WOOD v R [2020] NZCA 653

WOOD v R [2020] NZCA 653 [16 December 2020]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 AOTEAROACA438/2020[2020] NZCA 653BETWEEN GEOFFREY WAYNE WOODAppellantAND THE QUEENRespondentHearing: 9 November 2020Court: Brown, Duffy and Nation JJCounsel: M Zintl for the AppellantC Ure for the RespondentJudgment: 16 December 2020 at 4.00 pmJUDGMENT OF THE COURTA The application to adduce fresh evidence is declined.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Nation J)[1] The appellant, Mr Wood, stood trial before Judge Phillips and a jury in theDistrict Court at Greymouth on 28 February 2019 on two charges:(a) Charge 1 — sexual violation by rape.(b) Charge 2 — indecent assault.[2] Mr Wood was convicted on the charge of indecent assault. The jury could notagree as to a verdict on the rape charge. The victim was no longer willing to participatein a retrial scheduled for August 2020. The Crown offered no evidence as to the rapecharge at the retrial. Mr Wood was discharged pursuant to s 147 Criminal ProcedureAct 2011 on that charge.[3] Mr Wood appeals against his conviction for indecent assault.Background[4] In December 2017, the victim was in a relationship with a fisherman whoworked offshore from time to time (the partner). Mr Wood and the victim wouldregularly socialise with each other, either with or without the partner. Until December2017, nothing of a sexual nature had occurred between Mr Wood and the victim.[5] On 1 December 2017, the victim finished work at around 5 pm. The partnerwas working on a fishing boat. The victim met Mr Wood at about 6.30 pm andarranged to have dinner at a local restaurant to celebrate getting a pay rise.[6] After dinner, the two of them went to a liquor store where the victim boughta bottle of tequila. They went back to the victim's house where they drank most ofthat bottle. Later in the evening, they were joined by two men who were friends ofthe victim. At about 10.30 pm, the victim and one of the men went to the liquor storeand bought another bottle of tequila. The victim had one drink from the new bottle.In addition to heavily consuming tequila, the victim and Mr Wood were also usingcannabis throughout the evening.[7] The partner phoned from the fishing boat to speak to the victim at about9.30 pm. She appeared to him to be extremely drunk. The two other men left thehouse somewhere between 11 pm and 11.30 pm. They described the victim as beingextremely drunk. She must also have been affected by the use of cannabis.[8] After leaving, the two men walked up to a stop bank from where they heardcrying or moaning sounds coming from the house. They saw and spoke to a third man,Mr B,1 who spoke to the partner on the phone. The partner asked Mr B to check onthe victim. Mr B arrived at the victim's house somewhere between midnight and12.30 am. Mr B said in evidence that he saw Mr Wood on top of the victim on thecouch. We refer in detail to his evidence as to what he saw later in the judgment.Mr Wood was still at the victim's house when Mr B left.[9] In evidence, the victim said she had no memory from the time of the secondbottle of tequila until the following morning. She had no recollection of Mr B cominginto the house when Mr Wood was there. She said she woke in the morning in bedwith Mr Wood. They were both naked and his hands were on her. She said she wokeup feeling she had had sex with Mr Wood, he told her they had sex and she had semenin her vagina. The victim was very angry at Mr Wood.[10] Mr Wood's defence at trial to charge 1 was that sexual intercourse wasconsensual and Mr Wood reasonably believed the victim had consented. He said thevictim had decided what occurred between them was non-consensual only after shehad spoken to Mr B the day after.[11] As to charge 2, the prosecution was based on Mr B's evidence that he sawMr Wood lying on top of the victim, shirtless and trying to kiss her as she struggledand told him to get off her. The defence case was that this did not happen and whateveroccurred was on the floor and it was not indecent.[12] When interviewed by police, in summary, Mr Wood said he had propositionedthe victim for sex several times over the course of the evening and had been rejected.However, after Mr B came into the house, the victim had changed her mind becauseat that point everyone thought that her partner would be informed as to what had beengoing on. He said the victim then agreed to have sex with him.1 The name is anonymised to prevent the identification of the victim.First ground of appeal — new evidenceEvidence at trial[13] At trial, Mr B said, after talking to the partner on the phone, he walked thedistance of four or five houses to the victim's house and walked to the back door thatwent into the lounge. Mr B initially said before he had seen the victim and Mr Woodhe had not heard anything. He said, when he saw what was going on, he "kinda froze",and then heard the victim screaming at Mr Wood to get off her. He thought she wassaying "get off me, you creep, get off me". He described it as a good loud scream.He said she had not seen him before she was screaming. He said it appeared Mr Woodwas trying to kiss the victim on the neck and she was struggling trying to get off thecouch.