KEN MARION SANTIAGO ANG v R [2023] NZCA 445

KEN MARION SANTIAGO ANG v R [2023] NZCA 445 [13 September 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 AOTEAROACA403/2022[2023] NZCA 445BETWEEN KEN MARION SANTIAGO ANGAppellantAND THE KINGRespondentCourt: Miller, Ellis and van Bohemen JJCounsel: S J Gray for AppellantS C Baker for RespondentJudgment:(On the papers)13 September 2023 at 12.30 pmJUDGMENT OF THE COURTA The evidence of Dr Menkes is not admissible at the hearing of Mr Ang'sappeal. We decline the application to adduce it as further evidence.B We decline to order that blood and urine samples be released for analysis.C We order that the introital, vaginal and cervical samples from thecomplainant, which are held by the Institute of Environmental Scienceand Research, be released for testing for purposes of the appeal.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Ang has brought an appeal against his conviction on one charge of sexualviolation by rape,1 one of sexual violation by unlawful sexual connection (introductionof his finger into the complainant's genitalia)2 and one of indecent assault (sucking herbreasts).3 It is said that the offences happened during a camping trip when thecomplainant was very intoxicated.4The applications[2] Mr Ang intends to appeal on the grounds that the jury could not exclude thereasonable possibility that the complainant confabulated her allegations due to heralcohol consumption. He also wants to have swabs taken from the complainant'sintroital, vaginal and cervical areas tested in the hope that they will exclude epithelialcells from his penis or finger.5[3] This judgment addresses Mr Ang's applications:(a) to advance new evidence about memory. He has tendered an affidavitof Dr David Menkes, an associate professor and consultant psychiatrist,about alcohol consumption and confabulation; and(b) to have the swabs, and blood and urine samples, released for analysis.6Mr Ang has tendered an affidavit of Paige McElhinney, a forensicscience consultant, in relation to the swabs. In relation to the blood andurine samples, it is contended that the evidence could assist Dr Mendesin refining his evidence about confabulation.[4] There is no allegation of counsel error, but a waiver of privilege has been givenand we have an affidavit from trial counsel, Nicola Hansen.1 Crimes Act 1961, ss 128(1)(a) and 128B.2 Sections 128(1)(b) and 128B.3 Section 135.4 R v Ang [2022] NZDC 8192 at [5]–[11].5 Because it is seized of the proceeding this Court has power to order that the swabs, which are inthe custody of the Institute of Environmental Science and Research, be released for analysis:Milner v R [2019] NZCA 619 at [30]–[32]; Criminal Procedure Act 2011, ss 334 and 335; andCourt of Appeal (Criminal) Rules 2005, r 45.6 Criminal Procedure Act, s 335(2)(e).[5] The course adopted here is unusual. In the ordinary way new evidence wouldbe assessed at the hearing of the appeal, the court determining its admissibility partlyby reference to its materiality to the jury's verdict. That involves an assessment of theentire trial record. However, an interlocutory order is needed to have the swabs andsamples tested and the application to offer memory evidence was set down for hearingat the same time. Consistent with the interlocutory nature of the applications, theyhave been referred to a divisional panel for a decision on the papers.7The trial[6] The complainant's account of the offending was that it occurred after they hadbeen drinking at a campsite alongside Mr Ang's campervan. She had drunk to excessand her memory was patchy. She recalled that her tracksuit bottoms had been pulleddown with her underwear. She recalled Mr Ang having his penis between her legs andit felt as though he was trying to insert it but she had no recollection of his penisactually entering her vagina. She did recall that it was parting the "lips" to her vagina.She recalled him running his finger to the entrance of her vagina but she could notrecall him putting his fingers inside it. She remembered him sucking her breasts.Mr Ang later told her that it might be worth her getting the morning after pill to be onthe safe side.[7] The complainant was examined by a doctor and swabs were taken. Sperm wasobserved on perianal, anal and rectal slides. Swabs were taken from her breasts. DNAwas extracted from these samples. It is not in dispute that the DNA originated fromMr Ang.[8] No semen was detected on introital, vaginal and cervical slides and those slideswere not tested further. Mr Ang was advised by his counsel that the samples could betested for epithelial cells, but he would have to live with the results of the testing. Hemade a tactical decision not to ask that the samples be tested for epithelial cells.Ms Hansen has explained that:7 We make this point because there are indications in the papers that Katz J, who ordered thishearing, was given to understand that the appeal is entirely dependent on the new evidence.Appellant counsel has confirmed in submissions that that is not the case.30. The risk was that if we had the swabs tested for epithelial cells theymight in fact be present – whether by transference from some otheritem, or otherwise. And then we would be stuck with those results.On the state of the existing evidence we were able to put the Crownto proof on the issue of whether or not Mr Ang had penetrated (eitherdigitally or with his penis) [the complainant]. The present of epithelialcells would significantly weaken our position.31. I explained this to Mr Ang. I made it clear that if his fingers or penishad touched [the complainant's] vagina in the areas where the swabswere taken then there was a significant risk that epithelial cells wouldbe found. If he thought that his epithelial cells could be found then itwould be safer to not test the swabs. He instructed that he did notwant the swabs tested for epithelial cells.32. His instructions on this were consistent with his instructions to me thathe was uncertain as to whether or not he had penetrated [thecomplainant's] vagina with his penis. As it turned out, it was alsoconsistent with his evidence at trial that he had touched [her] clitoris.In his brief of evidence, Mr Ang had stated that he only touched theoutside of her genitalia with his fingers.[9] Accordingly, the defence put the Crown to proof on the actus reus of theoffences.8 During her cross-examination of Crown witnesses counsel was able to usethe fact that the vaginal swabs had not undergone DNA analysis to strengthenMr Ang's case.[10] Mr Ang gave evidence, maintaining that the sexual contact was consensual.He denied that the complainant was so intoxicated so as to be incapable of consent.He admitted kissing her breast and touching her clitoris with his finger. He deniedpenile penetration of the genitalia, maintaining he could not get an erection. Heexplained the presence of semen on the anal swabs by saying that it was pre-ejaculatein the vicinity of the anus.[11] A charge of sexual violation by introduction of his penis into her anus wasdismissed under s 147 of the Criminal Procedure Act 2011 at the end of the Crowncase on the basis that the expert evidence left the reasonable possibility that spermfound its way into the anus by secondary transfer when the area was being swabbed.98 The actus reus of rape is penile penetration of the genitalia: s 128(2) Crimes Act 1961. The actusreus of sexual connection is (relevantly) introduction of a finger into the genitalia or anus: ss 2and 128 Crimes Act 1961. The witnesses used the term "penetration" to describe both offences.9 R v Ang [2022] NZDC 1575 at [22].[12] With respect to memory, Ms Hansen took instructions about having bloodand/or urine samples tested to determine the complainant's level of intoxication.Mr Ang instructed her not to do so because of the risk that the results might disclosethat the complainant was grossly intoxicated or affected by drugs.[13] Counsel was able to use a video taken by the complainant on the evening,suggesting that it showed she was not grossly intoxicated. The complainant reportedno memory of having taken the video.[14] Ms Hansen did not seek a report from a memory expert, taking the view that itwas not necessary given the evidence she had to work with and ultimately suchevidence was unlikely to substantially assist the jury, who would have their ownexperience and understanding of trying to make sense of what had happened after analcohol-fuelled night. That was the approach taken in the closing address, counseldistinguishing between loss of consciousness and loss of memory. Counsel does notrecall whether she discussed the possibility of calling an expert with Mr Ang.The memory evidence[15] Dr Menkes is an academic psychiatrist and experienced expert witness with aresearch interest in drugs and their mechanisms of action. His proposed evidenceoutlines the general process of memory and explains how alcohol can impair it. Heexplains that drug-induced blackouts can lead to the unconscious filling in of memorygaps, which is known as confabulation of false memories. Confabulation compensatesfor the memory-impairing effects of alcohol or other drugs.[16] Dr Menkes does not, and could not, offer an opinion that the complainant'saccount involves confabulation. The most that he could say is that a person whoreports gaps in memory, as the complainant did here, may unconsciously useconfabulation to fill the gaps. There is no reason to think that this is a dimension ofmemory with which jurors would be unfamiliar or which they need expert assistanceto understand. That being so, it would not have been admissible at trial.10 It cannotbe said that an omission to lead it there may have occasioned a miscarriage of justice.[17] It follows that there is no reason to release the blood and urine samples forfurther testing for purposes of the appeal. The application to have the samples testedis based on speculation that Dr Menkes would be able to use the results to saysomething about confabulation. As the Crown observes, he does not make that claimhimself. The application also confronts the major difficulty that Mr Ang decided notto have the samples tested at trial, fearing they would bear out the Crown's contentionthat the complainant was incapable of consent. We record that had we found theevidence in principle admissible we would have declined the application on this lastground.Testing slides for the absence of epithelial cells[18] Ms McElhinney was briefed by Ms Hansen before trial. She advised at thattime that that the vaginal samples could have been tested for epithelial cells. In heraffidavit sworn for the appeal, she explained that a large proportion of the sampleswould likely be cellular material from the complainant and they would be tested formale DNA. She stated that there are no scientific findings that assist in conclusivelydetermining whether or not vaginal penetration occurred. If none of Mr Ang's DNAwas detected, it would not automatically follow that there was no vaginal penetration.Further, cellular material from him could have been lost below a detectable level priorto sampling. And if his DNA was detected, it would be necessary to consider whetherit might have been transferred to the internal area.[19] The Crown contends that a negative result now would not assist Mr Ang. Weare not able to say that with confidence. There is no expert evidence as to thelikelihood that introital, vaginal and cervical swabs would contain male epithelial cellshad Mr Ang's finger or penis been introduced into the complainant's genitalia. Themost we have is Ms Hansen's observation that in her experience as trial counselepithelial cells have been readily found on swabs. In the circumstances we cannot10 The authorities were surveyed in R v M [2020] NZCA 663 at [14]–[19]. See alsoP (CA470/2017) v R [2020] NZCA 304 at [44]–[49] citing M (CA68/2015) v R [2017] NZCA 333.exclude the possibility that the absence of epithelial cells in swabs from the threelocations may have probative value.[20] That being so, we consider that the introital, vaginal and cervical samplesshould be released for testing.[21] We emphasise that it does not follow that the results of the testing will be foundadmissible at the hearing of the appeal, for three reasons. First, it is not in the interestsof justice to allow a defendant to revisit tactical decisions made at trial. Mr Ang'sdecision not to have the samples tested there precisely because he feared epithelialcells would be found may prove an insuperable barrier to admission even if the resultsfavour his case. Second, as the prosecutor noted in closing Mr Ang appeared to admitthe actus reus of the offence of sexual violation by unlawful sexual connection becausehe acknowledged that he had touched the complainant's clitoris with his finger.11Third, the presence or absence of epithelial cells may not be probative in all thecircumstances. But these are issues for another day.Disposition[22] The evidence of Dr Menkes is not admissible at the hearing of Mr Ang'sappeal. We decline the application to adduce it as further evidence.[23] We decline to order that blood and urine samples be released for analysis.[24] We order that the introital, vaginal and cervical samples from the complainant,which are held by the Institute of Environmental Science and Research, be releasedfor analysis which the appellant or the Crown may wish to undertake for purposes ofthe appeal.Solicitors:Crown Law Office, Wellington for Respondent11 For purposes of these offences the female genitalia comprise the area within the labia:R v Karotu (1994) 11 CRNZ 691 at 694 citing R v Lines (1844) 1 Car & K 393, 174 ER 861.See also R v PH (CA582/2020) [2021] NZCA 584 at [19]; and E (CA522/2021) v R [2022]NZCA 368 at [27]. Any degree of introduction is sufficient.