R v H (CA4/03) [2003] NZCA 434 (21 August 2003)

Last Updated: 10 December 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA4/03

THE QUEEN

v

H (CA4/03)

Hearing: 21 August 2003

Coram: Gault P Fisher J

Rodney Hansen J

Appearances: S J Bonnar for Appellant

B R Northwood for Respondent

Judgment: 21 August 2003

_{JUDGMENT OF THE COURT DELIVERED BY FISHER J}

_Introduction

[1] Following a District Court jury trial the Appellant was found guilty on one count of indecent assault by touching the breasts of the 13 year-old daughter of his de facto partner (Count 1). He was found not guilty on two further charges of indecent assault upon the same complainant by rubbing her genitalia and placing her hand on his penis (Counts 2 and 3). He was sentenced to 250 hours community service. Today he appeals against conviction. The sole ground of appeal is that the three verdicts were so inconsistent with each other that the

_{verdict of guilty on Count 1 cannot be sustained.}

R V H CA CA4/03 [21 August 2003]

[2] The three charges arose out of an incident alleged to have taken place over a single

15 minute period at the home of the appellant’s partner in [City X] between 1 August 2000 and 31 December 2000. The Crown case was that the complainant was sleeping in the lounge on a mattress when the appellant entered the room, touched her breasts, rubbed her genitalia, placed her hand on his penis, and then left the room again.

The trial

[3] Key witnesses for the Crown were the complainant and a family acquaintance, Ms E. The complainant stated that the touching had happened on one occasion only on an evening at her home address in [Suburb Y] between [redacted] 24 November

2000 and Christmas 2000. On this occasion the appellant touched her in the three ways described. During cross-examination it was put to her that in June or July of that year there was an incident in which the appellant had touched her while lifting her from his bed to a mattress. She said that she did not recall any such incident.

[4] Ms E was a child and family therapist who had come to know the family on a personal basis. She deposed to three conversations with the appellant in early 2001. In the first, he had said “as God is my witness, I never touched her”. The second is described in the following passage from the evidence:

A...[Appellant] came into the kitchen, uhm, he was visibly distressed – he had, uhm, uhm, looked like he had been crying for a long time – eyes were very puffy and swollen. Was crying, uhm, his nose was running, uhm, he had his head down, he was very slumped down – obviously extremely distressed, uhm, and he walked towards me and said that, uhm, I touched her –

Q. When he said I touched her, did he mention a name?.... A. I touched [Complainant] – I touched her.

Q. And did he say anything else?

A. He said that, uhm, he couldn’t live with it anymore – that, uhm, he was burdened by that and –

Q. He was what worry?

A. Burdened by it. Couldn’t live with it anymore and, uhm, mhm, that he’d touched her.

[5] She described a third conversation several weeks later in the following terms: [The Appellant] started to speak and he said that – he hadn’t actually

touched her, and there was a series of events that took place, and he explained those. And can you tell us what he said – what was his explanation?.... Right, he said that – that [Complainant] was asleep and she rolled over onto his mattress, and that he tried to shift her over, he rolled

over – she rolled over – on his hand, and his hand touched her breasts – breast or breasts. That he tried to lift her and put her back on her own mattress, and that she woke with a start, and – yeah.

[6] In his own evidence at the trial the appellant denied any episode of the kind alleged by the complainant but agreed that there had been an incident in June or July 2000 in which, in the course of lifting the complainant from his bed to a mattress, he accidentally touched her breast or breasts. He said that he ceased to live in the house occupied by the complainant at [Suburb Y] on 20 August 2000. A further defence witness, Ms R, said that the appellant had come to live in her house in South [City X] for one or two weeks in August

2000 and that it was her understanding that from there he moved to [Town Z]. There was other evidence suggesting that after that move the complainant and her mother moved to a new house in [Suburb A] where the appellant returned to stay overnight from time to time.

The appeal

[7] For the appellant, Mr Bonnar submitted that the case had been put to the jury on an “all or nothing basis”. He argued that it was not reasonably open to the jury to accept the complainant's account that the appellant had indecently touched her breasts while rejecting her account that he had rubbed her genitalia and placed her hand on his penis. In his submission the only explanation for the distinction must have been the jury’s improper use of the appellant’s admission that he had touched the complainant on the breast accidentally and on a different occasion. He submitted that in those circumstances the jury’s verdict in relation to Count 1 was unreasonable or could not be supported having regard to the evidence.

Legal principles

[8] Where it is contended that verdicts are so inconsistent that they can not be sustained the starting point must be respect for the functions which the law assigns to juries and the general satisfaction with their performance: R v H [2000] 2 NZLR 581, 589, para 29 (CA). The question is whether there is any reasonable explanation for the distinction the jury has drawn between the verdicts: ibid at 585, para 14. Possible explanations can include distinctions in the evidence relevant to the different charges (Chaston v R (CA 10/03, 29

May 2003, para 12) or the jury’s sense of justice and fairness in declining to add to a guilty verdict further findings of guilt in respect of essentially the same matter: R v H, supra, at 588 para 27 and authorities there cited).

[9] The question in this case is whether there is any reasonable explanation for the distinction which the jury drew between the three counts of indecent assault. We think that this is usefully approached in three stages.

[10] First, the evidence left it open to the jury to find that there was an incident in which the appellant touched the complainant’s breast or breasts, whether at [Suburb Y] in mid-2000 or at [Suburb A] in November/December 2000. Both are consistent with evidence that the appellant moved to [Town Z] in August 2000. The former presupposes that the complainant was mistaken over the date of the incident; the latter that she was mistaken over the address.

[11] Secondly, it was open to the jury to interpret the second of the appellant’s conversations with Ms E as an admission that he had indecently touched the complainant. That could have encouraged the jury to accept the complainant’s evidence, and reject that of the appellant, to the extent that there had been indecent touching in at least one respect. But the jury could also have felt that the admission did not take matters beyond a single touching. It could have felt that in the absence of any further admissions, a second and third touching were not established beyond reasonable doubt.

[12] Assuming by this point that the appellant’s indecent touching had taken one form alone, the third and critical question for the jury would have been whether there was any reasonable basis upon which it could distinguish between the three forms alleged. We consider that at this point the jury could have properly drawn upon the appellant’s admission and evidence that it was her breasts that he had touched. The jury could also have been encouraged in that approach by its appreciation that of the three forms of indecent touching alleged, touching of the breasts was the least serious. Given that the appellant’s effective admission of indecent touching had not specified the form the touching took, the jury’s inherent sense of fairness may have encouraged it to adopt the least serious of the three possibilities.

[13] Mr Bonnar submitted that for the purpose just referred to the jury could not properly use the appellant’s admission and evidence that he had touched the complainant’s breast. In his submission that would overlook the accused’s rider that the touching on that occasion was accidental. But in our view it was within the jury’s province, if it thought fit, to accept the admission of touching the breast while rejecting his innocent explanation for it. The two are not necessarily indivisible.

Solicitors:

Crown Solicitor, Auckland