CREIGHTON v R [2020] NZCA 193

CREIGHTON v R [2020] NZCA 193 [28 May 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 AOTEAROACA116/2019[2020] NZCA 193BETWEEN JOEL NATHAN CREIGHTONAppellantAND THE QUEENRespondentHearing: 5 March 2020Court: French, Dobson and Moore JJCounsel: G O'L Reynolds QC, N Levy QC and L C Ord for AppellantB F Fenton for RespondentJudgment: 28 May 2020 at 3 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)Introduction[1] At his trial, a jury found Mr Creighton guilty of two charges of sexual violation,by unlawful digital sexual connection and by rape. He appeals the convictions unders 229 of the Criminal Procedure Act 2011.1 He does so on two grounds: first, thatthe Judge misdirected the jury on s 128A of the Crimes Act 1961 ("the Act") as tothe circumstances in which allowing sexual activity does not amount to consent and,secondly, that his trial was unfair because the complainant deliberately destroyed anexculpatory video taken by Mr Creighton of the alleged offending. Relatedly it is alsoclaimed the Judge should have directed the jury to infer that the complainant deletedthe video because it depicted events consistent with Mr Creighton's account and thushis innocence.Background facts[2] At his trial in the District Court at Wellington, Mr Creighton faced five chargesof sexual violation. These arose from two phases of sexual activity separated by justa few hours. He was convicted on the two charges relating to the first phase andacquitted on the three charges relating to the second phase. Given the issues involvedon this appeal, it is necessary to set out the facts in some detail.[3] The complainant, Ms H, met Mr Creighton through the dating applicationTinder. They first communicated by messaging on Wednesday, 9 August 2017. Inthe course of that conversation, they discovered a common connection: Mr Creightonwas a good friend of Ms H's brother. They agreed to meet up for a drink the followingSaturday. They decided not to tell Ms H's brother due to the awkwardness it mightpotentially cause. The next day Mr Creighton messaged Ms H. He explained that hemight not be available on the Saturday night and suggested they catch up earlier. Theyagreed to meet at Ms H's flat later that evening.[4] As arranged, Mr Creighton arrived at Ms H's flat. He drank a number of beersand chatted with Ms H and her flatmate, a police officer. Then he and Ms H had a spatogether, following which they went to Ms H's bedroom. Consensual sexualintercourse took place. Ms H described the sex as "normal". Mr Creighton drovehome.1 Mr Creighton was sentenced to six years and two months' imprisonment on those charges: R vCreighton [2019] NZDC 3523.[5] The following evening, which was Friday, 11 August 2017, Mr Creighton andMs H exchanged text messages about possibly meeting at the Lone Star later. They didnot meet and Ms H returned to her flat. She received a text from Mr Creighton askingif he could come around and she told him he could. Not having heard further fromhim, she began to prepare for bed when she noticed she had missed a call fromMr Creighton. She rang him back. He asked her to pick him up from the Lone Star.It was about 11:30 pm.[6] Ms H drove to the Lone Star where she met Mr Creighton. He said he had beenat a funeral. She described him as drunk, quite sarcastic and aggressive. He wasslurring his words. Ms H said he was quite touchy but not in an affectionate way," like pulling and grabbing". They went to the sitting room and talked. She wentto get a glass of water and Mr Creighton grabbed her top. She told him to stop.According to Ms H, he responded angrily. He repeatedly tried to lift her top to viewher breasts, saying he wanted to take a picture. Each time she pushed him off, he triedto pull her top down. He suggested they take a selfie. He removed Ms H's top andtook a photograph on his phone. This shows the couple, head to head, embracing.Ms H is topless. Her left breast is visible. Ms H asked him not to be "a dick": not tosend it to anyone because it was something which should stay between them.Despite this request, it appears Mr Creighton later sent the image to friends who hadrequested the photo.[7] Mr Creighton said he was hungry. Ms H drove him to McDonald's where foodwas purchased before returning home. Ms H described Mr Creighton as drunk andaggressive. They returned home and went to bed. He was still fully clothed. Ms Hassumed Mr Creighton was too drunk to have sex, as earlier in the night he had toldher, "I'm really drunk so I'm going to be of no use to you". However, he began tomake sexual advances leading to him getting on top of her. She told him she did notwant sex and suggested she should take him home. Ms H said he reacted angrily andaccusingly, "Are you fucking denying me, is that what you're doing?". Mr Creightontold her she had no right to deny him. She described him as screaming and yellingat her. Then, she said, he "flipped". He apologised. He insisted he was not the kindof person who would force himself upon her: that he would never do that to a woman.He suggested they get back into bed, watch a DVD and have some cuddles. To keephim calm, Ms H agreed. Because Mr Creighton was lying in the middle of the bed sheasked, "can you move over sunshine?". To this Mr Creighton reacted angrily. He toldher never to call him that.[8] Ms H said she got into bed. Within seconds, Mr Creighton was again on topof her. She told him they were not having sex. Mr Creighton ignored her. He pinnedher down by the shoulders and chest. He forced his fingers into her vagina and thenbegan to have sexual intercourse. As he did, Ms H repeatedly told him to stop but hekept going, swearing at her, calling her a bitch and telling her to shut up. She tried toget her hands beneath him to push him away. She described herself as paralysed withfear.[9] According to Ms H, Mr Creighton rolled off her and told her to masturbatewhile he masturbated next to her. Then he pinned her down and resumed sexualintercourse. Mr Creighton began to talk about Ms H sending him videos. She did notknow what he was talking about. He took her phone from the bedside table. He toldher to enter her PIN and then made a short video of them having sex.[10] In relation to this offending, he was charged with sexual violation by unlawful,digital connection and sexual violation by rape. These were the charges on which hewas found guilty.[11] After these events Mr Creighton fell asleep. Ms H did not. She said she layawake until about 6:00 am, when Mr Creighton woke up. He started to rub her.Then he got on top of her and had sexual intercourse again. Despite the sex beingrough and painful, Ms H said that unlike the earlier sex she did not resist or fight back.She said she just lay there fearful that he might react as he had the night before.She also described how Mr Creighton made her perform oral sex on him, followingwhich he performed oral sex on her. She consented to neither.[12] As a result of these events Mr Creighton was charged with sexual violation byrape and two charges of sexual violation by unlawful connection: connection of mouthto penis and connection of mouth to vagina. He was acquitted on these charges.[13] Ms H drove him home. When she returned to her own house she had a showerand washed the sheets. She said she felt disgusted. She found the video whichMr Creighton had taken on her phone. She said "you could see everything that washappening". She described watching "maybe two, three seconds of it and thenturned my phone off". She also found a blurry photograph he had taken. Revolted bywhat had happened, she said she deleted the images. She then sent a text to a friendreporting what had happened. Later that afternoon she went to the police.[14] Two days later, Ms H gave an electronically recorded interview. The policetook her phone for analysis. Forensic experts examined it and attempted to retrievethe recording. They were unsuccessful.[15] Three days later, on 17 August 2017, Mr Creighton was interviewed bythe police. In the course of a digitally recorded interview he said that nothing sexualhappened between them on the Friday evening after Ms H had picked him up fromthe Lone Star. He said he told her that after a few drinks he was "useless".[16] He did, however, accept that the following morning they had intercourse butinsisted it was consensual. He volunteered that Ms H had a video on her phone ofthe couple having sex. He suggested to the police that they should seize it, althoughby that time the police already had possession of Ms H's phone. He said it was hisidea to video the sex but insisted Ms H was happy to do so. He said she unlockedthe phone before he took it and recorded the video. He estimated it took about threeto four minutes. He handed the phone back to Ms H who also recorded the couplehaving sex.The trial and the defence[17] Mr Creighton gave evidence. Consistent with his video interview, hechallenged Ms H's account as to the circumstances in which the selfie was taken andin particular her active involvement in recording the video. He also pointed to Ms H'sfailure to escape or to seek the assistance of her police officer flatmate.