Creighton v R

JurisdictionNew Zealand
JudgeMoore J
Judgment Date28 May 2020
Neutral Citation[2020] NZCA 193
CourtCourt of Appeal
Docket NumberCA116/2019
Date28 May 2020
Between
Joel Nathan Creighton
Appellant
and
The Queen
Respondent

[2020] NZCA 193

Court:

French, Dobson and Moore JJ

CA116/2019

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal, Statutory Interpretation — appeal against conviction of sexual violation by unlawful, digital connection and sexual violation by rape — definition of “consent” — when allowing sexual activity does not amount to consent — whether the Judge had misdirected the jury on the definition of consent — whether the destruction of video recording of the offending by the complainant had resulted in an unfair trial Crimes Act 1961

Counsel:

G O'L Reynolds QC, N Levy QC and L C Ord for Appellant

B F Fenton for Respondent

The appeal is dismissed.

JUDGMENT OF THE COURT
REASONS OF THE COURT

(Given by Moore J)

Introduction
1

At his trial, a jury found Mr Creighton guilty of two charges of sexual violation, by unlawful digital sexual connection and by rape. He appeals the convictions under s 229 of the Criminal Procedure Act 2011. 1 He does so on two grounds: first, that the Judge misdirected the jury on s 128A of the Crimes Act 1961 (“the Act”) as to the circumstances in which allowing sexual activity does not amount to consent and, secondly, that his trial was unfair because the complainant deliberately destroyed an exculpatory video taken by Mr Creighton of the alleged offending. Relatedly it is also claimed the Judge should have directed the jury to infer that the complainant deleted the video because it depicted events consistent with Mr Creighton's account and thus his innocence.

Background facts
2

At his trial in the District Court at Wellington, Mr Creighton faced five charges of sexual violation. These arose from two phases of sexual activity separated by just a few hours. He was convicted on the two charges relating to the first phase and acquitted on the three charges relating to the second phase. Given the issues involved on this appeal, it is necessary to set out the facts in some detail.

3

The complainant, Ms H, met Mr Creighton through the dating application Tinder. They first communicated by messaging on Wednesday, 9 August 2017. In the course of that conversation, they discovered a common connection: Mr Creighton was a good friend of Ms H's brother. They agreed to meet up for a drink the following Saturday. They decided not to tell Ms H's brother due to the awkwardness it might potentially cause. The next day Mr Creighton messaged Ms H. He explained that he might not be available on the Saturday night and suggested they catch up earlier. They agreed to meet at Ms H's flat later that evening.

4

As arranged, Mr Creighton arrived at Ms H's flat. He drank a number of beers and chatted with Ms H and her flatmate, a police officer. Then he and Ms H had a spa together, following which they went to Ms H's bedroom. Consensual sexual intercourse took place. Ms H described the sex as “normal”. Mr Creighton drove home.

5

The following evening, which was Friday, 11 August 2017, Mr Creighton and Ms H exchanged text messages about possibly meeting at the Lone Star later. They did not meet and Ms H returned to her flat. She received a text from Mr Creighton asking if he could come around and she told him he could. Not having heard further from him, she began to prepare for bed when she noticed she had missed a call from Mr Creighton. She rang him back. He asked her to pick him up from the Lone Star. It was about 11:30 pm.

6

Ms H drove to the Lone Star where she met Mr Creighton. He said he had been at a funeral. She described him as drunk, quite sarcastic and aggressive. He was slurring his words. Ms H said he was quite touchy but not in an affectionate way, “… like pulling and grabbing”. They went to the sitting room and talked. She went to get a glass of water and Mr Creighton grabbed her top. She told him to stop. According to Ms H, he responded angrily. He repeatedly tried to lift her top to view her breasts, saying he wanted to take a picture. Each time she pushed him off, he tried to pull her top down. He suggested they take a selfie. He removed Ms H's top and took a photograph on his phone. This shows the couple, head to head, embracing. Ms H is topless. Her left breast is visible. Ms H asked him not to be “a dick”: not to send it to anyone because it was something which should stay between them. Despite this request, it appears Mr Creighton later sent the image to friends who had requested the photo.

7

Mr Creighton said he was hungry. Ms H drove him to McDonald's where food was purchased before returning home. Ms H described Mr Creighton as drunk and aggressive. They returned home and went to bed. He was still fully clothed. Ms H assumed Mr Creighton was too drunk to have sex, as earlier in the night he had told her, “I'm really drunk so I'm going to be of no use to you”. However, he began to make sexual advances leading to him getting on top of her. She told him she did not want sex and suggested she should take him home. Ms H said he reacted angrily and accusingly, “Are you fucking denying me, is that what you're doing?”. Mr Creighton told her she had no right to deny him. She described him as screaming and yelling at her. Then, she said, he “flipped”. He apologised. He insisted he was not the kind of person who would force himself upon her: that he would never do that to a woman. He suggested they get back into bed, watch a DVD and have some cuddles. To keep him calm, Ms H agreed. Because Mr Creighton was lying in the middle of the bed she asked, “can you move over sunshine?”. To this Mr Creighton reacted angrily. He told her never to call him that.

8

Ms H said she got into bed. Within seconds, Mr Creighton was again on top of her. She told him they were not having sex. Mr Creighton ignored her. He pinned her down by the shoulders and chest. He forced his fingers into her vagina and then began to have sexual intercourse. As he did, Ms H repeatedly told him to stop but he kept going, swearing at her, calling her a bitch and telling her to shut up. She tried to get her hands beneath him to push him away. She described herself as paralysed with fear.

9

According to Ms H, Mr Creighton rolled off her and told her to masturbate while he masturbated next to her. Then he pinned her down and resumed sexual intercourse. Mr Creighton began to talk about Ms H sending him videos. She did not know what he was talking about. He took her phone from the bedside table. He told her to enter her PIN and then made a short video of them having sex.

10

In relation to this offending, he was charged with sexual violation by unlawful, digital connection and sexual violation by rape. These were the charges on which he was found guilty.

11

After these events Mr Creighton fell asleep. Ms H did not. She said she lay awake until about 6:00 am, when Mr Creighton woke up. He started to rub her. Then he got on top of her and had sexual intercourse again. Despite the sex being rough and painful, Ms H said that unlike the earlier sex she did not resist or fight back. She said she just lay there fearful that he might react as he had the night before. She also described how Mr Creighton made her perform oral sex on him, following which he performed oral sex on her. She consented to neither.

12

As a result of these events Mr Creighton was charged with sexual violation by rape and two charges of sexual violation by unlawful connection: connection of mouth to penis and connection of mouth to vagina. He was acquitted on these charges.

13

Ms H drove him home. When she returned to her own house she had a shower and washed the sheets. She said she felt disgusted. She found the video which Mr Creighton had taken on her phone. She said “you could see everything that was happening”. She described watching “…maybe two, three seconds of it and then turned my phone off”. She also found a blurry photograph he had taken. Revolted by what had happened, she said she deleted the images. She then sent a text to a friend reporting what had happened. Later that afternoon she went to the police.

14

Two days later, Ms H gave an electronically recorded interview. The police took her phone for analysis. Forensic experts examined it and attempted to retrieve the recording. They were unsuccessful.

15

Three days later, on 17 August 2017, Mr Creighton was interviewed by the police. In the course of a digitally recorded interview he said that nothing sexual happened between them on the Friday evening after Ms H had picked him up from the Lone Star. He said he told her that after a few drinks he was “useless”.

16

He did, however, accept that the following morning they had intercourse but insisted it was consensual. He volunteered that Ms H had a video on her phone of the couple having sex. He suggested to the police that they should seize it, although by that time the police already had possession of Ms H's phone. He said it was his idea to video the sex but insisted Ms H was happy to do so. He said she unlocked the phone before he took it and recorded the video. He estimated it took about three to four minutes. He handed the phone back to Ms H who also recorded the couple having sex.

The trial and the defence
17

Mr Creighton gave evidence. Consistent with his video interview, he challenged Ms H's account as to the circumstances in which the selfie was taken and in particular her active involvement in recording the video. He also pointed to Ms H's failure to escape or to seek the assistance of her police officer flatmate.

18

He described the taking of the selfie on the Friday evening. He said Ms H took the top off herself and was “completely fine” with taking the photograph. He said he thought he may have mentioned he was going to send it to some...

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1 cases
  • Creighton v R
    • New Zealand
    • Court of Appeal
    • 28 May 2020
    ...PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA CA116/2019 [2020] NZCA 193 BETWEEN JOEL NATHAN CREIGHTON Appellant AND THE QUEEN Respondent Hearing: 5 March 2020 Court: French, Dobson and Moore JJ Counsel: G O’L Reynold......

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