants. She woke up to find him having sex with her. When she protested heheadbutted her and told her to shut up. C did not complain at the time, but told herpartner and family members a few days later about what she said happened. Therewas a family hui about it. B acknowledged they had had sex, but said it wasconsensual. He denied raping her. C then complained to the police. In his statementto the police, B maintained the sex was consensual. When confronted with the textmessages from him to C asking for sex, B initially claimed he could not remembersending them.Crown case[3] The Crown case was simple. There was no consent or reasonable belief inconsent. C was asleep when B took advantage of her and so could not haveconsented to the sex. Various text messages from B to the victim in the days leadingup to the alleged offending show he wanted to have sex with C, including:I wish you weren't my cuzCos I would so do youI'm hornyI'll still do you no one will know, protection and we do it once, what you reckon?[4] C's responses to the texts showed she was not interested, including:It's not going to happen it will be weird, worse than [two othercousins in a relationship] cos we're first cousins.Stop it egg you're not gonna get it.[5] There was evidence of C's repeated attempts to avoid B on the day of theoffending, telling him at one stage to "piss off". C's evidence about what happenedimmediately prior to the alleged offending was corroborated by other witnesses,namely, that she went to bed first in her grandmother's room, contrary to B's claimsthat he went to bed first. Conversely, B's evidence about this was not corroboratedby other witnesses.[6] Texts from B shortly after the alleged offending support C's account,including:I'm sorry cuzYou hate me cuz[7] Other evidence relating to subsequent events supports C's account, includingan apology by B at the family hui. B's text messages do not support his account thathe had an intimate relationship with her prior to the alleged rape.Defence case[8] The defence case was also simple. This was consensual sex, which bothregretted, because they were cousins. Several reasons were offered in support of thistheory. The texts do not show C unambiguously rejecting B's requests for sex.There were significant differences between C's account and her father, D's, accountof what happened in the evening before the alleged rape. D did not corroborate heraccount about sleeping arrangements. C's account of who she told and when, is notsupported by the evidence.[9] C's claim about being headbutted was not consistent with the absence ofevidence of physical injury. The text messages did not "come out of nowhere" andB's account of his relationship with C and what happened was supported by theevidence:[a] There was evidence that their relationship sometime prior to thepresent events may have ended C's marriage.[b] There is evidence of a kiss at a marae which preceded the texts.[c] B's immediate denial of the rape when it was raised by C at thesubsequent family hui was corroborated by an uncle, E.[10] Finally, D's evidence directly contradicted C's evidence on the circumstancesand timing of the alleged rape. Contrary to her account, D said he woke up first, dida head check, and saw C asleep lying on a mattress and B asleep on the bed.Shortly after this another family member arrived and everyone got up.Grounds[11] Mr Cassidy submits the summing-up was unbalanced and unfair to B. Inargument before us he relied on four key complaints:[a] The Judge unduly elevated the significance of the text messages andplaced his own interpretation on them in a way which caused unfairprejudice to the conduct of the defence case.[b] The Judge unfairly used B's interview response about the textmessages for his lies directions.[c] The Judge did not properly explain a key part of the defence case,namely, D's evidence about what happened on the morning of30 December 2015. Aggravating this, the Judge improperlyundermined D's evidence about who got up first by raising doubtsabout its reliability.[d] The Judge unduly dismissed evidence given by E, about statementsmade by B, which corroborated statements made by B in hisevidential interview.Assessment[12] We will address each claim, dealing first with the claims which have littlemerit. However, as will become apparent we have identified two problems with thesumming-up. We assess the significance of these errors individually at [21] and [32]and cumulatively at [34].Lies[13] We do not accept Mr Cassidy's related criticism that the texting was usedimproperly in the lies direction. Judge Sainsbury said:[58] All right, I want to deal with an issue of in the event that you wereconcerned that there had been a lie and in this case what I'm talking about isthat when [B] was questioned by the police it may be that you would thinkthat he was not truthful about whether he texted [C] or the nature of thetexts. Well first of all you've got to consider whether you think there was alie about this, in this case him being untruthful about the text messages,playing them down, claiming both of them wanting to hook up was in thetexts and even when confronted by the texts, when the book was put in frontof him remember that in the police interview and he was saying, "Well Idon't talk like that", and he was trying to argue on two occasions that itwasn't his texts. Well now you might think well perhaps he's just forgottenthe exact texts, he's not lying and that's fine if that's the case but if youconsider he was being untruthful to the police about this then you need toremember that people lie for various reasons, to avoid unjust suspicion, outof embarrassment, so here it may be he knew what was in the texts, "This isgoing to be terrible, it makes it sound like I wanted to have sex with mycousin", so even if you conclude that he lied you should not necessarilyconclude that he's guilty, so that's the important thing, it just doesn'tautomatically follow. You would need to be sure that the lie cannot beinnocently explained away before you consider it's any indicator of guilt andin the end the lie is just a piece of evidence and you attach weight to it asyou think it merits and you remember it's the Crown who proves all theelements beyond reasonable doubt regardless of whether the defendant lies.[59] Now here the Crown says he lied about acknowledging the textsbecause he knew they were damning, he knew what was in there and he washoping that no-one would find them because he thought they'd been deletedand even when he had the horror of, "Here is a booklet full of them", eventhen he was trying to duck away from them. Well the police say well it's noteven clear it was him, the defence say it's not even clear it was a lie, he'ssprung with this in a police interview for goodness sake and in any eventwhat the texts reveal was a persistent attempt to convince his cousin to havesex and that's embarrassing, so there's reasons why he would want todistance himself from the texts, quite different from guilt so you can't justjump to that sort of conclusion. Well it's one piece of evidence, it's up to youto what you make of it.[14] The direction at [58] is orthodox. The narrative at [59] simply elaborates onthe respective positions adopted by the Crown and the defendant in relation to aclaim that the texts were evidence of a lie. In combination, they properly address alive jury issue favourably to B.E's evidence[15] We can also deal with this ground summarily. E gave evidence that B toldthose present at the family hui what he later told the police, namely, that the sex wasconsensual. He also stated that B referred to a kissing incident "up North inChristmas". The Judge was critical of E, doubting whether he was in fact at the hui.Even so, the probative value of E's evidence was negligible. Furthermore, there wasno issue about what B said at the hui. This ground of complaint has no merit.Text messages[16] Some of the text messages between B and C identified by the Crown inclosing are noted at [3], [4] and [6] above. In summarising the Crown case about thesignificance of these texts, the Judge used the words "infatuation", "obsession","infatuated" and "sexual obsession". He said:[65] All right. Ms Pridgeon for the Crown, the Crown case is that wehave [B] who it seems is infatuated or it was sexual obsession with hiscousin. It is simply from him, she has no interest back. They have had thisestrangement for a number of years and then they meet up in Auckland andit's following that that this texting starts and the Crown say the texting isincredibly important for you in this case, the Crown say the texting, it givesone of those anchor points to the case, it's something that you know is there,it's not just someone's memory, it's been committed to writing albeit in astrange language but there you go and you can read it and you can work outabout what it means[17] And further:[66] Well the Crown say, "Why would he go in there, there's no needto sleep there, there's an empty bedroom?" He's gone in there because hetakes the opportunity to fulfil his infatuation and obsession, that's what theyare saying. She's asleep, he just doesn't care, he just wants to have sex withher, you know as he charmingly put it, "do it once and no one need know".[18] We agree with Mr Cassidy that the Judge was wrong to characterize the textmessages in the way he did. While the texts were a key part of the Crown case, therewas no suggestion B was obsessed. Rather, Ms Pridgeon largely let the texts speakfor themselves. She closed to the jury as follows:Recall the text messages sent by the defendant before the offendingindicating he was sexually interested in her but that she wasn't. Recall alsothe text messages sent by the defendant afterwards apologising and thecomplainant telling him that she hated him. The Crown says that these textmessages after the defendant had sex with her are about what had happenedin the bedroom and prove that the defendant knew he went too far.[19] By adding emotively charged descriptors, the Judge left a much stronger, anddifferent impression of the significance of the evidence than that left by the Crown.The sentencing notes reveal it was an impression the Judge had, in fact, formed ofthe evidence. He said in sentencing B:For some reason, you, [B] became obsessed with the idea of having sex withthe victim. The text traffic between the two of you made this clear. What isalso clear from that text traffic is that the victim did not want to have sexwith you, she told you that repeatedly but you would not accept that.[20] We are troubled by this. A "sexual obsession" literally connotes thepersistent intrusion of sexual thoughts, against the will of the person obsessed.It strongly supports an inference that B was more likely to have acted on thisobsession and sexually violated C. The reference to "charmingly" also impliespersonal criticism of the defendant. The Judge was wrong to add these glosses to theCrown case.[21] But, in the full context of a lengthy summing-up, we do not consider theJudge's comments on the text messages would have materially affected the jury.First, the text messaging was highly damaging to the defendant's case with orwithout the Judge's gloss on it. The evidence showed that, as Mr Cassidy put it inclosing to the jury:There is no doubt whatsoever, none whatsoever, when you consider thosetexts messages, that [B] took an active and leading role in what took place,and he pursued his cousin for sex he was the one that was hassling her to engage in sexual intercourse and she was clearly the more reticent or reluctant of them[22] Second, the Judge spent a considerable amount of time in summing upaddressing the defence response to, among other things, the text messages.This mitigated the likely impact of the Judge's mischaracterisation of the Crown'sposition. He outlined the following aspects of the defence case:[a] The inconsistencies in the evidence as to the sleeping arrangementsthat night.[b] The lack of medical evidence to corroborate C's claim that Bheadbutted her.[c] The other inferences which could be drawn from the text messagesbetween B and C.[d] The argument that the apologies offered by B might mean that heregretted having sex, not that it was non-consensual.[23] Third, the question trail left with the jury included a summary of the Crownand defence cases regarding the texts. It reads:Crown caseLeading up to the early morning of 31 December 2015 [B] consistentlypressured [C] to have sex with him. She consistently told him she would notconsent to have sex with him. She had no sexual interest in him and neverhad any sexual interest in him at any time. [C] awoke to find [B] having sexwith her. Sexual intercourse started while [C] was asleep and intoxicated.When [C] awoke to find [B] having sex with her, she told him to get offmore than once and told him no. When she tried to get up he headbutted herand continued to have sex with her.Defence caseThere had been a history of sexual byplay between [B] and [C]. He hadmade it clear to her leading up to the early morning of 31 December 2015that he was interested in having sex with her. [C] came into the room where[B] was going to sleep in her grandmother's room. She talked with him,they started kissing. She actively participated in the sex. While she mayhave been disinhibited by alcohol, she was not too drunk to consent.[24] This summary accurately records the Crown's position, withoutembellishment, together with an accurate summary of the defence case in relation tothe texts. In our view, this left the clearest impression of the relevance andsignificance of the texts with the jury.[25] Accordingly, we do not consider the Judge's summing-up on the texts, inisolation, amounted to a material error or raises scope for the jury to be in doubt onthe key issues at trial, namely consent or reasonable belief in consent, being thethreshold test for miscarriage adopted by the majority in Christian v R.2D's evidence[26] As noted, the defence closed to the jury highlighting evidence that D wasfirst up on the morning of the alleged offending and observed C and B asleep inseparate beds. D also said everyone got up, including C, after his noisy brotherarrived. This account was not challenged in cross-examination. The significance ofthis, Mr Cassidy submits, is that D's evidence is completely at odds with C's accountas to the timing and circumstances of the rape — namely, that D was still asleep onthe couch when she left the bedroom shortly after the alleged rape. Mr Cassidycomplains the Judge undermined the significance of this evidence to the jury bydoubting the reliability of the evidence of who woke up first. Compounding theprejudice, he says, the Judge did not refer to D's evidence when summarising thedefence case to the jury.[27] We agree with Mr Cassidy that the Judge's treatment of D's evidence insumming-up lacked balance. C's description of what happened soon after thealleged rape appears inconsistent with D's account and the accounts of otherwitnesses as to who was awake when C left the room. C says she left her room soonafter the alleged rape and saw her father, D, lying on the couch. Initially she said herbrother had already left to collect her daughter, but conceded undercross-examination that her brother's account is more likely to be accurate as towhere he was and his movements. Her brother's account was that he got up first,and woke everyone up because he wanted to go. He also accepted however that hisfather's account of who was up first could be correct. C's cousin's account was that,when she got up, C's brother was in the lounge on the couch and D was doing the2 Christian v R [2017] NZSC 145 at [37].dishes. She did not see C or B. This largely accords with D's account. He stated inhis interview and maintained in evidence that he got up first and saw C and B in theirgrandmother's room with C asleep on the mattress and B asleep on the bed next toher. D said everyone woke up when his brother arrived.[28] The Judge first addressed this evidence in the context of a discussion aboutcredibility and reliability. He said:[43] I suggest we've got a couple of examples perhaps of that in this case,take for example the various accounts about who got up first in [D's] house.It seems that everyone's saying, well apart from about I think [B's]exception, almost everyone seemed to think they'd got up first. Now I don'tthink they were here trying to lie to you about that necessarily at all but theymay not have got it right and there could be some obvious reasons for thatgiven the amount of alcohol consumed the night before, so you've just got toassess that, someone may be quite credible but they may not be particularlyreliable.[29] D's evidence on this issue is then mentioned by the Judge when summarisingthe Crown case on what happened after the alleged rape. He stated:The Crown then say well what happens after that, she becomes angry, sheyells at him and there's some corroboration of that because her brother hearsyelling, as to the timing it would seem it must be the morning, all she knowsis she went to sleep and woke up when this happened, afterwards when shewent out it was light. There may well be differences about who was up firstand who was where and how or what but that's really neither here nor there.Maybe [D] came past and saw them asleep in there, maybe that happenedbefore this all occurred given it happened in the morning seemingly aroundthe time where everyone was getting up. The Crown would then say well herreaction is consistent, her reaction, her being upset is consistent and his isnot.(Emphasis added)[30] The Judge does not otherwise refer to D's evidence when summarising thedefence case, except obliquely. The Judge noted:Other things the defence point to is that well according to [B's] account thisall happened at night, he goes in, she comes in, they get talking and havesex, that would make sense with people being intoxicated and making a poordecision. Waking up in the morning and hung-over and deciding to have sexdoesn't make so much sense while the house is up and everyone's movingaround. So the defence says you step back at this and you say well there isdifferent conclusions you can draw from this, her account about the morningdoesn't make a lot of sense in terms of who was up and where and how, heraccount about going to bed doesn't make a lot of sense and her reaction isexplainable, it's explainable because of the embarrassment, the humiliation,the fear of people finding out about this, all of those factors and you can'texclude that.(Emphasis added)[31] In the result, the Judge:[a] Identified an issue about the reliability of the evidence of who wokeup first — which must include D's evidence;[b] Explained the Crown's view of D's evidence; and[c] Did not clearly explain the significance of D's evidence to thedefence case.[32] However, the significance placed by the defence on D's evidence shouldhave been obvious to the jury, given Mr Cassidy's closing address. The Judge alsoreferred to the dispute in the evidence about who got up first and the potential forinconsistency with C's account. Moreover, while Mr Cassidy sought to place greatweight on D's evidence, even if it was accepted as true, it was weak evidence that Cwas lying and only ever of marginal relevance to the key remaining issues in dispute,namely, consent or reasonable belief in consent. In short, it does not directly orcogently bear on C's overall credibility on these matters. Furthermore, as the Crownsubmits, as summarised at [22] above, the Judge drew together the key threads ofthe defence case on the central issues of consent and reasonable belief in acomprehensive way.[33] We are satisfied, therefore, that the apparent lack of balance in thesumming-up in terms of D's evidence does not, by itself, occasion a miscarriage ofjustice.Miscarriage for lack of balance?[34] While we are satisfied the problems with the Judge's summing-up were notindividually material to the outcome at trial, we have considered whether, asMr Cassidy claims, the summing up was so unbalanced overall that the trialmiscarried.[35] The general requirements of trial judges when summing up to juries wassummarised in R v Keremete.3 This Court noted:[18] The other ground of appeal against conviction was that the Judge'ssummary of the defence case was inadequate and dismissive. A judge'ssumming up must identify the fundamental facts in issue, be balanced in itstreatment of opposing contentions with respect to those facts, and leave thejury in no doubt that the facts are for them and not for the judge. Rivalcontentions with respect to the factual issues will normally be summarised(R v Miratana, 4 December 2002 CA 102/02) but there is a wide discretionas to the level of detail to which the judge descends in carrying out that task.Treatment of matters affecting the cogency of evidence is not required as amatter of law: R v Foss (1996) 14 CRNZ 1 (CA) at p 4.[19] The judge need not, and should not, strive for an artificial balancebetween the rival cases if the evidence clearly favours one side or the other:R v Hall [1987] 1 NZLR 616 (CA). A judge is entitled to express his or herown views on issues of fact, so long as it is made clear that the jury remainsthe sole arbiter of fact (R v Hall, supra, at p 625). Any comment on the factsshould be made in suitable terms without use of emotive terms or phraseswhich could lead to a perception of injustice. But provided the issues arefairly presented, the comment may be in strong terms: R v Daly (1989)4 CRNZ 628 (CA). Inevitably these are ultimately matters of degree andjudgment.[36] We consider that an issue of lack of balance, of the type mentioned inKeremete, is arguably present in this case. As noted, the Judge used unduly andimproperly emotive language in explaining the significance of the texts. Thesumming-up also suffers from a failure to summarise to the jury a key plank of thedefence case, namely, D's evidence of what happened in the morning after thealleged offending. Consequently, B's case was explicitly and implicitly underminedat two levels — the summing-up elevated the Crown case by improperly suggestingthere was a cogent basis for concluding B was "sexually obsessed" with C, anddownplayed contextual evidence that might support B's version of events.[37] Did this apparent lack of balance overall create a real risk the outcome of thetrial was affected or the trial was otherwise unfair? In the context of a very fulsomesumming-up, their combined significance is substantially reduced. The Judge3 R v Keremete CA247/03, 23 October 2003.explained at length those matters that might cogently support B's defence, includingdetailed references to (among other things):[a] evidence of B's prior relationship, of "sexual byplay", with C thatmight explain the texts more favourably to B;[b] evidence of what happened prior to the alleged offending thatappeared to contradict C's account;[c] the absence of corroborative evidence supporting C's account of whathappened prior to the offending;[d] the defence theory of the disinhibiting effect of alcohol and that Cwas embarrassed and later regretted what had happened; and[e] the absence of evidence supporting the headbutt claim.[38] In this regard, it is noteworthy C's claim about the headbutting was rejectedby the jury. This supports the view that the jury was not led astray by the Judge'sgloss on the evidence or failure to highlight the significance of D's evidence to them.Overall therefore, while a prima facie case for lack of balance has been established,we are satisfied that the trial did not miscarry.Result[39] The appeal therefore is dismissed.Solicitors:Crown Law Office, Wellington for Respondent