[18] He described the taking of the selfie on the Friday evening. He said Ms H tookthe top off herself and was "completely fine" with taking the photograph. He said hethought he may have mentioned he was going to send it to some friends. He acceptedhe did not have a very good memory of what happened in Ms H's bedroom that nightbut insisted they did not have any sort of sexual connection at that time. After fallingasleep, he said he remembered waking up the following morning still wearing histrousers and shirt. He said that after Ms H brushed her teeth and brought him a glassof water she got back into bed. They kissed and removed each other's clothing.He said Ms H performed oral sex on him but he denied performing oral sex on her.They then started to have sexual intercourse. Mr Creighton suggested they should filmthemselves. Ms H willingly agreed. She picked her phone up from the bedside table,entered the PIN to unlock it and activated the camera. She handed the phone toMr Creighton who filmed them having sex.[19] The defence on all charges was simple. It was that the complaint was false andany sexual activity was consensual. Trial counsel, who was not counsel appearing onthe appeal, emphasised five aspects of the evidence which he submitted supportedthe view that Ms H had made a false complaint. First, he referred to the "selfie"photograph and Ms H's account that before the photograph was taken there had beena struggle. He invited the jury to examine the photograph to see whether it revealedany evidence of distress, lack of consent or signs of a struggle. Secondly, he pointedto her lack of injuries, submitting that if the sexual encounter had been as violent asdescribed more injuries would have been caused. Thirdly, he pointed out that at nostage did Ms H attempt to escape or summons assistance from her police officerflatmate who was in the house at the time. Fourthly, the flatmate did not hear anysounds of distress or anything that alarmed him. Finally, Ms H deleted the video anddelayed disclosing its existence to the police. Counsel pointed out that for the videoto have been taken, it necessarily required Ms H's co-operation in providing the PINnumber. Counsel emphasised this aspect by pointing out it was Mr Creighton whodisclosed to the police the existence of the video describing this as of " absolutehuge significance".[20] It was in this context that counsel suggested to the jury that Ms H's motive ingiving a false account was her fear her brother might find out about the liaison andthe photograph circulating amongst their mutual friends.Discussion[21] We must allow the appeal if we are satisfied that a miscarriage of justice hasoccurred for any reason.2[22] We now turn to address each of the three grounds of appeal.First ground of appeal: Misdirection in relation to consent[23] Mr Reynolds QC, for Mr Creighton, submitted that the trial Judge, both inwriting and in his oral remarks in summing up, misdirected the jury on the meaningof consent.[24] Mr Reynolds pointed out that in the written question trail the definition ofconsent was explained by the Judge several times in the following way:"Consent" means true consent freely given by a person who is in a position tomake a rational decision. Lack of protest or physical resistance does not, ofitself, amount to consent. There are some circumstances where allowingsexual activity does not amount to consent, including the application of forceto the complainant or the threat or fear of such application of force.[25] Mr Reynolds contended that this definition completely misstates s 128A(2) byomitting what he described as the causative requirement found in the words"because of". This, he submitted, amounted to a fatal misdirection.[26] The Judge's oral directions also covered s 128A in the same way three times,again omitting the causative requirement.[27] As a consequence of these misdirections, Mr Reynolds submitted there isan error or irregularity which goes to the root of the proceedings and,as a consequence, a miscarriage of justice occurred.[28] In discussing this ground, it is necessary to set out s 128A in full.2 Criminal Procedure Act 2011, s 232(2)(c).128A Allowing sexual activity does not amount to consent in somecircumstances(1) A person does not consent to sexual activity just because heor she does not protest or offer physical resistance to theactivity.(2) A person does not consent to sexual activity if he or she allowsthe activity because of—(a) force applied to him or her or some other person; or(b) the threat (express or implied) of the application offorce to him or her or some other person; or(c) the fear of the application of force to him or her orsome other person.(3) A person does not consent to sexual activity if the activityoccurs while he or she is asleep or unconscious.(4) A person does not consent to sexual activity if the activityoccurs while he or she is so affected by alcohol or some otherdrug that he or she cannot consent or refuse to consent to theactivity.