FOLEY v R [2023] NZCA 228

FOLEY v R [2023] NZCA 228 [13 June 2023]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 AOTEAROACA381/2022[2023] NZCA 228BETWEEN GAVIN MARTIN WILLIAM FOLEYAppellantAND THE KINGRespondentHearing: 21 March 2023Court: Brown, Lang and Palmer JJCounsel: N Levy KC and A Jeremich for AppellantJ A Eng for RespondentJudgment: 13 June 2023 at 11.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Palmer J)[1] Mr Gavin Foley was found guilty and convicted of sexual violation byunlawful sexual connection. He appeals his conviction.What happened?[2] Mr Foley met the complainant on Tinder. They had three dates in January andFebruary 2020, each involving consensual sexual activity. On the third occasion, on14 February 2020, after alcohol and dinner, they went back to Mr Foley's house andengaged in further consensual sexual activity. But Mr Foley's digital penetration ofthe complainant on this occasion, while she was on her hands and knees, becamepainful for her.[3] The complainant's evidence was that she asked him to stop, twice, and that hesaid "no" the first time and "no way" the second time. The evidence of Mr Foley, whohas a hearing impairment, was that he was never asked to stop and did not reply.The complainant managed to turn herself over and the digital penetration stopped.The complainant's evidence was that when she explained that it really hurt, Mr Foleyresponded that if she "hadn't struggled so much" she would have gotten past the painto reach pleasure. The next day, the complainant told two friends what happened andwas examined by a doctor. The doctor's evidence was that she observed the presenceof small splits in the complainant's vaginal tissue. A few months later, the complainantmade a complaint to the police.[4] On 29 April 2022, after a trial before a jury and Judge Rielly in theDistrict Court at Wellington, Mr Foley was found guilty of sexual violation byunlawful sexual connection. On 1 July 2022, Mr Foley was sentenced to 10 months'home detention.1The appeal[5] Mr Foley appeals his conviction. Under s 232(2) of the Criminal ProcedureAct 2011, we must allow the appeal if we are satisfied that the jury's verdict wasunreasonable or a miscarriage of justice has occurred for any reason. Section 232(4)defines a miscarriage of justice to mean:1 R v Foley [2022] NZDC 12363.(4) any error, irregularity, or occurrence in the trial that—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.[6] Not every error or irregularity causes a miscarriage of justice. It must be "morethan an inconsequential or immaterial mistake or irregularity".2 There is a "real risk"the outcome was affected when there is a reasonable possibility a more favourableverdict, such as not guilty, might have been delivered if nothing had gone wrong.3The appellant must show that an error has been made.1 Evidence of the complainant's positioning[7] Ms Levy KC, for Mr Foley, submits that his trial counsel, Ms Ord, failed tobrief evidence from him about the complainant's positioning during digital penetrationon a previous occasion they had sex, a week beforehand. The jury knew thecomplainant was on her hands and knees during the offending and facing away fromMr Foley. But they did not know that on the previous occasion, according to anaffidavit by Mr Foley, the complainant had been on her back. Ms Levy submits thatthe evidence would have supported Mr Foley's account that he did not hearthe complainant and could explain why, in a more awkward position, the complainantfelt discomfort during the offending, which she had not felt on that previous occasion.That was relevant to whether the medical evidence supported the complainant'saccount. The failure to adduce the evidence was an irregularity that prejudicedMr Foley's chance of acquittal.[8] Mr Eng, for the Crown, submits that such evidence could equally havereinforced the complainant's contention that she was in pain during the offending,which is why she told him to stop, and could have made Mr Foley's position at trialworse. We agree there is some force in this submission. But, in any case, thepositioning of the complainant on one occasion compared with another was notrelevant to the key issue at trial: whether the complainant had asked Mr Foley to stopand whether he had refused. The medical evidence could have supported either2 R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30] per Gault, Keith and Blanchard JJ.3 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.account because it was not specific as to the cause of the medical findings. However,the evidence of previous positioning would not prove or disprove anything ofconsequence. There is no real risk its absence affected the outcome of the trial.2 Mental health evidence[9] In her summing up the Judge directed the jury about the complainant'smental health:[9] Also in this trial you've heard references being made to[the complainant] having some mental health issues that she had beenreceiving counselling for. You must feel neither sympathy for her about that,or prejudice against her for that being the case. You can be assured that if thenature of those health issues were relevant to issues in the proceeding that youwould've heard about that in evidence. And I'm sure that you will all agreethat gone are the days where there is stigma about people having mental healthissues as they are commonplace in our society.[10] Ms Ord said to you during her closing address that [the complainant]'smental health issues and perhaps her previous relationships may havecontributed to why she manipulated the meaning of Mr Foley's messages ormay have had a warped way of thinking about them. But I need to tell youthat there is simply no evidence of that in the case. In this case you heardMr Foley himself say that [the complainant] had told him about those issues.He didn't consider what she told him as relevant to the allegation he faces,rather he interpreted what she said as her opening up to him as he got to knowher in circumstances where he also opened up to her.[10] Ms Levy submits that it is plainly wrong that all relevant evidence wouldnecessarily have been heard at trial. To say so was an unfair attack on the defencesubmission that the complainant had some distorted thinking. Instead, she submitsthe Judge was required to direct that there was no evidence as to the nature of themental health issues. The unspecified mental health issues may have impactedthe jury's consideration of the complainant's motive to lie, memory of the incident,experience of the event, rationalisation of what she believes she did and didn't say ordo, her actions afterwards, and her interpretation of Mr Foley's texts.[11] Mr Eng submits that the Judge appropriately cautioned the jury againstspeculation, sympathy, and prejudice without undermining the defence position thatthe complainant had embellished, exaggerated, demonstrated distorted thinking, andlied about her position.[12] There was no evidence about the complainant's mental health other thanMr Foley's evidence that she had mentioned unspecified mental health issues inpassing. Mr Foley did not seek to explore the issue at trial and that is not sought to beimpugned in this appeal. This Court observed in Mental Health, Addictions andIntellectual Disability Service v Hussain that there was no logical link between thecomplainant's mental health (including a diagnosis of schizophrenia) and hiscredibility and reliability.4 As Ms Levy accepts, there was nothing linkingthe complainant's way of thinking to any mental health issue. There is nothing tosuggest her mental health affected the credibility or reliability of her evidence aboutthe offending.[13] The Judge did not err in pointing out there was no evidence aboutthe complainant's mental health. It was necessary for the jury not to speculate aboutthat. That was the meaning and effect of the direction. It did not take away the defencecase, that there had been lies or distortions, from the jury. We do not consider the waythe Judge put the point made any difference to Mr Foley's defence or to the outcomeof the trial.3 Police interview evidence[14] Mr Foley's EVI, conducted by the police, was evidence at trial along with theevidence he gave under oath. In her summing up the Judge told the jury:You must, therefore, be careful not to give the videotaped interview the samestatus as evidence that is given on oath. As long as you keep that in mind, itis a matter for you to decide how much weight you give Mr Foley's accountthat he gave to Detective Constable Tubb-Duncan and his explanations to himin the interview. You can accept some of it, all of it, or none of it. You canview it as favourable or unfavourable to Mr Foley. It all depends on yourassessment of it.[15] Ms Levy submits the direction undermined the jury's reliance on the EVI,which was powerful and honest. Mr Eng submits the EVI was eclipsed by Mr Foley'sconsistent and much more detailed evidence at trial.4 Mental Health, Addictions and Intellectual Disability Service v Hussain [2020] NZCA 81 at[60]-[61], citing Alshamani v Auckland District Health Board [2017] NZCA 388 at [3].[16] We consider the Judge's direction to be orthodox and unremarkable.During the EVI, Mr Foley was not under oath. The Judge was entitled to point out thedifference between evidence that was not given under oath, nor tested bycross-examination, with evidence that was.5 She made it clear that the jury wasentitled to accept all, some, or none of Mr Foley's account to police and that it was forthe jury to assess. The direction was appropriate.4 Evidence of alcohol consumption[17] During the evening in question, the evidence is that the complainant andMr Foley had shared at least two bottles of wine, then had a late-night dinneraccompanied by a third bottle of wine. In her summing up, the Judge said:[32] I now want to refer to the toxicology evidence which is containedwithin the agreed fact[s]. In this case the toxicology results related to thealcohol and drugs found in the blood and urine samples taken from [thecomplainant] during the medical examination and what they do or do notsignal about the likely effects of alcohol on [the complainant] at the time ofthe alleged incident. Neither counsel has placed great weight on this evidencebecause [the complainant] and Mr Foley both agree that they had beendrinking that night prior to the sexual activity taking place and that while thatmay have affected their memory a little, neither has suggested it affected theirjudgment or decision-making and neither is unable to give an account aboutwhat occurred between them.[18] Ms Levy submits that the Judge erred because the amount of alcohol drunkwas capable of being relevant. The direction hindered the jury in assessing thedifferences in testimony between Mr Foley and the complainant. The complainant'scredibility was critical, and alcohol explains why she recalled events imperfectly.The Judge should have directed the jury to bring their common sense to bear onwhether the quantities of alcohol consumed could be relevant to the reliability of theirevidence.[19] We agree with the Crown that more focus on the amount of alcohol drunk mayhave harmed Mr Foley's case in providing an explanation for him not stopping thedigital penetration. The jury would undoubtedly have brought their life experiencesto bear on their assessment of the evidence, as the Judge directed them generally earlier5 See AD (CA490/2013) v R [2014] NZCA 223 at [30], citing Davis v R [2011] NZCA 380at [34]-[36].in her summing up. We do not consider there was any material error in the Judge'sdirection.5 The complainant's credibility[20] In her closing submissions, on several occasions, the Crown prosecutor toldthe jury that the complainant was either making up the allegations or they were true,there being "no halfway house" between those alternatives. Ms Levy submits that thiswas misconduct because Mr Foley's primary challenge was to whether thecomplainant reliably remembered what they each said, rather than whether thecomplainant was deliberately lying. She submits the Judge should have directedthe jury that: the lack of a motive to lie did not impact the burden of proof; this wasnot a case where the complainant was either lying or telling the truth; and the case wasabout whether the complainant had exaggerated or embellished the incident in hermind over time. Not to do so ignored the defence position that the complainant'sevidence was unreliable and possibly dishonest. That was lost by the Judge notdirecting the jury about this repeated comment by the prosecutor. Ms Levy disagreeswith Mr Eng's submission that the issue at trial centred on credibility rather thanreliability.[21] Whether or not it was the sole focus, it is clear that counsel for Mr Foley at thetrial sought to mount a strong challenge to the complainant's credibility. Trial counselmade that clear in her submissions to the Judge after the summing up, stating that"credibility and reliability are at issue". That is not surprising. Mr Foley had toovercome the complainant's testimony that he twice verbally refused to stop and hermessages to two friends the next morning to that effect. The Crown did not try tobolster the complainant's credibility by referring to an absence of a motive to lie.The Crown was also entitled to respond to the defence case in the way it did.Highlighting the credibility issue was not the same as making a submission about amotive to lie. The Judge's directions on the burden of proof adequately dealt withthe point.Result[22] None of the grounds of appeal succeed. We do not consider that any of themsuggest the jury's verdict was unreasonable or there was a miscarriage of justice.[23] We dismiss the appeal.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent