THE QUEEN v JOHN TAUFU LATU [2001] NZCA 56 (26 March 2001)

Not to be published in news media or on Internet or other publicly accessible database until completion of re-trial, publication in law report or law digest permitted
IN THE COURT OF APPEAL OF NEW ZEALAND	ca411/00

THE QUEEN

V

JOHN TAUFU LATU

Hearing:	26 March 2001
Coram:	Richardson P Anderson J J Hansen J
Appearances:	P E Dacre for Appellant
	B H Dickey and T Epati for Crown
Judgment:	26 March 2001

judgment of the court DELIVERED BY ANDERSON J

[1] This is an appeal against conviction on one count of sexual violation by unlawful sexual connection.On his trial before a Judge and jury the appellant faced three related counts of sexual violation by unlawful sexual connection and was found not guilty on two of them.The essential ground of appeal is that the jury's verdict of guilty was unreasonable in the light of its verdicts of not guilty in respect of the other two counts.

[2] The three counts of sexual violation by unlawful sexual connection referred to conduct with a single complainant on one occasion.The complainant was a 15 year old girl who, in the early hours of 1 January 2000, became involved in sexual activity with the appellant, who was a stranger to her.Her evidence was that on New Year's Eve she had been drinking in the company of a female cousin of similar age at the home of an uncle.Shortly after midnight she had drunk a good deal of spirits mixed with soft drink and was very intoxicated.She described her state in these terms:-

I couldn't focus a lot and I was gone, I couldn't do much ... I couldn't hold myself upright ... I was feeling sick in my stomach.

[3] She testified that she wanted to go to the toilet but someone was already in there so she went outside down onto the driveway.Because of the state she was in, she was holding onto the rail going down the steps and stumbled over to a wall for support.From there she made her way down to the road and was leaning over so that she could be sick when she saw a man approaching.There is no dispute that the man was the appellant.He talked to her but she said in evidence that she could not remember what he was saying.He then put his arm around her and she could not remember much after that except being on the ground in some bushes further up the road with the man kissing her on her mouth.She said she tried to push him away and to sit up but that the man's hands were all over her.She said she was swearing at him and telling him that her cousins and uncle would smash him.As she tried to sit up he would hold her back down and he then roughly pulled down her jeans and underwear, put his head between her legs and began to lick her vagina.She said he put his fingers inside her vagina and then pulled the zip down on his pants, took his penis out of his pants and wanted her to suck it.

[4] In the meantime the complainant's absence had been noticed by her family and they had begun to search for her.The 15 year old cousin noticed activity in the bushes where the complainant and appellant were, approached that area, and saw two people.She said they were:-

In the position where they were just about to have sex.

[5] She recognised her cousin and saw that the complainant had no pants on, that she was sitting on her bottom with her legs open, and that a man, the appellant, was kneeling down in between her legs.She challenged the man and struck him.About this time the complainant's uncle arrived in his car and the man ran off.

[6] The first count of sexual violation by unlawful sexual connection related to connection between the complainant's genitalia and the appellant's tongue. The second related to connection between the complainant's genitalia and the appellant's fingers.The third related to connection between the complainant's mouth and the appellant's penis.

[7] At the beginning of the trial the appellant, by his counsel, made it plain that in respect of the first two counts he acknowledged the sexual connection but defended on the basis of consent, and that in respect of the third count he denied that any connection occurred between his penis and the complainant's mouth.His evidence was consistent with those defences.

[8] He said that at the time in question he had been walking along the road when he was grabbed by a girl who started kissing him.She said "happy New Year" to him and he kissed her for about a minute, after which she put her arm on him and said she wanted to go home with him.He said he did not want to take her home and then there was more kissing until she asked him to celebrate the New Year by having sex with her.They went down the road and then into the trees where she touched and kissed him until they lay down and she pulled her pants down.He said he touched her vagina with his hand and then, with her expressing encouragement, he began to lick her vagina.When members of the girl's family arrived he ran off.

[9] In summing up the Judge accurately identified the essential nature of the case for the Crown and the case for the accused.He gave the jury a conventional direction that they were entitled to accept part of what a witness says and reject other parts.

[10] He summarised the respective cases for the Crown and the defence in these terms:-

The crown case is that there was no consent given to it, that she was not a consenting party, she was resisting, she was swearing, she was telling him to stop, but he persisted and carried on with the acts, and that he forced himself upon her in the three different ways without her consent and this continued until she was found by her cousins....

On the other hand, the defence case is that she was a consenting party, that she agreed to this all along, and that the accused believed that she had agreed and consented to this activity.That is certainly on the first two counts, and the third count is that it just simply did not take place.

[11] The jury took some time to reach its verdicts.It began its deliberations at about 3.03 p.m. and returned at 10.09 p.m.At 7.39 p.m. it had asked the Judge to refresh the jury's memory with:-

The complainant's testimony before and after blackout crossing the road.

[12] The jury also wanted the Judge to read the evidence of a police officer who had taken the complainant's statement which had the character of a recent complaint.

[13] At about 8.30 p.m. the Judge gave the jury a Papadapoulos direction in the revised form noted in R v Accused [1988] 2 NZLR 46.

[14] Mr Dacre's argument in support of the appeal is essentially as follows:-

* The case involved a clear conflict between the evidence of the appellant and of the complainant.

* The complainant testified that there were three types of sexual connection, that she did not consent to any of them, and that she expressed her lack of consent both with words and conduct.The appellant testified that two types of sexual connection occurred but not the third and that far from not consenting the complainant was actively provoking and encouraging that sexual activity.

* Neither counsel for the Crown nor the defence suggested to the jury that there was any room for mixed verdicts.

* There is no rational basis for the mixed verdicts.

* Both verdicts are explicable only on the basis of a compromise amongst jurors following the Judge's Papadapoulos type direction.

[15] Mr Dacre further submitted that the Judge's approach to the question of bail pending sentence and appeal, and to the sentencing itself, is consistent with concern over the seemingly anomalous verdicts.The trial finished on 14 September 2000.The following day Mr Dacre filed an application pursuant to s 347 of the Crimes Act 1961 for an order discharging the appellant in respect of the first count.That application was subsequently abandoned but the Judge acceded to a request for bail in the meantime.On 8 November 2000 the appellant was sentenced to two years imprisonment and the Judge gave him leave to apply for home detention.In an unusual move, the Judge postponed the commencement of the sentence pursuant to s 78 of the Criminal Justice Act 1985 so that it would commence on 7 December 2000, the date upon which it was expected that the District Prisons Board would determine the application by the appellant for home detention.In the event, that application was declined by the District Prisons Board.The next day, 8 December, the trial Judge granted the appellant bail pending the hearing of this appeal.

[16] Counsel for the Crown submitted that although there was a conflict in the evidence between the appellant and the complainant, the jury was entitled to consider each count as separate incidents and return different verdicts.He submitted also, in effect, that issues of demeanour which could be influential with juries could not be accurately recaptured on a reading of a transcript. Although candidly acknowledging on behalf of the Crown that it is difficult to find a basis for differentiation between Counts 1 and 2, counsel submitted that this did not necessarily mean that the verdict of guilty was unsafe.He was unable, however, to point to an evidential basis for distinguishing between Counts 1 and 2.

[17] This Court has recently examined the principles which inform responses to submissions of unreasonableness in connection with inconsistent verdicts - see R v H [2000] 2 NZLR 581; R v Maddox CA424/00, 1 March 2001.As the Court said in Maddox at paragraph 22:-

It is for the appellant to establish that the guilty verdicts cannot stand together with the verdicts of acquittal because no reasonable jury who had applied their collective mind properly to the facts could have reached such a conclusion (R v Irvine [1976] 1 NZLR 96).

[18] Although resolving the issue of inconsistent verdicts requires an examination of the evidence, it may sometimes also require an appreciation of the innate sense of fairness and justice of a jury having regard to all the circumstances of a case.There is no basis for thinking, in the present case however, that the inconsistent verdicts on Counts 1 and 2 are explicable on the basis of innate fairness and justice having been invoked by the jury.

[19] In respect of the third count the verdict of acquittal is rationally explicable on the basis of the jury being unsure, having regard to the absence of any evidence confirming the complainant's recollection of that part of the overall conduct, and the fact that the complainant was very intoxicated and, after the incident at least, very distressed, whether there was any actual connection between the complainant's mouth and the appellant's penis.The real basis of concern in this case is the inconsistency of the verdicts on Counts 1 and 2.

[20] This is not a case where there has been alleged offending at disparate times and places with a jury perhaps feeling sure of one incident or series of incidents and yet left unsure in all the circumstances about another at a different time.This was effectively one incident with different alleged facets of conduct occurring within a very short space of time.The evidence of both the complainant and the appellant was that connection occurred between the complainant's genitalia and the appellant's mouth and fingers.The fundamental issue in these circumstances was consent and there is nothing in the evidence to support a rational finding that there might be consent or belief in consent on reasonable grounds at the time of digital contact, and yet an absence of consent or belief in consent on reasonable grounds at another point in time. The complainant's evidence was that she was objecting throughout and the appellant's evidence was that she was consenting throughout.We can find no evidential basis for any rational distinction between the verdicts.The learned trial Judge's decisions in relation to bail and sentencing were unusual for a case of sexual violation of an intoxicated young woman by a total stranger in a public place.We infer from the Judge's decisions that there was nothing in the nature and course of the trial itself which appeared to him rationally to explain the apparent anomaly of the verdicts.

[21] As we mentioned earlier in this judgment, Mr Dacre submitted that the inconsistent verdicts are explicable only on the basis of a compromise amongst jurors following the Judge's direction in terms of R v Accused.We do not think it is necessary or appropriate to speculate on the reason for the inconsistent verdicts in circumstances where there is no rational explanation to be found in the evidence or in circumstances which might reasonably relate to issues of innate fairness and justice in the perception of the jury.It is sufficient for the appellant to demonstrate, as in our view his learned counsel has done, that there is no rational basis for the differing verdicts on Counts 1 and 2.

[22] This leads to the issue whether the appellant's conviction on Count 1 should be simply quashed or whether there should be an order for new trial. Mr Dacre submitted that there should be no order for new trial in these circumstances because of the practical difficulty and possible unfairness of dealing with the complainant's and the appellant's versions of what happened in the context of a trial on only the first count.Mr Dickey for the Crown submitted that if the appeal were to be allowed the Court should order a new trial because there was a sufficient evidential basis to support a verdict of guilty and that the matter should be re-examined by a jury.

[23] Whilst in some cases, for example R v Maddox, it may be just not to order a new trial, the issue on which the appeal has succeeded relates entirely to the trial process and not to any inherent deficiency in the Crown case.Mr Dacre conceded in the course of his argument generally that if the appellant had been convicted on Counts 1 and 2 he would have found difficulty supporting an appeal on the grounds that the verdicts were unreasonable or could not be supported having regard to the evidence.We do not accept that there would be any real difficulty or unfairness in a trial on only the one count.The fact that the encounter involved manual as well as oral contact with the complainant's vagina will seem a merely contextual fact.We think the issues between the Crown and the accused should still be tried.

[24] For the above reasons the appeal against conviction is allowed, the conviction is quashed, and we make an order for new trial of the appellant on that count.

[25] The appellant is remanded at large to callover in the Auckland District Court on Thursday 5 April 2001 at 2.15 p.m.We note that the Crown consents to that course.

Solicitors:

Crown Solicitor, Auckland