R v Osborne CA357/03 [2004] NZCA 390 (18 March 2004)

Last Updated: 19 October 2018

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA357/03

THE QUEEN

v

RODNEY COLIN OSBORNE

Coram: McGrath J Chambers J O'Regan J

Appearances: J K W Blathwayt for Appellant
J L Moreland for Crown

Judgment: 18 March 2004 (On the papers)

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1] On 20 August 2003 Mr Osborne was convicted by a jury in the District Court on one count of indecently assaulting J, a female aged between 12 and 16 years. The jury acquitted him on another count of indecent assault in relation to the same complainant. It also acquitted him of a charge of indecent assault of the mother of J, and another charge of indecently assaulting another daughter, L, also aged between 12 and 16 years. The appellant’s defence to all charges at his trial was that the complainants had fabricated the allegations and conspired together to make them against him.

R V RODNEY COLIN OSBORNE CA CA357/03 [18 March 2004]

[2] The appellant was sentenced to imprisonment for a term of nine months on 8 September 2003. He appeals against his conviction and against the refusal by the Judge to grant him leave to apply for home detention in respect of that sentence.

[3] This appeal has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by members of the court who have conferred and agreed upon this judgment.

Facts

[4] During the afternoon of 6 February 2003, the appellant went to the house where the complainants lived. The adult complainant had invited him to call in to look at a car which was for sale. Only the child complainant J, who was then aged 15 years, her sister L and her sister’s boyfriend were present when he arrived. The Crown case at the trial was that, some time after he had determined that her mother was out, the appellant went outside to see the car and then asked L if he could play with her breasts and if she would perform oral sex on him. When she refused he put his hand up her skirt on her thigh. She pushed his hand away. He then undid his trousers. The thigh touching was the subject of the first count of indecent assault against the appellant. J had approached the car in which L was sitting as this was going on. As a result L was able to move away from the appellant who then turned his attention to J.

[5] The appellant asked J to make him a cup of coffee and followed her inside into the kitchen. There he attempted to kiss and cuddle J, grabbing her breasts on the outside of her clothing. J said that his hands left grease marks on the T-shirt she was wearing and the shirt was a Crown exhibit at the trial. Although J pushed him away, and told him to stop, the appellant persisted, eventually putting his hand under her skirt and moving it towards her genital area. He got his hand underneath J’s boxer shorts but as she was wearing a second pair of underpants there was no direct contact by the appellant with her genitals. She was eventually able to push him away and
escape from him. This behaviour was the subject of the second count, being the only one on which the appellant was convicted.

[6] J then went outside joining L and L’s boyfriend in a woolshed on the property. The appellant followed her, and made further suggestive comments to both sisters. J went inside to answer the telephone. The Crown case was that the appellant approached her while she was there, exposed his penis from his trousers, and placed J’s hand on it. She immediately took her hand off. This was the subject of the third count of indecent assault.

[7] The mother then arrived home. Soon after J and L left the premises with L’s boyfriend. While the mother and the appellant were in the kitchen he grabbed her breasts and said to her “come on ..., just like old times”. He then began to undo his belt buckle. The mother pushed the appellant away and told him to stop it. That conduct was the subject of the fourth count.

[8] The defence was that the allegations had been fabricated by each of the complainants before they went to the police. As indicated the jury convicted the defendant on the second count but acquitted him on each of the others.

The appeal against conviction

[9] Mr Blathwayt in written submissions for the appellant has argued that the verdicts were inconsistent and that the conviction is not tenable. He accepted that the appellant has to satisfy the Court that the verdicts cannot stand together. He argued that there was no reasonable explanation for the different verdicts in the evidence. Mr Blathwayt also argued that the jury had inconsistently rejected the complainants’ story in relation to three of the counts, including one of his indecent offending against J, yet convicted him of another charge of indecent assault on J. Counsel said that there was no rational explanation for the collection of verdicts given that no one else had witnessed the incident leading to the conviction and added that the physical evidence of dirt marks on the complainant’s T-shirt did not provide evidential support for the specific allegation in count 2. Counsel also pointed to what he said was the apparent unreliability of the witnesses, and argued that, on the
testimony given by L and her boyfriend, there would not have been time for the alleged incidents to have taken place.

[10] Ms Moreland, for the Crown, responded that the acquittal of the appellant on three of the four counts was not necessarily due to the rejection by the jury of all three complainants’ evidence concerning those incidents. It was possible that the jury, while not disbelieving the complainants, were not convinced to the exclusion of reasonable doubt of his guilt on those charges. This could have been because the persuasiveness of a complainant’s evidence had varied in respect of the different incidents, as can be the case particularly if the complainant is a child. In relation to count 2, on which the appellant was convicted, the complainant’s evidence had been very clear, and there was other supporting evidence. All witnesses agreed that J and the appellant had gone into the kitchen (although the appellant had claimed they were never in the room together) and the T-shirt worn by J subsequently had dirt marks where the appellant was said to have assaulted her. By contrast, the evidence on count 3 was, arguably, weaker. L and her boyfriend could not recall J going into the house a second time. Equally, the evidence in relation to count 1 was weakened because J had made inconsistent statements about whether she had seen the appellant touching L’s thigh.

Legal principles

[11] In an appeal against conviction, to succeed in a contention of inconsistency between the jury’s verdicts, an appellant must show that the verdicts cannot stand together in that the different findings made were not reasonably open to the jury (R v Irvine [1976] 1 NZLR 96, 99). The Court will look first to see if there is some rational explanation in the evidence for the apparent discrepancy but even in the absence of such an explanation the conviction may still be upheld if there is a credible explanation for the acquittal which does not taint the conviction.