[14] After two legal discussions in the absence of the jury, the Crown was permittedto have Mr B read a statement he had made to police on 8 December 2017, a few daysafter the events in question.[15] Mr B then clarified that he heard the victim say "stop it, get off me, you creep.I don't want to, I don't want to" and Mr Wood replied "I know I'm a creep". Mr Bsaid, from there, he stepped inside and said "what's going on" and then the victimrolled off the couch, jumped over the table and ran towards her bedroom. He said shewas screaming but she said hello to Mr B and said she was drunk. Mr B could tell shewas drunk. She told Mr B not to let Mr Wood up the front of the house, so he stoodin the hallway for a bit. He thought Mr Wood then went outside and sat on the steps.[16] Mr B heard the victim screaming from her bedroom. He asked her if she wasok but she just continued to yell and scream. Mr B walked outside where he sawMr Wood sitting on the steps. Mr B thought Mr Wood was quite drunk. Mr B said hewalked back up on to the stop bank. He saw Mr Wood go back inside and sit on thecouch. He heard the victim screaming and Mr Wood say "you did this to yourself".From there, Mr B said he just walked home.[17] Mr B said after he left the partner rang him. He told the partner that he hadseen both the victim and Mr Wood drunk but he could not remember if he told thepartner about Mr Wood being on top of her exactly, and he probably did not tell himabout the screaming. He said he had not wanted to worry him too much.[18] Under cross-examination, Mr B said he was good friends with both the victimand the partner. He began by confirming the basic account he had given in evidencein chief, including that he believed he saw Mr Wood trying to kiss the victim on theneck but it was hard to see from where he was standing. He said the victim hadknocked things off the table when she jumped over it but she had not fallen over.[19] Mr B accepted during cross-examination he had not told the partner what hehad seen. There was then this exchange:Q. So you lied to him?A. I told him the truth eventually. Wish I'd –Q. Yeah, but you stillA. Yeah, yes, correct.Q. You lied to [the partner] on your evidence about not seeing what you saw,correct?A. Correct.[20] Mr B said he spoke to the victim the next day about what he saw, gave her "thatversion of events" and went to the extent of going to the Police Station with her.[21] He confirmed the victim had been screaming. He did not accept he had seenMr Wood on top of the victim on the ground. He was clear they were on the couch.He accepted the proposition that it looked like something intimate was going onbetween the two of them. He did not accept that he saw the victim reciprocatingMr Wood's advances. He did not accept that she was not resisting Mr Wood in anyway. He said she ran out of the room pretty quick.[22] It was put to Mr B that he had made up his evidence to help his mate, thepartner. Mr B agreed he was helping his mate but was clear he was not lying and wasnot making up his evidence. In that exchange, it was suggested that the only thing hesaw was Mr Wood and the victim on the ground with Mr Wood's top off. Mr B didnot accept he had seen them embracing and repeated his evidence that she wasscreaming and they were not on the floor.[23] The partner also gave evidence. He explained how he was at sea on a fishingboat on the night in question. He knew Mr Wood as a friend of the victim. Mr Woodwas a regular visitor to the victim's home where the partner was also living.He explained how he had used his cell phone to speak to both the victim and Mr Woodaround 9.30 pm. The calls would cut out but he gathered they were both very drunk.He said the victim was not making sense. Mr Wood said he was wasted. The partnerconfirmed he phoned Mr B, anxious to have him go to the house and check on thevictim. He kept Mr B on the phone as he was going to the house and, when he washalfway there, told him to run. He heard Mr B running before the phone cut out.He said he talked to Mr B sometime later and Mr B said he had seen Mr Wood sleepingon the couch and all was good. The partner assumed everything was all good. Mr Bphoned the partner about 1.30 pm the next day, told him what he saw and apologisedfor not doing anything. Mr B said to the partner "sorry for not doing anything, fuckhim" and the partner told the Court "they said he didn't wanna worry me but it wasthe worst thing he could have done".[24] Mr Wood was found guilty of indecent assault based on Mr B's evidence.We note however that, in certain respects, Mr B's evidence was consistent with whatMr Wood said to the police about what happened.Fresh evidence[25] Mr Wood seeks to rely on fresh evidence which he says reflects adversely onthe credibility, veracity and reliability of Mr B. Mr Wood says Mr B's evidence wasthe primary evidence upon which the jury found Mr Wood guilty of the indecentassault charge.[26] Mr Wood filed an affidavit, sworn on 28 August 2020, by Malachy Wood(Malachy). He is 28 years of age. Mr Wood is his father "although not biologically".Malachy was raised as Mr Wood's son. He said he has known Mr B since he was 13and said he and Mr B are friends. Malachy said he was working in Australia in 2019and managed to get Mr B a job working with him as an asphalt labourer. The twostarted living together. He says after work on 23 August 2019 he and Mr B drankabout half a dozen cans of beer in the evening and then began discussing Mr Wood'strial. Malachy says he started to think that what Mr B was saying "could help [his]dad out". Malachy began recording on his cell phone "parts of the conversation wehad". He said Mr B was not aware he was recording the conversation at the time.Malachy supplied the recordings to his father and next day told Mr B he had made therecordings. Attached to his affidavit was Malachy's transcript of the conversation.[27] In the transcript, Mr B makes comments about the victim's drug use. Malachyturns the conversation to what happened. Mr B says "nah I'll tell you in full detailwhat I was doing ". He then talks about how he came to go to the victim's house inthe early hours of the morning and what he saw when he got there. In the transcripthe repeats key elements of the evidence he gave at trial. He talks of being phoned bythe partner around midnight. The partner asked him to check on the victim becauseshe was drunk and the partner was worried something was going to happen. Mr B saidhe was reluctant to go because he was in bed and had work in the morning. The partnerrang again and asked him to go. He walked to the victim's house. No one was thereexcept Mr Wood and the victim. Mr Wood was on top of her on the couch, his shirtwas off. He said, after he saw her, the victim screamed, jumped over a table and ranup into the hallway. He said he talked to her and she started screaming again and ranto her room. He could hear her screaming in the room. He left and Mr Wood was outthe door "coughing and spewing". Mr B said the partner was one of his good friendsand he had known him since high school. He said he went to court and gave evidencefor the partner. Mr B thought the partner "was in love with this girl and unfortunatelyshe was raped and that's wrong so this is why I'm here". He said he wished he hadnever gone to court for them both but "I was just doing what I thought was right at thetime".[28] There were certain ways in which his account of what he saw was differentfrom the evidence he gave at trial. In the conversation, as it was transcribed, he said:B: No word of a lie bro Goff [Mr Wood] had Goff was on top of her onthe couch, his shirt was off, he still had his jeans on and um they weregoing at it or he was like fucken hooking up with her and I was kindalooking on and I was like what's going on. They freaked out. Oh nosorry before I said what's going on like I don't know [the victim] wasn'tlike it's hard it's hard to like cos they were so drunk and it washard to like I was half asleep they were like [the victim] waslike my impression was like what the fuck and it was like [the victim] oh fuck it's hard yeah ok so so at first it was like look ok so I waspeaking right, I was peaking. I didn't want to get caught. I want to spy,I was being a sneaky motherfucker whatever I wanted to knowbefore I just busted in there and um yeah see now the more I think aboutit see I didn't [hear] her screaming or nothing until I went in the door.MW: Yeah yeah.B: So maybe [the victim] was into it.MW: Well yeah.B: Until I walked in the door. That's all I'm thinking now.[29] And, a little later:MW: So you [reckon] she might have been into it. Otherwise she would havebeen screaming beforehand right.B: Yeah that's what I'm thinking.MW: Or you know pushing him off or something. Was she pushing him offor anything or like I don't know.B: I mean I did stand there for ages.[30] There then appears to be a gap in the transcript of what was said. The transcriptcontinues:B: off her. She didn't want that to happen. Oh no I was so drunk heraped me.MW: So she was into it you reckon. Obviously you know if she screamswhen you walk in and not try and do anything about it you know it's allgoing good and then you walk in and then she screams you know.B: Yeah. She screamed and jumped over a table before she ran up into thehallway [31] Mr Zintl, counsel for Mr Wood, submits this is fresh evidence because theconversation occurred post-trial. It is credible and cogent because it is in affidavitform. Mr B's evidence at trial was the primary evidence upon which Mr Wood wasconvicted. The transcript of the recording is materially inconsistent with what Mr Bsaid at trial in terms of the timing of the scream and strongly suggests the victim wasconsenting to the assault.[32] Mr Zintl submits:The fresh evidence of Mr [B] casts significant doubt on the credibility/veracityand reliability of his evidence at trial to such an extent that a miscarriage ofjustice ought to be declared.Discussion[33] For new evidence to be admitted on appeal, the evidence must be fresh,credible and cogent.2[34] We do not consider this evidence, insofar as the affidavit purports to state thatMr B (contrary to the evidence he gave at trial) on seeing Mr Wood and the victimengaged in sexual activity on the couch heard the victim scream only after she sawMr B, is credible or cogent.