R v C (CA54/03) [2003] NZCA 440 (16 June 2003)

Last Updated: 10 December 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

_{CA 54/03}

THE QUEEN

v

C (CA54/03)

Hearing: 16 June 2003

Coram: Keith J Fisher J

Rodney Hansen J

Appearances: P J Kaye and N R Webby for Appellant

G C De Graaff for Crown

Judgment: 16 June 2003

_{JUDGMENT OF THE COURT DELIVERED BY FISHER J}

[1] On 21 June 1995 following a jury trial in the Auckland District Court the appellant was found guilty and convicted of sexual violation by unlawful sexual connection. He was sentenced to eight years’ imprisonment. Now before the Court is his appeal against conviction.

Factual background

[2] The complainant was a 16 year old youth and the appellant a 52 year old man. On 4 September 1994 the complainant stayed overnight at the appellant’s

R V C CA 54/03 [16 June 2003]

house. The complainant went to sleep fully clothed on a single mattress on the floor of the lounge. The appellant slept elsewhere in the house.

[3] The complainant said in evidence that at about 2 am he was awoken by a pain in his anal area. He found himself lying face down on the mattress. His trousers and underpants had been removed. The appellant was lying on top of him, fully naked. He described the contact between the appellant’s penis and his anus. After a struggle he managed to roll over and wrestle free from the appellant. Later he found that lubricant had been applied to his anal area.

[4] The Crown case rested primarily upon the complainant’s evidence. Evidence was also given by a doctor who found redness in the complainant’s anal area about ten hours after the incident. Although consistent with anal penetration, it was not diagnostic of it. Other Crown evidence was consistent with guilty conduct of some kind on the appellant’s part at the relevant time. The appellant denied all allegations to the police. He did not give evidence.

The appeal

[5] For the appellant Mr Webby submitted that the decision of the jury was unreasonable and/or could not be supported having regard to the evidence. It was not contested that there was ample evidence to support all elements of the offence other than penetration of the complainant’s anus by the appellant’s penis. The issue came down to a very narrow one: did the complainant provide the jury with sufficient evidence of penetration to provide a proper foundation for the verdict?

[6] After saying that he was awoken by a pain in the anal area the complainant gave evidence as follows:

What was happening? ... Okay [the appellant] was thrusting his penis into my anal area and it hurt

When you say thrusting, were there movements? ... Yeah in and out ... .

[7] In our view that exchange was sufficient foundation for the jury’s verdict, combined as it was with the background that the complainant had experienced pain

in his anal area, that lubricant had been applied to that area, and that the doctor had found perianal redness.

[8] Mr Webby pointed out that at one point in his evidence the complainant agreed that he had said on another occasion that he did not know whether the appellant had penetrated him. Standing alone, that might have cast doubt on his evidence on that aspect. But that was followed by a further exchange in re-examination:

Can you explain to us what you mean when you were talking to [DB] when you said you didn’t know whether you’d been penetrated or not ... penetrated as in that [the appellant] ejaculated.

[9] Clearly the complainant thought that the word “penetrated” meant

“ejaculated”.

Conclusion

[10] There was evidence upon which the jury could properly convict. The appeal is dismissed.

Solicitors:

Crown Solicitor, Auckland