BENATZKY v R [2018] NZCA 413

BENATZKY v R [2018] NZCA 413 [9 October 2018]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 AOTEAROACA181/2017[2018] NZCA 413BETWEEN STEFAN BENATZKYAppellantAND THE QUEENRespondentHearing: 1 October 2018Court: Gilbert, Simon France and Dunningham JJCounsel: M R Bott for AppellantJ E Mildenhall for RespondentJudgment: 9 October 2018 at 3 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Simon France J)[1] Mr Benatzky was convicted following trial on one charge of unlawful sexualconnection, two charges of intentionally making an intimate visual recording and twocharges of posting those recordings with intent to harm.1 He appeals against theconvictions for unlawful sexual connection and posting intimate recordings.1 Crimes Act 1961, ss 128, 128B and 216H; and Harmful Digital Communications Act 2015, s 22.The primary challenge is directed at the summing up, and restrictions Judge Barryplaced on juror access to a 45 second video clip of the sexual event.2Facts[2] Mr Benatzky had for a number of months been paying the victim for sex.The activity would usually, but not exclusively, occur in the back seat of his car.[3] On the occasion in question, and seemingly on one previous occasion, thevictim had allowed Mr Benatzky to tie her hands behind her back with plastic ties.Whilst in this position the victim alleged that on this occasion Mr Benatzky put hispenis in her anus without her consent. She says he asked if he could do this, she saidno, but he did so anyway. Eventually by means of wriggling her body (he was pressedon her) she made him stop. Reluctantly, she then agreed to the sexual activitycontinuing (intercourse) until he ejaculated.[4] The victim says that at the time she was crying. She went home distressed andwas seen in this condition by her partner. However, she decided to do nothing aboutit as she thought she would not be believed.[5] Matters changed some months later when Mr Benatzky contacted her viaFacebook. He said to her he had both pictures and a video of their activity which hehad just found on his old phone. Mr Benatzky used the existence of the images to tryand entice the victim to meet him, ostensibly so she could delete them. After someexchanges, the tone of the exchanges turned threatening with Mr Benatzky saying hewould give the pictures and video away and someone was interested. He then sentone of the pictures to the victim. This was an image of the victim sitting largely nakedon a toilet. It had seemingly been taken without her knowledge on an occasion whenthere had been sexual activity in a public toilet.[6] This prompted the victim to go to the police. Mr Benatzky did not know this.He later sent her the video. Mr Benatzky says the video relates to the sexual encounteron which the charges are based. The victim says it is of an earlier occasion.2 R v Benatzky DC Wellington CRI-2016-085-001250, 24 February 2017.The video[7] The video is a 45 second clip taken on Mr Benatzky's cell phone. The victimsays he often had his phone out during their encounters in order to use the light, butshe did not know he had on one occasion taken a video.[8] The video depicts a period following the sexual activity. It does not depict theactivity itself. Mr Benatzky says there was a second video depicting some of theactivity but it was accidentally deleted.[9] Prior to trial the parties agreed to an admission of facts which describes thecontent of the video. At the same time the jury were provided with photographs whichare still frames taken from the video. The description of the video cross-references tothe still photos:The complainant is seen lying on her back on the rear seat of a vehicle withher bra across her chest beneath her exposed breasts. She appears to be nakedother than her bra. Her eyes and mouth are closed (as shown in exhibit 4,photograph 1). Her head is situated on the driver's side of the vehicle and herlegs are up in the air back toward her head. It is quite bright within the vehiclebut appears to be dark outside (as shown in exhibit 4, photograph 2).The defendant reaches down to the pocket in the driver's door of the vehicleand obtains a pair of orange handle scissors. The camera moves to the driver'sdoor and backseat (as shown in exhibit 4, photograph 3). Again you can seethe complainant's legs up in the air and bent over back toward her head.Her genital area is fully exposed to the camera (as shown in exhibit 4,photograph 4). You can see clear coloured cable ties around the complainant'shands behind her back (as shown in exhibit 4, photograph 5). The defendant'sface comes into clear view on the video. It can be seen that he is wearing asweatshirt but appears to be naked from the waist down. He has his mouthopen (as shown in exhibit 4, photographs 6 and 7). The camera then appearsto turn toward the complainant. She has her eyes closed and a hand over herface. It appears she is shielding her face from the light (as shown in exhibit 4,photograph 8). The camera then shows the complainant's right leg andgenitals (as shown in exhibit 4, photograph 9). His naked legs and genitalscan then be seen (as shown in exhibit 4, photograph 10). It appears to be quitedark outside the vehicle and on occasion throughout the video the light of therecording device looks like it can be seen reflecting off the windows of thevehicle.[10] As noted, the victim said the video was not taken on the occasion of the allegedviolation but on another occasion, being the only other time she had allowed plasticties to be used to bind her hands. She did not know at the time the video was beingtaken. As to why she was sure it did not depict the aftermath of the sexual activity onthe night of the alleged violation the victim said:(a) on the night of the violation, they were both completely naked whereasin the video they are both partially clothed;(b) on the night of the violation, she was always face down on her stomach,which is different from the video; and(c) on other occasions when on her back her legs were unusually spread orin the air, unlike that depicted in the video.[11] Because there was only one other occasion when ties were used, the victimbelieved the video was of that encounter. It had involved consensual sex, and as faras she could recall consisted only of vaginal intercourse.[12] The defence was that the anal penetration occurred but was consensual.There were various matters advanced in support of that proposition including that thesum of money paid was higher than usual (the victim agreed but said it was to offsetpast underpayments). The credibility of the complainant, with a focus oninconsistencies and delay, was also challenged.[13] It seems to have been common ground that the video depicts the aftermath ofconsensual sex. This is because from the defence viewpoint it is of the last encounterwhich it says was consensual, and from the prosecution viewpoint it was of someoccasion other than the last night, and all of them were consensual. Without acceptingthat the contents of the video can of themselves say anything about the nature of theprior activity, we proceed on the basis that if the jury thought it a reasonable possibilitythe video was taken on the night in question, then acquittal on this charge wasinevitable. This is because the video is inconsistent with the complainant's evidenceabout distress. That is the position Mr Mildenhall adopted on the appeal.Defence trial submissions concerning the video[14] The key issue being whether the video was taken on the night, Mr Benatzky(who testified) identified three aspects that supported the proposition:(a) On the night in question, part of his ejaculate landed on the victim'sface. It was submitted that if the jury slowed the video down andlooked very closely, a line of something could be seen on her face.The victim accepts that there were times when ejaculate was on herface, and said she could not recall whether it happened on the otheroccasion when her hands were tied.(b) On the night, after intercourse was complete, Mr Benatzky went toundo the ties. While he was getting into position to do this, he says hegot cramp in his leg. This caused him to show pain on his face,something visible on the video (photos 6 and 7 as described earlier).(c) The complainant said this was the only occasion anal sex had happened.It was submitted that if one looks at the photo of her anus, it is possibleto tell that penetration has happened. This therefore means the videowas taken on the night in question, it being the only occasion of analintercourse between them. The victim did initially say this, but inevidence said she was unsure on the point. Mr Benatzky was not heronly sexual contract, and she could not be sure what had happened withwhom.[15] We observe immediately that the third of these points has no legitimacy andneed not be considered further. There was no evidence led as to whether one coulddecide if anal penetration had occurred by observing the external condition of the anusas depicted on a mobile phone video taken some minutes later. The Judge rightlydirected the jury to ignore the point.The jury directions about the video[16] In his closing address trial counsel for Mr Benatzky emphasised what was saidto be consistencies between Mr Benatzky's account and the content of the video.On several occasions, the jury were invited to look at the video carefully, particularlyas regards the first and third points identified earlier. Counsel expressly suggested tothe jury that looking at it from the jury box may not be close enough to see if there isanything on her face — "you may need to go closer".[17] The particular aspects of the summing up which are challenged are:[76] I want to talk about the video, because quite a bit has been made ofthis and how you should approach it. Well, it is important to make it clearhow you do approach this exhibit and, also, its differing relevance to boththe Crown and the defence case.[77] Firstly, your approach. The video is not to be used like some sort ofequivalent of a third umpire or a test match official replaying it andslow-mo-ing it to try and decide what you see and whether it is an indicatorof guilt. It is only one small part of the overall pool of evidence, and youshould not have it assume disproportionate significance.[78] In this case, essentially and ultimately, the case falls to be decided onwhat you make of the evidence of the complainant, whether her evidence isreliable and believable or whether it leaves you unsure, factoring in whetherthe defence evidence furthers any reasonable doubt or raises any reasonabledoubt in respect of any of the charges.[84] Finally, I just want to repeat that that video is only one small part ofthe total pool of evidence, and it should not assume disproportionatesignificance.[85] Secondly, I want to point out right now that I will allow it to bereplayed if you want it replayed. But, it will be once, it will be in Court. It isnot a question of taking it back to another room and endlessly playing orreplaying it and trying to extract something from it in that way.[18] Mr Bott submits the limitations placed on access to the video, and thecomments about the "third umpire" unfairly undermine the defence case. It wascommon ground that if the video could be shown to be of the day in question, or evenif the jury thought that a reasonable possibility, then Mr Benatzky was entitled to beacquitted. Mr Bott submits it was permissible for the defence to emphasise thefeatures of the video that support its case and wrong for the Court to limit the jury'saccess to it, or to describe it as only a small part of the evidence.[19] We are unaware here as to what jury room facilities were available toaccommodate the approach urged by defence trial counsel. However, we agree thatthe Judge ought not have curtailed access so definitively in advance. It is generallypreferable to see what if anything the jury might want and then make an assessment.[20] However, as the case unfolded the actual content of the video had littlerelevance. The complainant accepted there were occasions that ejaculate was on herface, and that there was a prior time that ties had been used. She did not know if therewas material on her face on the occasion she believed the video represented.Likewise, the look on Mr Benatzky's face was obvious, and did not need closeanalysis. The reliability of Mr Benatzky's explanation for the look, namely that itreflected him getting cramp, was not going to be established or otherwise by lookingat the video. There could be any number of explanations.[21] The key dispute concerning the video was when it was taken. We do not acceptthat the points made by Mr Benatzky required close viewing of the video, nor that suchviewing would assist. It is notable that the jury did not ask to see the video replayed.[22] For the reasons given, this ground of appeal must fail. Wider issues about juryaccess to exhibits potentially arise here. There is no doubt that technology, and inparticular the presentation of images and videos in readily accessible digital form suchas on a tablet, may require some rethinking. It is preferable to leave any discussionuntil a case where it is of significance.Jury directions about posting digital communications[23] Mr Bott queries whether the directions concerning the charge of posting of thevideo and picture (counts 4 and 5) with intent to cause harm were adequate.The question trail did not address whether the victim consented or asked for thematerial to be sent to her.[24] It is first necessary to detail what happened. As noted, out of the blue,Mr Benatzky contacted the victim and said he had the images. The initial exchangewent this way (the first contact being that of Mr Benatzky):Hi just wanted to know if you interested in the pics and videos I got of you?What do you mean?Found my old phone and realized that I still had pics and videos I took of youin the car.I don't remember ever giving you permission to those. Cn you please sendeverything you have of me to meI took them in the freedom of my own car. Sure you can have themCan you please delete themYou don't even want to see them?I want you to delete them you have no right to have those. You had no rightto take them without my permissionIt's a free country and I can take pics of what ever I want. I can't use them forcommercial purpose but I have no intention that anyway. Maybe free for all?What do you wantWhat do you mean?What is the purpose of you messaging me. I want you to delete the picturesand videos you claim you have that you took without my permission.I do have them. Maybe we meet and you delete them yourself?[25] There were then further exchanges about meeting. At 1.07 am, being 25 hoursafter the initial contact, and 24 hours since he had heard from the victim Mr Benatzkyasked if they should meet. Getting no response, he said:Will give the pics and vids away. Got someone who is interested. Let meknow if you would like a copy. Bye.[26] After a further 15 minutes of silence he sent the first photo, being an image ofthe victim sitting on a toilet followed by:Just to show you that I was not full of scan't send the vid here too long.[27] There was no further contact from the victim for two and a half days.Mr Benatzky eventually sent the video four days after sending the photo.[28] The charge is under s 22 of the Harmful Digital Communications Act 2015which provides:22 Causing harm by posting digital communication(1) A person commits an offence if—(a) the person posts a digital communication with the intentionthat it cause harm to a victim; and(b) posting the communication would cause harm to an ordinaryreasonable person in the position of the victim; and(c) posting the communication causes harm to the victim.(2) In determining whether a post would cause harm, the court may takeinto account any factors it considers relevant, including—(a) the extremity of the language used:(b) the age and characteristics of the victim:(c) whether the digital communication was anonymous:(d) whether the digital communication was repeated:(e) the extent of circulation of the digital communication:(f) whether the digital communication is true or false:(g) the context in which the digital communication appeared.(3) A person who commits an offence against this section is liable onconviction to,—(a) in the case of a natural person, imprisonment for a term notexceeding 2 years or a fine not exceeding $50,000:(b) in the case of a body corporate, a fine not exceeding $200,000.(4) In this section, victim means the individual who is the target of aposted digital communication.[29] Mr Bott submitted it is arguable that the images were sent with the victim'sconsent as she had asked for them, and this was overlooked at trial. The submissionrelies on the victim's statement at line 4 of the exchange (see [23] above) where sheasks for everything to be sent. Of this submission, we observe:(a) Consent is not an element. It is, however, relevant to whether there wasan intention to harm. Obviously if one genuinely thinks the recipientis desirous of having the images, on most occasions it is unlikely therewill be an intention to harm.(b) The point was not overlooked. In the summing up the Judge observedthe defence was:" he did not intend any harm to her by doing that; she hadasked to see them."(c) the underlying proposition anyway lacks merit. It can be observed thepicture was not sent until a day after the victim's spontaneous request.The entire context reeked of an intention to harm and it is unsurprisingthe jury took that view. This point is even stronger concerning thevideo, which was sent four days later and not at all connected to whatthe victim said.[30] For these reasons, this ground of appeal fails.Result[31] The appeal against conviction is dismissed.Solicitors:Crown Law Wellington, for Respondent