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Court of Appeal of New Zealand |
Last Updated: 4 June 2023
PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s139, CRIMINAL JUSTICE ACT 1985
IN THE COURT OF APPEAL OF NEW ZEALAND CA168/01
THE QUEEN
V
[ ] WILLIAMS
Hearing: 30 October 2001
Coram: Blanchard J
Ellis J Potter J
Appearances: R J Hooker for Appellant D J Boldt for Crown
Judgment: 31 October 2001
JUDGMENT OF THE COURT DELIVERED BY ELLIS J
[1] This is an appeal against conviction by a jury on four counts of indecent assault and one charge of unlawful sexual connection. The appellant claims that the verdicts were inconsistent with the jury’s acquittal on two other charges of unlawful sexual connection and four counts of rape. All counts involved the same complainant. It is convenient to set out the eleven counts and the verdicts.
[Representative Count]
FOUND GUILTY
[Representative Count]
FOUND NOT GUILTY
[Representative Count]
FOUND GUILTY
[Representative Count]
FOUND NOT GUILTY
[Representative Count]
FOUND NOT GUILTY
[Representative Count]
FOUND GUILTY
[Representative Count]
FOUND GUILTY
[Representative Count]
FOUND NOT GUILTY
FOUND NOT GUILTY
FOUND GUILTY
FOUND NOT GUILTY.
[2] The pattern of the charges is based on the age of the complainant who was born on [ ] 1984. The first two charges relate to when she was six years old. The date 20 September 1990 probably relates to a date she received a [ ] award. That it seems was in fact a year later, but it is of no consequence for present purposes. The next three counts relate to when she was seven years old. The next three to when she was ten, and the final three to specific occasions in March 2000. All but the last three are representative charges and based on allegations of continual offending which progressed from indecent touching when the complainant was six to indecent touching, digital penetration of the vagina, and rape thereafter. The pattern of the verdicts is to find all the charges of indecent assault proved, the earlier count of digital penetration and all the rape not proved, but the later count of digital penetration established.
[3] We are grateful to counsel for the Crown for the following summary of the evidence in two parts, the facts related by the complainant and the medical evidence:
Facts
The victim gave evidence that the appellant began coming into her room at night shortly after he moved in with her mother and her. It was 1990, and the victim was six. The offending initially consisted of indecent touching. The victim said that the appellant touched her legs and bottom, and would then pull her pants down, take her underpants off and touch her in the vaginal area with his fingers. The victim gave evidence that the abuse progressed to digital penetration, and that the appellant raped her for the first time when she was seven years old. She said that the abuse continued in this way – indecent touching, digital penetration and rape – several times a week from then on.
The abuse ended last year when the victim was a few months short of her 16th birthday. The victim gave evidence that the last occasion on which the appellant raped her was 19 March 2000, and that she had been sick at school the following day. She disclosed the abuse to a teacher, and the matter was then placed in the hands of the Police. Alternative accommodation was immediately arranged, and the victim did not return to live with her mother and the appellant.
The victim was given a limited physical examination on 22 March 2000, and was examined more thoroughly by Dr Christine Foley on 27 March 2000.
Medical evidence
The evidence of Dr Foley for the Crown and Dr Felicity Goodyear- Smith for the defence assumed considerable importance at trial...
One of Dr Foley’s most important findings was that the victim’s hymen did not appear to have sustained any damage. It showed no injuries, nor any clefts or notches consistent with its having been torn or otherwise damaged when the victim was younger.
Both doctors agreed that, prior to the onset of puberty, the hymen is a relatively thin, tight, tender piece of tissue that can tear when subjected to trauma. Both doctors talked about the hymen becoming ‘estrogenised’ with the onset of puberty, and agreed that the hymen becomes thicker, more elasticised and less tender as this occurs. They agreed that post-pubertal penetration of the vagina was far less likely to result in any damage to the hymen than penetration when the hymen was in its pre-estrogenised state.
The witnesses differed as to the likelihood of damage if the vagina was penetrated prior to the onset of puberty. Dr Foley agreed that penetration may lead to damage to the hymen, but said that this did
not necessarily follow. Dr Foley also said that ‘notching’ or clefts in the hymen may be apparent if there has been pre-pubertal penetration, but that if the tears were minor there may be no residual signs. The victim had given evidence that she had her first period at the age of nine. Dr Foley said that it was impossible to know the age at which the victim’s hymen began to become thickened and elasticised as a result of the application of estrogen, but said that this could have occurred for two years prior to the victim’s first period, thereby resulting in greater elasticity in the hymen from the age of around seven. Dr Foley said that her findings neither confirmed nor refuted the victim’s allegations.