[12] In all criminal trials involving multiple allegations of sexual offending, especially where they concern more than one complainant, the jury is, as a matter of course, directed to consider the evidence in relation to the individual counts separately in order to decide if an accused is proved guilty of that count. On each
count the responsibility of the jurors is to decide if the evidence persuades them beyond reasonable doubt of the guilt of the accused on that count. In doing so a jury is entitled to rely on elements of the evidence of a witness in relation to a particular count that make the witness more convincing on that count than it does on others. The mere fact that in a trial the jury has not accepted some parts of the evidence of a witness is accordingly not sufficient in itself to throw doubt on a conviction. In this respect this Court has recognised that the evidence of a single complainant, particularly a child complainant, can differ qualitatively in its persuasiveness as to what took place in relation to different alleged incidents and on different occasions: R v Bach CA283/01 10 June 2002.

[13] Similarly, in R v Akuhata CA283/99, 21 November 1999, a case involving sexual offending against a 16 year old girl, the Court held that there was no inconsistency where the jury had apparently accepted the complainant’s evidence where it was clear but rejected it in respects where there were variations as to matters of detail. The presence of supporting evidence in relation to some counts only may also adequately explain an apparent inconsistency. In R v Jack-Kino CA440/95, 22 May 1996, Eichelbaum CJ said:

A jury may properly reason along the lines that although they may think a complainant’s evidence is probably correct, in the absence of some confirming evidence they may not be prepared to regard themselves as satisfied beyond reasonable doubt.

Circumstances of each charge

[14] Seen in this light where, as in this case, different complainants’ evidence of alleged individual offending against them in separate incidents has been treated differently by a jury, that is not remarkable. In the case of the mother of the child complainants, the tenor of her evidence may have given rise to a reasonable doubt by the jury concerning whether the appellant honestly believed she was consenting to the alleged assault against her. The jury may have taken the view that she took a different attitude to being assaulted after she was told what the appellant had done to her daughters. That would explain the acquittal on count 4 in a way that did not undermine the verdict on count 2.
[15] The alleged assault on L on which the appellant was acquitted was less serious than those on J and the jury may have had a reasonable doubt that an indecent assault had occurred. There were also some inconsistencies in the evidence concerning this count.

[16] In the case of J the jury accepted her evidence as proving she had been indecently assaulted on the first but not the second occasion. On the count on which the appellant was convicted, the evidence was very straightforward. L and her boyfriend said that the appellant had gone into the kitchen with the complainant. The appellant accepted that he had gone there, though not that he was with the complainant at the time. The marks on the T-shirt, while not direct evidence of the alleged offending the subject of this count also gave what the jury may have regarded as important support to J’s credibility in her evidence concerning the sequence of events which had taken place in the kitchen. The subsequent incident involving J was much shorter in duration, and may have been regarded by the Jury as an attempted indecent assault only. On this basis, there is a rational explanation for the different verdicts that the jury reached in relation to the two counts of indecently assaulting J.

[17] The focus in the appellant’s submissions in this Court on the claim made by the defence at the trial that there had been a fabrication does not take the appeal any further. The jury were entitled to and plainly did reject that aspect of the defence, in concluding that parts of the evidence given by the complainants were accurate, but that they had a reasonable doubt about other aspects of it. For these reasons we are persuaded that there is no inconsistency in the verdicts that would make that reached on count 2 unreasonable in terms of s385(1)(a) of the Crimes Act 1961. The appeal against conviction accordingly fails.

Appeal against sentence

[18] The appellant was sentenced to imprisonment for a term of nine months. Leave to apply for home detention was refused. The appeal against sentence is now solely concerned with a challenge to that refusal. Judge Walker, the trial judge, refused leave to apply for home detention on the basis that, having regard to the
nature of the offence, it was inappropriate for the victim to be put in a situation in which she would fear coming into contact with the appellant while he is serving his sentence, in the small town near to which she lives.

[19] Counsel for the appellant contends that the reason given by the Judge for refusing leave was, properly, solely a matter for the Parole Board under s35(2)(a) of the Parole Act 2002. The appellant was working in Masterton when he was sentenced and could have been required to find accommodation there. The Parole Board would have avoided the problem of encountering the complainant mentioned by the Judge by imposing conditions. Ms Moreland submits that the Judge exercised his discretion under s97 properly, taking into account the seriousness of the offence, the continued denial of the incident and its profound effect on the victim.

[20] Under s97 of the Sentencing Act 2002 the starting point is that leave to apply for home detention will generally be granted in respect of a qualifying sentence. It is, however, the sentencing Judge’s role to identify cases where home detention would be inappropriate taking into account the stipulated criteria. These include the nature and seriousness of the offence and any relevant matters concerning the impact on the victim that are properly before the Court. Subject to these factors, the decision on whether to grant home detention is a matter of discretionary judgment for the sentencing court, based on a test of inappropriateness. This Court has said, however, having regard to the purposes of rehabilitation and reintegration served by the home detention provisions in the Act, the threshold for granting leave should not be high.

[21] In this case the Judge decided home detention was inappropriate for reasons falling within the statutory criteria of the nature of the offence and the potential effect of granting home detention on the victim’s interests. The fact that the Parole Board would be able to address the same factors in deciding whether or not to grant home detention, if leave were given, does not diminish the role of the sentencing Judge, although in some cases it may influence the Court’s decision on whether to grant leave. In the present case it was open to the Judge to conclude that the seriousness of the case, and the potentially harmful affect on the victim of granting
home detention, made that inappropriate. There is no basis accordingly for interfering with his decision.

Outcome of appeal

[22] For these reasons the appeals against both conviction and sentence are dismissed.

Solicitors:

Wollerman Cooke & McClure, Carterton, for appellant Crown Law Office, Wellington