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A man who caught a taxi to follow an intoxicated female in an ambulance to the hospital before trying to have sex with her while she was unconscious, has had his appeal against his conviction thrown out.
Cao Cuong Nguyen was convicted and sentenced to two years and three monthsimprisonment on June 9, 2021, after being found guilty in the Auckland District Court, of assault with intent to commit a sexual violation.
Nguyen was found on top of the unresponsive semi-naked woman in the emergency department (ED) of Auckland Hospital with an erection in the early hours of June 5, 2011.
The woman had been drinking with friends at an inner-city bar on June 4, but was so intoxicated she couldn't stand properly and fell onto the footpath on Hobson St after getting out of a taxi.
On route to Auckland Hospital Nguyen spotted another drunk woman collapsed on the footpath and wanted to stop and help her but she and her friend disappeared so he caught another cab to the hospital.
Nguyen told the triage receptionist the complainant was his girlfriend and he was eventually taken to her room in the ED where she had been placed for observation.
A blood sample taken at 12.20am, just after the complainant was admitted, showed she had 332 milligrams of alcohol per 100 millilitres of blood, six times higher than the 50mg legal limit to drive.
The woman's wet clothes had been removed and she had been dressed in a hospital gown and an adult diaper due to urinary incontinence as a result of her intoxication.
Nguyen was found on top of the unresponsive semi-naked woman in the emergency department (ED) of Auckland Hospital. Photo / Jason Oxenham
When a nurse checked the patient between 1am and 1.15am she found Nguyen on top of her. The woman's gown had been pulled up to expose her midriff, her diaper had been removed and the nurse could see Nguyen's erect penis.
The nurse had to call for help to remove Nguyen, who resisted, claiming he was the woman's boyfriend. He remained at the hospital until the police arrived.
After being charged Nguyen went on the run for eight years attempting to avoid his day in court.
However, once Nguyen was brought to trial the Crown submitted he and the victim were strangers. He had followed her to the hospital, after finding her intoxicated on the street, and tried to have sex with her while she was unconscious and unable to give consent.
The defence claimed the pair were acquaintances and after Nguyen followed her to hospital, she was responsive and communicating well and sought his comfort and physical intimacy, despite her level of intoxication.
Nguyen appealed against his conviction to the Court of Appeal on the grounds an ED nurse gave inadmissible opinion evidence about the victim's incapacity to consent to sexual relations.
He challenged the evidence on two levels - her repeated opinion the complainant was incapable of consenting to sexual activity and secondly her opinion about consciousness levels of intoxicated persons, which was elicited by the prosecutor in re-examination.
The appeal court found the prosecutor in closing and the Judge in her directions told the jury that the nurse's opinion on the complainant's ability to consent was not one she could give, and they were to disregard it.
A hospital orderly, who was called in to help get Nguyen off the woman, described her as having no comprehension of anything going on, while a triage nurse had assessed the complainant as requiring acute care because of her level of intoxication.
Nguyen's defence relied on medical documentation that suggested the complainant was conscious and capable of consenting, but was feigning her level of impairment at the relevant time.
A toxicology expert, called by the defence, also stated the woman was "firmly" in the stupor stage of intoxication.
The Appeal Court said there was a strong evidential basis for the jury to independently reach its conclusions on whether the complainant was incapable of consent.
Any potential prejudice caused by the nurse expressing her opinion on the complainant's capacity was lessened by the broader evidential context of the observations made by other hospital staff, it ruled.
"Any suggestion of the complainant feigning unconsciousness, or having capacity to consent, is outweighed by the evidence of both witnesses as to the struggle they had in removing Mr Nguyen off the complainant's bed, when she was lying unresponsive and unaware of what was happening."
It said the case against Nguyen, that the woman did not give consent or he couldn't have reasonably believed she did, was very strong.
"The complainant's own testimony was that she did not remember the incident at all and did not know Mr Nguyen."
The court was satisfied that no miscarriage of justice has resulted and dismissed the appeal.
"The incongruity of sexual intimacy with a heavily intoxicated complainant, who was urinary incontinent and wearing a diaper, in a curtained-off part of the emergency department in Auckland Hospital, makes the jury verdict unsurprising in our view."
