R v R (CA349/05) [2006] NZCA 406 (4 May 2006)

Last Updated: 25 January 2014

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

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA349/05

THE QUEEN

v

_{R (CA349/05)}

Hearing: 14 March 2006

Court: Chambers, Ronald Young and Allan JJ Counsel: A G F C Bouchier for Appellant

K J Glubb for Crown

Judgment: 4 May 2006 at 10 am

_{JUDGMENT OF THE COURT}

_{The appeal against conviction is dismissed}

REASONS

_{(Given by Allan J)}

Introduction

[1] On 20 July 2005, the appellant was convicted by a jury in the District Court at Auckland on two counts of indecent assault. He was acquitted on two counts of

R V R (CA349/05) CA CA349/05 4 May 2006

sexual violation. On 23 August 2005 he was sentenced to two years nine months imprisonment. He now appeals against his conviction. There is no appeal against sentence.

The grounds of appeal

[2] The appeal is based on two separate and distinct grounds. First, it is argued that the verdicts were inconsistent in that the guilty verdicts on the counts of indecent assault cannot be satisfactorily reconciled with the acquittals on the counts alleging sexual violation.

[3] Second, it is claimed that in all the circumstances the Papadopoulos direction given to the jury after some hours of deliberation ought not to have been given because it resulted in verdicts reached by a jury “... in a state of confusion and compromise ...” and so were unreasonable and unsafe.

The indictment

[4] The appellant was arraigned upon the indictment containing four counts:

1. THE CROWN SOLICITOR AT AUCKLAND charges that [the appellant] between 1 May 2000 and 1 October 2001 at Orewa indecently assaulted [the complainant] a girl aged under 12 years.

REPRESENTATIVE CHARGE

2. THE said Crown Solicitor further charges that [the appellant] between 11 May 2002 and 31 March 2003 at Orewa indecently assaulted [the complainant] a girl over the age of 12 and under the age of 16 years not being his wife.

REPRESENTATIVE CHARGE

3. THE said Crown Solicitor further charges that [the appellant] between 11 May 2002 and 31 March 2003 at Orewa sexually violated [the complainant] by unlawful sexual connection namely the penetration of her genitalia by his finger.

REPRESENTATIVE CHARGE

4. THE said Crown Solicitor further charges that [the appellant] between 11 May 2002 and 31 March 2003 at Orewa

sexually violated [the complainant] by unlawful sexual connection namely connection between her genitalia and his tongue.

REPRESENTATIVE CHARGE

[5] The appellant was convicted on counts 1 and 2 and acquitted on counts 3 and 4.

Factual background

[6] The complainant is the appellant’s daughter. She was ten or 11 years of age at the time of the offending alleged in count 1, and 12 years old when the offending alleged in the remaining counts occurred. For some years after the complainant’s birth her parents were separated, but eventually they reconciled and moved to Orewa early in May 2000.

[7] In her videotaped evidence in chief, the complainant spoke of her time with the appellant prior to May 2000, and of disturbing behaviour by the appellant, including his insistence on watching the complainant while she was in the toilet, his close inspection of her genitals while her mother was absent from the house, and one occasion on which she claimed the appellant masturbated under the kitchen table in her presence. No charges were laid in respect of these incidents however.

[8] After the move to Orewa, the complainant’s mother worked in the evening. At such times the appellant was responsible for the complainant and her younger sister. The complainant’s evidence was to the effect that on some of these occasions, while she was in the lounge watching television, the appellant would push her down onto the couch, pull down his trousers and underpants and her pants, and rub his erect penis against her thighs, simulating sexual intercourse to the point of ejaculation. The complainant said that occurred once or twice a week. Sometimes the appellant would wear a condom. On some occasions the complainant was able to escape the appellant. If that happened, the appellant would sometimes masturbate in front of her.

[9] In July 2000 the appellant moved out of the house, but continued to babysit the complainant and her younger sister on Sundays while their mother worked. The alleged offending continued during this period. The complainant’s evidence of these events is relied upon by the Crown in respect of count 1.

[10] In October 2001 the complainant and her mother moved away from Orewa for some months, but returned in 2002. Over the next year or so there were occasions when offending of the type outlined above was repeated. The Crown relied upon that evidence to support count 2.

[11] The complainant gave further evidence of three or four occasions upon which in the course of his encounters with the complainant the appellant inserted his finger (count 3) and his tongue (count 4) into her vagina. The offending came to light in September 2003 when the complainant disclosed it first to a classmate and then to a teacher. The appellant was subsequently interviewed and charged.

Inconsistent verdicts?

[12] Mr Bouchier for the appellant submitted that the jury’s guilty verdicts on counts 1 and 2 were inconsistent with the acquittals on counts 3 and 4, and that the verdicts were accordingly unreasonable for the purposes of s 385(1)(a) of the Crimes Act 1961. The burden is upon the appellant to establish that the guilty verdicts cannot stand together with the verdicts of acquittal because no reasonable jury which had applied itself properly to the facts could have reached such a conclusion: R v Irvine [1976] 1 NZLR 96 at 99 (CA); R v Maddox CA424/00 1 March 2001.

[13] This Court would be justified in interfering with the verdicts only if the appellant can show that the jury must have accepted certain evidence in relation to one count, but rejected the same evidence in relation to another count, in circumstances where the verdicts are not capable of reasonable explanation. The verdict on one count must necessarily impugn the verdict on another count: R v TF CA28/01 7 August 2001 at [9]. The burden resting on an appellant who asserts inconsistent verdicts is a heavy one. In a case turning on credibility it will not be sufficient for an appellant to argue that the jury appears to have regarded a

complainant as credible on one count, and not credible on another. As was pointed out in R v K CA49/96 13 August 1996:

It is to over-simplify the ground of appeal to contend that the Crown case rested substantially on the complainant’s credibility and it is inconsistent to believe her in respect of one charge and not believe her on others. That does not take account of the possibility that although not disbelieving the complainant, the jury were not convinced to the exclusion of reasonable doubt.

[14] To the same effect is the judgment of this Court in R v Webb CA13/04

17 June 2004, where at [57] the Court noted:

In cases where multiple offending is alleged, it is not uncommon for juries to return a pattern of verdicts which suggest reservations as to the evidence of the primary Crown witness in relation to some counts, but acceptance of that evidence on other counts. Providing there exists a rational basis for the jury’s view that the evidence was stronger or more plausible on the counts upon which verdicts of guilty were returned than the other counts, there is no relevant inconsistency.

[15] Mr Bouchier encapsulated his argument in his written submissions in this way:

It is submitted that the verdicts in the case before the Court today are inconsistent because if the jury was not prepared to accept the complainant’s evidence given in detail on the sexual violation charges, why would it accept her very general evidence on the indecent assaults? Clearly the jury were reluctant to convict on the word of the complainant alone, as the accused was acquitted on counts 3 & 4. The peripheral evidence was neutral. Given this reluctance, it is submitted that the guilty verdicts on counts 1 & 2 cannot be sustained in the absence of further corroborating evidence.

[16] We do not agree that the verdicts in this case cannot be reconciled. While the analysis will always involve a degree of speculation, there appear to be several factors which may, quite properly, have led the jury to convict on counts 1 and 2, but not on counts 3 and 4. One such factor concerns the way in which the complainant’s evidence was led in the course of her videotaped statement. There was a significant emphasis on the alleged indecent assaults. Considerable time was spent with the complainant in covering the background to that offending, and the detail of the offences themselves. For example, the complainant explained that the appellant ejaculated during the course of some of the alleged assaults, that he wore a condom

in others, and that he masturbated on some occasions when the complainant managed to evade him.

[17] It is logical therefore to assume that the significant degree of surrounding detail would have served to underscore in the minds of the jury, the precise manner in which these offences were committed. Moreover, the indecent assaults took place frequently in contradistinction to the sexual violations which, on the complainant’s evidence, occurred on only three or four occasions.

[18] Further, the alleged offending involving sexual violation was first mentioned only towards the end of the complainant’s long interview. Her evidence in support of counts 3 and 4 was given without significant surrounding detail. In all, it occupied no more than three of the 44 pages of the transcript of the videotaped interview.

[19] The jury may also have been influenced by the way in which the complainant’s evidence on counts 3 and 4 arose in the course of the interview. It emerged from discussion between the complainant and her interviewer of the way in which the complainant had completed marking on a diagram of the appellant’s body those parts of his body which had come into contact with hers. The complainant had marked both the appellant’s hands and mouth on the diagram after questioning on the topic of whether there had been penetration of her vagina. So rather than being at the forefront of the complainant’s account of the matter, her explanation of the sexual violation came late in the interview and, the jury may have thought, almost in passing and only as a result of subtle prompting.

[20] The record shows that the way in which the diagrams were completed by the complainant was a matter of some interest and concern on the jury’s part, because in seeking to have the videotaped interview replayed during the jury’s retirement, the foreman said that:

As far as [the complainant’s] video, we actually really wanted to see her, some of her emotions or some of her, how she felt or how she was in the video, and one area was when she was filling out the diagram, specifically, how she was. One person recalls it slightly differently on how she filled out the diagrams.

[21] The jury may also have noted that the school teacher to whom the complainant eventually reported the offending gave evidence to the effect that the complainant:

... said that her dad had been touching her...

There is no reference to more invasive offending.

[22] A further possible concern for the jury on counts 3 and 4 might well have arisen from the dates appearing in the indictment. The Crown alleged that the appellant had sexually violated the complainant between 11 May 2002 and 31 March

2003. The transcript of the videotaped interview contains three references to the dates upon which the alleged sexual violations are said to have occurred:

Q. What about his hands, what’s that, what’d that do? A. He like touched me.

Q. Yeah, where did the touching go, we haven’t talked about touching. A. Didn’t we?

Q. Whereabouts did the touching go. A. Around my vagina.

Q. Yeah?

A. All the time yeah.

Q. Yeah? Tell me about that touching, sort of exactly where did it go? A. Like, like, like he’d stick his finger up my vagina.

Q. Yeah? A. Yeah.

Q. When did that start?

1. Um, I think in about 2001 when we, ah 2002 when we moved back down to Orewa.

Q. Mmm. That’s the first time he did that sort of stuff? A. [Nods]

...

A. There were like, happened like every now and then. Q. Mm. How many times?

A. Probably about maybe three or four. Q. Altogether?

A. Yeah.

Q. Three or four times altogether. Three or four times altogether. And that was in the year 2000. Anything happen in 2003?

A. Um, no, not that I know of.

...

Q. Mmm. And, but you said sometimes he masturbated and sometimes he’d finish by rubbing on your vagina. So how many times do you think he um put his tongue on your vagina?

A. Probably the same amount of times he did it with the finger.

[23] In the context of counts 3 and 4 there are references in this passage to each of the years 2000, 2001, 2002 and 2003. The complainant denies that anything relevant to counts 3 and 4 happened in 2003. The jury may have thought that her failure to correct the interviewer who suggested that the violations happened in the year 2000 was indicative of her uncertainty about timing. That may in turn have raised a doubt in the jury’s mind over the accuracy of the complainant’s recollection of some of the detail of the offending, which appeared not to have been the central focus of her interview.

[24] Some or all of these considerations might well have led the jury to the conclusion that it was not safe to convict on counts 3 and 4.

[25] The appellant has not made out a case for the invocation of s 385(1)(a) on this ground.

The Papadopoulos direction

[26] This was a relatively short trial. Counsel’s final addresses were given on the second day, and Judge Hobbs summed up to the jury on the morning of the third day. The jury retired at 11.52 am. Following lunch, the Judge received a request from the

jury that they view for the second time the videotaped interviews of the complainant, and between the appellant and the police. The jury also had transcripts of the evidence of the complainant and the appellant.

[27] The record of the exchanges between the Judge and the foreman discloses that apart from the issue relating to the way in which the complainant marked the diagrams of the appellant’s body to which we have referred above, the jury’s objective was to observe the complainant’s demeanour in the light of the fact that the screen had been some distance from the jury on the first occasion, and some jurors had had difficulty in viewing the videotape when it was played.

[28] Eventually, the Judge and counsel agreed that fairness demanded that videotapes of the complainant’s interview and of the appellant’s videotaped statement to the police, each be played again to the jury in their entirety. The jury came and went on several occasions over the succeeding hour while the necessary arrangements were made. The videotaped interview with the appellant was played to the jury between 2.38 and 3.06 pm. The videotaped interview with the complainant commenced at 3.06 and continued until 4.02 pm. The jury again retired at that point.

[29] At about 8.30 pm the Judge was given a note from the jury. It said:

We believe no amount of time will enable us to reach a unanimous decision.

[30] Counsel for the Crown and for the defence (not Mr Bouchier), agreed with the Judge that a direction of the type approved by this Court in R v Papadopoulos was appropriate. The Judge recalled the jury and at 8.53 pm he gave a direction which followed closely the form of direction suggested in R v Accused (CA87/88) [1988] 2 NZLR 46 at 59. The jury retired again at 8.57 pm and returned at 9.29 pm with its verdicts.

[31] We assume that counsel for the defence had instructions from his client to consent to the giving of a Papadopoulos direction; there is no suggestion to the contrary. This Court will be very slow to accept that the giving of such a direction was improper, in circumstances where an accused person had agreed to that course,

and indeed, it might be said had benefited from it by securing acquittals on some charges.

[32] Against that background, Mr Bouchier nevertheless submitted that this was a case in which the Papadopoulos direction had led to verdicts which must be regarded as unsafe. While he did not take issue with the terms of the Papadopoulos direction as such, he submitted that in the circumstances of this case, no such direction ought to have been given at all. He developed that submission by contending there were three inter-linked factors which rendered such a direction inappropriate. Those factors were:

1. The fact that this was a second trial, the jury having been unable to agree on the first occasion;

b) The time that had elapsed since the jury first retired.

c) The contents of the note passed by the jury to the Judge at about

8.30 pm.

[33] The argument for the appellant was that in the light of these factors in combination, a Papadopoulos direction breached the accused’s right to minimum standards of criminal procedure, protected by s 25(a) of the New Zealand Bill of Rights Act. Mr Bouchier submitted that the Court must have known that its Papadopoulos direction would have produced a compromise verdict, by placing undue pressure on the jurors for a result. In consequence it was argued, there had been a miscarriage of justice, in that despite having expressed itself in uncompromising terms in its note to the Judge, the jury was then effectively forced to reach a compromise verdict in circumstances which were unfair to the appellant.

[34] It is possible to deal with this aspect of the appeal relatively briefly. We commence by observing that the Court is not privy to what went on in the jury room, and to characterise the jury’s verdict as a “compromise” verdict, is perhaps to mistake the jury’s function. Save for cases in which the Crown’s case is so strong or so weak that the jury is of one mind at the outset of their deliberations, all jury

verdicts will call for some element of compromise. It is of the essence of our jury system that jurors pool their views and work together in reaching a verdict upon which they are unanimous. In doing so some members of the jury, while remaining true to their oath, will inevitably accept in the light of views expressed by other members of the jury, that their own opinions ought to be modified. That process necessarily involves a significant degree of compromise. So to speak of “compromise” verdicts is not particularly helpful.

[35] As we understand it, the appellant’s argument is that there was a risk, following the Papadopoulos direction, that the jury would be forced into delivering verdicts adverse to the appellant which would not have been reached in the absence of such a direction. An argument of that sort can be successfully mounted only where there are the clearest indications of improper pressure on a jury. In the absence of such indications, the argument simply invites the Court to speculate.

[36] We return to the three factors upon which Mr Bouchier relies. The first is that this was known to the jury to be a retrial. We are unable to discern the relevance of this point. The Judge gave a perfectly proper direction to the jury when the fact that this was a retrial was first disclosed in evidence. He returned to the point during the course of his summing up. The jury did not know why the first trial had not produced verdicts. Even if they had known, it is difficult to see how that knowledge would affect their approach to the task in hand. Each juror was required, in accordance with his or her oath, to decide the case on the evidence heard at the second trial. The fate of the first trial cannot possibly have had any bearing on what the jury in this case was required to decide. Nor can it sensibly be argued that it would have placed any additional pressure on the jury to reach a verdict.

[37] The second consideration relied upon was the length of the jury’s retirement. There is nothing in this point. The jury retired at 11.52 am and returned with its verdicts at 9.29 pm, so the retirement lasted about 9½ hours in all. But of that time at least two hours must have been spent in meal breaks, and a further 2½ hours was occupied in the process of first seeking, and then viewing, the videotapes of interviews with the complainant and the appellant. Therefore, of the total period of

9½ hours in retirement, some 4½ hours was spent outside the confines of the jury

room, or at least on activities other than formal deliberations. Retirements of that length are not uncommon, and indeed might be regarded as routine. There is simply no warrant for the suggestion that the sheer length of the retirement, of itself, placed improper pressure on the jury to reach a verdict.

[38] The third factor relied upon by the appellant is the jury note which advised that:

We believe no amount of time will enable us to reach a unanimous decision.

As we understood Mr Bouchier’s argument, it was that an unfair compromise verdict is the proper inference to draw from the fact that despite the contents of the note, the jury returned with verdicts on all counts just 32 minutes after the giving of the Papadopoulos direction. We cannot accept that contention. It is not uncommon for juries which have expressed themselves to be deadlocked to return with verdicts shortly after the giving of a Papadopoulos direction. Not infrequently, the intervention of the Judge for the purpose of reminding members of the jury of their obligation to listen to the opinions of others, and to take into account various shades of view, has the effect of enabling juries to reach verdicts where agreement formerly appeared unlikely. While the note to the Judge was written in uncompromising terms, there is no proper basis for the claim that the subsequent verdicts must be regarded as unsafe.

[39] We are satisfied that the Papadopoulos direction was properly given, and that this ground of appeal cannot succeed.

Decision

[40] For the reasons we have expressed, the appellant has failed to make out either of the grounds upon which this appeal was based. It is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington