CHAI v R [2020] NZCA 29

CHAI v R [2020] NZCA 29 [26 February 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 AOTEAROACA588/2019[2020] NZCA 29BETWEEN HAIFENG CHAIAppellantAND THE QUEENRespondentCourt: French, Gilbert and Collins JJCounsel: T M Cooper for AppellantK S Grau for RespondentJudgment:(On the papers)26 February 2020 at 2 pmJUDGMENT OF THE COURTThe application for an order directing a juror enquiry is declined.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] This is an application for an order directing a juror enquiry.[2] Haifeng Chai was tried by a jury in the District Court at Auckland on a chargeof sexual violation by rape. Mr Chai admitted sexual intercourse occurred. The trialissue was consent — did the complainant consent; if not, did Mr Chai reasonablybelieve she consented? The jury found Mr Chai guilty by an 11:1 majority verdictdelivered on 16 August 2019. Mr Chai was convicted and subsequently sentenced toa term of six years and four months' imprisonment.1 He has filed an appeal againsthis conviction.[3] On 2 September 2019, two and a half weeks after the verdict was delivered andprior to sentencing, one of the jurors sent a letter to the trial Judge in the followingterms:I was a juror in the case in Court Room 13, August 12th – 16th. Haifeng Chai(Leon) sexual violation of [the complainant].I have been struggling with the verdict given to the defender [sic], and thoughtI needed to write to you.I strongly believed what happened to Leon was most unfair and wrong.I don't believe for one minute he picked her up and carried her intothe bedroom and raped her. I believe she, in a drunk condition seduced him.(Is that not rape of him?)Most of us, I'm sure, did not believe he had thought he was raping[the complainant]. But according to the law which we were asked to rule on,I believe we had no choice but to find a guilty verdict.The twelfth juror I believe was not ruling on the law, in fact ignoring it, andjust went on the thought that they did not believe the defendant thought he wasraping [the complainant], and hence did not want to be responsible for a guiltyverdict.Your Honour, I do hope you will take this into consideration when sentencingLeon.[4] Ms Cooper, for Mr Chai, submits it is evident that at least one of the jurorsmisunderstood the Judge's directions on consent and incorrectly applied the law tothe evidence accepted at the trial. This submission is based on the juror's letter anda question the jury asked after they had retired to consider their verdict seekingclarification on the law as to reasonableness of consent. To set the full context, we setout the Judge's directions on the law relating to consent in his summing up, the juryquestion which followed, and the Judge's response.1 R v Chai [2019] NZDC 22842.[5] In summing up, Judge Gibson directed the jury on the legal elementsthe Crown had to prove beyond reasonable doubt on the issue of consent:[15] the next element of the charge of sexual violation by rape isthe issue of consent, because it can only be a rape if the complainant did notconsent to the penetration. Obviously, a female can consent to penetration bya male and that would be consensual sex. But where she has not consented,then that is part of the element of the charge of rape and the Crown must provethat element beyond reasonable doubt; must leave you sure that that occurred.The third element is that the defendant did not believe on reasonable groundsthat the complainant was consenting to the sexual intercourse alleged.[16] Consent itself means true consent or positive consent, and reallythe issue in dispute in this trial is whether there was consent or whether therewas a belief on reasonable grounds in consent. As I have said, consent meanstrue consent or positive consent freely given by a person who is in a positionto make a rational decision. Lack of protest or physical resistance does not,of itself, amount to consent.[17] If the complainant was so drunk that she could not consent, or refuseto consent, then her allowing the sexual activity to occur was not consent.If she was asleep or unconscious then, of course, she could not consent tosexual activity. If she was so drunk that she was [in] no position to knowwhether to consent or not, then you would be justified in finding that she didnot consent.[18] On the other hand, the fact that the complainant cannot remember orsays she cannot remember what happened is not conclusive.People sometimes do things when they are drunk that they would never dowhen sober. A consent given by someone who is disinhibited by alcohol isstill a consent. Consent and reasonable belief in consent; that isthe defendant's reasonable belief as to whether the complainant wasconsenting; is to be considered at the time the act took place and it is importantto also realise that consent can be withdrawn at any time when the act is takingplace. So if the other party does not disengage when consent is withdrawn,then continuing the act is continuing without the consent of the party who haswithdrawn consent.[19] One way you ought to consider whether the defendant reasonablybelieved the complainant was consenting would be for you to satisfyyourselves that he did not, in fact, believe that she was consenting. That isconcerned with what the defendant himself thought at the time. If he did notbelieve the complainant was consenting, then that is enough from the Crown'spoint of view.[20] The other way of satisfying yourselves on the issue of whetherthe defendant had a reasonable belief that the complainant was consentingwould be to satisfy yourselves that no reasonable person in the defendant'sshoes could have thought the complainant was consenting. So that isconcerned with the belief of a reasonable person placed in the defendant'sposition.[21] If no reasonable person would have thought that the complainant wasconsenting, then that, too, would be enough from the Crown's point of viewto satisfy you beyond reasonable doubt that the defendant did not havea reasonable belief that she was actually consenting to the act of sexualintercourse as has been alleged.[22] The onus is on the Crown to satisfy one or other of those requirements,and it has to satisfy you beyond reasonable doubt. So there are, just toreiterate, three elements: penetration, consent and the defendant has to beshown not to have had a reasonable belief that the complainant was consentingand you must be sure beyond reasonable doubt of each of those elementsbefore you can convict.[6] The jury retired to consider their verdict at 11.42 am on 16 August 2019.They returned at 11.47 am to receive clarification from the Judge on some aspects ofthe evidence. At 12.50 pm the jury asked to review a video recording taken usinga phone on the night the offending was alleged to have occurred. After viewingthe video, they again retired. At 2.15 pm, the jury asked for clarification onthe question as to reasonable belief in consent:Pl clarify what the defendant would consider reasonable grounds to believethat consent had been given. Can we pl have the definition of point 3 as itpertains to the charge.[7] The Judge discussed this question with counsel before clarifying the questionwith the jury and answering it as follows:Judge:Thank you, Mr Foreman, ladies and gentlemen, can I just clarify firstly whatthe question actually is because some of it is crossed out. What I think it is, iscan we please have the definition of point 3 meaning the third element ofthe charge that the Crown have to prove beyond reasonable doubt thatthe accused did not believe on reasonable grounds that she was consenting asit pertains to the charge? Is that what I am being asked to give a Jury Foreman:No, Your Honour, what you're being asked for is give us some sort of priorityguideline on what we are actually faced with where what would be consideredreasonable.Judge:Yes, I understand what you mean. All right. What would be consideredreasonable? All right. As you know and as I've told you, and also the lawyershave told you, there are three elements to a charge of sexual violation by rape,penetration, it's accepted that occurred, of the complainant's genitalia with hispenis, that the complainant did not consent to this, and that the accused,the defendant, did not believe on reasonable grounds that she was consenting.So the second element that the complainant did not consent to this is onlyconcerned with what the complainant was about. And you really only need togo to consider the third element if you've already arrived at a point where youare satisfied that she did not consent.But the third element also has to be proved beyond reasonable doubt, that hedid not believe on reasonable grounds that she was consenting. There are twoways the Crown can satisfy you on that subject, the first way is to satisfy youthat the accused or the defendant did not in fact believe she was consenting.So that is concerned with what he himself thought at the time. If he did notbelieve she was consenting then that would be enough from the Crown's pointof view. Now all we have as to what he believed is what he told us inthe interview. He said she came into the bedroom, she initiated the sex, orthe sexual acts took place in the way he described and in the way he described.If you found that it occurred in that way or you can't discount it that it mighthave occurred in that way then he would be justified in believing that she wasconsenting because of the way the sexual acts took place.But if you reject that explanation, and that is the only direct evidence we haveas to what he himself believed at the time, then you go to the second way ofsatisfying yourselves on the subject and that is to say, or satisfy yourselvesthat no reasonable person in the defendant's shoes could have thought she wasconsenting. So that is concerned with the belief of a reasonable person placedin the defendant's position. If no reasonable person would have thought shewas consenting then that is enough from the Crown's point of view and theonus is on the Crown to satisfy one or the other of those requirements andsatisfy you beyond reasonable doubt.Really it depends on the facts as you have found them to be and whether inconsidering the second aspect of the matter whether those facts as you'vefound them to be would satisfy you that no reasonable person inthe defendant's shoes would have thought she was consenting. And if you arenot sure of that then obviously that takes the enquiry one way, but if you aresure that no reasonable person placed in the defendant's position could havethought she was consenting that leads to another verdict. So that is probablyall that I can to assist you. Thank you.[8] The Judge accepted a majority verdict at 4 pm.Application[9] Mr Chai applies for an order appointing an independent barrister to approachthe juror who wrote the letter and seek an affidavit from her stating whether she wassatisfied the Crown had proved the elements of the offence beyond reasonable doubt,particularly in relation to Mr Chai's belief in consent and whether that belief wasreasonable. Counsel would also ask the juror to set out her understanding of the lawat the time of the jury deliberations.[10] The parties have consented to this application being dealt with on the paperspursuant to s 331 of the Criminal Procedure Act 2011.Submissions[11] Ms Cooper submits that the proposed juror enquiry is justified inthe circumstances. If it emerges that the juror's understanding of the law wasincorrect, or she was not satisfied the Crown had proved the elements of the offencebeyond reasonable doubt, the appeal would have to be allowed because a hung jury(at best) would have resulted.[12] Ms Grau, for the respondent, submits that the high threshold for a juror enquiryis not met. She contends the juror's letter suggests that her disagreement is withthe law on consent, rather than the verdict.Assessment[13] There has long been a general prohibition on evidence concerning jurydeliberations. As this Court observed in R v Papadopoulos,2 the rule is of ancientorigin and can be traced at least as far back as 1785, when in Vaise v Delaval,3Lord Mansfield CJ declined to look at an affidavit sworn by two jurors deposing thata divided jury had reached its verdict by the toss of a coin. The rule serves the highpublic interest in preserving confidence in the jury system. It is intended to protectthe finality of verdicts, promote candid discussions among jurors in conducting theirdeliberations and to provide protection for the jurors themselves. A useful summaryof some of the policy reasons for the rule was given by Cooke J in giving the judgmentof this Court in R v Papadopolous:4One reason is the need for finality in decisions; the uncertainty that wouldprevail if it were always open to a juror to say afterwards that he or she hadnot really agreed is obvious. It is also vital that jury discussions should befree and frank; no juror should be deterred from expressing his or herindependent opinion by the fear of victimisation or undesired publicity if thatopinion could later be disclosed. Public confidence in the jury system couldbe shaken and jurors could be distracted from doing their duty conscientiouslyif individual members of the jury were free to publicise their own versions of2 R v Papadopoulos [1979] 1 NZLR 621 (CA) at 626.3 Vaise v Delaval (1785) 1 TR 11, 99 ER 944.4 R v Papadopolous above n 2, at 626; see also Tuia v R [1994] 3 NZLR 553 (CA) at 555.debates in the jury room. Jurors should not be exposed either to importuningon behalf of the accused or by litigants or to any temptation to capitalise ondisclosures. All these reasons are as important today as ever they were.[14] The general prohibition is now found in s 76(1) of the Evidence Act 2006which provides that a person must not give evidence about the deliberations of a jury.However, the rule is not absolute. Section 76(3) allows an exception to be made ifthe Judge is satisfied that "the particular circumstances are so exceptional that there isa sufficiently compelling reason" to allow that evidence to be given. Section 76(4)requires that the public interest in protecting the confidentiality of jury deliberationsgenerally must be weighed as well as the public interest in ensuring that justice is donein the particular case.[15] In its report on the proposed reform of the law of evidence which led tothe enactment of the Evidence Act, the Law Commission explained that the intentionof the exception in what became s 76 was to ensure that an overly strict application ofthe rule did not result in injustice. However, it was envisaged that evidence about jurydeliberations should only be permitted in cases of juror impropriety, such as wherea juror was unqualified or incapable of serving as a juror or was in breach of his or herduty as a juror.5 It is clear from the statutory language — "so exceptional" and"sufficiently compelling" — that the exception was intended to be narrow in scope.It has consistently been interpreted by this Court as imposing a high threshold.6[16] With these principles in mind, we turn to consider the present application.[17] Far from indicating juror incapacity or misconduct, the juror's letter, viewedin the light of the jury question asked during their deliberations, suggests the majorityconscientiously carried out their duty by making sure they understood the Judge'sdirections on the law and then following those directions in reaching their verdict.The juror expressly states that she felt constrained to follow the Judge's directions onthe law — "according to the law which we were asked to rule on, I believe we had nochoice but to find a guilty verdict". To the extent the letter discloses any jurorimpropriety, this only concerns the sole juror who did not support the verdict —5 Law Commission Evidence (NZLC R55 – Volume 1, 1999) at 348-350; see also Law CommissionEvidence (NZLC R55 – Volume 2, 1999) at C299.6 See for example Smith v R [2017] NZCA 93 at [27]; and Parker v R [2017] NZCA 550 at [4]."the twelfth juror I believe was not ruling on the law, in fact ignoring it". None of thissuggests that the majority verdict is unsafe, quite the contrary.[18] This Court has consistently declined applications for juror enquiry incircumstances where a juror has subsequently expressed misgivings about a verdict,even where this was said to have been induced by pressure from other jurors orfatigue.7 This case is further removed. The misgiving expressed here is not thatthe verdict was reached under pressure or otherwise than in accordance with the law.The misgiving is not about the correctness of the verdict in that sense. Rather, itindicates a concern about the law itself. That could not possibly justify a departurefrom the general prohibition on evidence concerning jury deliberations.[19] We can see no justification for an independent barrister to be appointed to askthe juror whether she was satisfied the Crown had proved the elements of the offencebeyond reasonable doubt. Plainly, she was. She subscribed to the majority verdictand was present when it was given by the Foreman in open court without demur.Nothing in the letter suggests otherwise.[20] Further, we see nothing to be gained by enquiring now what the juror recallsof her understanding of the law at the time of the jury deliberations six months ago, inAugust last year. Having sought clarification on the point at the time, it can reasonablybe assumed that the majority followed the Judge's directions on the law.[21] Ms Cooper has signalled that it will be argued on appeal that the Judge'sdirections were deficient. A juror enquiry will not assist on that issue. The directionswere either adequate or they were not. It would not be appropriate for us to expressany view on that issue at this stage given it has not yet been argued.[22] For the reasons we have given, the proposed juror enquiry should not bedirected in this case. The circumstances are not exceptional, nor is there anysufficiently compelling reason to allow the proposed evidence to be given. It followsthat the application must be declined.7 See for example Tainui v R [2008] NZCA 119; Neale v R [2010] NZCA 167; Dale v R [2016]NZCA 104; and Whyte v R [2017] NZCA 536.Result[23] The application for an order directing a juror enquiry is declined.Solicitors:Crown Law Office, Wellington for Respondent