R v S (CA113/06) [2006] NZCA 493 (17 November 2006)

Last Updated: 6 February 2014

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

˝

_˝

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA113/06

THE QUEEN

v

_{S (CA113/06)}

Hearing: 13 November 2006

Court: Chambers, Goddard and Gendall JJ Counsel: M N Pecotic for Appellant

M A Corlett for Crown

Judgment: 17 November 2006 at 3 pm

_{JUDGMENT OF THE COURT}

_{The appeal is dismissed.}

REASONS OF THE COURT

(Given by Gendall J)

[1] The appellant was found guilty by a jury in the District Court at Manukau of one count of rape and sentenced to eight years’ imprisonment. He appeals against

_{his conviction. Counsel did not pursue the sentence appeal.}

R V S (CA113/06) CA CA113/06 17 November 2006

[2] At his trial the appellant faced four counts of sexual violation by rape of the same complainant. The first count, upon which the appellant was convicted, alleged that he raped the complainant on 1 June 1998 at Rotorua. The remaining three counts, upon which he was acquitted, alleged three acts of rape on 9 and 10 April

2005 at Manukau. The appeal is advanced on the basis that the guilty verdict was inconsistent with the verdict in respect of the three other counts. Further, the appellant seeks to present fresh evidence which, it is said, was not available to counsel at the time of the trial and which, if admitted, might have resulted in the jury returning a different verdict on the first count of sexual violation.

Background

[3] The Crown alleged that the first violation in Rotorua in June 1998 occurred in circumstances where the appellant took out his anger, or exacted retribution, upon the complainant because of jealousy or resentment over her sexual behaviour with another man. It was common ground that she had marks on her neck which had resulted from such activity. She and the appellant had been in a relationship and her evidence was that the appellant became enraged by what he saw and raped her. In his statement to the police the appellant admitted sexual intercourse and said that he was angry with the complainant but contended that the act of intercourse was consensual.

[4] The evidence was that over the next seven years the complainant gave birth to five children of whom the appellant was the father. The relationship was tempestuous with allegations of violence and at some stage the complainant obtained a protection order. Nevertheless there were periods of reconciliation and whilst the complainant and appellant did not live together in a formal de facto relationship he would visit her during weekends on a frequent basis.

[5] Despite obtaining a protection order in January 2003, the complainant, when residing at a community refuge centre with the children, continued to have a sexual relationship from time to time with the appellant at that address.

[6] After leaving the community centre, the complainant and the children went to live at her father’s home. The complainant, although still having the benefit of a protection order, invited the appellant to visit. Her evidence was that they were endeavouring to work out their relationship. Sexual intercourse occurred which was, initially, consensual. Later acts occurred over the weekend 9-10 April 2005 which formed the basis of the allegations of sexual violations in Counts 2, 3 and 4. The complainant’s evidence was that on three occasions sexual intercourse occurred, one of those while she was asleep, and all without her consent. She said she complained to the appellant that she had physical pains and limitations but the appellant ignored her resistance and proceeded to have intercourse with her.

[7] The proposed fresh evidence is contained in an affidavit of the appellant’s niece. She deposes that she was a former friend of the complainant; that in 1998 she and the complainant had been socialising; sexual events had occurred between the complainant and one of her friends. None of those matters are contrary to the complainant’s evidence. She says the complainant panicked because of marks on her neck when she was “caught out” by the appellant and that she observed discussions between the appellant and the complainant outside the latter’s home. The witness says she departed for part of that day but gave no evidence as to being present when anything took place inside the home. However, she deposes that she later had a conversation with the complainant who told her that the appellant was upset over the marks on her neck, she felt guilty about what she had done, and she really loved the appellant. The proposed witness says that she did not give evidence at the trial because of emotional and physical problems that she then had.

Discussion and legal principles

[8] The approach to be adopted in appeals based on inconsistent verdicts is summarised in R v A & Ors CA301/05 11 April 2006 where the Court said:

[75] The general principle has long been that a conviction is unsafe if no reasonable jury, properly instructed, could have arrived at the conclusion which was in fact reached (R v Stone [1955] Crim LR 120 per Devlin J). The burden is on the accused to demonstrate that the only explanation for the inconsistency must be that the jury was confused or adopted the wrong approach, thus making the verdict unsafe. Only this can warrant the intervention of an appellate court, and generally there ought to be a curial

reluctance to interfere with a jury verdict (R v H [2000] 2 NZLR 581 at 589 per Keith J).

[76] A prima facie inconsistency is never enough to set aside a verdict. Once a prima facie inconsistency is established, the Court must inquire whether there is any rational or logical explanation for the inconsistent verdict. Sir John Smith has stated the requisite approach admirably:

[T]he jury system is workable only if we assume that, in the absence of any evidence to the contrary, the inscrutable jury has behaved rationally. So where verdicts are alleged to be inconsistent, the court must consider whether there is a rational way in which the jury could have arrived at the two verdicts and, if there is, to assume that this was the path which the jury followed ... The jury is not, of course necessarily saying by its differing verdicts that some allegations are untrue, only that they are not sure that they are true. (In a case note to R v JK [1999] Crim LR 740 at 741).

[77] Time after time in appeals to this Court it is argued, as counsel argued here, that because the jury must have “disbelieved” a witness to acquit on one count, it was inconsistent to rely on her to convict on another count. The argument is utterly fallacious; there may be all sorts of valid reasons why the jury may be convinced by a witness on one count but not on another. To put this another way, there is no reason why credibility must be static. As was said in R v G [1998] Crim LR 483, “A person’s credibility is not a seamless role, any more than is their reliability”. It is not necessarily illogical for a jury to be convinced as to the credibility of some aspects of one’s person’s story, but not as to others, a fortiori where it is convinced, but not beyond a reasonable doubt.

[9] As to the issue of admission of further evidence, the position is this; if significant evidence ought to have been before the jury but was not, for whatever reason, a miscarriage of justice may have occurred. The real focus is on the importance of the omitted evidence if it had been given, along with other evidence adduced at trial. In R v Bain [2004] 1 NZLR 638 (CA) at [22] Tipping J, for the Court, said:

...The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.

Inconsistent verdicts

[10] Counsel contended the only evidence upon which the jury could have relied to convict the appellant on Count 1 was that of the complainant. It was argued that, the jury having rejected the complainant’s evidence in relation to the remaining three counts, the conviction on Count 1 must be unreasonable and inconsistent.

[11] As they are required to do Judges routinely direct juries that they are entitled to bring in different verdicts in respect of different counts. As was said in R v A & Ors, frequently appeals are brought where there is an acquittal on one or more counts and convictions on others. In the present case the circumstances surrounding Count 1 on the one hand, and the other three counts, were quite different. The two events were seven years apart, taking place in separate locations. The first count involved an allegation of significant physical violence, namely the throwing of the complainant to the ground in a context where a motive of jealousy existed, and in which anger on the part of the appellant was acknowledged. The question of belief on reasonable grounds as to consent hardly arose.

[12] The later events of April 2005 occurred in a quite different context. The couple by then had five children and the appellant was invited by the complainant to visit her. She agreed that consensual intercourse had occurred two days previously. The circumstances spoke of an attempted reconciliation. Given that surrounding context, it was open to a jury to conclude that it was not satisfied that the Crown had proven beyond reasonable doubt the appellant did not have a belief, based on reasonable grounds, as to consent. That is, they may well have accepted the evidence of the complainant but could still have concluded that the Crown had not excluded a belief as to consent by the appellant on reasonable grounds. There exists a clear and logical rational explanation for the different verdicts.

Proposed fresh evidence

[13] In this case the proposed evidence is not fresh. It was available at the time, and certainly from the appellant’s point of view (apart from the reference to the later conversation between his niece and the complainant), he must have known of it.

[14] Secondly, the proposed evidence does not touch on what actually happened in the house, as the niece was not present there. It is not, therefore, direct evidence. In so far as it provides background to the incident, it is supportive of the complainant’s general version of events, rather than the appellant’s general version of events. That is say, it supports the view that there was a major argument. If that occurred, then that would be supportive of the view that the appellant was angry, which on the complainant’s account, he certainly was inside the house. It is inconsistent with the appellant’s version that the sexual intercourse in the house was loving and consensual.

[15] Thirdly, the version is, in its detail, inconsistent with both the complainant’s account and the appellant’s account. Neither the complainant nor the appellant referred to this encounter outside the house. To that extent, the evidence lacks cogency.

[16] The absence of this evidence did not give rise to a miscarriage of justice. Indeed had it been called along with the other trial evidence, it could well have hurt the defence case rather than have provided an opportunity for a more favourable verdict.

[17] We are satisfied that the conviction is safe and no miscarriage of justice arose. The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington