THE QUEEN v TRAVIS STEPHEN MENEHIRA SATTLER [2001] NZCA 226 (4 September 2001)

IN THE court of appeal of new zealand

ca 143/01

THE QUEEN

V

TRAVIS STEPHEN MENEHIRA SATTLER

Hearing:	29 August 2001 (at Auckland)
Coram:	Thomas J Anderson J Hammond J
Appearances:	P G Mabey QC for Appellant A R Burns for Crown
Judgment:	4 September 2001

judgment of THE COURT DELIVERED BY HAMMOND J

Introduction

[1] Travis Sattler stood his trial before a jury in the District Court at Tauranga in March 2001 on several counts of a sexual character. Those counts, and the outcomes, are as follows:

Charge	Section	Plea	Verdict
Sexual violation by rape	Crimes Act 1961 s128(1)(a)	Not Guilty	Guilty
Sexual violation by unlawful sexual connection (between his penis and her mouth)	Crimes Act 1961 ss128(1)(b) & 128(5)(b) & 128B	Not Guilty	Not Guilty
Sexual violation by unlawful sexual connection (penetration of her genitalia with his finger)	Crimes Act 1961 ss128(1)(b) & 128(5)(a)(I) & 128B	Not Guilty	Not Guilty

[2] Mr Sattler now appeals against his conviction on the rape count, on three grounds:

"	* That the verdict of the jury should be set aside on the ground that it is unreasonable and that it cannot be supported, having regard to the evidence (s358(1)(a) Crimes Act 1961)
	* That there was a miscarriage of justice (s358(1)(c) Crimes Act 1961)
	* That no reasonable jury, applying its mind properly to the facts, could have arrived at the verdict."

[3] Mr Mabey accepted that each of these three grounds of appeal rests on the same premise, namely that it was only open to a reasonable jury to either convict or acquit on all three counts. This is one of those cases in which it is said that the two accounts of events advanced at trial are mutually exclusive, and that the verdicts as returned cannot therefore stand, as being inconsistent.

The Facts

[4] The complainant, B, and the accused, Mr Sattler, are second cousins. A twenty-first birthday party for Mr Sattler's older brother was held in Whakatane. B travelled from Auckland for that occasion. She was to sleep in a caravan, along with certain other persons, some 500 metres from the Sattler's home. B had not previously met Mr Sattler.

[5] The Crown case was that B left the party at the Sattler residence at about 3.30 am. She began to walk to the caravan. She sensed somebody was following her. She reached the caravan. But she could not get in, because it was locked. She decided to go back to the party to get a key. Whilst so proceeding, B again heard a noise. She called out. She says Mr Sattler responded. He said "come here". She said she was going back to the house, but he "grabbed [her] wrist". She said that he "knocked one of my legs out so I would go down". B was nineteen years of age, and a virgin. She claimed that Mr Sattler told her he "wanted me to suck him off". She said no, but "he shoved it in my mouth". She said that Mr Sattler performed oral sex for "about two to three minutes" and exclaimed that it was "fucking ace". Her claim was that Mr Sattler then stuck his fingers up her vagina and said he would "make me horny so that I'd join in the game". He then "rammed his penis inside [my] vagina" and it "really hurt". When he had finished, he just "walked away doing up his pants". B then went back to the bathroom at the Sattler house to clean herself up. She found herself to be bleeding. She did not tell anybody immediately what had happened when she got back to that house because she was "scared no-one would believe me because he was related to us". She made a disclosure to her best friend, a Ms McGrath, the following week, and thereafter Police enquiries were put in train.

[6] Mr Sattler's account was that in the early hours of the morning he was talking to B and another female. He asked B to go with him to a park some little distance from his parents' home. As he and B were walking in that direction, he talked about tattoos and body piercing. B said that she had a pierced nipple. Mr Sattler asked if he could touch the nipple ring. Mr Sattler claimed that consensual intimate touching then took place; that he then penetrated B's vagina with his fingers (with her consent); and that they then proceeded to have consensual intercourse for a couple of minutes. B said that this was hurting, and he withdrew. Mr Sattler entirely denied placing his penis in B's mouth, at any stage.

The Summing Up

[7] There is no complaint with respect to the Judge's summing up; whether as to technical directions, or as to balance.

[8] As to separate counts, trial counsel for Mr Sattler (not Mr Mabey) said, in a memorandum in the Case on Appeal, "The trial was run on the basis that the jury ought to convict on all three counts or acquit on all three counts. Both counsel closed on this basis and the trial Judge summed up on that basis".

[9] That is incorrect, at least as to the Judge. What the Judge is recorded as having said to the jury was as follows:

The indictment as I have mentioned contains three separate counts against the accused, three separate charges. It is important that you consider each count separately and come to a separate decision about each. You will be asked for separate verdicts on each of them. It is by no means certain that your verdicts will be the same on all of the counts. That is entirely a matter for you. You must understand that for convenience counts are usually heard together at one trial because often especially in this case the evidence is relevant to all of them but where there is evidence that relates only to one count, be careful that you do not use that evidence in considering any of the others. It is helpful to think of it in terms of holding separate trials in respect of each count, isolate the evidence that is relevant to the particular count and the relevant issues of law relating to that and make a decision about it and move onto the next count and repeat the process and then onto the further count. (Italics added).

The other matter is that your verdict in respect of each count whether guilty or not guilty must be unanimous, that is each verdict must be agreed to by all 12 of you.

[10] Whatever counsel might have said to the jury in their closing addresses, this judicial direction was technically correct.

The Law: Inconsistent Verdicts

[11] This Court may quash a guilty verdict as unsafe if it is inconsistent with a not guilty verdict on another count. The long established test is that laid down by this Court in R v Irvine [1976] 1 NZLR 96, following the observations of Devlin J in R v Stone (unreported, 13 December 1954, Court of Criminal Appeal (UK)) viz:

When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him. He mustsatisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand. But the burden is upon the defence to establish that.

[12] If there is some reasonable explanation for the differences in the verdicts, then they cannot be regarded as inconsistent. (R v Hayward, CA 375/98, 11 March 1999). Different verdicts are not inconsistent where they may be explained on the basis that the jury must have accepted some parts of the evidence of a witness and rejected other parts of that same witness' evidence, particularly in a case where the acceptance or rejection may itself reflect the presence or absence of corroborative evidence. (R v Nuttal CA260/99, 17 December 1999; R v Evans, CA411/99, 30 March 2000).

[13] The law in this subject area was recently reviewed by this Court in R v H [2000] 2 NZLR 581. Even where a verdict might be said to be "inconsistent" in some way(s), a verdict may still be reasonable, and hence supportable. The innate sense of fairness and justice of the jury might have properly been applied to reach a verdict of acquittal to avoid an unnecessary double conviction, or for other appropriate reasons. Mr Mabey expressed some unease as to the ambit and operation of this decision. His principal concern here is that it might (inappropriately) lead to ex post facto "rationalisations" (as he termed it) of inconsistent verdicts.

[14] It is not necessary for us to revisit the reasoning in that decision. We think this case can be disposed of comfortably within the traditional authorities, which emphasise the need to pay close regard to the evidence in the particular case.

[15] The vast majority of cases turn on their own facts. One such recent decision, which was heavily relied upon by Mr Mabey, is R v Manhaas (CA 228/98, 3 September 1998, Elias J). But there the conviction on a minor charge, with far more serious charges being dismissed, had every appearance of a compromise. On the other hand, in Q v Finau (CA 28/01, 7 August 2001) suggested inconsistencies were held simply to rest on the fact that the jury had been satisfied on some counts, but not on others. That Court noted, consistent with established authority:

Where a reasonable explanation is to be found in the evidence, such that the jury could have differentiated between the charges, then there is no inconsistency. It does not necessarily follow that because a Crown case rests substantially on a complainant's credibility (as is always the case with sexual charges) then to believe him/her in respect of one charge and to disbelieve, or have a doubt, on others is inconsistent reasoning so as to require that acquittals must follow. Such an argument does not take account of the possibility, that although not disbelieving a complainant, a jury has not been convinced to the exclusion of reasonable doubt (per Gendall J, at para. 15).

Resolution

[16] We are of the view that a similar result must flow in this instance. The jury might well have had doubts as to whether all the essential elements of the prior offences complained of had been established to the requisite standard. It is not appropriate to speculate. As a general proposition, jury verdicts should be read as having been rendered in good faith. It is difficult to see, in a case such as this, where a number of successive sexual acts are alleged, why the jury could not be uncertain on some counts, and certain on others.

[17] The Crown suggested to us that the jury may have seen this incident as one interconnected, or "all-encompassing", act of rape. Or, the earlier acts could have been seen as "de minimus". Both of those propositions are inherently plausible. But this simply reinforces the difficulties inherent in speculation about what a jury actually had in mind.

[18] This is not a case in which sexual intercourse was denied. The sole issue was consent. It is sufficient to dispose of the case to note that it was open to the jury to be satisfied as to the rape, but not satisfied as to earlier alleged indecencies. This is particularly so where the essential allegation was one of a direct accosting by the accused in a secluded location.

[19] For these reasons, the appeal will be dismissed.

Solicitors:

John Smith, Solicitor, Tauranga for Appellant

Crown Solicitor, Auckland for Crown