Tagiao Ah-Chong v R

JurisdictionNew Zealand
JudgeMcGrath,Glazebrook,Arnold JJ,Arnold J,Elias CJ,William Young J
Judgment Date17 June 2015
Neutral Citation[2015] NZSC 83
Docket NumberSC 93/2014
CourtSupreme Court
Date17 June 2015
Between
Tagiao Ah-Chong
Appellant
and
The Queen
Respondent

[2015] NZSC 83

Court:

Elias CJ, McGrath, William Young, Glazebrook and Arnold JJ

SC 93/2014

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against conviction on one count of assault with intent to commit sexual violation by rape, contrary to s129(2) Crimes Act 1961 (CrA) — reasoning by analogy from the decision in L v R in relation to attempted sexual connection by rape under s129(1) CrA, the trial Judge instructed the jury that they had to be satisfied beyond reasonable doubt that the appellant had no reasonable grounds to believe that the complainant was consenting to have a sexual encounter with him — appellant argued that the offence under s129(2) had two distinct mental elements and that in relation to assault, a mistaken belief in consent to the conduct constituting the assault would be a defence, even if it was unreasonable — whether the existence of an honest but unreasonable belief in consent to sexual intercourse mean there was no “assault” for the purposes of s 129(2) CrA.

Counsel:

E J Forster for Appellant

A Markham for Respondent

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

McGrath, Glazebrook and Arnold JJ

[1]

Elias CJ

[92]

William Young J

[144]

McGrath, Glazebrook AND Arnold JJ

(Given by Arnold J)

1

Following a jury trial before Judge Down, the appellant was convicted of one count of assault with intent to commit sexual violation by rape, contrary to s 129(2) of the Crimes Act 1961. He had grabbed the complainant, whom he did not know, in a bear hug, pressed his erect penis into her back and tried to remove her overalls, preparatory to having sexual intercourse with her. His defence was that he thought that the complainant wanted to have sexual intercourse with him. Reasoning by analogy from this Court's decision in L v R in relation to attempted sexual connection by rape (s 129(1) of the Crimes Act), 1 the trial Judge instructed the jury that they had to be satisfied beyond reasonable doubt that (among other things) the appellant had no reasonable grounds to believe that the complainant was consenting to have a sexual encounter with him.

2

The appellant argued that this direction was wrong. He contended that the offence of assault with intent to have sexual connection by rape 2 involved two distinct mental elements, one relating to the assault and another relating to the intention to rape. In relation to assault, a mistaken belief in consent to the conduct constituting the assault would be a defence 3, even if it was unreasonable. This would be so even if the mens rea for intention to rape was met by an honest belief in consent to sexual intercourse that was unreasonable.

3

In the circumstances of this case, we have concluded that the Judge's instruction was correct. The Judge told the jury that to convict the appellant they had to accept the complainant's account of the assault. On her version of events, there was no suggestion that the appellant in fact had a belief in consent that was independent of a mistaken belief that the complainant was consenting to sexual intercourse – there was no possibility of another mistaken belief in consent going only to the assault.

4

On the question whether a mistaken but unreasonable belief in consent to sexual intercourse meets the mens rea required by the intention to rape element of the offence, we see no reason to depart from the approach taken by this Court in L v R in relation to attempted rape. Interpreted in context of the surrounding sexual violation provisions, and the underlying policy they express, s 129(2) requires the same mental element in relation to intention to rape as s 129(1).

5

In any event, on the complainant's version of events, which the jury must have accepted given the Judge's instructions, there was no evidential basis for an argument that the appellant had any belief in consent, much less a reasonable one. The appellant's argument as to his belief in consent was based on a version of the facts that the jury rejected.

6

For these reasons, we would dismiss the appeal.

7

Although we consider that this case can be resolved on the basis of the statutory language, interpreted in context and in light of this Court's decision in L v R, we acknowledge that it engages two contentious aspects of the criminal law. The first is the tension between subjectivity and objectivity, in particular, the extent to which criminal liability may legitimately be based not on a person's subjective state of mind (ie, intention, knowledge or foresight) but on objective considerations. The second concerns liability for inchoate offences. 4 Given their potential for over-reach, such offences raise the question of the proper scope of the criminal law. Identification of the physical element and, in this case, the mental element assumes particular importance as a consequence. Although the particular offence at issue in this case, assault with intent to commit rape, is not a true inchoate offence given that it requires proof of an assault, it raises similar issues to inchoate offences such as attempted rape.

Factual background
8

On the day that the complainant started work at a new job at a food processing factory, she was assigned for 45 minutes or so prior to the lunch break to work on the other side of a conveyer belt from the appellant, grading produce. The complainant, who was 20, did not know the appellant, a 19 year old Samoan who spoke little English. The environment was a noisy one, and both the appellant and the complainant were wearing overalls, ear protectors and head coverings in the nature of balaclavas.

9

The complainant said she began to notice that, although conversation was impossible, the appellant was attempting to make eye contact with her, and was raising his eyes and whistling. She said she was “creeped out” by this and tried to ignore him and focus on her work. When it was lunch time, the complainant removed her head covering and ear protectors and tied the top half of her work overalls round her waist (she was wearing a tank top underneath). She went to the rest area to have her lunch. The appellant was sitting with some other men at a table, conversing in Samoan. As she was leaving the room, the appellant got up and said something to her in Samoan. She did not understand what he was saying and ignored him.

10

The complainant went downstairs to the women's toilets and entered one of the cubicles. She said that when she came out of the cubicle to go the hand basin, she noticed the appellant standing at the open door to the toilets. The complainant became confused and told the appellant that this was not the women's toilet (meaning the men's toilet) and went to the hand basin to wash her hands. When she had finished, she turned round and noticed that the appellant had shut the door to the toilets and was standing in front of it. When the complainant tried to step around him to leave the toilets, the appellant grabbed her in a bear hug from behind, pinning her arms to her side. She immediately began to struggle, saying “No” several times. She said she could feel the appellant's erect penis thrusting against her bottom. The appellant then tried to remove the bottom part of the complainant's overalls, freeing one of his hands to do so. This enabled the complainant to wriggle free, open the door and leave. She was in a distressed state.

11

The appellant gave a very different account of events in his interview with the police (he did not give evidence at trial). Through an interpreter, the appellant told the police that the complainant had been flirting with him at the conveyer belt. He asked how old she was and if she liked him, and they exchanged “thumbs up”, which he interpreted to mean that she had agreed to a “quickie”. He said that when they were at the conveyer belt, the complainant had winked at him and pointed towards the bathroom. He signalled for her to “take the lead” and they went into the toilets together, with him following close behind her. The appellant said that, once inside, he told the complainant by means of body language that he wanted to “get it done”. He said that he touched or grabbed her hand, pulling her towards him “to … find out what the story is”. He said she pushed his hand away and left the toilets. This brought the incident to an end. The appellant denied that he had grabbed the complainant from behind, that he had tried to pull her overalls down or that he had pressed his erect penis against her bottom.

12

In closing to the jury, defence counsel said that there was no doubt that the appellant intended to have sexual intercourse with the complainant and accepted that the complainant did not consent to that. Counsel argued that the appellant had thought, mistakenly, that the complainant was willing to have sex with him. Counsel accepted that there had to be “some type of reasonable basis for his belief” but submitted that, in the circumstances, there was such a basis.

Judge's instructions to jury
13

In his summing up, the Judge identified the issues that the jury had to answer as follows:

[14] There are four questions that need to be answered.

  • (a) Did the defendant assault [the complainant]?

  • (b) At the time did he intend to have sexual intercourse with her?

  • (c) Did she give true consent?

  • (d) Did he have reasonable grounds to believe that she was consenting?

14

The Judge referred to the evidence relevant to the matters at issue by reference to a question trail provided to the jury after discussion with counsel. 5 In relation to whether an assault had occurred, the first question in the question trail asked whether the jury was satisfied beyond reasonable doubt that “[the appellant] grabbed [the complainant] from behind, pressing himself against her and preventing her from leaving”. In the summing up, the Judge said:

[15] It...

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