Hazelwood v R
| Jurisdiction | New Zealand |
| Judge | Woolford J |
| Judgment Date | 07 October 2019 |
| Neutral Citation | [2019] NZCA 484 |
| Court | Court of Appeal |
| Docket Number | CA20/2019 |
| Date | 07 October 2019 |
Kós P, Woolford and Dunningham JJ
CA20/2019
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Criminal — appeal against conviction for sexual violation by rape — direct questioning of witnesses by the Judge — direction on consent and concept of “reluctant consent is still consent”
E A Hall for Appellant
S K Barr for Respondent
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A Leave to appeal out of time is granted.
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B The appeal against conviction is dismissed.
Following a three day jury trial before Judge Rea in the District Court at Napier, Bronx Hazelwood was found guilty of one charge of sexual violation by rape. He was later sentenced to six years' imprisonment. 1 The respondent was represented at trial by experienced counsel, Mr Jonathan Krebs. The appellant now seeks leave to appeal against conviction out of time. The Crown does not oppose leave and it is accordingly granted.
On 19 December 2014, the 15-year-old complainant was one of a group of four young persons who were drinking in the backyard of an address in Hastings. The 28-year-old appellant arrived at the address during the course of the afternoon. The complainant knew of the appellant but had not previously met him.
The group of young people became intoxicated, as did the appellant. Later that evening, when the remainder of the group of four were at the front of the house, the appellant took the complainant to the back of the property where he had sexual intercourse with her behind a shed. The complainant described being so drunk she was not able to consent or to resist. The appellant said he believed that she consented and described her as a willing participant who had removed her own shorts and underwear.
An appeal will be allowed if the Court is satisfied that a miscarriage of justice has occurred for any reason. 2 A miscarriage of justice in this context means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity. 3 A “real risk” that the outcome was affected arises when “there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong”. 4 The focus is on the actual, rather than theoretical, effect of any errors. 5
In her written submissions, counsel for the appellant (not trial counsel) submitted that the Judge's directions to the jury were in error in four respects:
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(a) the directions concerning the assessment of reliability of witnesses favoured the evidence of the complainant over and above the appellant and the other witnesses;
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(b) the demeanour comments were unnecessary;
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(c) the lies direction was insufficient; and
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(d) the consent direction was in error because it did not contain a reference to “reluctant consent is still consent”.
During the course of her oral submissions, counsel focused on the directions as to reliability of witnesses and consent. She did not press the points relating to the demeanour comments and the lies direction, but did not abandon them.
The appellant submits that the Judge should not himself have questioned witnesses at trial to emphasise how drunk they were and how long ago the incident happened. Their position was unfavourably contrasted to that of the complainant, whose evidence in chief consisted of a DVD interview conducted on 20 December 2014, the day after the incident.
All four young persons gave evidence. The Judge asked a sustained series of questions of two of them. The Judge had the following exchange with the witness TK after she completed her evidence-in-chief:
Q. And how much did you have to drink that night?
A. I had a few bottles of Steinlager lager and then we changed on to homebrew, peach homebrew.
Q. And how much of that did you have?
A. Two or three cups.
Q. So you got yourself dreadfully drunk as well?
A. I wouldn't say dreadfully drunk.
Q. You were 13 years old and you drank all that and you're telling me you weren't dreadfully drunk?
A. Not dreadfully drunk. I was drunk.
Q. We're four years on from that almost. Can you actually tell us you can remember things in what order they happened?
A. Not in what order, only can remember bits and pieces. It happened four years ago.
Q. So you're just dragging bits and pieces out of what your memory is?
A. Yeah, it happened four years ago.
Q. That's my point, that's what I'm asking you. You're 13, you'd had an awful lot to drink, for any age, and we're four years on. How reliable do you think what you're telling us is now?
A. All I can say is that I can only remember bits and pieces. Just because I was drunk doesn't mean anything.
Defence counsel then cross-examined TK. He questioned her about bringing alcohol to the address and her state of sobriety. She did not however give much evidence of any relevance.
KB was also one of the four young persons who also gave evidence. After he had been re-examined by the Crown, the following exchange took place with the Judge:
Q. Now, Mr [B], four years ago this happened isn't it?
A. Yeah.
Q. And would it be fair to say you had had a skin full that night, right?
A. Mmm.
Q. And you trying to reconstruct things as they happened to try and be helpful?
A. Yes, that's what I was trying to do Sir.
Q. Do you reckon you are being terribly reliable, would you rely on it?
A. I don't know.
Q. You don't know?
A. Mmm.
Q. You're just looking back four years and trying to answer the questions –
A. Yeah.
Q. – bearing in mind you were drunk?
A. Yeah.
The Judge gave counsel the opportunity to ask any questions which arose from the exchange, but there were no questions arising.
In his summing-up to the jury, the Judge referred to the reliability of witnesses in a number of different ways. First, he said: 6
[13] You as the jury in this case have to make the decision based on the evidence that is put in front of you over the last two days, the comments on the evidence and what I am saying to you. The fact that it is four years old does not feature in determining whether the charge is proved or not. It does have some effect undoubtedly in terms of what you think of the reliability of the witnesses who have to dredge their memories going back that length of time and their being asked by lawyers to put things in certain order when they are young, they are drunk and it is four years ago. But you will factor all of that in in determining what evidence you accept and what you do not. …
Secondly, he said:
[23] As I have already said to you what is being asked of some of these witnesses is to come along here and try and accurately record in the correct order what has happened over a period of time at what must have been a pretty drunken party. On top of that we know that the age of certainly some of the participants was very young indeed. [TK] was 13 when this was happening. Now this is not to denigrate what they have come along to tell you, it is simply for you to reflect on whether you are prepared to accept everything they say, not because they have come along here to mislead you but simply because the length of time, their age and the condition that they were in at the time may well lead to some difficulties in relation to reliability. That will in the end be entirely for you and I will have a little bit more to say about the issue of intoxication shortly but please bear that in mind.
[24] And the other thing that you should bear in mind and this applies both to the complainant, that is the alleged victim, … and to the defendant is that they had initially what they wanted to say recorded at the time so as far as the complainant is concerned you heard from her through the DVD within hours of these events allegedly happening and with Mr Hazelwood within two or three or four days. So, those particular aspects of their evidence are those people remembering what happened quite close to the event whereas
some of the others have come along here and had to tell you what happened four years ago from their memory. Now what you make of that will be entirely over to you but please do not think that you have to conclude that a witness is being deliberately dishonest before you can reject what they say. It is all about the reliability of their evidence as you see it. Do you consider a 13 year old who is drunk as a skunk four years later can accurately come along here and describe in the correct order the things that happened? You will answer that question from your own perspective but simply if you conclude no I do not, that does not mean you devalue all of that evidence. There may be aspects of it, like the way they described the complainant's condition, what they saw the defendant doing, that could favour either side that you might be prepared to accept but you are the ones who have to run the filter across that evidence and that is the reason why I am raising it with you now.[25] Also in relation to particularly the grandmother and the father, the two people that stayed inside, you will have to assess whether what they had to say assisted you greatly. Mr Walker told you at the start that what the Crown intended to do was to put forward everybody who was there, so you could hear from them. That is what has happened. Again, simply because someone has turned up to give evidence does not provide any additional weight, you have to assess what you make of them.
Finally, he said:
[42] Now, I have said a good deal to you about intoxication of witnesses. You have to weigh that up as I have said. Does the fact that people were drunk have a bearing on their reliability, on their accuracy, on whether you are...
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