R v Herbert [2007] NZCA 548 (29 November 2007)

Last Updated: 3 January 2015

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

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF NEW TRIAL. PUBLICATION IN LAW

_{REPORT OR LAW DIGEST PERMITTED}

IN THE COURT OF APPEAL OF NEW ZEALAND

CA436/07 [2007] NZCA 548

THE QUEEN

v

EDWARD RAWIRI HERBERT

Hearing: 14 November 2007

Court: Wilson, Chisholm and Potter JJ Counsel: G J King for Appellant

H D M Lawry for Respondent

Judgment: 29 November 2007 at 11am

_{JUDGMENT OF THE COURT}

A The appeal against conviction is allowed. B The conviction is quashed.

_{C A new trial is ordered on the count of sexual violation by rape.}

R V EDWARD RAWIRI HERBERT CA CA436/07 29 November 2007

4. Not to be published in news media or on internet or other publicly accessible database until completion of new trial. Publication in Law

_{Report or Law Digest Permitted.}

REASONS OF THE COURT

_{(Given by Wilson J)}

Introduction

[1] In July 2007, at his second trial before a judge and jury in the District Court, the appellant was found guilty on one count of sexual violation by rape (s 128(1)(a) Crimes Act 1961) and acquitted on a charge of assaulting a female (s 194(b) Crimes Act). Both charges related to the same incident. The appellant was subsequently sentenced by Judge John Walker, the trial Judge, to seven years and six months imprisonment.

[2] He now appeals against his conviction and his sentence.

Background

[3] The appellant was first tried on these charges in May 2007. The jury was unable to come to a unanimous verdict, but indicated to the trial Judge (not Judge Walker) that they were ten to two in favour of acquittal on the charge of rape. Contrary to usual practice, this indication was conveyed to counsel.

[4] At the second trial, the jury deliberated for ten hours and delivered their verdicts after midnight.

[5] On 15 August 2007, Judge Walker sentenced the appellant. He began from the starting point of eight years and gave a reduction of six months to reflect the appellant’s youth (he was 23 years old at the time of the offending) and the fact that this was his first violent offence.

[6] The appellant had encountered the complainant, who was unknown to him, in an intoxicated state outside a bar in Lower Hutt at 5am. She was seeking a lift to Upper Hutt and the appellant offered to drive her there. On the way, he pulled into a riverbank area. The complainant said that she then got out of the car and tried to run away but the appellant grabbed her by the upper arms and forced her to the ground. A struggle ensued, during which the appellant raped her. Eventually, she made her escape back to the road, where she was found by an off-duty police officer.

[7] The appellant’s version of events was that he pulled over because the complainant was kissing him and giving indications that she wanted to have sex, and that what occurred was consensual intercourse. He claimed that, when he asked her during intercourse if she had been taking drugs and whether she had a boyfriend, she “lost the plot” and ran off, despite his attempts to calm her down.

Grounds of appeal

[8] The appellant appeals against his conviction on two grounds:

(a) The verdicts were unreasonable because of their inconsistency; and

(b) The Judge misdirected the jury as to the complainant’s capacity to consent to sexual intercourse.

[9] He also appeals against his sentence on the ground that the sentence was manifestly excessive because of inadequate deduction for mitigating factors.

Submissions as to inconsistent verdicts

[10] The appellant submits, through Mr King, that this is one of those very rare cases where the jury’s verdicts are so inconsistent as to make the guilty verdict unsafe. No reasonable jury properly instructed could have reached the conclusion that was reached. The jury must have been confused or adopted a wrong approach. On this point, Mr King refers to the analysis in R v Shipton [2007] 2 NZLR 218 at [75] – [77].

[11] Counsel contends that the only possible explanation for the verdicts is that the jury rejected the complainant’s version of events, but concluded that due to her intoxication she was incapable of legally consenting to sexual intercourse. This interpretation of events, Mr King says, is unreasonable and cannot be supported on the evidence in terms of the test in R v Ramage [1985] 1 NZLR 392 (CA) (recently reviewed by this Court in R v Munro [2007] NZCA 264).

[12] Mr King submits that the only possible basis for acquittal of assault was that the jury did not accept the complainant’s version of events. There was no ambiguity in either the allegation or the complainant’s evidence. If there was no assault, on the complainant’s narrative she could not have been raped. In reality, the two allegations were both part of the same transaction, as was the case in R v M CA228/98 3 September 1998.

[13] The Crown submits that, for inconsistency to be established, the verdicts must indicate that the jury accepted certain evidence in relation to one count but rejected the same evidence in relation to another count: R v Maddox CA424/00 1

March 2001. An appellate court should assume that a jury’s verdict was reached after proper consideration: R v Sharplin (1997) 14 CRNZ 682 (CA).

[14] In the Crown’s submission, it was open to the jury to conclude that there had been no assault, but that the complainant and the appellant had somehow ended up on the ground and that he had then raped her. The verdicts can be explained by the fact that there was some corroborative evidence regarding the rape charge, but the assault charge was reliant solely on the complainant’s oral testimony. The verdicts do not indicate that the jury rejected the complainant’s version of events, but only that they approached her version with caution and required some corroboration before convicting.

Submissions as to intoxication direction

[15] The appellant contends that the inconsistent verdicts must have stemmed from confusion on the part of the jury, generated by the trial Judge’s decision to leave the issue of the complainant’s capacity to consent to the jury. Mr King

submits that there was no evidential basis whatsoever for the jury to find that consent was obviated by intoxication, and that this was never part of the Crown’s case. It was, however, an important part of the defence case that the complainant, disinhibited by alcohol, did in fact consent to having sex with the appellant, but regretted it very shortly afterwards.

[16] At the first trial, the Judge had directed the jury that there was no issue regarding the complainant’s capacity to consent. However, in the second trial, the Judge said in his summing up:

[15] So it is the issue of consent and whether the accused believed on reasonable grounds that she was consenting that are the primary issues. Consent means a true consent, freely given by a person who is in a position to make a rational decision. The relevant time to consider is the time the sexual intercourse occurred. There is evidence that the complainant had consumed alcohol during the night and you have the scientific evidence as to what her blood level would likely have been at the relevant time. You have heard evidence about her conduct during the evening. It is for you to decide whether the complainant was in a position to make a rational decision whether to consent or not to sexual intercourse at the time it occurred. Remember that people sometimes do things when they are drunk that they would never do when they are sober. A consent given by someone who is disinhibited by alcohol is still consent.

[17] Counsel raised the issue of the direction on incapacity to consent with the Judge immediately after the jury retired, but he declined to redirect. In response to a question from the jury on the issue, the Judge pointed out to the jury that it was not the Crown’s case that the complainant was too drunk to consent, but he did not remove the issue from the jury’s consideration.

[18] The Crown submits that the Judge’s directions accurately reflected the law. He made it clear that drunken consent can still be consent, and that it was for the jury to decide the point. His later answer to the jury’s question made it clear that incapacity was not in issue.

Discussion

[19] In his directions to the jury, Judge Walker summarised the prosecution case on the assault count as follows:

[13] The Crown case in relation to this count is that the accused grabbed the complainant by the upper arms when she was trying to make for the road after getting out of the car. So that is the basis of the charge being a male assaulted a female. So the Crown must prove to you beyond reasonable doubt that there was an intentional application of force by the accused to the person of the complainant.

[20] A little later, the Judge summarised in these words the prosecution case on the count of sexual violation by rape:

[16] It is the Crown case that the complainant did not consent to sexual intercourse. She says that she got out of the car and tried to make for the road but that the accused pulled her back and that she tried to fight him off, grabbing his testicles because, she says, she knew what was going to happen. On her evidence she fought continuously and never consented. On the complainant’s evidence she understood what was to happen, did not want sexual intercourse and made this clear.

[21] Nothing in the material before us suggests that these were not accurate summaries. Mr King, who was counsel at trial, confirmed that they were.

[22] We must therefore conclude that it was part of the Crown case on each count that the complainant got out of the car but was physically restrained by the appellant from returning to the road.

[23] The evidence of the complainant to this effect (if accepted) therefore established both the assault and part of the rape. In other words, the greater (the rape) included the lesser (the assault).

[24] It was accordingly a logical impossibility for the jury on the evidence to find the appellant not guilty of assault but guilty of rape, although verdicts of guilty of assault but not guilty of rape could have been reconciled.

[25] A verdict of guilt on one charge will be considered unsafe if it is inconsistent with a verdict of acquittal on another count. The test is whether the verdicts demonstrate that no reasonable jury applying its mind properly to the admissible evidence could have arrived at the two different verdicts: R v Irvine [1976] 1 NZLR

96, at 99 (CA).

[26] In Maddox, this Court said at [22]:

Interference by an appellate court is called for on the ground of inconsistency only where the difference in the verdicts requires that the jury must have accepted certain evidence in relation to one count but rejected the same evidence in relation to another count so that the verdicts are not susceptible of reasonable explanation.

[27] That must have been the position here. It follows that the guilty verdict was unreasonable and cannot stand.

[28] Mr King realistically accepted that, if the appeal against conviction were allowed, a new trial should be ordered on the count of sexual violation by rape.

Result

[29] We therefore order that the appeal is allowed, the conviction on the count of sexual violation by rape is quashed and there is to be a new trial on that count.

[30] This Judgment is not to be published in the news media or on the internet or other publicly accessible database until the completion of the new trial. Publication in a Law Report or a Law Digest is permitted.

Comment

[31] On the view we have taken of this appeal, it is not necessary for us to address the other ground of appeal against conviction or the appeal against sentence. Because however we heard full argument on these questions and there may be a further trial (whether there is will be a decision for the Crown, no doubt after consulting the complainant), we make two observations.

[32] First, while we think it unnecessary and counter-productive to speculate as to the reason for the inconsistent verdicts, we have not been persuaded that there was any misdirection.

[33] Secondly, if we had upheld the conviction, we would not have interfered with the sentence which could not, in our view, be characterised as manifestly excessive.

[34] Finally, we observe that it was unwise for those responsible for the conduct of this prosecution in the District Court (not Mr Lawry’s office) to have included the count of assault. Conviction on that charge as well as the charge of rape would not have increased the effective sentence which would have been imposed on the rape count alone. It should also have been foreseen that inclusion of the assault charge risked the most unfortunate situation which has now eventuated.

Solicitors:

Crown Law, Wellington for Respondent