Appellant Ah-Chong was convicted of assault with intent to commit sexual violation by rape. As a defense, Ah-Chong claimed that the victim consented to the sexual activity. The trial judge gave the jury instructions that they had to be satisfied beyond a reasonable doubt that the defendant had no reasonable grounds to believe that consent existed. The appellant argued that the jury instructions were wrong, claiming that there were two separate mens rea elements: one for the assault and one for intention to rape. The Supreme Court previously held in L v R that only a reasonable belief of consent, even if mistaken, could provide a defense to the charge of sexual violation by rape. The appellant argued that a mistaken belief of consent constitutes a defense to the charge of assault, even if the belief was unreasonable. The Court rejected this jury instruction. The trial judge correctly informed the jury that based on the complainant’s account of the event, there was no possibility of finding a mistaken belief in consent relating to the assault, but not the intention to rape. The Court extended the analysis from L v. R, holding that the mental element for attempted rape was satisfied if there was a mistaken and unreasonable belief that consent was present.
New Zealand
Domestic Case Law
S (CA338/2016) v. The Queen Court of Appeal of New Zealand (2017)
Appellant (who was 38 years of age at the time of the offences) appealed a sentence of imprisonment for kidnapping, disfiguring with intent to injury and wounding with intent to injure the complainant (who was 17 years of age at the time of the offences). The complainant and appellant began a relationship after the complainant left the care of Child, Youth and Family (Ministry for Vulnerable Children). The appellant accused the complainant of sexually assaulting his daughter. As punishment for the sexual assault and a condition for continuing their relationship, he convinced the complainant to allow him to break her finger with a rock. He subsequently subjected the complainant to other physical abuse, after which she fled to a neighbor for help. The appellant argued at the Court of Appeal that a High Court Judge had wrongly withheld the defense of consent on the charge of wounding with intent to injure. The Court dismissed the appeal and concluded that it was possible to eliminate the defense of consent depending on the specific facts of the case. In this case, the Court found it permissible to eliminate the defense of consent because of the power imbalance between the parties, the fact that the complainant acquiesced because of a threat to their relationship, the gravity of domestic violence, and the severity of the injury.
Clayton v. Clayton Supreme Court of New Zealand (2016)
This case concerned the determination of what constitutes relationship property in a divorce proceeding and how trusts may affect this determination (e.g. if a sham trust is implemented to hide assets, therefore affecting a woman’s economic rights in a divorce). The term “relationship property” is defined in the Property Relationships Act of 1976, the principles of which focus on the equality of spouses and that at the end of a relationship, any economic divisions should reflect equal contributions made by the couple during the relationship. However, any property constituting “trust property” is not available for division under the PRA. In this case, the parties had been married for 17 years with two daughters. During the marriage, the respondent-husband had become a successful business owner and set up several discretionary trusts. The trusts ostensibly related to the business he had established. The appellant-wife had assisted with her husband’s business ventures and was the main childcare provider during their marriage. The Court concluded that, in this case, the powers under a trust deed constituted “property” under the PRA. In applying the two-stage approach of section 182, the Court concluded that one of the discretionary trusts settled during the Clayton’s marriage constituted a nuptial trust under §182 of the Family Proceedings Act 1980 because of its connection to the marriage. The court found that the “nature of the assets is not determinative of whether the settlement is nuptial or not,” and that a settlement “made for business reasons” and containing business assets can be a nuptial settlement. The New Zealand Women’s Law Journal described this as a “decision that provided a much-needed step towards a more equal recognition of the traditional economic disadvantages faced by women.”
R v. AM Court of Appeal of New Zealand (2010)
The appellant was convicted on charges for sexual offenses (including rape) against his three granddaughters. He was sentenced to a total of 15 years imprisonment for the lead offence of rape, with no minimum period of imprisonment. The Solicitor-General appealed on the ground that a minimum sentence of half the nominal sentence should have been imposed as a matter of law. The Court decided to update the sentencing guidelines for sexual offenses. It established (i) that the entire circumstances of the offense must be taken into account during sentencing and (ii) the following factors: planning and premediation, violence, detention and home invasion, vulnerability of the victim, harm to the victim, multiple offenders, scale of offending, breach of trust, hate crime, degree of violation, mistaken belief in consent, prior consensual activity and the views of the victim. It also established the following incarceration periods for the crime of rape: (i) Rape Band I consist of 6-8 years for offenses that do not trigger these factors because the encounters and degree of violation are brief; (ii) Rape Band 2 consist of 7-13 years for moderate levels of premediation and violence, involving two or three factors increasing culpability; (iii) Rape Band 3 consist of 12-18 years for serious culpability factors; and (iv) Rape Band 4 consist of 16-20 years for the most serious offenses, which will likely consist of multiple offenses. For non-rape, “unlawful sexual connection” (“USC”) cases, the following incarceration periods were established: (i) USC Band 1 consist of 2-5 years; (ii) USC Band 2 consist of 4-10 years; and (iii) USC Band 3 consist of 9-18 years, following the general guidelines of culpability defined above. Applying these standards to the case, the court held that a minimum period of imprisonment of seven and a half years (50 percent) should be imposed. The case is notable because the Court for the first time endeavored to give integrated sentencing guidelines for sexual offenses and – as part of this exercise – reviewed and updated its previous approach to rape offenses.
R v. Dawson Court of Appeal of New Zealand (2012)
The appellant was convicted of seven charges for raping two females. He was sentenced concurrently to 14 years imprisonment, with a minimum period of imprisonment of seven years, calculated as 12 years for each offense, plus an uplift of 12 months to reflect the separate rapes of two victims, plus other adjustments. The Solicitor-General appealed on the ground that the uplift to reflect separate rapes of two victims should have been higher than 12 months, and an end sentence of 16 to 18 years would have been correct. The court reasoned that this argument was essentially that a 14 year sentence was manifestly inadequate. Based on the facts, the court found that, while on the low end, this sentence did not meet this standard.
Solicitor-General v. Ahmed Court of Appeal of New Zealand (2009)
The respondent was convicted of sexual violation by unlawful sexual connection (forcible oral sex) and as accessory to rape, and sentenced to four years imprisonment, calculated as 18 months for assisting to carry out the rape, four years for the unlawful sexual connection, plus some downward adjustments. The Solicitor-General argued that the court should have considered the rape as the primary offense and therefore started with a base of 8 years minimum period of imprisonment. The court found that the sentencing approach adopted by the Judge understated the seriousness of the respondent’s role in the overall offending and that seven years imprisonment was the appropriate sentence.
Trina Williams v. Pacific Plastic Recyclers Limited Human Rights Review Tribunal (2004)
The plaintiff alleged that she was a victim of sexual harassment by an employee of the defendant. She received a settlement from the employee. In exchange, she agreed not to pursue her claim against him, and not to call him as a witness. At issue was whether the company could be held separately liable, and if it was liable, whether the plaintiff had released her claims against the company in her settlement with the employee. The Tribunal found that the company had individual liability due to the fact that it lacked a demonstrated harassment policy and thus did not take reasonably practicable steps to prevent the harassment. It held, however, that the settlement already reached was sufficient compensation for the harassment that she suffered. As to any other remedies, as such remedies were not provided in the settlement, the Tribunal could not determine whether the company had been released with respect to such remedies.
R v. S High Court of New Zealand (2012)
S was convicted for repeated violent rape within an arranged marriage over the course of 13 months. The court imposed a sentence of 13 years, six months imprisonment for the rape, with concurrent sentences for the lesser offenses, calculated as a 15 year base due to the violent nature of the acts and the vulnerability of the victim, with a downward adjustment for the respondent’s lack of prior convictions. The court declined to impose a minimum period of imprisonment, explaining that a minimum period of imprisonment is only warranted if the sentence imposed would be insufficient to hold one accountable, to denounce their conduct, or to protect others.
Gaylene Jessica Helen Main v. Kim Richards Topless Human Rights Review Tribunal (2004)
The plaintiff was a milker employed by a dairy farm. The plaintiff complained that she was not considered for promotion or training opportunities because she was female. The plaintiff also alleged sexual harassment, in the form of unwelcome comments and jokes. The court found that the plaintiff did not establish that she had been a victim of unlawful discrimination on the ground of her sex. The court was satisfied that the plaintiff had made out her claim for sexual harassment and that the employer was vicariously liable for the acts of the employees because it had failed to take any adequate steps to prevent sexual harassment in the work place.
State v. Airline Limited Court of Appeal of New Zealand (2010)
A commercial airline pilot was dismissed after making an unscheduled overnight stop and having sexual relations with a cabin crew member. The pilot appealed to the Employment Court. The Employment Court declined to suppress the pilot’s name from the public record. The court held that the Employment Court was not wrong to find that the public’s right to know outweighed the pilot’s reputational interests, and dismissed the appeal.
LM v. The Queen Supreme Court of New Zealand (2014)
Section 144 of the Crimes Act 1961 “provides for the prosecution of New Zealanders for conduct which, if it had occurred in New Zealand, would be contrary to specified provisions of the Crimes Act involving sexual offending against children and young people.” The appellant, a New Zealander, was found guilty of a sex crime against a child. The crime was committed in Russia and the other offender in the case was a Russian man. At issue on appeal was whether the aforementioned law allowed for “the prosecution of a New Zealander (being LM) on the basis of party liability for “offending” where the principal “offender” is not a New Zealander.” The Supreme Court dismissed the appeal, holding that the appellant was in fact liable as a principal and noting that a miscarriage of justice had not occurred. Furthermore, the Court stated that a “wrong decision” regarding party liability “does not warrant the allowing of the appeal.”
Ng Shiu v. Mohammed Naseeb Human Rights Review Tribunal (2004)
The plaintiff and the defendant were both taxi drivers. The plaintiff claimed the defendant harassed her with phone calls and unwanted and offensive touching. The court was not satisfied that the events that took place gave rise to any tenable claim of sexual harassment. The court found that for a short period at and about the time that the defendant was making contact with the plaintiff, she did suffer from a level of anxiety while at work, which was sufficient to constitute a ‘detrimental effect’ to her employment under the Human Rights Act.
EN v. KIC Human Rights Review Tribunal (2010)
The plaintiff was employed at a bakery. After working there for several years, the bakery was acquired by new owners, including the defendant. The plaintiff claimed that the defendant made unwanted comments and physical overtures in the workplace, eventually causing the plaintiff to leave the job. The plaintiff claimed that the harassment caused humiliation, injury to feelings, and loss of dignity. The Tribunal found that the plaintiff was the victim of unlawful sexual harassment under the Human Rights Act and awarded damages. The Tribunal also ordered the defendant to attend a training session on sexual harassment in the workplace. The Tribunal noted that the case “demonstrates the dangers of running a business without any understanding of the provisions of the HRA relating to sexual harassment, and with no insight whatsoever that some behaviours can be unwelcome to others no matter how innocent they may be thought by the perpetrator to be.”
Angelica Rangi Ngapera v. Gerry Reddick Human Rights Review Tribunal (2004)
The plaintiff worked at a motel. She alleged that her manager made offensive comments to her and spread rumors about her in the community. The court found that the plaintiff suffered a detriment in the course of her employment under the Human Rights Act.
DML v. Montgomery Human Rights Review Tribunal (2014)
The plaintiff was a sex worker providing commercial sexual services at a brothel. She alleged her manager had violated the Human Rights Act 1993 by subjecting her to repeated unwelcome and offensive sexual conduct detrimental to her employment. The Tribunal found for the plaintiff, and further found that the owner of the brothel was vicariously liable for the employee’s actions.
Terranova Homes & Care Ltd v Service and Food Workers Union Nga Ringa Tota Inc Court of Appeal of New Zealand (2014)
The work of caring for the elderly is “predominately performed by women.” Caregivers employed by Terranova alleged that both male and female caregivers were being paid less “than would be the case if caregiving of the aged were not work predominantly performed by women.” Terranova appealed the judgment of the Employment Court. On appeal, Terranova argued that the Act referred specifically to equal pay, rather than pay equity. The Court of Appeal rejected their argument, stating that “Pay equity is about equal pay. It is equal pay for work of equal value.” The Court relied on 3(1)(b) of the Equal Pay Act which “requires that equal pay for women for work predominantly or exclusively performed by women, is to be determined by reference to what men would be paid to do the same work abstracting from skills, responsibility, conditions and degrees of effort as well as from any systemic undervaluation of the work derived from current or historical or structural gender discrimination.” Terranova’s appeal was dismissed.
Talleys Fisheries Ltd. v. Lewis High Court of New Zealand (2007)
This case concerns the application of §§22(1)(b) and 21(1)(a) of the Human Rights Act of 1993 (‘the Act’). It was first heard before the Human Rights Review Tribunal. The plaintiff, Ms. Lewis, claimed that the defendant, Talleys Fisheries, had engaged in employment discrimination on the basis of gender, alleging that they offered her less favorable terms than her male counterparts who had substantially similar capabilities for substantially similar work. At the defendant’s fish processing plant, there was a noticeable divide between the roles for which male employees were hired and those for which female employees were hired. The roles of male employees included that of filleter, which was more difficult and had a higher rate of pay. Female employees were rarely hired for this role, despite being qualified for it. The Tribunal held that this disparity amounted to gender discrimination. Expert witness for the defendant testified that such gender disparity among roles in fish processing plants was standard industry custom, and, therefore, that the defendant had not engaged in gender-based employment discrimination. The Tribunal rejected both the factual finding of the existence of industry custom, as well as the conclusion that industry custom would be dispositive in this case. It held that mere existence of an industry custom of gender-based hiring practices would not justify gender-based employment discrimination. On appeal, the High Court of New Zealand affirmed.
Coates v. Bowden High Court of New Zealand (2007)
Appellant F, the mother of three children, who was residing in New Zealand, sought a decision from a higher court concerning a previous custody decision that granted N, the father residing in Australia, custody rights. F contended that N had been physically abusive in the past toward the children, and that they were at risk of physical and psychological harm if in his custody. The High Court concluded that the children should be in New Zealand residing with their mother.
International Case Law
Bullock v. Department of Corrections Human Rights Review Tribunal (2008)
Ms. Bullock, the plantiff, was made to sit in a row behind the male employees and was not given a speaking role in a company event. The plantiff believed the her employer was participating in gender discrimination and attempting to justify this as a company policy that followed traditional Mauri customs. The tribunal ruled that Ms. Bullock's employer was in fact practicing gender discrimination according to the Human Rights Act of 1993.