[35] The evidence is in the form of an affidavit, but not from the person whoseevidence Mr Wood relies on to submit there has been a miscarriage of justice.The affidavit essentially purports, through the transcript, to provide hearsay evidence.[36] On the face of it, that evidence would not meet the threshold for admissibilityas hearsay evidence. It does not appear to have been obtained in circumstances thatwould provide reasonable assurance that the statement is reliable.3 The conversationbetween Malachy and Mr B occurred when the two had been drinking. The generalnature and course of the conversation, as recorded in the transcript, would indicate thatMr B was intoxicated at the time. He obviously did not have his wits about himsufficiently to know the conversation was being recorded. It is also apparent from thetranscript that he was led into saying what he did with the conversation beginning witha mutual attack on the victim's character. Mr B was also in conversation with a friendand the son of Mr Wood who Mr B might reasonably have wanted to appease so as todiminish the way in which his friend might think Mr B had been responsible forMr Wood being convicted.2 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].3 Evidence Act 2006, s 18(1).[37] We also have a concern that the transcript does not record accurately all thatwas said. In particular, there appears to be a potentially significant gap in the recordof what Mr B said when Malachy asked him if the victim was pushing Mr Wood off.[38] We also have no evidence to suggest that Mr B would give evidence at anyretrial consistent with his conversation. Counsel said Mr B had been approached toprovide an affidavit but had said he would not do so.[39] Even if the transcript is an accurate record of what Mr B said in thisconversation, we do not consider it would be evidence sufficiently cogent to warrantadmission as new evidence or to suggest there had been a miscarriage of justice at thetrial.[40] Mr B had acknowledged his friendship with the partner when giving evidence.He had acknowledged he was giving evidence for his friend but he was adamant thatwhat he told the jury as to what he heard and saw as he approached and entered thehouse was true. He had obviously made a statement in the same terms to police justa few days after the events he was describing. There was no evidence at trial that thepartner had induced Mr B to tell either the victim or police what he saw in the termsMr B recounted in his evidence.[41] It was not suggested to Mr B in cross-examination that Mr Wood might havebeen on top of the victim on the couch "going at it", as Mr B in the conversation saidthey might have been. In cross-examination, it was suggested for Mr Wood that Mr Bcould not have seen the two people on the couch at all and what he in fact saw wasthem play-fighting on the floor.[42] Mr Wood attended voluntarily at the Police Station and participated ina lengthy interview with police. In that interview, Mr Wood said he had propositionedthe victim for sex. She had rejected him. Asked as to what happened after that, hesaid: I think we just kept talking, we were on the ground for a while and ah Ican't really remember a lot at that exact point, like I sort of was like um prettyfucked right, not you know, not just drunk tired, but like um I know she wastelling me to get off her and I was just sort of like (flops to one side) you know,and then the next thing I remember is [Mr B] coming in, but see I can't evenput a timeframe on that, like um how long that was.[Mr B] walked in, sorta you know, "Get the fuck off'' (inaudible) like um I gotoff her, um we were sitting there and then [Mr B] left, but um [the victim] toldhim to go away.[43] There are also several indications in the transcript that Mr B's revision as whathe saw was based not on his memory of what he had actually seen but a laterre-thinking about the situation, influenced by regret at the fact his evidence had led toMr Wood being convicted. When Mr B gave evidence, he acknowledged it had beenhard to see whether Mr Wood had been trying to kiss the victim when he was on topof her on the couch. He repeated that when telling Malachy about what he saw. At thetime he was presenting the new version, he was expressing uncertainty about what hesaw, qualifying his description with comments as to it being "hard", because they weredrunk and he was half asleep. He spoke then of what he had seen as being an"impression" and said "the more I think about it see I didn't [hear] her screamingor nothing until I went in the door". In the conversation he said "maybe [the victim]was into it Until I walked in the door. That's all I'm thinking now".[44] Those statements in the conversation suggest he was not sure if the victim hadbeen "into it" and, if she had, it would have been before he entered through the doorand saw what they were doing. If that was the case, the description he gave during themore recent conversation was speculation and would not be evidence of what heactually saw. Mr B himself, in talking to Malachy, said "that's all I'm thinking now".This suggests again that, to the extent there are differences, it is a reconstruction andnot based on a reliable memory of what he actually saw.[45] In finding Mr Wood guilty of indecent assault, the jury must have accepted thatMr B was both a reliable and honest witness in describing how he heard the victimscreaming, telling Mr Wood he was a creep and to get off her, and that he had been ontop of the victim on the couch with his shirt off. The affidavit of Malachy does notprovide any basis for us to find the trial evidence from Mr B could have been sounreliable that there could have been a miscarriage of justice.Conclusion[46] The application to adduce fresh evidence is declined.[47] The first ground of appeal has thus not been established.Second ground of appeal — intoxication[48] Mr Wood says the Judge misdirected the jury on intoxication by failing to givethem a full intoxication direction. This left the jury confused. The failure to expresslydirect the jury on intoxication against the elements of knowledge and intent for theindecent assault charge was an error that resulted in a miscarriage of justice.[49] Counsel for Mr Wood referred to various statements from this Court as to thedirections a judge is required to give as to intoxication.[50] In R v Kamipeli, McCarthy P held:4Drunkenness is not a defence of itself. Its true relevance by way of defence,so it seems to us, is that when a jury is deciding whether an accused has theintention or recklessness required by the charge, they must regard all theevidence, including evidence as to the accused's drunken state, drawing suchinferences from the evidence as appears proper in the circumstances. It is thefact of intent rather than the capacity for intent which must be the subjectmatter of the inquiry.[51] In Herewini v R, the Court said:5Where the effect of intoxication on intent is an issue, the Judge must give adirection to the jury: first, to warn them that the mere fact that the defendant's mind was affected bydrink so that he acted in a way in which he would not have done had he been soberdoes not assist him at all, provided that the necessary intention was there.A drunken intent is nevertheless an intent. Secondly, and subject to this, the juryshould merely be instructed to have regard to all the evidence, including thatrelating to drink, to draw such inferences as they think proper from the evidence,and on that basis to ask themselves whether they feel sure that at the material timethe defendant had the requisite intent.4 R v Kamipeli [1975] 2 NZLR 610 (CA) at 616. Approved as a standard direction of intoxicationin R v Tihi [1990] 1 NZLR 540 (CA) at 544; and Tukaki v R CA360/05, 14 June 2006 at [20]–[24].5 Herewini v R [2013] NZCA 294, (2013) 26 CRNZ 666 at [18] (footnote omitted).[52] In R v Tihi, the Court noted that, in Kamipeli, the Court in an addendumapproved directions in terms of the English approach as advocated by the EnglishCourt of Appeal in R v Sheehan.6 In Tihi, this Court said the way the trial Judge hadsaid intoxication might be relevant was sufficient in that case. The Court said:7As said in Sheehan, the jury should "merely be instructed to have regard to allthe evidence, including that relating to drink . . ." when considering whetherat the material time the accused had the requisite intent. This instruction to thejury was clearly given more than once and the question of intent properly leftto the jury.[53] There is no criticism of the way the Judge told the jury of the elements of thecharge of indecent assault which the Crown had to prove. These elements were alsoset out clearly in the question trail:Question 1Has the Crown made you sure that the defendant lay on top of the complainantwith his shirt off and tried to kiss her as she struggled to get off the couch andwas telling him to get off her?Question 2Has the Crown made you sure that the assault was indecent in that it would beregarded as indecent by right minded members of the community?Question 3Has the Crown made you sure that the defendant intended or appreciated theexistence of those facts and circumstances that make the assault indecent?Question 4Has the Crown made you sure that the complainant did not consent to thattouching?Question 5Has the Crown made you sure that the defendant did not honestly believe thatthe complainant was consenting?6 R v Sheehan [1975] 1 WLR 739 (CA).7 R v Tihi, above n 4, at 546.[54] Through his summing up and as reflected in the question trail, the Judge madeit clear to the jury that the Crown had to prove Mr Wood intended or appreciated theexistence of those facts and circumstances that made his actions on the couch indecentand that Mr Wood did not honestly believe the victim was consenting to what he wasdoing.[55] The Judge then discussed what the Crown had to prove on the charge of sexualviolation by rape, first describing the relevant elements of that charge and then takingthe jury to the question trail as to that charge.