BEAMSLEY v R [2017] NZCA 406

BEAMSLEY v R [2017] NZCA 406 [15 September 2017]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA95/2017[2017] NZCA 406BETWEENJOSIAH BEAMSLEYAppellantAND THE QUEENRespondentHearing: 28 August 2017Court: Miller, Courtney and Gendall JJCounsel: E A Hall for AppellantS K Barr for RespondentJudgment: 15 September 2017 at 12.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In March 2016 Josiah Beamsley stood trial in the Palmerston North DistrictCourt on two charges of supplying methamphetamine to the 18-year-old complainant,S, and one of sexually violating her. He was acquitted on the supply charges. At aretrial of the sexual violation charge he was convicted and sentenced to eight years'imprisonment.[2] Mr Beamsley appeals his conviction on the grounds that the trial Judge, JudgeS B Edwards, erred in:(a) not declaring a mistrial after the prosecutor suggested in closing thatMr Beamsley had introduced S to methamphetamine; and(b) giving an incorrect and unbalanced summary of the defence case insumming up.[3] A further criticism, regarding the Judge's explanation of the standard of proof,was not pursued.The offending[4] In late 2014 the complainant, S, was 18 years old, living at home with herparents and on medication for depression and anxiety. Her Facebook posts includedobservations about her feelings of depression and her relationship with her boyfriend.S accepted a Facebook "friend request" from Mr Beamsley, a 32-year-old man she didnot know. He was sympathetic to her problems and conveyed that he would be ableto help S with her depression through the use of "healing stones".[5] During their online conversations S expressed her unhappiness with the wayher boyfriend treated her. Mr Beamsley took S out for ice-cream one day. During thatouting he gave her the "healing stones" and they visited friends of his and theirchildren.[6] Not long afterwards S got into a physical altercation with another youngwoman whom her boyfriend had been seeing. The other woman threatened to involvethe police. S was very upset and posted details of her situation on her Facebook page.Mr Beamsley telephoned S and offered to take her out for a drive. He arrived withanother couple and they drove to Foxton to visit friends of Mr Beamsley's.[7] At Foxton S drank some wine and snorted methamphetamine with the others,including Mr Beamsley. S had not used methamphetamine before. At some point shewent upstairs with Mr Beamsley. He had offered to massage her back and then "dothe whole healing thing". Eventually they had sex. S was not keen and initiallyrefused but Mr Beamsley conveyed that he was not happy at being turned down andshe allowed him to proceed. That encounter was treated as consensual at the retrial.[8] S returned to the lounge and told Mr Beamsley's female friend that she had hadsex with Mr Beamsley but did not want to do so again. The other woman told her shedid not have to do so and offered to take S home. However, S stayed the night and thenext day Mr Beamsley drove her and the other couple to an address in Levin. It waslate in the evening. They stopped for about half an hour; Mr Beamsley went insideand S waited in the car with the other couple.[9] The group then drove to an address in Palmerston North where S andMr Beamsley got out and the other couple drove away; S understood they were to getpetrol and come back but they did not return. There were three other people at theaddress. During the evening everyone smoked methamphetamine.[10] At some point, when Mr Beamsley and S were alone in a shed on the property,Mr Beamsley suggested that they have sex. S refused. Mr Beamsley became moreinsistent and aggressive. S felt panicky, then she had the feeling of having passed out.She recalled being unconscious for a short time and then realised that she could notmove and that Mr Beamsley was lying on top of her and that her top and bra had beenpulled up and her pants pulled down past her knees. She was scared and shocked. Shepretended to be asleep. She did not participate in the sex at all. Eventually it seemedto S that Mr Beamsley heard a noise that caused him to stop. She continued to liethere feeling "blacked out" and as if she was fainting. When she woke up properlyshe saw the state of her clothes and yelled at Mr Beamsley, who responded that shehad been moaning and that she had wanted sex.[11] S said that she wanted to leave but Mr Beamsley said she could not becausethere was some sort of deal going on outside and she would be shot if she went outthere. S remained for half an hour or so, becoming more panicky. She texted her sisterfor help. Eventually Mr Beamsley let S leave, telling her to delete from her phoneeverything that he had texted her and all contact details of the people she had met withhim and not to tell anyone anything.First ground of appeal: reference to Mr Beamsley supplying themethamphetaminePre-trial direction regarding supply by Mr Beamsley[12] Prior to the retrial the Crown applied to introduce evidence that at the time ofthe alleged offending S had been under the influence of methamphetamine suppliedby Mr Beamsley. Ultimately, it was agreed that evidence would not be led to suggestthat Mr Beamsley supplied methamphetamine to S. The Judge indicated that if theissue did arise in evidence then she would direct the jury in accordance with thedirection described by the Court of Appeal in R v Roberts, which would involvedisclosing the previous trial and Mr Beamsley's acquittal on the supply charges anddirecting the jury that it could not reach a verdict inconsistent with that acquittal.1Complaints about the Crown closing[13] S's evidence did not suggest that Mr Beamsley had supplied her withmethamphetamine. However, during the Crown closing the prosecutor,Mr Vanderkolk, inadvertently used language that could have suggested thatMr Beamsley had introduced S to methamphetamine, though he immediatelycorrected himself. After the completion of the closing defence counsel, Mr Crowley,complained about the error and also about Mr Vanderkolk having referred to S as"being drugged". He asked that the Judge address these comments by way of adirection in summing up. He did not suggest that the Judge declare a mistrial.Mr Crowley then proceeded to close, emphasising that S had consumed themethamphetamine of her own volition. After the defence closing the prosecutorsought a ruling as to whether the matter could be dealt with adequately by a directionto the jury.[14] The transcript of the closing was not yet available so the matter was dealt withon the basis of the notes and recollections of counsel and the Judge. The Judgeaccepted that the prosecutor had made a reference to the defendant having "introducedher to methamphetamine" then corrected himself to say that the defendant was worried1 R v Roberts (1992) 10 CRNZ 172 (CA) at 176–177.about having "introduced her to people who consumed methamphetamine". TheJudge did not, however, have a note of the prosecutor's description of S as "beingdrugged".[15] In her written ruling, the Judge referred to the fact that both Mr Vanderkolkand Mr Crowley had emphasised the fact that S's consumption of themethamphetamine had been entirely voluntary and that Mr Crowley was not seekinga retrial but, rather, a strong direction to the jury. She concluded that, givenMr Vanderkolk's prompt correction of the error during his closing, the contents of bothclosing addresses and the fact that she intended to emphasise the complainant'svoluntary consumption of the drugs in summing up, she did not consider that thecomment was likely to render the verdict unsafe. The Judge did not make any decisionregarding the description of S as "being drugged".What the prosecutor actually said[16] With the benefit of the transcript it is now possible to see exactly what theprosecutor said. The "being drugged" comment came first. Talking about the allegedsexual violation, the prosecutor said:So members of the jury that narrative, the Crown says, proves to you beyondreasonable doubt she did not consent by any of the definitions or words usedto evoke that term, it wasn't voluntary, it wasn't known. There's an elementof acquiescence or protection. Protection is to pretend to be asleep. If thereis no resistance it doesn't mean consent. She was debilitated as I said to youin my opening and equally how does the defendant see it or alternatively howwould a reasonable person view it, how do you as representatives of thecommunity viewing this situation reasonably as reasonable minded peopleview and see what was happening in that shed. That she was drugged, thatshe was in and out of consciousness. That she was lapsing and she wasn'twaking. She was reluctant. She was bluntly refusing sexual propositions inthe way she'd been advised to. And members of the jury, those are theelements of what a reasonable person has to view as to whether or not consentis forthcoming.(Our emphasis.)[17] Later, talking about texts between S and Mr Beamsley, the prosecutor made theslip in relation to the issue of supply:So perhaps a side note to the one that says, "WTF why did you send the pigsto that house?" That's because he now knows that the Police have been thereexecuting a search warrant. So his tone changes again. His manipulationchanges again. When he says "I'll do my best to keep you safe" now membersof jury that's the threat, she's not in harm from anyone else. And then she says"This is so fucked are you worried and talking to me [S]? I will need to knowhow much I should be worried," worried about what, worried about acomplaint of rape or worried that he introduced some methamphetamine –introduced her to people consuming methamphetamine or worried abouttaking her out to Himatangi or worried about that she was, there possibly weredrug dealers outside the house. What should he be worried about? (Our emphasis.)The Judge's direction[18] In summing up the Judge made it plain that S had consumed themethamphetamine entirely of her own volition: I need to stress to you that there is no dispute in this case that [S] voluntarilyconsumed drugs at both Himatangi Beach and Roy Street. Her evidence wasthat she used cannabis and speed at Himatangi, she had not used speed beforebut she had used cannabis before. . There is also no question that [S]voluntarily used methamphetamine twice at Roy Street Mr Vanderkolksuggested to you that the texts showed that the defendant might have beenworried about introducing her to people who used drugs. While she clearlyhad some familiarity with cannabis, she chose to try speed for the first time atHimatangi and while Roy Street was the first time she had triedmethamphetamine she chose to do so and chose to do so twice.[19] We see no error in the Judge's approach to Mr Vanderkolk's error in apparentlyreferring to Mr Beamsley introducing S to methamphetamine. The error, apparentlyinadvertent, was fleeting. Further, it was not even as serious as the Judge perceived atthe time; with the benefit of the transcript it is clear that Mr Vanderkolk actually didnot go so far as to refer to Mr Beamsley as introducing "her" to methamphetamine. Inany event, it is very clear from the closing as a whole that the Crown was proceedingon the basis that S had consumed the methamphetamine voluntarily and that there wasno suggestion of Mr Beamsley being the person who had supplied it. The Judge'sdirection was a very strong one and we are satisfied that there was no appreciable riskof the jury thinking otherwise.[20] Because the Judge had no recollection or note of Mr Vanderkolk's statementthat S "was drugged" she did not address it in summing up. She did, however, makegeneral comments as to the state S was in at the time of the alleged offending:The Crown says that [S] rejected Mr Beamsley's advances in the shed but thenthe effects of the methamphetamine kicked in. She felt like she was passingout, felt frozen maybe from the effects of methamphetamine or from shockbut she did not consent, she was, I think the word used was "dehabilitated"[sic], she had no capacity to consent[21] Ms Hall, for Mr Beamsley, argued that the phrase "she was drugged" in relationto the time at which the alleged offending happened ought to be read in the context ofMr Vanderkolk's suggestion that Mr Beamsley had decided sometime earlier in theday that he would have sex with her whether she consented or not, so that the phrase"she was drugged" implied that she had been deliberately drugged by Mr Beamsley.She submitted that the Judge should have given a modified Roberts direction, tellingthe jury that there was no evidence of Mr Beamsley having introduced or supplied thedrug.[22] We agree that, in isolation, the phrase "she was drugged" could be understoodas either S being in a state of having consumed drugs or having had drugs administeredto her. But read in the context of the surrounding sentences and coupled with theemphasis that both counsel and the Judge put on the fact that S had consumed thedrugs voluntarily we do not think it at all likely that the jury would have taken fromMr Vanderkolk's closing a suggestion that Mr Beamsley had stupefied S with drugs.[23] It follows that we do not consider that any risk of a miscarriage of justice arosefrom the prosecutor's comments or the Judge's directions.Second ground of appeal: summing up[24] Ms Hall criticised the summing up and the question trail used as part of thesumming up for failing to explain the defence case adequately.22 A separate ground of appeal, that the direction to the jury on the standard of proof that it must"feel sure" was a watering down of the direction that it should "be sure" was not advanced. Norwas an alleged failure to repeat the standard of proof sufficiently in the question trail.[25] Directing the jury on the issue of consent the Judge identified the requirementfor the Crown to prove that S did not consent and that the defendant did not believeon reasonable grounds that she was consenting. Then she summarised the defencecase:Mr Beamsley did not deny sexual intercourse happened so it is not in disputebut says [S] consented to it or that he believed on reasonable grounds that shewas consenting to it.[26] The question trail contained a statement to the same effect. Ms Hall arguedthat, in describing the defence in these terms, the Judge had misstated the defendant'sposition; that Mr Beamsley had asserted both consent by S and his own reasonablebelief in that consent. She complained that the Judge's description watered down thisposition, suggesting that the defendant "had a bob each way".[27] We are satisfied that the Judge's summary of the defence position on consentdid not misstate the position. In closing the defence did not emphasise the issue ofreasonable belief in consent. Mr Crowley spent a considerable amount of timeexploring the evidence that related to consent with the emphasis on actual consent.The position regarding reasonable belief in consent was implicit but not expressed inthe way Ms Hall expressed it to us.[28] Nor do we consider that the explanation given was inconsistent with the legalposition. It was only if the jury found that S had not consented that the issue of beliefin consent on reasonable grounds would have arisen. To have described the defenceposition in the way suggested would have carried a distinct risk of confusing the juryinto thinking that both elements had to be proved.[29] Ms Hall also criticised the Judge's description of the Crown case as opposedto the defence case as unbalanced. She referred to the part of the summing up where,having identified the elements of the offence and Mr Beamsley's position in the wayjust referred to, the Judge said:Now the Crown says that [S] did not consent, they contrast it with the nightbefore at Himatangi where she was affected by speed and alcohol but sheaccepted that she consented to sex that night. The Crown says that [S] rejectedMr Beamsley's advances in the shed but then the effects of themethamphetamine kicked in. She felt like she was passing out, felt frozenmaybe from the effects of methamphetamine or from shock but she did notconsent, she was, I think the word used was "dehabilitated" [sic], she had nocapacity to consent.Now the defence says you must or you should consider the evidence aboutwhat actually happened very carefully. Mr Crowley gave you those pagereferences I think of page 37 – 38 but I think it extends right into page 40. Thedefence says her evidence is not consistent. She said in her statement and onother occasions that she was pretending to be asleep but she told you she wasout to it, unconscious, frozen, unable to do anything to stop it.[30] We do not consider that the summing up was unbalanced. We accept that inthe part of the summing up on which Ms Hall focused, the Judge described the Crownposition in more detail than in relation to the defence position. The latter she dealtwith by referring the jury to the specific parts of the notes of evidence on whichdefence counsel had relied. But in other parts of the summing up the Judge was carefulto identify specific points made by defence counsel, including the fact that S hadvoluntarily taken the drugs, that she had seemed to respond to Mr Beamsley when heaccidentally brushed her breast as he tried to take her pulse, that the circumstanceswere to be contrasted with the previous night when Mr Beamsley had stopped when Sasked and that the text messages were consistent with him being upset and then angryabout being falsely accused of rape. Viewed overall, the Judge was careful to put fullythe specific aspects of the evidence on which Mr Beamsley was relying. The jury hadthe benefit of a balanced summary of both cases and no miscarriage could have arisenfrom the summing up.[31] Finally, Ms Hall criticised the fact that at the point in the question trail dealingwith reasonable belief in consent the judge failed to repeat the standard of proof whenreferring to each of the two ways the Crown could discharge the onus. There is nomerit in this point. The standard of proof had been explained fully to the jury duringthe summing up and immediately before the bullet point Ms Hall was concerned aboutthe Judge stated that the Crown "must satisfy you beyond reasonable doubt in one ofthe two ways". There is no reasonable possibility that the jury could havemisunderstood that the same standard of proof applied to both.Result[32] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent