R v Whitelaw CA335/02 [2003] NZCA 330 (4 March 2003)

Last Updated: 2 August 2018

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

335/02

THE QUEEN



v



JOSEPH BRIAN WHITELAW

Hearing: 26 February 2003

Coram: Gault P Robertson J Doogue J

Appearances: M I Koya for Appellant
G C de Graaff for Respondent

Judgment: 4 March 2003

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1] The appellant stood trial in the District Court at Auckland on seven counts of sexual offending against his partner’s granddaughter. The first three counts were representative charges. Count 1 was that between 13 September 1998 and 31 December 1999 the appellant indecently assaulted the complainant, a girl under the age of 12 years. Court 2 charged that he sexually violated the complainant by unlawful sexual connection occasioned by digital penetration in the period between 13 September 1998 and 31 July 2001. The third count charged unlawful sexual connection between the tongue and the complainant’s genitalia in the period between 13 September 2000 and 31 July 2001.
[2] The remaining four counts were specific charges. Counts 4 and 5 charged that on specific occasions the appellant induced the complainant to fondle his penis, on the one occasion at his work place, on the other occasion at his home. The sixth charge was of sexual violation occasioned by connection between the appellant’s tongue and the complainant’s genitalia in June of 2001 said to be the last episode of oral sex, and the seventh count charged sexual violation by digital penetration said to be on the last occasion of that conduct in July 2001.
[3] The jury returned verdicts of guilty on each of the first three counts, the representative charges, but verdicts of not guilty on the remaining four specific charges.
[4] The appellant appeals against the convictions on the ground that the verdicts on the first three charges cannot stand alongside the verdicts of acquittal on the remaining charges. Essentially the appellant contends that there is no rational reason for the jury to have differentiated between the evidence of the complainant in relation to the first three counts from her evidence in relation to the remaining counts.
[5] After the verdicts were returned application was made on behalf of the appellant to the trial Judge for an order under s347 Crimes Act 1961 for discharge on the ground of the inconsistency of the verdicts. In a written judgment delivered on 17 September 2001 the Judge refused the application. He accepted that there was jurisdiction for a trial Judge to entertain an application under s347 after verdict, but he accepted also that the power to discharge should be exercised sparingly and only in the most unusual circumstances. He was not persuaded that the verdicts of not guilty necessarily indicated complete rejection of the credibility of the complainant and held that the jury were entitled to accept her evidence as carrying them beyond reasonable doubt in respect of only some of the charges.
[6] In his written submissions in support of the appeal Mr Koya accepted that the statement of the law appearing in Adams on Criminal Law para 5.6.03 accurately sets out the applicable principles as follows:

The test is whether the verdicts demonstrate that no reasonable jury applying its mind properly to the facts could have arrived at 2 different verdicts. Where the difference in the verdict requires that the jury has believed certain evidence in relation to one count but rejected it in relation to another count there will be inconsistency rendering the guilty verdict unsafe ... If there is a reasonable explanation to be found in the evidence such that the jury could have differentiated rationally between the charges there is no inconsistency; ... thus, if there is some difference in the evidence relevant to the charges it will not be irrational or improper for a jury to convict on one count and acquit on another. This may occur if the jury was satisfied that it could accept some parts of the evidence of a witness and reject other parts of that same witnesses evidence.

