Tagiao Ah-Chong v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeMcGrath,Glazebrook,Arnold JJ,Arnold J,Elias CJ,William Young J
Judgment Date17 June 2015
Neutral Citation[2015] NZSC 83
Docket NumberSC 93/2014
Date17 June 2015

[2015] NZSC 83



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

SC 93/2014

Tagiao Ah-Chong
The Queen

E J Forster for Appellant

A Markham for Respondent

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.

Held (per majority, William Young J dissenting): The definition of assault in the CrA potentially caught a wide range of conduct involving the deliberate touching of another person. Its ambit was narrowed by the fact that consent could be a defence. Accordingly, in principle a person who, when deliberately applying force to another had an honest, but mistaken, belief that the other person was consenting to the application of force would be protected from liability, even though the belief in consent was unreasonable. However, in relation to the offence of sexual violation, whether by rape or unlawful sexual connection, where there was a mistaken belief in consent, it had to be based on reasonable grounds to provide a defence

On the facts as accepted by the jury, the only belief in consent possibly available to the appellant was a mistaken belief that the complainant was agreeable to having sexual intercourse with him, which was plainly an unreasonable belief in the circumstances.

The offence of sexual violation by rape contained three requirements:

(a) intentional penetration of the genitalia by the penis;

(b) without the consent of the complainant; and

(c) without the accused believing on reasonable grounds that the complainant was consenting.

There were two aspects to the offence which involved the perpetrator's mental state – the penetration had to be intentional and any belief in consent had to be based on reasonable grounds. The focus in this case was on the second of these elements, namely the objective requirement that a mistaken belief in consent be reasonable.

Both the s129(1) and s129(2) offences required an intention to commit sexual violation, in this case by rape. In the case of the s129(1) offence, this was by virtue of the definition of “attempt” in s72(1) (intent to commit an offence); in the case of the s129(2) offence, it was by virtue of the subsection itself.

In general, assault required two intentional elements. First, the intentional application of force and second, the person applying force had to appreciate that the victim did not consent to the application of force, or at least be reckless as to that. R v Lee held that public policy considerations were relevant to the courts' determination of the scope of the consent defence in the context of assault. Both the common law and statutory law as to consent were substantially influenced by policy considerations, and this could carry over, to some extent at least, to defences based on mistaken belief in consent.

The Judge instructed the jury that if they were left with a reasonable doubt about the complainant's version of events, or accepted the appellant's account, they were obliged to acquit. This direction was correct. On the appellant's account, he touched or grabbed the complainant's hand with the intention of having sexual intercourse with her but when she withdrew her hand and left, he gave up. If that account was accepted, either:

(a) the touching could be seen as the type of commonplace touching covered by implied consent, so that it would not constitute an “assault”; or

(b) the appellant's decision not to pursue that matter once he realised that the complainant did not want to have sexual intercourse with him indicated that he had no intention to commit sexual violation.

On either analysis, the appellant would not be guilty of an offence against s129(2)

On the other hand, on the complainant's account, the appellant continued with his attempt to have sexual intercourse by trying to remove the complainant's overalls despite the fact that she had tried to walk around him to leave the toilets and, when he grabbed her round her arms and held her in a bear hug, had said “No” several times.

In the circumstances of this case, the Judge's instruction to the jury in relation to the competing versions of events was correct. The jury obviously rejected the appellant's account and accepted that of the complainant. It followed that, if it was to be accepted that the assault element of the offence required a separate mens rea and an honest but unreasonable belief that the complainant was consenting to sexual intercourse was sufficient to constitute a defence to that assault element (which it was not), the appellant was rightly convicted as there was nothing to indicate that he had any such belief. As a consequence, there was no miscarriage of justice, and the appeal had to be dismissed.

It would be contrary to Parliament's purpose in relation to this type of offending and serve no sound principle to take an approach to mistaken belief in consent in relation to the assault element of the s129(2) offence that undermined the proper approach to the intention to rape element of the subsection. Accordingly, assuming that an honest but unreasonable belief in consent to intercourse did constitute an “intent to commit sexual violation” for the purposes of s 129(2), that same unreasonable belief could not be used to negative the assault element on the basis that it was honestly held. This outcome was required when s129(2) was interpreted in the context of the sexual offences provisions more generally, which included the underlying legislative policy.

In L v R the question was whether the complainant would have consented to the conduct necessary to constitute the full offence, rather than the conduct constituting the attempt. The conduct constituting the attempt in L v R was an assault. The charge in that case could as easily have been assault with intent to commit rape as attempted rape.

Inchoate offences raised the issue of the proper reach of the criminal law. As they fell short of completed offences, inchoate offences covered a wide range of conduct that, standing alone, might appear to be innocuous or non-threatening. What made the conduct threatening was the fact that, from the perpetrator's perspective, it was a step on the way to committing the full offence. Accordingly, intention (using the term broadly) in the context of attempts (and other inchoate offences) was particularly important

However, if too much weight was given to intention, it was possible that a person would be subjected to criminal liability essentially as a result of his or her thoughts, which was beyond the proper scope of the criminal law. There were two obvious mechanisms used to meet problems of over-reach in relation to inchoate offences. The first was through control of what constituted the actus reus. In relation to attempt, this was achieved through the common law test articulated in s72(2) CrA – conduct which was “only preparation” and too remote would not be sufficient to constitute an attempt (the proximity test). The second was the mental element.

Attempted rape might not necessarily involve an assault, although many attempted rapes did. Even if proximity was not required as a matter of law in respect of offences under s129(2), without it, the Crown would have difficulty in proving an intent to rape. As a practical matter, it was likely that there would have to be reasonable proximity between the assault and the intended sexual intercourse before an accused will be convicted. This would significantly limit, if not eliminate, the potential for over-reach.

The nature of the mental element required for attempted rape and for assault with intent to commit rape, could widen or narrow the scope of the offences. If the mens rea required was full intention (ie, an intention to have sexual intercourse knowing that the complainant did not consent), the scope of the offence would be more limited than if a lesser mental state sufficed for conviction (i.e. an unreasonable belief in consent). But if a lesser mental state was sufficient, that did not necessarily mean that the offence was over-broad: that would depend on a range of considerations.

The position had to be assessed at the time of the assault. Apart from the deliberate physical contact constituting the assault, the Crown had to establish an intention to commit sexual violation by rape, that is, that the perpetrator intended to have sexual intercourse with the victim, that the victim did not consent to sexual intercourse and that the perpetrator did not have a reasonable belief that she was consenting. This followed from a contextual reading of the statutory language.

L v R held that the mental element for attempted rape was satisfied by a mistaken but unreasonable belief in consent, as in the case of the completed offence. The Court reached this view on the basis of a contextual reading of the statutory language, having regard to the general policy of the sexual offences legislation, logic and principle, and practical considerations. The same analysis applied in respect of assault with intent to commit sexual violation by rape. As was the case in L v R, there would need...

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4 cases
  • Kempson v R
    • New Zealand
    • Court of Appeal
    • 18 December 2020
    ...male adults. 46 R v Lee, above n 25, at [289] and [312]. 47 At [165] and [289]. 48 At [313]. 49 At [300]. 50 At [316]. 51 Ah-Chong v R [2015] NZSC 83, [2016] 1 NZLR 445 at [50(e)]. The full passage is set out below at 52 See [82]–[85] below. 53 R v Lee, above n 25, at [307]. 54 At [308]. 5......
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