The Supreme Court has ruled that a magistrate improperly allowed sexual assault charges against a rugby player to be reduced to common assault.

While magistrate Tyrone Chin found in 2022 that the male defendant, who cannot be named, grabbed the male victim’s genitals at a bar, he found that the incident was not sexual in nature.

However, Puisne Judge Juan Wolffe found that there was “no evidence whatsoever” that the men were involved in any form of skylarking.

“There was no evidence that they even knew each other before the incident,” Mr Justice Wolffe said in a written judgment.

“To further and conclusively hammer home this point, the respondent gave evidence in his own defence and not only did he not speak about skylarking, he was adamant there was no contact whatsoever between him and the complainant.”

Mr Justice Wolffe said it appeared the magistrate had found the contact was intended as a joke on evidence from the victim that the defendant had told him he was joking after the incident.

“The learned magistrate erred in making such a finding given the paucity of evidence as to joking to conclusively find that the assault of the complaint by the respondent was not sexual in nature,” he added.

While Mr Justice Wolffe allowed the appeal, the court heard that the prosecution would not seek to bring the defendant back for retrial.

The court heard that the defendant in the case, who cannot be identified for legal reasons, was an overseas rugby player who came to the island in 2021 to attend the World Rugby Classic.

On the night of November 21 that year, both he and the complainant separately attended a Hamilton bar.

It was alleged that at some point during the evening the complainant went to greet a friend, who was in conversation with the defendant, but as he did so the defendant suddenly reached down and grabbed the defendant’s genitals with his right hand.

The complainant said the defendant subsequently said the action was a joke and offered to buy him drinks.

The defendant, however, denied any contact with the complainant’s genitals, deliberate or not.

CCTV footage from the evening showed the defendant’s arm moving as described, but did not catch any contact with the complainant.

The complainant was then seen slapping the defendant’s arm away, which prosecutors said was consistent with the complainant’s version of events.

In the midst of the trial, the magistrate raised the possibility of the defendant being found guilty of the lesser and included offence of common assault if it was found that there was deliberate contact, but not of a sexual nature.

At the end of the trial, Mr Chin found that the defendant did touch the complainant’s genitals, but that the contact was intended as a joke, albeit one not one “shared or embraced by the complainant”.

As a result, the defendant was found guilty of common assault rather than sexual assault.

However, the Crown launched an appeal against the decision, and argued that Mr Chin had misdirected himself as to the sexual element of the offence, failed to take account of all the relevant factors and failed to give adequate reasons for his decision.

Mr Justice Wolffe said that there was ample evidence that the complainant’s sexual integrity had been violated, noting that he had spoken about feeling emasculated and totally disgusted.

He added that sexual assault can occur regardless of the sexual orientation or gender of the parties involved.

“The fact that both the complainant and respondent are heterosexual matters not, as a sexual assault can occur between members of the same sex — as it would with members of the opposite sex,” Mr Justice Wolffe said.

“Moreover, a sexual assault can occur whether the accused person or their victim is either heterosexual or homosexual, and one’s sexual integrity may be violated no matter one’s sexual orientation.”

The judge added that the contact having been said to last for only a second or two made no difference, nor did the festive atmosphere at the bar at the time.

Mr Justice Wolffe also agreed with the Crown that the magistrate’s judgment offered a lack of reasoning behind his decision to find the assault was not of a sexual nature.

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