Ruling sees no miscarriage of justice or suggestion that age is a relevant factor
While issuing leave to appeal a sentence, New Zealand’s Supreme Court dismissed an application seeking leave to commence a conviction appeal sought by an applicant who was challenging a trial judge’s directions in connection with consent.
In Naidu v R [2025] NZSC 202, the applicant asserted three grounds of appeal. First, the applicant alleged that the directions exceeded the statutory framework and erroneously expanded the definition of what did not constitute consent under s 128A of the Crimes Act 1961.
The applicant argued that the judge wrongly instructed the jury that submission due to a fear of the consequences of withholding consent or due to feeling powerless, trapped, or exhausted was not true consent.
According to the applicant, through the reference to ‘submission,’ the judge made unnecessary additions that effectively excluded the possibility that the jury would deem reluctance or regret true consent.
Second, the applicant contended that the directions about belief on reasonable grounds were incorrect.
Third, the applicant claimed that the judge should have directed the jury to consider youth when determining belief in consent on reasonable grounds.
Responding to the first appeal ground, the Court of Appeal noted that the judge gave the standard direction required by Christian v R.
The appeal court acknowledged that the addition of references was unnecessary. However, the appeal court decided that adding such did not constitute a miscarriage of justice.
The appeal court noted that the complainant alleged that she clearly communicated that she did not consent, rather than asserting that she felt powerless and gave in.
The appeal court added that the jury would have known that directions regarding sexual activity with a complainant who was asleep, unconscious, or influenced by drugs or alcohol did not concern factors live at trial.
Regarding a direction about reluctant or regretted consent, the appeal court saw no error in the absence of such a direction.
The appeal court characterised the main issue as the credibility and reliability of the complainant’s evidence, particularly her claim that she was crying and repeatedly resisting the applicant.
The appeal court also found no error in connection with the related second and third appeal grounds.
Responding to the second appeal ground, the appeal court determined that the judge’s direction reflected the standard direction stated in Gutuama v R, which required the jury to put themselves in the applicant’s shoes to assess reasonable belief.
Regarding the third appeal ground, the appeal court found that the lack of a direction about the relevance of age in determining reasonable belief did not create a miscarriage of justice.
According to the appeal court, assuming that a defendant’s age could impact the reasonableness of a mistaken belief in consent, this factor could not have led to another outcome, given the narrative presented to the jury.
The applicant applied for bail pending appeal. He argued that bail was necessary to prevent rendering the appeal nugatory.
The Supreme Court of New Zealand dismissed the application for leave to file a conviction appeal. The Supreme Court noted that the proposed conviction appeal would reprise the arguments before the Court of Appeal.
The Supreme Court accepted that the approach to youth in the context of a reasonable belief in consent might engage a question of general or public importance. However, the Supreme Court pointed out that the defence in this case was the complainant’s consent.
The Supreme Court noted that the applicant did not suggest or establish that his age was a relevant factor. The Supreme Court added that the circumstances did not constitute a suitable background for addressing the broader issue.
The Supreme Court also saw no apparent miscarriage of justice and saw no suggestion that the appeal court wrongly concluded that none of the asserted matters resulted in a miscarriage of justice.
Next, the Supreme Court granted the application for leave to file a sentence appeal. The Supreme Court approved the question of whether the appeal court correctly approached the sentence.
The Supreme Court deferred a decision on the application for bail pending the appeal to permit the parties to offer further information about the application, after which the Supreme Court would address the bail application.