[56] The Judge concluded that discussion by saying "so those are the questiontrails". He then discussed intoxication. At that point, his directions clearly related tothe charges of both indecent assault and sexual violation by rape. The Judge said:[58] Intoxication. We have evidence here that both the complainant and thedefendant had been drinking Tequila. The evidence about how much each hadhad that night is not to be tested by you in fine scales, but the evidence, andof course is a matter for you, appears to be consistent with both havingconsumed a considerable amount. Using your common sense again, we allknow don't we that alcohol can have a disinhibiting affect. People do thingswhen intoxicated they would not do when they are sober but our law holdspeople responsible for their intentional acts even if they were drunk at thetime. A drunken consent given and later regretted is still a consent for thepurposes of the law. A drunken threat, for example, is still a threat but for thepurposes of the law.[59] So it follows intoxication in itself is not a defence. It can be relevant,however, to the state of mind of the defendant and to his intention, in particulara case like this where the Crown is saying you can infer from the overallcircumstances that the defendant took advantage of the complainant's level ofintoxication or inebriation and had sexual intercourse with her when she wasincapable of giving any true consent.[60] Intoxication can also be relevant to the complainant's [state] of mindand the existence of consent or lack of consent on her part. Alcohol can cloudjudgement and something that would be obvious to someone who is sobermight not be seen in the same way by the person when drunk.[61] In assessing what inferences to draw, you must allow for the alcoholconsumed by the defendant, the complainant and other witnesses. Thatinference of course, and I will discuss this in a bit more detail shortly, is just aconclusion. What conclusion on the evidence you draw is for you as a jury todecide as are all matters of fact. Inferences or conclusions can only be drawnfrom facts that you accept as reliably established. You are not entitled tospeculate or guess but in assessing what inferences to draw, you must allowfor the alcohol consumed by the witnesses and their explanations given fortheir action.[62] On the sexual charge here, the question is whether you are satisfiedbeyond reasonable doubt that the sexual activity occurred without thecomplainant's consent or without an honest belief in consent, without anybelief on reasonable grounds that she was consenting.[63] So the defendant has been drinking, he has been drinking Tequila, youhave to consider his level of intoxication and how that affects your assessmentof the evidence relating to the elements of the charges that I have just beenthrough that the Crown has to prove. All the evidence and arguments that havebeen put concerning alcohol consumed, the general behaviour of the defendantand other evidence (inaudible 13:37:33) the degree of intoxication.[57] In [63], the Judge made it clear the jury had to consider Mr Wood's level ofintoxication and how this might affect their assessment of the evidence relating to theelements of the charges that the Crown had to prove. We consider the way the Judgesummarised the relevance of intoxication at [63] was consistent with the direction thisCourt said, in Herewini v R, was necessary.[58] In his opening remarks for the defence, Mr Zintl told the jury that what was: going to be a relevant factor in this case, particularly for the indecentassault charge is Mr Wood's level of intoxication and that's going to berelevant in determining whether the Crown has proved that he had the requisiteor the required knowledge or intent for that charge. And what I mean by thatis intoxication is not a defence in and of itself, its true relevance is indetermining whether or not the defendant in fact had the intention or theknowledge required for the charge. A person's drunkenness may beincompatible with those mental elements required to be proved.[59] In his closing address, Mr Zintl said:In terms of intoxication I've already talked about that in my opening but thatwill certainly be a relevant consideration for you, that is Mr Wood'sintoxication particularly in relation to indecent assault in terms of hisknowledge and intent and his [belief in consent].[60] We are satisfied it was made clear to the jury that they had to consider whetherand how Mr Wood's intoxication might reasonably have affected his knowledge,intention or appreciation of the existence of the facts and circumstances that made thealleged assault indecent and whether he honestly believed the victim was consentingto what he was doing if, as alleged, they accepted he had been on top of the victim inthe way Mr B had described.[61] We are accordingly satisfied there was no error or inadequacy in the Judge'sdirections as to intoxication in his summing up or that the directions given as tointoxication resulted in a miscarriage of justice. The second ground of appeal has notbeen established.Results[62] The application to adduce fresh evidence is declined.[63] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent