THE QUEEN v JOHN FREDERICK LOCKE [2001] NZCA 249 (27 September 2001)

IN THE court of appeal of new zealand

ca203/01

THE QUEEN

V

JOHN FREDERICK LOCKE

Hearing:	24 September 2001
Coram:	McGrath J Salmon J Paterson J
Appearances:	I D Farquhar for the Appellant H Lawry for the Crown
Judgment:	27 September 2001

judgment of the court delivered by mcgrath j

Introduction

[1] On 18 May 2001 the appellant was convicted by a jury in the High Court at Rotorua on the following counts:

(1) Indecent assault of P, a boy then aged under 12 years.

(2) Sexual violation of P by unlawful sexual connection through penetrating P's anus with his finger.

(3) Indecent assault of S, a boy then aged between 12 and 16 years, in a toilet at the Primary School which S attended.

(4) Indecent assault of S, a boy then aged between 12 and 16 years, in a van.

(5) Indecent assault of C, a boy then aged under 12 years, in a van.

(6) Wilfully attempting to pervert the course of justice by threatening P.

The appellant was acquitted on a seventh count of attempting to pervert the course of justice by threatening S.

[2] The appellant appeals his convictions on counts (2) and (6).

Background facts

[3] The appellant was employed as a cleaner and was working at the primary school attended by each of the complainants at the time of the offending.

[4] Counts (1) and (2) related to an incident which occurred on 28 August 2000. The appellant was cleaning a toilet block when three children (P, P's sister and S) walked in.The appellant told S and P's sister to leave but allowed P, a 10 year old boy, to stay and help him with the cleaning.While P was cleaning the basin area of the block, the appellant pulled down the boy's tracksuit pants and underpants, and threw them aside.The Crown's case was that he then proceeded to rub the boy's buttocks with his hand in the course of which act he inserted one of his fingers into the boy's anus.P asked him to stop, which he then did.

[5] Count (3) related to an incident at the same location which occurred on 29 August 2000.The appellant was again cleaning the toilet block.This time S, a 13 year old boy, was helping him.While S was cleaning the appellant approached him from behind, put his hand inside the boy's pants and his boxer shorts, and started to rub the boy's penis.S asked him to stop and he did.

[6] Counts (4) and (5) related to incidents which occurred a short time later during the early evening.The appellant asked S and a 10 year old, C, if they would like to drive his van, which was parked outside.They went for a drive. The appellant first sat in the driver's seat with S on his lap.While in that position, the appellant placed one hand on the boy's knee and the other on top of his pants, touching the boy's penis through his clothing.Next C took his turn to drive, and the appellant touched and patted the boy's buttocks with one hand and touched his penis through his clothing with the other.

[7] The three complainants reported the appellant's behaviour to the principal at their school the next day and the police were then alerted.

[8] The incidents that resulted in counts (6) and (7) occurred prior to 9am on 4 September 2000.It was alleged that the appellant threatened the first victim P while he was walking to school and then a short time later separately threatened S while he too was walking to school.The appellant denied making the two threats.

Grounds of appeal

[9] The appellant appealed against the convictions on counts (2) and (6) on the following two grounds:

(a) The guilty verdict on count (2) on the charge of sexual violation was unreasonable or cannot be supported having regard to the evidence, in particular as the victim, P, gave evidence he was not sure that there had been anal penetration.

(b) The guilty verdict on count (6) on the charge of attempting to pervert the course of justice, concerning the threat to P, was inconsistent with the not guilty verdict on count (7), concerning the threat to S, being an identical charge, and that the verdict of guilty is unreasonable given the way the case was put to the jury by the Crown.

Count 2: The evidence at trial

[10] P's evidence included a video interview with a social worker from Child Youth and Family.After saying to the interviewer that the appellant had touched P's bum with his hand, P was asked whether the appellant touched any other part of his bum with any other part of his hand.P replied::

He put his finger up my bum crack.

Later P was asked how that felt and replied: "sore".When asked how long the appellant's finger was up his bum crack P responded it was for ten seconds.He was then asked if he noticed anything different about his bum crack afterwards and said:

It just went back to normal, it just had no soreness after he took it out.

The social worker told P she needed to be really clear about what his bum crack was used for.P replied:

To let you have a shit.

[11] At the trial the video of the interview with the social worker was shown and P, who gave evidence by a video link, was then cross-examined.In the course of cross-examination P was asked whether by "bum crack" he meant the crack between the two cheeks on his bottom and replied yes.The cross-examination continued:

Did he touch between your two cheeks......I think, I'm not too sure.

But you are sure he touched or rubbed your actual bum meaning the cheeks on your bum is that right, but you are not too sure if he touched between the cheeks, is that right?......Yes.

So when you say he touched your bum crack, do you mean he touched your bum crack on the outside where your two cheeks are in the middle, do you understand the question......Yes.

Is that what you mean by touching your bum crack, he put his hand on the outside on top of your cheeks where the crack is.......I think he stuck his finger into.

You are not too sure?......Yes.

[12] The only other evidence in relation to count (2) came from the principal of the school by way of recent complaint evidence. The principal under cross-examination said that P had not mentioned at the time the appellant putting his finger up P's bottom.

[13] Mr Farquhar, who was also the appellant's counsel at his trial, applied for a discharge from count (2) at the end of the Crown case, on the basis there was insufficient evidence of digital penetration of P's anus to go to the jury. The Judge, however, accepted a Crown submission this was properly a matter for the jury to determine on the basis of the evidence.Her Honour indicated it would be necessary to direct the jury that penetration of the anus was an essential ingredient of the charge.She dismissed the application.No complaint is made on appeal concerning the trial judge's subsequent direction to the jury.

Count 6:The evidence at trial

[14] The evidence was that the appellant separately encountered P and later S while they were walking to school one morning some days after the earlier incidents were reported to the police.The evidence of the appellant was that from 6.30am until around 8.30am he was working at a bar in Taupo.The Crown case was that he then left and drove to the vicinity of the complainants' school.After allegedly making the threats the appellant drove immediately to a store near where he lived.A video camera recorded his presence at the store between 8.42.58 and 8.43.08 that morning.

[15] P's evidence in the videotaped interview was that he met the appellant while P was walking to school.The appellant told him he was going to "get him" and also C and S.P was on his own at the time having run ahead of his sister on the way to school.The appellant was also on foot.P was asked what time of day it was when the encounter took place.He replied:

It was probably, oh yeah, it was a quarter to nine....in the morning.

P reported the incident to the principal on arrival.The principal's evidence was that P had told him the appellant had been in his van when he made the threat.

[16] S gave evidence that the appellant came past him while he was on his way to school, wound down his window, and said "I'm going to get you and your friends".S went to see the principal on arrival.He looked at the clock when he got there.He said in his evidence it showed the time as 8.03am.The principal said S had told him the appellant had made the threat from his van.

Argument on Appeal:Count 2

[17] Mr Farquhar's argument in this Court was, in effect, a challenge to the trial judges reasoning in dismissing the s347 application.He emphasised that P had agreed he was "not too sure" when asked whether the appellant touched between the two cheeks.He argued also that P's evidence as to the use of the bum crack andgenerally was ambiguous as to whether he was saying that there had been digital penetration of his anus.In those circumstances he argued, there was insufficient evidence to support the verdict.

[18] Mr Lawry replied by pointing to P's evidence of soreness which ceased when the appellant's finger was pulled out.He argued it was open to the jury to treat that particular evidence, in the context of P's evidence in relation to what the bum crack was used for, as indicating penetration of P's anus had taken place.

Argument on Appeal:Count 6

[19] Mr Farquhar argued there was a close connection between the event the subject of count 6 on which the appellant was convicted (in relation to the threat against P) and that resulting in Count 7 on which he was acquitted (in relation to the threat against S).The two verdicts, he said,were inconsistent.The jury appeared to have accepted the defence contention that there was insufficient time between when the appellant completed work at the bar, and when he arrived at the store for him to have also driven to the vicinity of the school, and made the threat against S.If there was a doubt that the appellant had threatened S, Mr Farquhar argued, the jury should also have been in doubt as to the appellant's presence in the vicinity when P said he was threatened.Mr Lawry responded pointing out that the jury would have been told to consider Counts 6 and 7 separately.The evidence on each clearly differed most notably in relation to the time they took place.It was open to the jury to conclude S was wrong in saying it was 8.03am and that alone may well have been the basis for an acquittal in his case.

Decision

[20] We deal first with the appeal concerning Count 6.In our view the fallacy in Mr Farquhar's line of argument is that the incidents the subject of Counts 6 and 7 were separate ones and proof of them turned on separate evidence.The jury may well have been, as Mr Lawry argued,in doubt on Count 7 because they concluded S had been plainly in error as to the time he reported the incident to the school principal taking the view it had been later than 8.03.The jury may have felt more comfortable with P's evidence putting the time of his encounter with the appellant at 8.45.The simple point however is that there is no necessary linkage between the events such that the acquittal on one throws doubt on the reliability of the conviction on the other.

[21] In any event this is not a case where the precise times were central.The 8.30am departure from the bar by the appellant was according to his own evidence.He allowed there might have been a five minute margin either way. His employer partially contradicted him saying that the appellant was locking up at 8.15am to 8.20am.The police evidence was that to drive, within the speed limit, from the bar to the school vicinity took 4 minutes 12 seconds and from there to the store 5 minutes 44 seconds.Even accepting that the appellant's arrival at the store was at 8.42 the evidence of times certainly did not preclude the appellant's presence in the vicinity of the school to make the threats concerned.Accordingly the acquittal on Count 7 does not in all the circumstances indicate the jury was in doubt that the appellant could have been present in the vicinity of the school to make the threat against P.There is no apparent inconsistency in the two verdicts and the ground of appeal accordingly fails.

[22] Turning to Count 2 the evidence of P was that the appellant "put his finger up my bum crack".This was evidence of a separate act from the rubbing of P's bum by the appellant with part of his hand.P said that his bum crack felt sore.This lasted 10 seconds and his bum crackhad no soreness after the appellant took his finger out.

[23] P explained what he meant by "bum crack" by saying it was used "to let you have a shit".That evidence, on its own, in the Judge's view was sufficient evidence of anal penetration by the appellant's finger for Count 2 to go to the jury.We agree with that conclusion.

[24] Subsequently in cross-examination P said in reply to counsel he was not sure if the appellant touched between his cheeks.But in re-examination he reiterated that his bum crack was sore.None of P's evidence on these matters in cross-examination in our view negates the evidence given in chief.Indeed when P agreed with defence counsel he was "not too sure" it is unclear from the transcript precisely what counsel's question was referring to.Overall the extent to which the cross-examination created a reasonable doubt concerning the evidence as to penetration was very much for the jury to decide having heard all of P's evidence. It cannot in our view be said that any aspect of that evidence made the conviction on Count 2 unsafe.This ground also fails

[25] Accordingly the appeal is dismissed.

Solicitors

Crown Solicitors, Auckland