MUNN v R [2018] NZCA 473

MUNN v R [2018] NZCA 473 [2 November 2018]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA211/2018[2018] NZCA 473BETWEEN NATIANA MUNNAppellantAND THE QUEENRespondentHearing: 8 October 2018 (further submissions received 9 October 2018)Court: Cooper, Venning and Collins JJCounsel: J P Temm for AppellantE J Hoskin for RespondentJudgment: 2 November 2018 at 10 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)[1] Following a jury trial Natiana Munn was convicted of the sexual violation of a16 year old girl by unlawful sexual connection. Judge Cooper sentenced him to threeand a half years' imprisonment.1 Mr Munn appeals against conviction.1 R v Munn [2017] NZDC 26757.Leave[2] The appeal is out of time. Mr Temm was not trial counsel. He was onlyinstructed when former counsel confirmed he was not able to pursue the appeal. In thecircumstances, the Crown does not oppose an extension of time. An extension of timeto appeal is granted accordingly.Background[3] The complainant and the appellant (who was 18 at the time) were at the sameparty. The complainant had come to the party with a friend whom she becameseparated from. She was heavily intoxicated. The appellant offered her a place to staythe night. When they arrived there she agreed they could share the same double bed.The complainant said that after going to the toilet she passed out as soon as she wentto bed. At the time she was wearing a pair of jeans, which were zipped and buttonedup and a tank top. She described waking up to the feeling of her jeans beingunbuttoned and then falling back to sleep again. She said she felt like she was halfconscious when she felt something being shoved up her vagina but she did not knowwhat it was. It was really painful. She described it as something being slowly butconsistently shoved up there which was really hurting. She then fell asleep again.When she woke her jeans were unbuttoned and the appellant was asleep behind her,facing her.[4] After waking, the complainant left the appellant's address. She was bleedingfrom her vagina. A subsequent medical examination confirmed she had a five-mmtear to her hymen and a three-mm abrasion to her labia.[5] When the complainant confronted the appellant via a Facebook messageshortly thereafter she asked him if he had sex with her. In her words she said he toldher: he doesn't really remember but he's pretty sure he couldn't have done thatwhen he was asleep and that he checked himself down there and everythinglooked normal and all that kind of thing but I said to him well I didn't unbuttonmy jeans and he said he was pretty sure he only did that with his hand andthat he thinks it wasn't even that bad but it, it is bad for me.Jurisdiction[6] To succeed with his conviction appeal the appellant must show that amiscarriage of justice has occurred.2 He must establish an error and there must be areal risk the error may have affected the outcome of the trial or rendered it unfair or anullity.3Appeal[7] In his written submissions Mr Temm raised the following grounds of appeal:(a) The Crown charge did not properly particularise the sexual connectionalleged against Mr Munn.(b) Prejudicial forensic evidence irrelevant to the charge was admitted byconsent.(c) Aspects of Mr Munn's statement to the police should not have beenadmitted.(d) The defence position was "chaotic", which included raising theprevious sexual experience of the complainant in an arguablyprejudicial way.[8] Although Mr Temm opened his submissions by confirming the appeal was notagainst trial counsel's conduct, apart from the challenge to the Crown charge for wantof particulars, the remaining three appeal points raised all impugn trial counsel'sconduct.[9] Mr Temm has been counsel since the amended appeal was filed on 27 April2018. Despite that, no waiver under r 12A of the Court of Appeal (Criminal) Rules2001 has been provided and Mr Temm formally abandoned any challenge totrial counsel's conduct on 23 July 2018. We must proceed on the basis that to the2 Criminal Procedure Act 2011, s 232(2).3 Wiley v R [2016] NZCA 28.extent the appeal points criticise trial counsel's actions the actions were taken onthe appellant's instructions or at least with his agreement. Mr Temm conceded thatthe Court would have to proceed on that basis and focused his main challenge tothe conviction on the lack of particulars to the charge.The Crown charge[10] The charge Mr Munn faced was sexual violation by unlawful sexualconnection under s 128(1)(b) of the Crimes Act 1961.[11] Section 128 provides:128 Sexual violation defined(1) Sexual violation is the act of a person who—(a) rapes another person; or(b) has unlawful sexual connection with another person.(2) Person A rapes person B if person A has sexual connection withperson B, effected by the penetration of person B's genitalia by personA's penis,—(a) without person B's consent to the connection; and(b) without believing on reasonable grounds that person Bconsents to the connection.(3) Person A has unlawful sexual connection with person B if person Ahas sexual connection with person B—(a) without person B's consent to the connection; and(b) without believing on reasonable grounds that person Bconsents to the connection.[12] Sexual connection (as relevant) means:4(a) connection effected by the introduction into the genitalia oranus of one person, otherwise than for genuine medicalpurposes, of—(i) a part of the body of another person; or4 Crimes Act 1961, s 2.(ii) an object held or manipulated by another person; or(c) the continuation of connection of a kind described inparagraph (a) or paragraph (b)[13] Sexual violation can thus be by rape or unlawful sexual connection. Thedifference is that rape is unlawful sexual connection by penile penetration of thegenitalia of a person. Unlawful sexual connection is connection by penetrationinvolving any part of the offender's body (or an object manipulated by them).[14] Mr Temm submitted the Crown was required to provide further particulars andspecify whether the Crown case alleged unlawful sexual connection by penetration ofthe complainant's genitalia by Mr Munn's penis, which would have been rape, or bydigital penetration.[15] The statutory requirement for particulars is set out in s 17 ofthe Criminal Procedure Act 2011:17 Content of charge(1) A charge must relate to a single offence.(4) A charge must contain sufficient particulars to fully and fairly informthe defendant of the substance of the offence that it is alleged that thedefendant has committed.(5) Without limiting subsection (4), the particulars provided under thatsubsection must include—(a) a reference to a provision of an enactment creating the offencethat it is alleged that the defendant has committed [16] In Police v Wyatt this Court was required to consider whether furtherparticulars were required of two charges arising from a driving incident. Mr Wyattwas charged with driving a motor vehicle on a named road, in a manner that in all thecircumstances might have been dangerous. He was also charged with causing injuryto a person by carelessly using a motor vehicle on a named road.5 In the (then)Supreme Court, Wilson J had accepted the defence argument that particulars of theway the driving was alleged to be dangerous or careless were required. This Courtallowed the appeal, confirming the charge, which recited the statutory offence,contained sufficient particularity. McCarthy J said:6Obviously the degree of particularity needed to inform a person adequately ofthe substance of a charge must vary according to the nature of the offence.I point out that it is the substance, the essence or pith, of the charge whichmust be revealed by the particulars, not the details relied upon to establish thecharge. It will, I think, be readily apparent that in some cases only a fewparticulars will be necessary to convey the substance.[17] The offence Mr Munn faced was one incident of sexual violation which, bydefinition, was the introduction of a part of Mr Munn's body into the complainant'sgenitalia. The charge as stated was sufficient to fairly inform Mr Munn of the essenceof the offence that it was alleged he had committed.[18] Further particularisation of the charge was effectively precluded by a lack ofevidence. The complainant was not able to say what part of Mr Munn's bodypenetrated her genitalia.[19] Further, the issue at trial (which was a difficult one for Mr Munn to meet giventhe medical evidence) was not whether the complainant had been penetrated by hispenis or by a finger or fingers, but whether Mr Munn had penetrated the complainant'sgenitalia at all, which he denied.[20] Mr Temm then submitted that the Crown should have charged Mr Munn withsexual connection by rape, or in the alternative with unlawful sexual connection.He suggested the jury might have been unsure if Mr Munn had committed rape orunlawful sexual connection and the Court could not be sure the jury were unanimouson the type of penetration.[21] There is no risk of any unfairness to Mr Munn even if the jury took differingviews as to the means of the sexual violation in the present case. The verdict5 Police v Wyatt [1966] NZLR 1118 (CA).6 At 1133.confirmed they found he had penetrated her genitalia with part of his body as thecharge required. As the majority of the Supreme Court confirmed in Ahsin v R, apractical and realistic approach must be taken to the identification of the essentialelements that will constitute a sufficient basis to support a guilty verdict.7The essential legal ingredients are the statutory elements of the offence. Further,where the alternatives relate only to the form of involvement in a single transaction orevent there must be unanimity the defendant was involved in the transaction one wayor another but it is not necessary for the jury to be unanimous as to the precise mannerof his or her involvement.8[22] While the above discussion was in the context of party liability, it is equallyapplicable to the present case. What was at issue at the appellant's trial was whetherhe had sexually violated the complainant by penetrating her genitalia with his body,whether it be by the introduction of his penis or digitally. The definition of sexualconnection encompasses both. It was not necessary for the jury to be unanimous as tohow he had penetrated the complainant.[23] We are satisfied that there was no error in the way the charge the appellantfaced was before the Court. There can be no risk of unfairness arising from the waythe charge was framed.[24] In submissions filed after the hearing Mr Temm suggested Mr Munn wasprejudiced because if the charge had been laid in the alternative, he would have hadthe opportunity to plead to the charge of sexual violation by unlawful sexualconnection. But with respect to that submission, Mr Munn clearly had the opportunityto plead to the charge of sexual violation by unlawful sexual connection. That is thecharge he faced.[25] Although the offence of sexual violation may be committed in a number ofdifferent ways, each carries the same maximum penalty. The seriousness of theoffence will depend on the facts of the particular case. Some forms of violation will7 Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493 at [174].8 At [187].be more serious than others but that is a matter for sentencing.9 In the present case theJudge took the most favourable view from the appellant's point of view when imposingthe sentence and dealt with it as digital penetration.The forensic evidence[26] As the principal ground of appeal fails and Mr Temm conceded the appeal wasnot based on trial counsel's competence we can deal with the remaining issues shortly.[27] Given the issue was whether penetration occurred or not the fact a chemicalsubstance consistent with condom lubricant was found in the complainant's vagina thenext day was relevant. It was also relevant to, and in part provided some basis for, adefence suggestion that the complainant had had intercourse earlier in the eveningwith someone else. From a tactical point of view it was better for the evidence to comein by admission through s 9 of the Evidence Act 2006.The interview[28] Mr Temm's criticism of the police interview was directed at passages wherethe detective challenged Mr Munn on his story. Read in context and when thestatement is considered overall, the detective did not overbear Mr Munn. Mr Munnmaintained his denial that anything had happened between him and the complainant.The defence case[29] The defence case, namely a denial of penetration, was put to the jury by counselboth in opening and in closing. While the way the suggestion the complainant mayhave had sexual intercourse earlier that evening evolved was unorthodox, the Judgeruled in the appellant's favour and permitted limited cross-examination on that issue.The appellant was not prejudiced.Result[30] The application for an extension of time to appeal is granted.9 R v Ngawhika (1987) 2 CRNZ 433 (CA).[31] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent