THE QUEEN v RICKY MATENGA [2000] NZCA 125 (13 July 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca462/99

THE QUEEN

V

RICKY MATENGA

Coram:	Thomas J Blanchard J Tipping J
Judgment: (On the papers)	13 July 2000

judgment of the court DELIVERED BY TIPPING j

[1] On 18 June 1999 the appellant, together with a co-accused, was convicted on four counts of sexual violation (two counts of rape, two counts of unlawful sexual connection) and one count of abduction, for his actions on the morning of 15 November 1998.He was sentenced to six years imprisonment on each of the four sexual violation charges and four years on the abduction charge, the terms to be concurrent.He now appeals his convictions on all counts.His co-accused also appealed to this Court and his appeal was dismissed on 29 November 1999 (see R v Akuhata, CA 273/99).

[2] The appellant's appeal has taken somewhat longer to advance.The appellant filed his application for leave to appeal and for legal aid to conduct his appeal on 8 November 1999, well out of time.His cited reason for the delay was that he had changed counsel and was experiencing difficulty in getting access to his new counsel.That month, the Registrar declined legal aid pursuant to s 15 of the Legal Services Act 1991 following the usual consultation process.The appellant then appears to have tried to engage counsel for a privately funded appeal.

[3] No progress was apparent.On 9 February 2000, this Court advised the appellant that a fixture date had to be set and that if satisfactory arrangements for private instruction were not made promptly, the appeal would have to be abandoned or disposed of on the papers.On 5 May 2000 a final adjournment of the case was granted.The appellant still did not engage counsel or file submissions in support of his appeal.The case was eventually set down for decision for on 29 June 2000.On 28 June 2000, Mr P A Nee Harland, a lawyer for a time retained by the appellant, filed 18 pages of submissions in support of the appellant's appeal.As Mr Lee Harland is not currently under instruction, he sought to do so in the capacity of amicus curiae.The Court is grateful for these submissions and has given them careful consideration in making its decision.

Background

[4] On Saturday 14 November 1998 the appellant, then aged 29, and two others drove to Napier from Gisborne.One of the others was the co-accused, Mr Akuhata.The third man, who drove the car, did not take part in the events which followed.From around midnight the group drank and danced at a local nightclub where they met the complainant, then aged 16.She was introduced by a mutual acquaintance.The co-accused were both intoxicated; the complainant testified that she had only had one drink that evening.When the nightclub closed at 3 am, the complainant accepted a ride from the three men to a party at a friend's house.The complainant and the two accused went to that party (the driver stayed in the car), but they left after around 15 minutes.The complainant then accepted a ride to her nearby home.

[5] The appellant and the complainant sat in the back seat together and kissed. Once the car was moving, however, the appellant told the driver to turn right at an intersection after the complainant had indicated that the direction home was left.The appellant began to fondle the complainant.The two accused then directed the driver to drive south out of Napier and Mr Akuhata suggested they should return to Gisborne.The two men eventually decided against this.The complainant became very scared.The appellant removed the complainant's clothing and directed her to perform oral sex on him.Mr Akuhata, in the front passenger seat, then turned around.The appellant suggested a threesome.The complainant testified that she started swearing and telling them that she wanted to go home.Mr Akuhata climbed into the back seat.The complainant then performed oral sex on the appellant while Mr Akuhata had sexual intercourse with her.She was then turned around and performed oral sex on Mr Akuhata while the appellant had sexual intercourse with her.

[6] The car then arrived in Flaxmere and drove into a cul-de-sac.The complainant and the two accused got out of the car.Mr Akuhata again had sexual intercourse with her while she performed oral sex on the appellant.The appellant and Mr Akuhata then swapped places.An approaching car drove by and interrupted them.The appellant and Mr Akuhata then pulled the complainant back into the car and drove to a nearby park.On the way, the appellant again had sexual intercourse with the complainant.

[7] At the park, the two men got out of the car with the complainant and spread a rug on the ground.The complainant was crying.Mr Akuhata had sexual intercourse with the complainant, followed by the appellant.Each man also made the complainant perform oral sex on him.Both men ejaculated.The three then got back in the car which drove to Mr Akuhata's mother's place.It was now around 6 am.The appellant did not want to take the complainant home as he was too tired.The complainant was forced to stay in the car with the driver while the two accused went inside and ate some food.Half an hour later, the appellant and Mr Akuhata emerged and drove the complainant back to Napier, both again having sexual intercourse with her.

[8] On arrival in Maraenui, near Napier, the complainant got the men to drop her off at a friend's house, telling them that it was her mother's place.The friend's name was Amber Lee Prier.She immediately told Ms Prier what had happened.Ms Prier contacted the complainant's mother who called the police.

[9] The appellant gave evidence at trial.Broadly speaking, he accepted that there had been sexual activity involving himself, Mr Akuhata and the complainant, but claimed that it was all consensual, or that he reasonably believed she was consenting.Mr Akuhata elected not to give evidence.

[10] Both accused were found guilty of abducting the complainant for the purposes of sexual intercourse.They were found guilty of raping the complainant at the park in Flaxmere and in the car on the journey back to Napier.They were also found guilty of having unlawful sexual connection with the complainant at the park in Flaxmere, both as principal offenders and as parties.The jury acquitted both accused in respect of the earlier sexual violation charges.

Submissions

[11] Mr Lee Harland made three submissions on the appellant's behalf.Firstly, he argued that fresh evidence was available which made the verdicts unsafe. Secondly, he submitted that the prosecution failed to disclose certain evidence, namely, a security camera videotape, to the defence.Thirdly, he argued that the verdicts were unreasonable and inconsistent.We address these submissions in turn.

[12] The fresh evidence referred to by Mr Lee Harland relates to a phone call he allegedly had with Amber Lee Prier, the recent complaint witness, on 26 June 2000.Ms Prier apparently expressed concerns about the truthfulness of the complainant and suggested a meeting.This meeting never took place.This point does not indicate a miscarriage of justice.The credibility of the complainant in relation to the appellant was a fundamental issue and was closely considered at trial.It was a matter to which the jury clearly turned their minds.Very cogent evidence from a witness who was not present when the events took place would be required for this Court to review the jury's findings on credibility.

[13] The video evidence the prosecution is alleged to have withheld comes from a security camera in a service station to which the complainant alleges the men drove soon after abducting her.The appellant did not deny going there, but claimed to be unable to remember.For example, his response to a question in cross-examination as to whether he could recall the car pulling into the service station was "no I vaguely, I can't remember going to the Shell".Mr Nee Harland submits: (1) that the videotape could have resolved this dispute beyond doubt; (2) that the tape was in the hands of the prosecution and that; (3) despite a disclosure request from the defence, it was never disclosed.The tape seems now to have disappeared, so it is unclear what it would have shown. Mr Lee Harland cites a conversation he had with the Officer in Charge of the case on 23 March 2000 in which the officer admitted looking at the video for 15 November 1998 but could find no trace of the car.

[14] In our view, although the videotape should have been disclosed, the incident at the service station did not form a major plank of the case against the appellant, aside from being generally relevant to credibility.While the complainant at trial alleged that the appellant had forced her to perform oral sex after the car pulled out of the service station, an allegation she had not made in her original statement to police, the appellant was not charged with this offence.Further, the appellant was acquitted of the sexual violation charges relating to the journey out of Napier.

[15] Ultimately, despite some minor discrepancies, the appellant and complainant gave highly similar accounts of the events of 15 November.The only significant difference was that the appellant claimed the sexual contact was consensual, or that he had reasonable grounds for believing she consented. We do not believe that the jury's consideration of these issues, and hence the fairness of the appellant's trial, was adversely affected by the absence of a tape establishing whether the car did or did not pull into a service station.

[16] Finally, Mr Lee Harland submitted that the events of 15 November formed a pattern of similar conduct.Thus, the verdicts of not guilty on some counts and guilty on others were unreasonable and inconsistent.In particular, Mr Lee Harland argued that the guilty verdict for abduction was not consistent with verdicts of not guilty in respect of the earlier sexual activity.We disagree, and refer to the dictum of Blanchard J, writing for the Court, in dismissing a similar argument made by Mr Akuhata (R v Akuhata, supra, at para 13):

It is not uncommon in sexual cases to find an apparent ambiguity in the way in which a jury has convicted on some charges and found the appellant not guilty on others.That will often have resulted from the jury's impression about the way in which the complainant has given her evidence of events.In this case there were some variations in what she said about some of the matters at different times during her evidence, particularly those relating to the earlier part of the journey in the car and, indeed, in relation to events in the car as opposed to those which occurred in parks.These matters do not render the verdicts inconsistent or unreasonable.The verdicts seem to follow that pattern in the evidence.

[17] It is not inconsistent for the jury to have found that the complainant was abducted against her will for the purposes of sexual intercourse, even if the appellant reasonably believed her to be consenting to the earlier sexual activity.The jury could have decided that the detention began at any point along the journey when the complainant did not want to be present but was not free to leave.Similarly, the evidence appears to disclose a pattern of increasingly callous disregard for the complainant's feelings as the hours passed.Thus, there is evidence on which the jury could reasonably base their verdicts.

[18] None of the three grounds of appeal have been established.Accordingly, the application for leave to appeal is dismissed.