(5) A person does not consent to sexual activity if the activityoccurs while he or she is affected by an intellectual, mental,or physical condition or impairment of such a nature anddegree that he or she cannot consent or refuse to consent tothe activity.(6) One person does not consent to sexual activity with anotherperson if he or she allows the sexual activity because he orshe is mistaken about who the other person is.(7) A person does not consent to an act of sexual activity if he orshe allows the act because he or she is mistaken about itsnature and quality.(8) This section does not limit the circumstances in whicha person does not consent to sexual activity.(9) For the purposes of this section,—allows includes acquiesces in, submits to, participates in, andundertakessexual activity, in relation to a person, means—(a) sexual connection with the person; or(b) the doing on the person of an indecent act that,without the person's consent, would be an indecentassault of the person.[29] There is no positive statutory definition of consent in the Act. Juries aredirected to consider whether consent was freely given. Section 128A provides a listof situations where adults are unable to consent. It is "a form of legislative guidanceon resisting rape mythology",3 preventing a jury from inferring the presence of consenton improper grounds.4[30] Notably, s 128A(2) does not require proof of causation. The use of the words"because of" in the section do not require the prosecution to prove which particularaspect of s 128A(2)(a)–(c) led the complainant to allow the sexual activity.[31] In the context of consent the Crown must prove two elements: first, actualabsence of consent by the complainant, that is a purely subjective question of fact tobe determined by reference to the complainant's state of mind, and, secondly, a lackof reasonable belief in consent by the defendant.5 In proving lack of consentthe Crown has never been required to prove why the complainant did not consent.Indeed s 128A does not require the Crown to prove anything, let alone the reasons whya complainant may not have consented.[32] The difference between s 128A(1) and the other subsections which follow wasdiscussed by the Supreme Court in Christian v R where it was stated:[44] The "just because" wording can be contrasted with s 128A(2)–(7),which are statements that the situations they describe do not amount toconsent. While s 128A(1) in its current form provides that it is not legitimateto infer consent from evidence of lack of protest and lack of resistance (andnothing more), s 128A(2)–(7) set out statements of law that define consent byexcluding particular actions or omissions from the scope of the concept ofconsent.[45] In our view s 128A(1) (in both its pre-2005 form and its current form)means that consent cannot be inferred only from the fact that the person doesnot protest or offer physical resistance. There must be something more inthe words used, conduct or circumstances (or a combination of these) for it tobe legitimate to infer consent. As mentioned earlier, we see this as equallyapplicable to the evaluation of the issue of reasonable belief in consent.(Footnote omitted.)3 Elisabeth McDonald Rape Myths as a Barrier to Fair Trial Process (Canterbury University Press,Christchurch, 2020) at 57.4 See further Christian v R [2017] NZSC 145, [2018] 1 NZLR 315 at [105] per Elias CJ dissenting.5 Crimes Act 1961, s 128; and R v Ewanchuk [1999] 1 SCR 330, (1999) 131 CCC (3d) 481 at [25]–[30].[33] Thus, s 128A imposes no additional requirement on the Crown beyond proofof the essential elements of sexual violation as defined in s 128, including absence ofconsent. We agree with Ms Fenton, for the Crown, that it would have been wrong forthe Judge to direct that either the existence of force or threats or fear of force, or anyparticular effect that force or threats or fear of force may have had on Ms H, wasa precondition to the jury finding that Ms H did not consent. For this reason we cannotaccept there was any misdirection. In his oral directions and in the question trail,the Judge did no more than explain, as was particularly relevant to the Saturdaymorning events, that a complainant's lack of protest or resistance to sexual activitydoes not amount to consent.[34] It follows we do not accept the Judge misdirected the jury on the proper effectof s 128A(2) and accordingly this ground of appeal must fail.Second ground of appeal: Unfairness — destruction of video recording[35] Secondly, Mr Reynolds submitted that the deliberate destruction of the videoby Ms H resulted in an unfair trial.[36] Because this was a contest of credibility where the jury had to accept oneperson's word against the other's, the video recording constituted potentiallyimportant evidence which would have revealed objectively whether the intercourseoccurred and whether it was consensual. Mr Reynolds suggested it was implausiblethat Ms H would have destroyed such critical evidence if she believed it may havebenefitted her case. He stated that the Court should infer that because Ms H deletedthe video when she was contemplating going to the police, the evidence must havebeen exculpatory of Mr Creighton and would not have supported her account of whathappened on the Friday night. As a consequence, Mr Creighton was denied a fair trial.[37] Mr Reynolds observed that the usual pre-trial remedy would have beenan application for a pre-trial stay or dismissal of the charge.6 However, the onlyavailable course, post-conviction, was by way of appeal.6 Criminal Procedure Act, s 147.[38] At trial, Ms H candidly accepted her destruction of the video was deliberate.However, it does not follow, as suggested by Mr Reynolds, that she did this because itwould have contradicted her account.[39] She was cross-examined at considerable length on this issue. She was directlychallenged on why she did not keep the recording as evidence of her being raped.Her explanation was that she was in shock at that point and she did not want "a videoon my phone of a man raping me and - with his penis inside me". She accepted thata video recording of a man raping her would be critical evidence to give to the Police.It was put to her that the reason she deleted the footage was because it actually revealedconsensual sexual intercourse. Ms H denied that.[40] The jury could have viewed the deletion of the video in two ways. They couldhave accepted her explanation, drawing the inference that she deleted the videobecause it distressed her. Or, they could have rejected this explanation. Consideringthat the video was filmed on Ms H's phone and that she did not immediately tellthe police about it but Mr Creighton did, the jury could have inferred that the videoshowed Ms H having consensual sex with Mr Creighton. Neither inference wasmandatory.[41] Further, if the video had been available evidence at the trial it may not havehelped Mr Creighton. He said there was no sexual activity on the Friday night and thevideo was recorded on the Saturday morning. It was the Saturday morning charges onwhich he was acquitted.[42] For these reasons, this ground of appeal, too, must fail.Third ground of appeal: Direction on deletion of video[43] This ground was advanced as an alternative to the second ground. Mr Reynoldsargued the Judge should have given the jury a direction about the deliberate destructionof the video evidence in accordance with the Privy Council's decision in The Ophelia(No 2). There the Board observed:77 The Ophelia (No 2) [1916] 2 AC 206 (PC) at 229.If any one by a deliberate act destroys a document which, according to whatits contents may have been, would have told strongly either for him or againsthim, the strongest possible presumption arises that if it had been producedit would have told against him; [44] Mr Reynolds supported this submission by relying on the maxim that "allthings are presumed against the spoliator". The Ophelia (No 2) was a civil case, butin his submission the relevant presumptions and inferences operate even more stronglyin a criminal case. Where a complainant has deliberately destroyed evidence, andwhere that evidence is central to the resolution of the case, the jury must, he argued,be instructed to draw an inference it would have favoured the defendant.[45] Mr Reynolds further submitted that the failure to give such a direction inthe present case amounted to unfairness and a miscarriage of justice followed.[46] The rules suggested by Mr Reynolds specifically relate to the destruction ofevidence by parties to civil proceedings.8 They are not helpful here. Again, it mustbe emphasised that Mr Reynolds cannot show the video would have helpedMr Creighton; it could clearly have cut either way. It would not have been fair forthe Judge to have directed the jury to speculate as to its contents. As alreadymentioned, if the jury was satisfied Ms H's destruction of the video was deliberate,then an available inference from that action was that she destroyed it because it wouldhave contradicted her story and shown consensual sex. We do not consider that anyspecific direction from the Judge on this point was required, because this wasa self-evident inference.[47] Accordingly, we do not accept the Judge's failure to give such a directionamounted to unfairness.[48] For these reasons we are also satisfied this ground of appeal must fail.Result[49] The appeal is dismissed.8 The Ophelia (No 2), above n 7; Burns v National Bank of New Zealand Ltd [2004] 3 NZLR 289(CA) at [75]; and Kent Sing Trading Company Ltd JNJ Holdings Ltd [2019] NZCA 388 at [65].Solicitor:Crown Law Office, Wellington for Respondent