[7] That summary of the law is adequately justified on the full and carefully formulated review of the authorities provided to us by Ms de Graaff for the Crown, particularly the judgment of this Court in R v H [2000] 2 NZLR 581.
[8] At the trial the evidence in chief of the complainant was substantially in the form of a videotaped evidential interview in which she described a course of conduct by the appellant encompassing touching by him of her vagina from about the age of seven (“lots of times’), digital penetration and violation by the use of his tongue when she was nine (about ten times). She gave a description of the first touching by hand over her clothes in a lounge converted from a garage at her grandmother’s house in Mangere next door to where she lived when she was seven. She said the appellant asked her to widen her legs and touched her outside her clothes. She described the first touching of her vagina under her clothes later when she had moved to another address from which she visited her grandmother. She said she was touched inside her vagina eight or nine times.
[9] The complainant said the first occasion on which she said the appellant touched her vagina with his tongue she thought occurred in her grandmother’s flat (Panorama Road) before she moved into her house (Mountain Road). She described the incident in some detail and said it was interrupted by the arrival home of her aunt who lived there and who knocked on the door to get in.
[10] In the course of the interview the complainant was asked by the interviewer about the last occasion on which there was touching by hand and oral contact. She described these occasions including location and circumstances. She also described two instances in which she said the appellant induced her to touch his penis. Once when she went with him while she was with others doing painting work at his workplace and, she said, he took her into a toilet after others had left. The other instance was on the sofa in the living room of her grandmother’s home. These specific instances form the subject of the last four counts in the indictment.
[11] There were differences in the evidence of the appellant, the complainant’s grandmother and her aunt on the one hand and the complainant, her mother and her mother’s partner on the other relating to the extent of the opportunities for the appellant to have offended as alleged. There was a conflict on the frequency of her visits to her grandmother at Mountain Road. The evidence of the aunt rejected the account of her returning to the flat and needing to knock to gain entry.
[12] There was evidence of recent complaint, insignificant medical evidence and evidence from the appellant denying any sexual acts in respect of the complainant.
[13] A witness from Sky TV gave evidence of the period during which the appellant subscribed to its analogue and digital services and the broadcast of explicit or pornographic films. This was in connection with the complainant’s evidence of watching such films with the appellant.
[14] With reference to the allegation of the specific instance of inducing an indecent act in the workplace, a workmate of the appellant and his managing director were called and disputed the evidence given by the complainant that the appellant and she remained on the premises on the occasion of the working bee after the others had left.
[15] It was submitted that where the complainant’s evidence was directed to specific places and occasions so that it could be tested the evidence of the witnesses demonstrated that the complainant’s account was not correct and therefore rightly was not relied upon by the jury. It was further submitted that this necessarily casts a doubt on her credibility in relation to the much less definite and more general allegations of abuse over the periods of which she complained. For this reason the verdicts in respect of the representative accounts should not stand in light of her demonstrated lack of credibility.
[16] This is not a case in which the verdicts of the jury must necessarily mean that the same evidence has been the subject of inconsistent findings. The evidence in relation to each count was different. It is correct that the specific charges in Counts 6 and 7 allege the same conduct within the periods covered by counts 2 and 3, but the jury were clearly directed to disregard evidence relating to the specific counts when considering the representative counts. Accordingly, this is not really a case of inconsistent verdicts at all.
[17] The thrust of the argument for the appellant is that the guilty verdicts should be regarded as unsafe because of the rejection of the complainant’s evidence on the other charges. However, we do not accept that the verdicts are to be taken as acceptance by the jury of the evidence of other witnesses, nor as findings that evidence of the complainant, even in respect of the alleged conduct on which not guilty verdicts were returned, was wholly lacking in credibility. There are three reasons for this.
[18] First, the verdicts reflect acceptance of the evidence of the complainant and rejection of the evidence of the appellant on the essential elements of the offences charged in the first three counts. Secondly, the evidence of the complainant’s aunt to the effect that on no occasion did she return to her mother’s flat and knock to gain entry did not so undermine the complainant’s credibility as to lead the jury to acquit the appellant on the charge to which that part of the complainant’s evidence related. Thirdly, the contradictory evidence may have done no more than introduce an element of doubt sufficient to lead the jury to acquit even though not wholly rejecting the complainant’s account of particular events.
[19] It was not suggested in argument that there was insufficient basis in the evidence for the guilty verdicts returned. Plainly the evidence of the complainant, if accepted, supported each of the guilty verdicts. The jury were directed in the conventional manner that they should consider each charge separately and that the sole responsibility for deciding questions of fact was with them. It was for them to decide what evidence they would accept and what evidence they would reject. The verdicts are consistent with conscientious adherence to those directions.
[20] We have not been persuaded that there is in the verdicts such inconsistency or perversity as would justify interference with them on appeal.
[21] The appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland