THE QUEEN v NEIL LAWRENCE MCDONALD [1999] NZCA 168 (1 September 1999)

IN THE court of appeal of new zealand

ca 106/99

THE QUEEN

V

NEIL LAWRENCE MCDONALD

Hearing:	26 August 1999
Coram:	Henry J
	Doogue J Panckhurst J
Appearances:	J K W Blathwayt for Appellant S P France for Crown
Judgment:	1 September 1999

judgment of the court DELIVEREDBY PANCKHURST J

Introduction:

[1] At a trial in the District Court at Hamilton the appellant was found guilty of two offences of sexual violation by rape.He was acquitted of a further like charge and of sexual violation by unlawful sexual connection, being anal intercourse.All charges concerned the same complainant woman with whom the appellant had lived for about two years prior to the time of the relevant events.The charges related to acts which occurred on the evening the parties decided to separate and over the weeks which followed the separation.The appellant was sentenced to four years imprisonment, concurrent, on each rape charge.

[2] The grounds of appeal are three-fold : that the verdicts were inconsistent; that the trial Judge failed to adequately direct the jury concerning consent, withdrawal of consent during intercourse, and belief in consent on reasonable grounds;and that the failure to record the answer to a jury question gave rise to a miscarriage of justice.

Background:

[3] At the relevant time the complainant was 47 years of age.She resided on a small farm property near Matamata.Her husband died in 1994.Soon after the appellant's fortieth birthday in October 1995 he moved to the complainant's home.The two lived together until March 1998.At least in the latter stages of the relationship, two foster children also resided on the farm.Both were girls, being D aged 14 and L aged 5.

[4] The complainant gave evidence of the fact she had been sexually abused throughout much of her childhood and that as a result sexual contact was not easy for her.Nevertheless it was common ground that the complainant and the appellant had an active sexual relationship, particularly during the earlier stages of their time together.Towards the end the complainant was a less enthusiastic participant.

[5] Count one concerned an incident on the evening of 9 March 1998.That evening a discussion occurred during which the complainant and the appellant agreed to separate.After the complainant retired to bed the appellant entered the bedroom and asked whether he could still sleep there and was told yes as long as he did not touch the complainant.Once in bed he did touch the complainant and, despite her repeatedly saying no and shaking her head, intercourse occurred.The complainant then left the bedroom and spent the night on a couch.

[6] The events relevant to count two occurred four days later on 13 March, a Friday evening.By this time the appellant had moved from the farm to a nearby address.The complainant went out for the evening.On her return the appellant was at the house and remonstrated with her for leaving the children alone.A bed was made available for the appellant to occupy.During the night he went to the complainant's bed.She lay facing the bedroom wall.Her evidence was that the appellant touched her and then proceeded to have anal intercourse which had not previously happened.She described it as painful and disgusting.After the act the appellant left the house to return to his own home.The appellant, who gave evidence at trial, agreed that there was contact with the complainant's buttocks but denied that anal penetration had occurred. The jury returned a verdict of not guilty.

[7] In the latter part ofMarch 1998 there was a further incident.One week day morning the appellant called at the complainant's home.She was in the process of making L's bed.The appellant said he wanted a hug.The complainant felt sorry for him and obliged.She was pulled backwards down the hallway to the main bedroom and asked to lie down with the appellant.She did so.He then removed items of her clothing and, despite her saying no, an act of intercourse followed.Again, in relation to this count, a verdict of not guilty was returned.

[8] The fourth count related to events on 4 May 1998.L telephoned the appellant and asked him to uplift her from school.Aware of this arrangement, the complainant invited the appellant to stay for tea.She went out during the evening.Before leaving the complainant made up a bed for the appellant in L's room.After she retired for the evening the appellant came to her bedroom. She smiled at him and said goodnight.Nevertheless the appellant got into the bed and commenced to touch the complainant.D entered the room and asked the appellant to assist in starting her boyfriend's car.As the appellant left to assist with this the complainant requested that he shut the door.A short time later the appellant returned and got back into the bed.He again touched the complainant and turned her on her back.She indicated she was not willing by saying no, while the appellant said please, please.Intercourse occurred after which the complainant began to cry.She left the room.A little later the appellant returned to his own home.After a sleepless night the appellant made a complaint to a friend who called on her the following morning.The same day the police were advised of the matter.A police officer located and interviewed the appellant.In a written statement he denied the complainant's allegations.Save for the denial of anal intercourse, the appellant agreed that the acts of intercourse occurred, but denied the circumstances indicative of an absence of consent.

Verdict Inconsistency:

[9] Counsel argued the acquittal on count three was inconsistent with the verdicts in relation to counts one and four.It was accepted that count two could not found a contention of inconsistency, since the issue of penetration may well have been the basis of the verdict.However, with reference to the three counts of rape it was argued acceptance of the complainant's account was pivotal and there was no rational basis upon which the jury could differentiate between the counts.We repeat and adopt an observation from R v K (CA 49/96, 13 August 1996), which was cited with approval in R v O (No. 2) [1999] 1 NZLR 326 (CA) at 333.In R v K Gault J in delivering the decision of the Court said:

The first ground of appeal is that the verdict on the first count is unsafe because of inconsistency with the verdicts on the other two counts.This is a ground of appeal that has been raised with increasing frequency in recent times, generally without success because of misapprehension of what must be shown before verdicts will be set aside.If there is a reasonable explanation to be found in the evidence such that the jury could have differentiated between the charges there is no inconsistency ....

It is to over simplify the ground of appeal to contend that the Crown case rested substantially on the complainant's credibility and it is inconsistent to believe her in respect of one charge and not believe her on others.That does not take account of the possibility that although not disbelieving the complainant the jury were not convinced to the exclusion of reasonable doubt.

Returning to the facts in this case we are not persuaded the evidence was such the jury could not differentiate between the counts.The immediate difficulty facing the submission is that there were here four separate and distinct incidents occurring on different days, each involving its own particular and differing circumstances.

[10] With reference to count three, certain features emerge from even the brief summary set out above.Events began with a request by the appellant that the complainant hug him.She did so, albeit out of sympathy rather than affection. Although the complainant then described being pulled backwards to her bedroom, she acknowledged the appellant then lay down on her bed and again asked that she hug him.The complainant of her own will joined the appellant on the bed. She then described the touching and removal of items of clothing, during which she probably said no "from the beginning".In large measure the appellant agreed with this account, save that he denied any element of unwillingness on the complainant's part.Generally in this case issues of consent, and belief in consent on reasonable grounds, were much alive.The parties had participated in a consensual sexual relationship over an extended period.Even post-separation there was a continuing, if diminished, relationship.Particularly in relation to the appellant's belief in consent, there was scope for the jury to entertain a reasonable doubt without the need to reject the complainant's account.Where she acknowledged she had both hugged the appellant and joined him in lying on the bed, the jury could well be left in reasonable doubt.

[11] The evidence with reference to counts one and four was, we think, subtly different.On both occasions the appellant assumed the initiative by getting into the complainant's bed after she had retired on her own.There was clear evidence that the complainant indicated no when advances were first made. Moreover, in cross examination at least, the appellant accepted the complainant had said no although he asserted this was towards the end of intercourse, not at an earlier point.In respect of the fourth count there were the added features of the complaint the following morning and of steps taken to involve the police.In these circumstances we regard the different verdicts as open on the evidence.

Misdirection:

[12] The challenge under this ground of appeal is that the directions on absence of consent, withdrawal of consent during intercourse, and belief in consent on reasonable grounds were each deficient in the circumstances of the case.

[13] At an early point in the trial the jury were handed two pages which detailed the elements of the charges to be proved by the Crown.The first page covered sexual violation by rape, and the second sexual violation by sexual connection (count two).Page one was headed with a "Warning" that the notes were a summary only and that the jury should seek clarification from the trial Judge if any question of law troubled them.Against this background, the elements ofrape were described:

[a]A sexual connection involving the slightest penetration of the complainant's genitalia by the penis of the accused.

[b]This was also without the consent of the complainant.

[c]Further that the appellant did not on reasonable grounds believe that she was consenting.

There then appeared a note with reference to consent:

Any consent needs to be a true consent freely given and properly understood.

Counsel criticised the document on the basis it failed to alert the jury to the notion that consent may nevertheless be "hesitant, reluctant, grudging or tearful" : R v Cook [1986] 2 NZLR 93.In fact in the course of summing up the trial Judge did so direct the jury:

Consent means a true consent given by a person who is in a position to make a rational decision.The fact that a woman has refused intercourse has resisted, by words or conduct, is normally evidence of want of consent.The material time to consider consent is when intercourse took place.A true consent may be given reluctantly or hesitantly, and it may be regretted afterwards.Even if consent is given reluctantly, then it may be consent, but submission to the inevitable, or submission out ofdespair when trapped is not real consent.

Despite this careful oral direction counsel argued that because the jury was in possession of the written direction throughout the trial it was likely it provided the standard applied by jury members.

[14] We are not persuaded of this.The written direction was obviously intended to supply a basic outline of the elements of rape.With reference to absence of consent the Judge gave an expanded and entirely adequate direction in summing up.We think it most unlikely the jury would focus upon the abbreviated written direction to the detriment of the oral direction during the course of their deliberations.In this context the timing of the summing up is obviously an important factor.We also note the warning at the head of the written direction which underlined that what followed was a "summary only" and was not to be viewed as the final word.Despite rejection of the argument we think it desirable to comment upon the need for care where written directions are supplied to the jury.In this instance the elements of the offence were accurately defined, but with reference to consent some elaboration was supplied.The Judge found it necessary to give a much fuller direction on the topic in summing up.We think the better course would have been to restrict the written direction to a simple recital of the elements of the offence.

[15] Withdrawal of consent was relevant with reference to counts one and four. The highpoint was cross examination of the appellant concerning the fourth count:

Q. That night as well she said no to you?

A. It was very much later.

Q. She says it was certainly before the intercourse started, do you agree with that?

A. No sir.

Q. Did you say to her please please?

A. No sir.

Q. Once she had said no to you did you stop?

A. Um, it was only a few seconds and I ejaculated and I did stop.

Q. You stopped because you ejaculated is that right?

A. Yes.

Q. Would you have carried on like other times if you hadn't?

A. No no.

Q. That time when Yvonne (the complainant) said no did she mean it?

A. I don't think so sir, she was quite enjoying the sex at that stage too.

Q. She is enjoying it but she says no, that's odd isn't it?

A. Not for her sir, no.

In light of this evidence a direction on withdrawal of consent during intercourse was required : R v Kaitamaki [1981] NZLR 59 (CA).Here, one was given:

If after he has penetrated the woman a man realises that she is not consenting, or has never consented but he continues in the act of intercourse, that act of intercourse then becomes rape.

Subsequently when reviewing the defence case the Judge reiterated the direction with particular reference to the facts of the case.Counsel's complaint was that the direction focused upon the withdrawal of consent, as indicated by the complainant's saying no, when the critical point was proof that the appellant no longer had a continuing belief in consent.

[16] When the summing up is read as a whole we are satisfied there is no substance to the criticism advanced.To the contrary the summing up contained both a clear and adequate direction concerning withdrawal of consent and, with reference to the defence case, elucidation of the legal test in relation to the factual arguments advanced by defence counsel.

[17] The final alleged misdirection was with reference to belief in consent on reasonable ground.Both in the written direction and in summing up the Judge told the jury the Crown must prove the appellant did not believe in consent on reasonable grounds.Subsequently in reviewing the defence case he made references to what a reasonable person would have believed in the circumstances.It was argued these comments may well have led the jury to apply an objective test.There is nothing, we think, in the criticism.Again the summing up must be read as a whole.When it is it is clear an adequate legal direction was given and that the subsequent references would not have detracted from it in the way suggested.

Jury Question:

[18] While in deliberation the jury asked a question concerning conflicts between the appellant's statement to the police and his evidence at trial.The question was reduced to writing, given to counsel for their comment, and was answered in open Court.Through oversight the answer to the question was not recorded.It was argued this omission gave rise to the possibility of a miscarriage of justice.Experienced counsel appeared at trial.There is nothing before us to suggest that either counsel was concerned about the way in which the question was answered.In these circumstances the ground of appeal is entirely speculative and without substance.

Conclusion:

[19] For these reasons the appeal against conviction is dismissed.There was no challenge to the sentence of four years imprisonment.

Solicitors

Wollerman Cooke & McClure, Carterton, for Appellant

Crown Law Office, Wellington, for Crown