Pihi Hei v R
Jurisdiction | New Zealand |
Judge | William Young,Glazebrook,Ellen France JJ |
Judgment Date | 24 May 2021 |
Neutral Citation | [2021] NZSC 48 |
Court | Supreme Court |
Docket Number | SC 95/2020 |
Date | 24 May 2021 |
[2021] NZSC 48
William Young, Glazebrook and Ellen France JJ
SC 95/2020
IN THE SUPREME COURT OF NEW ZEALAND
I TE KŌTI MANA NUI
Criminal Evidence — application for leave to appeal to the Supreme Court against a conviction for sexual offending — whether the Crown created illegitimate prejudice by a reference to Rohypnol in closing given the absence of any evidential foundation the drug was given to a complainant and whether the trial Judge was wrong to indicate that C's evidence related to character — distinction between propensity and character
M E Goodwin and C M Chester-Cronin for Applicant
M J Lillico and A D H Colley for Respondent
The application for leave to appeal is dismissed.
The applicant was convicted after trial of sexual offending in relation to two complainants and of one charge of stupefying the complainant, Ms F. 1 He was
sentenced to a term of 16 years' imprisonment with a minimum period of nine years' imprisonment. 2 He appealed unsuccessfully to the Court of Appeal against conviction and now seeks leave to appeal to this Court against conviction. 3At the time of the incidents giving rise to the charges, the applicant operated an accommodation business (the Retreat) in a fairly remote coastal area. The complainants, foreign nationals in their 20s at the time, were each employed by the applicant, who was in his late 50s at the time of the offending against Ms H, to work at the business.
The complainant Ms H arrived at the Retreat in the latter half of 2013. She said that after she had been at work for a couple of weeks or so, she was indecently assaulted and raped over the course of an evening. She said that she was raped again the next day. She left the Retreat that same day.
Ms F arrived in New Zealand to take up her employment in late August 2017. She was met on her arrival by the applicant. On their journey to the Retreat, they stayed the night at a motel the applicant had booked for them. Ms F said that after indecently assaulting her in the room, he forced her to have oral sex, and then raped her. They continued their journey to the Retreat the next day. Ms F said she was sexually assaulted regularly (including by rape) over the next ten days or so. She also described an incident when the applicant forced her to drink a large quantity of wine (approximately 10 glasses), after which she lost consciousness. This gave rise to the charge of stupefaction. When she awoke, she contacted her insurance company who advised her to go to a hospital. She left the Retreat soon after to get medical care.
The charges were heard together. 4 There was evidence from Mr Cornes of his encounter with the applicant in Vietnam in “about 2015 or maybe 2014” (that is,
The applicant gave and called evidence at trial. His defence in relation to Ms H was that the sex was consensual or at least he had a reasonable belief that they were in a consensual relationship. In terms of Ms F, he said there were only two instances of sexual contact (oral sex) and that the sexual activity that occurred was consensual.
The applicant raises two proposed grounds of appeal. 5 On the first ground, the applicant wishes to argue the Crown created illegitimate prejudice by the reference made to Rohypnol in closing, given the absence of any evidential foundation the drug was administered to the complainant. 6 While the evidence from Mr Cornes may have some limited relevance, such evidence needed a strong direction from the Judge about its relevance. There was a risk that without such directions, the applicant's alleged propensity pervaded the jury's consideration of the other charges. The jury should have been told to disregard the Crown submission that Rohypnol could have been administered and the Judge's failure to provide the necessary directions has given rise to a substantial miscarriage of justice.
[2019] NZDC 7260 (Judge Harding) [Pre-trial ruling] at [28].
On the second ground, the applicant submits that the trial Judge was wrong to indicate that Mr Cornes' evidence related to character. That terminology was not used by either Crown or defence counsel and only arose in the summing up....
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Pihi Hei v R
...to two complainants and of one charge of stupefying the complainant, Ms F.1 He was 1 He was acquitted of one of the charges. PIHI HEI v R [2021] NZSC 48 [24 May sentenced to a term of 16 years’ imprisonment with a minimum period of nine years’ imprisonment.2 He appealed unsuccessfully to th......