WALLACE v R [2023] NZCA 162

WALLACE v R [2023] NZCA 162 [9 May 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 AOTEAROACA329/2022[2023] NZCA 162BETWEEN JOSHUA ALLAN WALLACEAppellantAND THE KINGRespondentHearing: 27 March 2023Court: Collins, Venning and Gendall JJCounsel: R A Harrison for AppellantJ M Webber for RespondentJudgment: 9 May 2023 at 9.30 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gendall J)Introduction[1] Following a jury trial in the Blenheim District Court, Joshua Wallace wasfound guilty in relation to three charges:1(a) Charge 1 — A representative charge of injuring with intent;2(b) Charge 2 — Sexual violation by unlawful sexual connection;3 and(c) Charge 3 — Sexual violation by rape.4[2] Mr Wallace was acquitted on one additional charge — charge 4 — sexualviolation by rape, alleged to have occurred on a separate occasion. He now appealsagainst his conviction on charge 1 alone, the charge of injuring with intent.5[3] The grounds of appeal are first, that the trial Judge erred in his directions to thejury by failing to draw a clear distinction between honest belief in consent(the requirement for charge 1) and reasonable belief in consent (the requirement forcharges 2 and 3); and secondly, that the Judge erred by failing to remedy the Crown'smisuse of propensity evidence in its opening address through clear directions to thejury as to the bounds within which they could use the propensity evidence.Facts[4] The charges arose in the context of a sexual relationship, involving BDSM,6between Mr Wallace and the complainant, B.71 R v Wallace [2022] NZDC 10100.2 Crimes Act 1961, s 189(2) — maximum penalty 5 years' imprisonment.3 Sections 128(1)(b) and 128B — maximum penalty 20 years' imprisonment.4 Sections 128(1)(a) and 128B — maximum penalty 20 years' imprisonment.5 Mr Wallace filed his notice of appeal five days out of time. An extension of time was granted byCourtney J on 23 September 2022.6 BDSM is an acronym for Bondage, Discipline (or Dominance), Sadism (or Submission) andMasochism.7 B is transgender, having transitioned from female to male. B's preferred pronouns are he/him.[5] As to the facts forming the basis of charge 1, the representative charge ofinjuring with intent, B alleged that Mr Wallace repeatedly choked him to the point ofunconsciousness on about six occasions. While B and Mr Wallace had agreed on someconsensual choking in the context of their relationship and had devised signals to stopthe choking, including through the use of a safe word8 and tapping out, the allegationwas that on these six occasions Mr Wallace ignored the agreed signals and continuedto choke B until he blacked out.[6] Mr Wallace's convictions on charges 2 and 3, of sexual violation by unlawfulsexual connection and rape, respectively, are not appealed here. For completeness, wenote however that both arose out of a separate occasion when Mr Wallace forcibly androughly penetrated B's genitalia with his fingers and then his penis while havingplaced a foot on the complainant's head and reaching around with one hand to chokeB by the throat.Relevant Law[7] Appeals against conviction are brought under ss 229 and 232 of theCriminal Procedure Act 2011. This Court must allow the appeal if it is satisfied thatthe jury's verdict was unreasonable or that a miscarriage of justice has occurred forany reason.9 A miscarriage of justice is defined as any error, irregularity, or occurrencein or in relation to or affecting the trial that:10(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[8] A real risk arises if there is a reasonable possibility that a not guilty (or a morefavourable) verdict might have been delivered if nothing had gone wrong.118 It appears the safe word was Mr Wallace's middle name "Allan".9 Criminal Procedure Act 2011, s 232(2)(a) and (c).10 Section 232(4).11 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].Analysis[9] In this case, the appellant must first show that the Judge made an error andsecond, that the error was such that it resulted in a miscarriage of justice. Against thisbackground, we turn to consider each of the grounds of appeal raised by Mr Wallace.First ground of appeal – directions on honest belief in consent[10] The appellant says that the first error the Judge made was failing to draw aclear distinction between the different requirements for charge 1 and those forcharges 2 and 3. While a defence to charge 1 required Mr Wallace only to have anhonest belief that the complainant was consenting, a defence to charges 2 and 3 wouldhave required Mr Wallace to show that his belief in consent was reasonable in additionto being honest. The appellant maintains this error created a miscarriage of justice bymaking it unnecessarily and incorrectly onerous to establish a defence.[11] The respondent replies that the difference between the honest belief standardand the reasonable belief standard here was not as great as the appellant contends.Rather, the case primarily turned on a factual finding which, once made by the jury,precluded any real possibility of belief in consent being a viable defence.[12] For a conviction on the charge of injuring with intent, the Crown needed toprove beyond reasonable doubt that, on at least one occasion, Mr Wallace intentionallychoked the complainant to the point of unconsciousness. The defence available toMr Wallace was to establish that he held an honest belief that the complainantconsented to the injury.[13] B's evidence however was that, that while the sexual relationship withMr Wallace involved consensual choking, B's consent was conditional on Mr Wallacerespecting the bounds of that consent, that is, if B signalled Mr Wallace to stop throughthe use of the agreed safe word or by tapping out, Mr Wallace was required to stop thechoking. The complainant's evidence was that Mr Wallace did not respect thiscondition. On about six occasions Mr Wallace continued choking him despite Bsignalling Mr Wallace to stop.[14] On appeal, Mr Wallace has pointed to occasions where he maintains thecomplainant pushed the boundary of their sexual activity by not using the signals.However, as the respondent points out, those encounters are not the subject ofcharge 1. Charge 1 relates only to those sexual encounters (approximately six) whereB signalled for Mr Wallace to stop the choking, but he ignored the agreed signals andcontinued to choke the complainant to the point of unconsciousness.[15] At trial, Mr Wallace's position was that he only choked the complainant to thepoint of unconsciousness on one occasion and that it happened accidentally. It wasnot his position at trial that B consented to choking beyond his giving a clear indicationto Mr Wallace that it should stop, or that B consented to choking to the point ofunconsciousness. Nor was it Mr Wallace's position that he believed B consented toeither of those things. Rather, the position adopted by Mr Wallace at trial was first,that he had not continued to choke B once B had indicated that it should stop, andsecondly, that the one time he had choked B to unconsciousness only happenedaccidentally because B had failed to indicate the choking should stop. In thesecircumstances, as we see it the issue of consent here may not be as pivotal as theappellant makes it out to be. Mr Wallace's case did not rest on whether he had a beliefin consent. Once the jury accepted — as it appears they did — that B had been chokedto the point of unconsciousness by Mr Wallace intentionally, Mr Wallace's defencehad effectively been rejected by the jury. This meant that any residual concern relatingto belief in consent, whether honestly held or not, receded in significance as a trialissue.[16] It is against this background that we consider whether the jury directions onthe issue of consent in particular were appropriate here.[17] Turning first to the question trail on charge 1, it was split into four questions.It asked the jury first, to consider whether the Crown had proven beyond reasonabledoubt that Mr Wallace had injured B by choking him to the point of unconsciousness;secondly, whether Mr Wallace intended to cause such injury; thirdly, whether theCrown had proven beyond reasonable doubt B did not consent to the injury; andfourthly, whether Mr Wallace did not have an honest belief that B was consenting tothe injury. If the answer to each question was yes, the jury would have foundMr Wallace guilty on charge 1. It appears that is what happened. Mr Wallace wasconvicted on charge 1.[18] We do not consider any error occurred in these directions. The question trailclearly specified the standard required for a defence of honest belief in consent. Weset out the relevant question in full:Question 1.4Are you sure that Mr Wallace did not honestly believe that when he choked[B] to the point of unconsciousness that [B] was consenting to Mr Wallacechoking [him] to the point of unconsciousness?If NO, find Mr Wallace NOT GUILTY on Charge 1.If YES, find Mr Wallace GUILTY on Charge 1.[19] Further, the definitions section of the question trail unambiguously definedhonest belief as "a belief that is genuinely held. It does not matter if it is mistaken orunreasonable". We cannot see how the distinction between honest belief andreasonable belief in consent could have been further clarified.[20] Still, in our view, any remaining doubt was definitively dispelled by the Judge'sfurther clarification directions to the jury when he called them back into Court atcounsel's request after they had commenced their deliberations. This was the last thingthe jury heard from the Judge. At that point he expressly confirmed again thedistinction between the different requirements for charges 1 and 2 in this way: I just want to talk about the – there are two concepts in there and we arejust[,] the lawyers were just concerned that it's possible that there could be alittle bit of confusion so we just want to be clear on things. So in terms ofdefinitions, page 2, there is a definition there of honest belief. So an honestbelief is a belief that is genuinely held. It does not matter if it is mistaken orunreasonable and you are only considering honest belief at question 1.4, so areyou sure that Mr Wallace did not honestly believe that when he choked [B] tothe point of unconsciousness, that [B] was consenting to Mr Wallace choking[him] to the point of unconsciousness. Now it is different from question 2.3where we are looking there at: "Has the Crown proven beyond a reasonabledoubt that either (a) at the time Mr Wallace introduced his fingers into thegenitalia of [B], Mr Wallace did not believe [he] was consenting or (b) at thetime Mr Wallace introduced his fingers into the genitalia of [B], there werenot reasonable grounds for Mr Wallace to believe that [he] was consenting.[21] The Judge went further:So we have got two slightly different concepts. We have got one as an honestbelief and one of there's reasonable grounds and reasonable grounds is all12 people, you decide what is reasonable, so it's like an objective standardwhereas when you are looking at an honest belief, an honest belief is a beliefthat is generally held, it's personal of the matter, it does not matter if it ismistaken or unreasonable. So I don't want you to mix the two concepts up. but I just want it as a matter of caution to – for you to be aware that thehonest belief and the definition of that relates only to the first question [22] We find that the distinction between honest belief and reasonable belief inconsent was made explicit by the trial Judge. No error was made in the Judge'sdirections to the jury. This ground of appeal must fail.Second ground of appeal – misused propensity evidence?[23] Mr Wallace's second ground of appeal is that the Judge made an error by failingto remedy the Crown's misuse of propensity evidence in its opening address througha clear direction to the jury as to the bounds within which they could use thatpropensity evidence which was admitted at trial.[24] Propensity evidence from a former sexual partner of Mr Wallace was admittedas evidence on charges 2 and 3 only. The experience described by the propensitywitness was very similar to that described by B on charges 2 and 3. That propensitywitness recounted at trial an occasion when she was at Mr Wallace's house withnobody else present. Her evidence was that Mr Wallace expressed a desire to engagein sexual intercourse but she said no. Mr Wallace asked again, becoming almostdesperate, but she declined again. The witness then described Mr Wallace climbingon top of her, pushing her onto the bed and pinning her down in the process, all whilehaving his hand around her throat. She recounted telling Mr Wallace to stop but hedid not seem to be listening. She then started screaming, because she considered shewas fighting for her life as the pressure on her throat had started to build, butMr Wallace did not stop. He only stopped when one of his legs he was using to pinher down fell off the bed and the witness was able to get him off her as a result andescape.[25] Mr Harrison submits that in its opening address, the Crown went beyond thebounds of admissibility leaving the impression that the propensity evidence could beused in relation to charge 1 as well. This misuse of the propensity evidence was linkedto the reference in that opening address to that propensity evidence demonstrating atendency on the part of the appellant to choke an intimate partner to the point ofunconsciousness without consent or agreement. This, Mr Harrison says, should havebeen remedied by a direction from the Judge immediately after the opening address.Instead, the Judge's direction on the point, which was given at the end of the trial,came too late. The damage had already been done. In any event, the Judge's laterdirection too was inadequate according to the appellant, in that it was not a sufficientlystrong one. Mr Wallace contends this error resulted in a miscarriage of justice inrelation to charge 1.[26] By way of response, Mr Webber for the Crown submits that it was a simpleoversight owing to the passage of time and the administrative burden of the Covid-19pandemic that resulted in the propensity evidence being admitted only in relation tocharges 2 and 3. In addition, he says the propensity evidence would have beenadmissible on charge 1 as well because it was evidence of Mr Wallace being in asimilar relationship, engaging in BDSM activities, which included consent to choke,and of him going beyond the bounds of consent to choke his sexual partner to the pointof unconsciousness.[27] As we see the position, however, it is of no moment that the Crown considersthe propensity evidence could well have been admitted in relation to charge 1 as well.Whilst we agree there may be something in this argument, the pre-trial ruling of20 May 2020 held that the propensity evidence was admissible only on charges 2 and3 and was not to be considered in relation to charge 1. We consider this appeal on thatbasis.[28] But, in any event, we find the Judge made no error in relation to the use of thepropensity evidence. The complaint that the Crown misused the propensity evidencein its opening address related to this section of the Crown's opening:So that evidence is what we call "propensity evidence" and it can only be usedby you in a particular way. It's not evidence to show that, well, the defendant'sa bad person and so he must automatically be guilty of these charges. Youdon't use it that way. Rather it's there because the Crown says, [it] shows thathe has a tendency or a propensity to behave in a particular way, namely towant sex and when confronted by a refusal to push an intimate partner downonto the bed and to use choking as a way of getting what he wants, and it alsoshows, the Crown says, that he has a tendency to choke an intimate partner tothe point of unconsciousness without consent or agreement.[29] The Crown itself remedied the mistake in its closing address in the followingway:Both of these people were in a relationship with the defendant at a time, bothalone in a bedroom with him, both verbally decline his request for sex, bothverbally say "no" and make it clear before he then reacts in this way [turningaggressive and violent], so I would suggest you have got strong similaritiesbetween these two accounts. And if you accept [the propensity witness']evidence, you may well think that shows a tendency for Mr Wallace to behavein a particular way when faced with a refusal of sex from his partner, and youcan accept [the propensity witness'] evidence because it was not reallychallenged by the defence.[30] After that time, the Crown again emphasised the similarities of the propensityevidence to charges 2 and 3 and made no mention of the allegations forming the basisof charge 1 in relation to the propensity evidence.[31] Similarly, the Judge, in his summing up, emphasised the similarities betweenthe propensity evidence and the allegations forming the basis of charges 2 and 3. Afterdoing so, and indicating it was relevant to the parties' competing accounts, but onlyon charges 2 and 3, he noted that charge 1 had "different facts" and charge 4 was alsoa "different factual scenario".12 The Judge went further: "[s]o the Crown's argumentis relevant only to charges 2 and 3 because it says that it shows a particular tendency"as we have outlined.13 The jury's task is clearly defined by the Judge's specificdirection:[40] [i]f [they] have concluded that there are similarities and a patternof behaviour, [they] can take that into account in deciding which of thecompeting accounts [they] prefer; the account of [B] or the account of[Mr Wallace] about what happened as far as charges 2 and 3 are concerned.[32] We agree with the position advanced for the Crown here that the Judge madeit abundantly clear that the propensity evidence was to be used only in relation to12 R v Wallace DC Blenheim CRI-2019-006-411, 24 February 2022 at [35].13 At [36].charges 2 and 3. The Judge's directions were straightforward, orthodox andappropriate. We find no error in them. This ground of appeal must also fail.Result[33] The appeal against conviction is dismissed.Solicitors:Crown Solicitor, Nelson for Respondent