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R v A (CA305/07) [2007] NZCA 541 (26 November 2007)

Last Updated: 3 January 2015

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


IN THE COURT OF APPEAL OF NEW ZEALAND



CA305/07 [2007] NZCA 541



THE QUEEN




v




A (CA305/07)




Hearing: 19 November 2007

Court: Hammond, John Hansen and Miller JJ Counsel: P Le'au'anae for Appellant

H D M Lawry for Crown

Judgment: 26 November 2007 at 4 pm


JUDGMENT OF THE COURT






The appeal is dismissed.








REASONS OF THE COURT

(Given by Hammond J)





R V A (CA305/07) CA CA305/07 26 November 2007

Introduction


[1] The appellant, A, was found guilty on 26 March 2007 by a jury presided over by Judge Wade in the Manukau District Court at Auckland of sexual violation by rape.

[2] On 20 April 2007 A was sentenced to 8 years imprisonment. [3] A now appeals against his conviction.

[4] The complainant, Z, was 11 or 12 years old at the time of the offence. She was the step-daughter of A’s brother, Y, and lived with Y and her mother.

[5] The Crown case was that this offence occurred when Y and her mother were away fishing. Z was playing outside with her sisters when A arrived at the house. He led her inside. He lay her down on her bed, removed her pants and knickers and his overalls and underpants, positioned himself on top of her and began having sexual intercourse with her without her consent. A left after he had finished; Z showered.

[6] A also faced a representative count of rape based on allegations made by Z

that thereafter he raped her a number of times between 5 January 2004 and 12 July

2005. A was acquitted on this count.

[7] Z became pregnant sometime during this period. But it was an admitted fact at trial that DNA results had determined that the father of this child was her step- father, Y.

[8] Once it was established that Z was pregnant, inquiries began. In the result, both A and Y were separately charged. At the time of A’s trial Y was awaiting his own trial, which was the following week. Y pleaded guilty to a number of charges on the morning of his trial. He was sentenced on the same day as A, to 12 years imprisonment.

[9] Regrettably the complainant’s mother had beaten her when Z told her what her step-father was doing to her. The mother too was subsequently convicted, and is currently serving a term of imprisonment.

[10] Z had an abortion in late 2005. She had told the police that she was pregnant to A, but that assertion was displaced by the DNA tests.

[11] This appeal by A was mounted on the footing that the verdict as returned by the jury was unreasonable or unable to be supported having regard to the evidence. Counsel referred to a number of cases. Very recently, in R v Munro [2007] NZCA 510, the Full Court of the Court of Appeal held that “[t]he correct approach to a ground of appeal under s 385(1)(a) [of the Crimes Act 1961] is to assess, on the basis of all the evidence, whether a jury acting reasonably ought to have entertained a reasonable doubt as to the guilt of the appellant” (at [86]). In light of that authoritative determination, it is inappropriate to refer further to the earlier authorities.

[12] When pressed, Mr Le’au’anae (who was counsel at trial) suggested that the jury ought to have had a reasonable doubt for one or both of the following reasons.

[13] First, he said Z could have been confused on the count on which A was convicted, as to the identity of the offender – A or Y.

[14] That argument is premised on the proposition that the complainant was being abused by these two men at the same time and therefore could have become confused as between them. However, the complainant was quite clear in her evidence-in-chief that the first incident of abuse was by A when her parents were away and A came to her house when she was playing outside with her sisters. It was entirely open to the jury to accept that evidence, as it must have done to form the basis of the count on which the appellant was convicted. It is true that there was subsequently an overlapping period when Z was abused by both A and Y, which resulted in Z becoming pregnant to Y. But that was the representative count on which A was acquitted. There was no suggestion raised that these were perverse verdicts. A likely got a favourable verdict on that count. We cannot know, but it is

at least possible that the jury considered the interests of justice were well served by A being convicted only on the one count whereas the step-father, Y, may have been considered to have had much greater culpability. In any event, there is nothing in this appeal point and we dismiss it.

[15] The second concern raised by Mr Le’au’anae was that when Z was asked by him in cross-examination for more distinct particulars as to what had occurred on the occasion on which A was convicted, she gave several answers where she said “can’t remember” or made inaudible replies. These questions related to what clothes and footwear were being worn by the parties. Given that this young girl was subjected to a prolonged period of abuse on a number of occasions it may be thought unsurprising that she had some difficulty with particulars as to what precisely was being worn on this particular occasion. She was, however, quite adamant as to the actual nature of the abuse which took place. We find it quite impossible to say that on this account a jury acting reasonably ought to have entertained a reasonable doubt as to the nature of what occurred on the occasion on which A was convicted. This appeal point is also dismissed.

[16] A third area of concern in the written submissions was whether the jury ought reasonably to have had a doubt about the complainant’s testimony, particularly because of family pressure, the beatings from her mother, and pity for the step-father and a desire to “displace” at least some of the blame from him for the appalling abuse suffered by this young girl. All of those matters were before the jury, and were for it: they were quintessential jury issues. We see no proper grounds for interference with the jury assessment of the complainant’s credibility.

[17] The appeal is accordingly dismissed.





Solicitors:

Crown Law Office, Wellington


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