Dr Goodyear-Smith said that she would expect to find one or more clefts in the hymen if the victim had been engaging in intercourse from the age of seven as she had alleged. Dr Goodyear-Smith also offered the opinion that although digital penetration with one finger may not damage the hymen, it was much more likely that damage to the hymen would occur if the victim had been penetrated with the victim’s penis, or with two fingers as she alleged. Dr Goodyear-Smith said that the majority of estrogenisation occurs after a girl’s first period, and accordingly the victim’s hymen would not have been significantly elasticised prior to her turning nine.
[4] The complainant gave her evidence directly and said that after she turned seven, digital and penile penetration took place. As to whether digital penetration took place using one or two fingers, she said that both occurred throughout the whole period.
[5] The trial Judge summarised his assessment of the verdicts on sentencing. He said:
Plainly, the jury accepted the complainant’s evidence in relation to the majority of the offending alleged. The rejection of her allegations of rape is probably explained on the basis of expert evidence which you called and which tended to suggest there might be some doubt on that issue.
[6] Mr Hooker submitted that the quality of the complainant’s evidence on all matters was very even, and if the jury did not accept it on some allegations, it would have to reject it on all. We agree that the case depended on the credibility of the complainant and that her evidence was indeed of even quality in respect of all
charges. The assessment of the medical evidence is the essential feature of this appeal.
[7] Situations such as this are assessed in accordance with principles which have recently been visited by this Court in R v H [2000] 2 NZLR 581 which is the leading authority. Keith J. delivering the Judgment of the Court said the following:
[27] To summarise to this point, a guilty verdict which is apparently inconsistent with an acquittal might be held to be not ‘unreasonable’ if:
[28] It is the third approach which is particularly relevant here. That approach is completely consistent with the wording of s385(1)(a): the appellant has not established that the verdict is unreasonable because a valid reason is available to explain the apparently inconsistency. There is a further consideration about the role of the jury. As Mr France reminded us, the jury is constantly told that they are to consider each charge separately and to reach separate verdicts; that was the case here: ‘separate charges, separate consideration, separate verdicts’ (para [6] above). More generally, as was said in the High Court of Australia in the MacKenzie case (para
[15] above), there should be a reluctance to accept a submission of inconsistency given the respect for the functions which the law assigns to juries and the general satisfaction with their performance – a satisfaction which can now be supported in New Zealand by the research on juries carried out by Warren Young, Neil Cameron and Yvette Tinsley for the Law Commission; Jury Trials in New Zealand: A Survey of Jurors (October 1999) and Juries in Criminal Trials: Part Two (NZLC PP37, vol 2, November 1999).
[8] The Judgment then went on to discuss R v O (No. 2) [1999] 1 NZLR 326 CA. Another useful passage from a Judgment in this Court is from R v Finau (CA28/01, unreported, 7 August 1991):
[15] 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.
[9] In the present case we are satisfied that the Jury took into account the defence evidence of Dr Goodyear-Smith when she said she thought digital or penile penetration of the complainant before she was ten would have torn the hymen, but as later there would be a lot more estrogen present, it would be possible for penetration to occur then without such damage. For this reason, the jury could find it not proved beyond reasonable doubt that digital or penile penetration had occurred as alleged in counts 2, 4 and 5, but digital penetration by one finger or perhaps two had been established as alleged in count 7. In our view, the jury plainly took a cautious view of the evidence and so gave the appellant the benefit of the doubt in respect of the rape counts: 8, 9 and 11.
[10] Mr Hooker submitted that the jury disbelieved the complainant’s evidence in support of the counts upon which the appellant was acquitted. He used such words as “rejected” and “not credible”. In our view, this overstates the position. As we have said, the jury took a cautious approach and accepted there was reasonable doubt created by the medical evidence. This is quite different from a rejection of the complainant’s evidence.
[11] We are satisfied that the jury’s verdicts can be reconciled in this way and accordingly the verdicts are neither unfair or unreasonable and this Court should not interfere with them. The appeal is accordingly dismissed.
Solicitors:
Vallant Hooker & Partners, Auckland for Appellant Crown Law Office, Wellington
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