Chai v R

• Jurisdiction: New Zealand
• Judge: Gilbert J
• Judgment Date: 26 February 2020
• Neutral Citation: [2020] NZCA 29
• Date: 26 February 2020
• Docket Number: CA588/2019
• Court: Court of Appeal

Between

Haifeng Chai

Appellant

and

The Queen

Respondent

[2020] NZCA 29

Court:

French, Gilbert and Collins JJ

CA588/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Procedure — application for an order directing a juror enquiry — appellant was found guilty of sexual offending — issue of reasonable belief of consent — prior to sentencing a juror wrote letter to Judge stating the verdict was unfair and jurors had followed the law reluctantly to convict — evidence of jury deliberations — Evidence Act 2006

Counsel:

T M Cooper for Appellant

K S Grau for Respondent

The application for an order directing a juror enquiry is declined.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Gilbert J)

Introduction

1 This is an application for an order directing a juror enquiry.

2 Haifeng Chai was tried by a jury in the District Court at Auckland on a charge of sexual violation by rape. Mr Chai admitted sexual intercourse occurred. The trial issue was consent — did the complainant consent; if not, did Mr Chai reasonably believe she consented? The jury found Mr Chai guilty by an 11:1 majority verdict delivered on 16 August 2019. Mr Chai was convicted and subsequently sentenced to a term of six years and four months' imprisonment. 1 He has filed an appeal against his conviction.

3 On 2 September 2019, two and a half weeks after the verdict was delivered and prior to sentencing, one of the jurors sent a letter to the trial Judge in the following terms:

I was a juror in the case in Court Room 13, August 12th — 16th. Haifeng Chai (Leon) sexual violation of [the complainant].

I have been struggling with the verdict given to the defender [sic], and thought I needed to write to you.

I strongly believed what happened to Leon was most unfair and wrong.

I don't believe for one minute he picked her up and carried her into the bedroom and raped her. I believe she, in a drunk condition seduced him. (Is that not rape of him?)

Most of us, I'm sure, did not believe he had thought he was raping [the complainant]. But according to the law which we were asked to rule on, I believe we had no choice but to find a guilty verdict.

The twelfth juror I believe was not ruling on the law, in fact ignoring it, and just went on the thought that they did not believe the defendant thought he was raping [the complainant], and hence did not want to be responsible for a guilty verdict.

Your Honour, I do hope you will take this into consideration when sentencing Leon.

4 Ms Cooper, for Mr Chai, submits it is evident that at least one of the jurors misunderstood the Judge's directions on consent and incorrectly applied the law to the evidence accepted at the trial. This submission is based on the juror's letter and a question the jury asked after they had retired to consider their verdict seeking clarification on the law as to reasonableness of consent. To set the full context, we set out the Judge's directions on the law relating to consent in his summing up, the jury question which followed, and the Judge's response.

5 In summing up, Judge Gibson directed the jury on the legal elements the Crown had to prove beyond reasonable doubt on the issue of consent:

[15] … the next element of the charge of sexual violation by rape is the issue of consent, because it can only be a rape if the complainant did not consent to the penetration. Obviously, a female can consent to penetration by a male and that would be consensual sex. But where she has not consented, then that is part of the element of the charge of rape and the Crown must prove that element beyond reasonable doubt; must leave you sure that that occurred. The third element is that the defendant did not believe on reasonable grounds that the complainant was consenting to the sexual intercourse alleged.

[16] Consent itself means true consent or positive consent, and really the issue in dispute in this trial is whether there was consent or whether there was a belief on reasonable grounds in consent. As I have said, consent means true consent or positive consent freely given by a person who is in a position to make a rational decision. Lack of protest or physical resistance does not, of itself, amount to consent.

[17] If the complainant was so drunk that she could not consent, or refuse to consent, then her allowing the sexual activity to occur was not consent. If she was asleep or unconscious then, of course, she could not consent to sexual activity. If she was so drunk that she was [in] no position to know whether to consent or not, then you would be justified in finding that she did not consent.

[18] On the other hand, the fact that the complainant cannot remember or says she cannot remember what happened is not conclusive. People sometimes do things when they are drunk that they would never do when sober. A consent given by someone who is disinhibited by alcohol is still a consent. Consent and reasonable belief in consent; that is the defendant's reasonable belief as to whether the complainant was consenting; is to be considered at the time the act took place and it is important to also realise that consent can be withdrawn at any time when the act is taking place. So if the other party does not disengage when consent is withdrawn, then continuing the act is continuing without the consent of the party who has withdrawn consent.

[19] One way you ought to consider whether the defendant reasonably believed the complainant was consenting would be for you to satisfy yourselves that he did not, in fact, believe that she was consenting. That is concerned with what the defendant himself thought at the time. If he did not believe the complainant was consenting, then that is enough from the Crown's point of view.

[20] The other way of satisfying yourselves on the issue of whether the defendant had a reasonable belief that the complainant was consenting would be to satisfy yourselves that no reasonable person in the defendant's shoes could have thought the complainant was consenting. So that is concerned with the belief of a reasonable person placed in the defendant's position.

[21] If no reasonable person would have thought that the complainant was consenting, then that, too, would be enough from the Crown's point of view to satisfy you beyond reasonable doubt that the defendant did not have a reasonable belief that she was actually consenting to the act of sexual intercourse as has been alleged.

[22] The onus is on the Crown to satisfy one or other of those requirements, and it has to satisfy you beyond reasonable doubt. So there are, just to reiterate, three elements: penetration, consent and the defendant has to be shown not to have had a reasonable belief that the complainant was consenting and you must be sure beyond reasonable doubt of each of those elements before you can convict.

6 The jury retired to consider their verdict at 11.42 am on 16 August 2019. They returned at 11.47 am to receive clarification from the Judge on some aspects of the evidence. At 12.50 pm the jury asked to review a video recording taken using a phone on the night the offending was alleged to have occurred. After viewing the video, they again retired. At 2.15 pm, the jury asked for clarification on the question as to reasonable belief in consent:

Pl clarify what the defendant would consider reasonable grounds to believe that consent had been given. Can we pl have the definition of point 3 as it pertains to the charge.

7 The Judge discussed this question with counsel before clarifying the question with the jury and answering it as follows:

Judge:

Thank you, Mr Foreman, ladies and gentlemen, can I just clarify firstly what the question actually is because some of it is crossed out. What I think it is, is can we please have the definition of point 3 meaning the third element of the charge that the Crown have to prove beyond reasonable doubt that the accused did not believe on reasonable grounds that she was consenting as it pertains to the charge? Is that what I am being asked to give a …

Jury Foreman:

No, Your Honour, what you're being asked for is give us some sort of priority guideline on what we are actually faced with where what would be considered reasonable.

Judge:

Yes, I understand what you mean. All right. What would be...