The Queen v Vanarasi [2009] NZCA 6 (12 February 2009)

Last Updated: 18 February 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA596/2008

[2009] NZCA 6

THE QUEEN

v

NARSING VANARASI

Hearing: 10 February 2009

Court: Robertson, Hugh Williams and Miller JJ

Counsel: D Quilliam for Appellant
N P Chisnall for Crown

Judgment: 12 February 2009 at 9 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Introduction

[1] The appellant was found guilty after a jury trial on one count of indecent assault contrary to s 135 of the Crimes Act 1961. He was sentenced by Judge Adeane to pay a fine and make reparation.
[2] He appeals against conviction only on the basis that a substantial miscarriage of justice has occurred, as the verdict cannot be supported having regard to the evidence and is unreasonable.
[3] The principal contention is that the oral evidence of the complainant and a friend as to the complainant’s behaviour are inconsistent with what can be observed in footage from two covert closed circuit televisions (CCTVs) and that the jury should accordingly have been left with a reasonable doubt.
[4] There is an additional speculative contention about possible reasons that the complainant may have to fabricate a complaint, but as it lacks a proper evidential foundation it must be ignored for the purposes of the appeal.

Background

[5] The complainant is a 17-year old woman who was employed part time as a cleaner and waitress at a restaurant where the appellant worked as a chef.
[6] On 23 February 2008 in the course of their work, it was necessary for both to be in a men’s toilet. When they had completed what needed to be done, the complainant said that the appellant blocked the doorway to the toilet and touched her on the stomach before forcibly taking hold of her arm. Notwithstanding her protest, he attempted to kiss her and to fondle her breasts.
[7] The complainant said that the incident only stopped when she told the appellant that she would meet him for a sexual encounter on a subsequent day. Mr Vanarasi then allowed her to leave the toilet and she went to the front counter where she spoke to her best friend who was also working at the restaurant.
[8] Shortly thereafter, the two young women left the restaurant although their shift had not ended. Later that day (having told her family about the incident) the complainant reported it to the police.
[9] The short point on the appeal is that whereas both the complainant and the friend said that when the complainant left the toilet area and went to her friend, she was nervous, shaking, uncomfortable, distressed and on the verge of tears, the appellant contends that none of that behaviour is apparent from the CCTV footage.
[10] There was also a discrepancy as to whether it was about two minutes or twelve minutes between when the complainant came out of the men’s toilet and the two young women left the restaurant.

The District Court hearing

[11] The complainant was confronted in cross-examination with the footage from the CCTVs. Mr Quilliam (who was not trial counsel) submits that footage shows the complainant was composed and that her assertion about her reaction was demonstrably untrue. It is contended that both witnesses were normal and natural and what can be seen on the tape was at odds with their description of the complainant’s reaction and behaviour. Therefore counsel argued the jury would have to conclude that the entire allegation had been fabricated.
[12] When confronted at trial with the tapes (and the alleged inconsistencies between them and her own and her friend’s version of events), the complainant said that she did not want to “make too much of a scene”.
[13] The transcripts of the addresses in the District Court (particularly that on behalf of the appellant) leave no doubt that the jury was fully appraised of this alleged inconsistency.
[14] The appellant did not say anything of substance when he was spoken to by the police after the complainant had reported the incident, and he did not give evidence at trial. His trial counsel challenged both the complainant and her friend during the trial suggesting that the entire matter was a fabrication. This was steadfastly denied at all stages, as were the factual scenarios put to the two young women by counsel.
[15] The jury had the opportunity to see the tape and assess it, alongside the recollection of the two young women.
[16] The tape deals only with the reaction outside the toilet area and does not provide any direct evidence as to what happened at the time of the alleged offending.
[17] In light of the tests articulated by this Court in R v Munro [2008] 2 NZLR 87 and the refinement of it by the Supreme Court in R v Owen [2008] 2 NZLR 37, there is nothing which justifies intervention by this Court. Even if the jury considered there was any inconsistency between the tapes and the oral testimony on the narrow point of the complainant’s reaction once she had stepped outside the toilet, that does not mean that the jury could not accept what the complainant said happened to her in the men’s toilet.
[18] The exact state of the complainant immediately after the incident could have probative value, but is not critical to the central issue before the jury.
[19] The jury was entitled to accept the complainant’s evidence which provided the necessary evidential foundation for all aspects of the Crown’s contention. The jury had the opportunity to assess for themselves the reaction of the complainant immediately after the incident both in the words she used and in viewing the tape. There is nothing which points to an unreasonable verdict.
[20] Mr Quilliam’s reference to some talk of separating the complainant and her friend has an insufficient evidential basis to create an appeal point and does not require our attention.

Result

[21] The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington