THE QUEEN v WAYNE STEPHEN BARNETT [2000] NZCA 263 (6 April 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca495/99

THE QUEEN

V

WAYNE STEPHEN BARNETT

Coram:	Thomas J Blanchard J Tipping J
Judgment: (Ex Parte)	6 April 2000

judgment of the court DELIVERED BY TIPPING j

[1] Wayne Stephen Bennett was found guilty by a jury in the Nelson District Court, of assault with intent to commit sexual violation.He was sentenced to four years imprisonment.He now appeals against conviction.Legal aid was declined by the Registrar of this Court following consultation in accordance with the provisions of the Legal Services Act 1991.An application for review of the decision to refuse legal aid was unsuccessful.The appeal has accordingly been determined on the basis of the grounds of appeal as formulated in the notice of appeal.

[2] On the evening of 10 April the appellant was driving on Rocks Road, Nelson. He passed the complainant, a 16 year old woman, who was walking home from a party.The complainant was intoxicated.The appellant offered the complainant a ride home, which she accepted.The two agreed to drive somewhere to smoke some cannabis.The appellant drove to an isolated area in the grounds of Nelson Airport where he assaulted the complainant and used force to try and remove her clothes.He succeeded in pulling down her trousers.The complainant struggled and the appellant eventually desisted.He then threw her out of the truck and drove away.

[3] The first ground of appeal was that the trial judge was wrong to rule inadmissible forensic evidence of recent sexual intercourse between the complainant and her boyfriend.It was submitted that this would have helped to explain bruises and scratching on intimate areas of the complainant's body.It was the defence case that there was consensual sexual activity initiated by the complainant, which progressed at the airport but `turned sour' and the appellant then terminated the encounter.

[4] The questions sought to be asked related directly to sexual experience with a person other than the appellant and thus section 23A of the Evidence Act prevented such questions being asked without leave.The judge refused leave on the basis that the questioning was of the very type which section 23A sought to eliminate.

[5] We agree.Section 23A (3) provides that leave may only be granted where the questioning is of such direct relevance to facts in issue in the proceeding that to exclude it would be contrary to the interests of justice. While the evidence here may have had some relevance as possibly explaining the bruises and scratching we are of the view that it was insufficiently cogent to justify its admission against the underlying policy of section 23A.In any event, in the circumstances of this case we consider it extremely unlikely that had the evidence been admitted the verdict would have been different.It cannot be said to have been contrary to the interests of justice to have prevented this line of questioning in the present case.

[6] The appellant's second ground of appeal was that the trial judge erred in admitting evidence of the appellant's video taped statement to police.It was submitted that the appellant made conflicting statements not constituting admissions and that these should not have been admitted as there was no relevant exception to the hearsay rule.

[7] We are satisfied that the evidence was admissible.It was not hearsay.It included evidence of what his reaction was when questioned about the allegations made by the complainant.Furthermore, the video taped statement was potentially relevant to the jury's assessment of the credibility of the appellant when he gave evidence.

[8] Finally, the appellant submitted that the verdict was against the weight of the evidence.It was contended that, while the complainant's evidence was obviously accepted by the jury, it was evidence on which no reasonable jury could have relied in view of the large number of inconsistencies in her version of events.An affidavit from the complainant's ex boyfriend was also relied on as evidence of the complainant's inconsistent statements.

[10] This ground of appeal must also fail. The complainant's manner in giving evidence and any inconsistencies in her story were fairly and squarely matters for the jury in assessing the weight to be given to the complainant's evidence. In any case, the affidavit evidence is not sufficiently cogent to permit the view that if given at trial the jury might have been led to a different conclusion.The credibility of the complainant was a question for the jury, and we are satisfied that no miscarriage of justice has occurred.

[11] Accordingly, the appeal is dismissed.