Q (CA63/2010) v R [2010] NZCA 487; [2011] 1 NZLR 328 (27 October 2010)

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ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

NOTE: PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA63/2010 [2010] NZCA 487

BETWEEN Q (CA63/2010) Appellant

AND THE QUEEN Respondent

Hearing: 1 September 2010

Court: Arnold, Keane and MacKenzie JJ Counsel: W C Pyke for Appellant

H A Wrigley for Respondent

Judgment: 27 October 2010 at 10.30 am

_{JUDGMENT OF THE COURT}

A The appeal against conviction is allowed. The conviction is quashed and a retrial is ordered.

B Publication of the judgment and any part of the proceedings in news media or on the internet or other publicly available database is prohibited until final disposition of retrial. Publication in law report or

_{law digest is permitted, however.}

Q (CA63/2010) V R CA63/2010 [27 October 2010]

REASONS OF THE COURT

_{(Given by Keane J)}

Introduction

[1] Q was found guilty at a jury trial before Judge Wolff of two sexual violation offences committed on 15 April 2009, penetrating the anus of the complainant, X, first with his penis then his finger, and was sentenced to eight years imprisonment, concurrently, for each offence.¹ He appeals his conviction and sentence.

[2] Q denied these offences when first confronted by the police not long after X complained. He said “it did not happen”. That was taken to be an outright denial. At his trial the Crown set out to prove first the fact of penetration in the two ways complained of and only then to exclude any issue as to consent. As well as relying on X‟s evidence it relied on the doctor who examined her shortly after she made her complaint, Dr Hancock, as to injuries to X‟s anus and elsewhere. It relied on ESR evidence confirming that spermatozoa swabbed by Dr Hancock from X‟s anus was statistically that of Q.

[3] In the event, and this was clearly signalled by his then counsel in an opening statement at the beginning of the trial, Q admitted in evidence that he had penetrated X‟s anus in the two ways she described. He did so, he said, with her consent, or with a reasonable belief that she did consent. The jury, by its verdict, clearly preferred her account to his to the point where it was sure. But on this appeal Q contends that the verdict is unsafe and that the trial miscarried.

[4] First, Q contends, the jury‟s verdict is explained by the fact that, when Dr Hancock described the injuries to X‟s anus, she described them as “penetrative and blunt force trauma”. Then, when asked by Q‟s then counsel whether they were

_{consistent, nevertheless, with consensual relations, she said that was possible but}

¹ R v Q(CA63/2010) DC Hamilton CRI-2009-072-287, 13 January 2010.

unlikely. These expressions of opinion, Q‟s first ground of appeal is, were impermissible and must surely have been highly influential.

[5] Secondly, Q puts in issue the manner in which the verdict was taken. The jury agreed on the second count, digital anal penetration. They stated they had been unable to agree on the first, penile anal penetration. As to that they were divided

11 to one. The Judge did not give them a majority verdict direction. Instead he took the verdict on the second count and as to the first gave them a Papadopolous direction. As to the first count, Q contends, he should then instead have been discharged.

[6] Thirdly, Q contends, the Papadopolous direction the Judge gave was fatally incomplete. That direction contains three cardinal points and the Judge omitted the third. He did not instruct the jury that, though it had a duty to attempt to agree, they were to remain true to their oaths. If they considered that to agree would be contrary to their oaths they were not obliged to agree. That, he contends, was a significant misdirection. It could have placed the juror standing out under unacceptable pressure and could account for the unanimous verdict received shortly after.

Evidence concerning incident

[7] In evidence X proved more definite than Q about what happened between them on the evening of 15 April 2009 at Q‟s grandmother‟s house, where he was then living. He said that he had been drinking that night and his memory as to the precise sequence was less than clear. They agreed, nevertheless, in main outline, as to how the evening unfolded except as to the critical question of consent; and that sequence is significant in itself.

[8] They had, they agreed, been in a relationship throughout 2008 that had been fully sexual and at least once had extended to anal intercourse. They differed as to X‟s attitude to anal intercourse. Q could not recall that ever having been an issue. X said that she had not enjoyed anal sex and had not wished it to happen and that Q knew that. She did not go so far as to say that on any such earlier occasion she had withheld consent.

[9] After they had ceased their relationship in late 2008, or early 2009, they agreed also, they had continued to see each other and they met on 15 March on X‟s initiative. Q‟s birthday was to be on 17 April 2009. X suggested that she spend the night with him two nights before. She arrived, they agreed, equipped with a change of clothes, her make-up, some food and a cask of wine; having had, she said, two glasses of wine from the cask before she arrived. They agreed that, by the time she arrived, Q had already been drinking bourbon mixers.

[10] Almost immediately after X‟s friends dropped her off, they agreed, they went to Q‟s bedroom. Q entered through the house. X entered by climbing in Q‟s bedroom window, to avoid his grandmother who had forbidden her entry into the house. In the bedroom, they agreed, X drank more from the cask and Q, after finishing his drink, joined her. He drank, X considered, at a deliberately fast rate. She described him as “skulling it”. He denied that. Then, they agreed, as both of them had anticipated, they went to bed. He first went to the toilet. When he returned X was in his bed, mostly or completely naked.

[11] They engaged, they agreed, in a range of sexual activity about which X did not complain afterwards. They had intercourse in various positions, in which Q persisted but proved unable to ejaculate. Throughout this phase, X accepted, when cross-examined, they did not use any lubricant. They agreed that at some point they had oral sex. X said that Q wanted her to suck his penis and pushed her head down between his legs. She resisted this. She thought he should have a shower. She did not say she withheld consent. Also, she said, he attempted to have anal intercourse with her. She did not want that, she said, as he knew; an assertion he denies. She moved her body away.

[12] Eventually during sustained intercourse, they agreed, X became tired. She felt tight across the chest. Her breathing became affected. She also became angry, she said, because Q would not listen to her. She sat up, they agreed, put on her underwear, he kissed her, she permitted him to remove her underwear and returned to bed. She explained that when he kissed her she thought he was prepared to listen to her. At this juncture they began to differ more radically.

[13] Q, according to X, told her that he still wanted to have anal sex with her. X made it quite clear to him, she said, that she refused; an assertion he denied. Then, she said, and he denied, he gave her an unpalatable choice. Either she was to suck his penis or he was going to have anal sex with her. She did not want either and, she maintained, she made that equally clear; again an assertion he denied.

[14] After that, X said, he attempted to penetrate her anus with his penis and succeeded once. She found that painful. She cried out, she said, but conceded when cross-examined that she did not scream. She agreed also that no lubricant had been used. Q, in evidence, accepted he had, as X said, penetrated her anus with his penis. But, he said, X did not protest. It was normal for them to do this. They had done it before.

[15] After that, X said, Q asked her to masturbate him and roughly. She did so only to avoid further anal sex. Q, she said however, without any warning forced his finger into her anus hard and painfully and in anger. Q admitted that he had asked her to masturbate him though not, he said, roughly. He admitted that he had penetrated her anus with his finger. He denied that it was in anger or without consent. His stance was that this too was normal and, as he thought, his finger was less likely to cause X discomfort than his penis.

[16] At this point, X said, she became so angry that she sat up and punched Q in the back of the head. When that happened, he agreed, he pushed her across the bed and she hit her head against his stereo. He agreed also that he threw her overnight bag and some of her clothes out of the window. X said, and he did not deny, that he retained her mobile phone. He only gave that back to her after he had removed her SIM card, bent it and thrown it out the window as well.

[17] Once she got her phone, they agreed, X climbed out the window. Q, she said, tried to keep her in the bedroom, a fact he denied. He agreed that he was by then angry and had acted just as she said. That, he said, resulted from the fact that she had punched him in the back of the head. But by then, he said, he just wanted her out of the house.

[18] Once outside X found her SIM card. It was bent but still worked. She found her bag. Then she realised that she had left her make-up bag and some of her underclothes inside. She went back to the window, they agreed, and knocked on it so hard that she broke it. Q called out to her, she said, in a way that frightened her and she ran away. She heard Q‟s grandmother call out, “leave it”.

[19] X was cross-examined as to why she went back for her make-up bag if, as she said, Q had raped her anally. She said in reply, and counsel for Q relied on this in closing, “it didn‟t, it didn‟t seem serious, „cos it felt like he had just done it before, it felt normal”. When re-examined she explained that he had treated her like that before. On any earlier occasion she had let it happen to avoid conflict.

[20] X was picked up by a friend with whom she made cellphone contact. They went to the Te Awamutu Police Station. At 11.40 pm Detective Sergeant Patterson spoke to her, then took her to the Hamilton Central Police Station. At 12.30 am on

16 April Dr Hancock examined her completely. Dr Hancock took swabs and possession of some of X‟s clothes, which the Detective Sergeant later sent to the ESR for forensic analysis.

[21] On 17 April, in the early afternoon, Detective Sergeant Patterson executed a search warrant at Q‟s home. Q was not present. The Detective Sergeant collected him from work and took him to the Te Awamutu Police Station. He put to him, after cautioning him and advising him of his rights, X‟s complaint that Q had anal sex with her without her consent. Q replied, “it didn‟t happen”. After consulting a lawyer Q relied on his right to silence.

First ground - evidence concerning injuries

[22] The injuries X sustained on 15 April were identified comprehensively in evidence by Dr Hancock. X herself explained in evidence, to the extent that she could, how she had sustained each injury.

[23] First Dr Hancock found swelling to X‟s right cheek and small scratches to the right side of her face. X‟s entire lower lip was swollen and tender. She had some

tenderness along the left jaw. These injuries, X thought, she had sustained when Q pushed her. Secondly, Dr Hancock identified two diagonal scratches to the right side of X‟s neck. She identified also a small linear abrasion that had been bleeding recently, and bruising to both sides of the neck. These bruises X described as “hickeys”, or love bites. Thirdly, Dr Hancock described a large bruise to X‟s right hip and a graze on her right shin, and extensive bruising to her left thigh and knee. X attributed these to her attempt to climb out the window when she said Q was trying to pull her back. There was also a cut to her thumb. Fourthly, Dr Hancock identified four linear scratches diagonally across X‟s chest and a graze. X herself spoke of marks to her back. She appears not to have any memory of how these occurred.

[24] Fifthly and most critically, Dr Hancock found X‟s vagina to be normal, but six lacerations to X‟s anal area, one of which led into her anal canal. Because of the level of discomfort X was experiencing when examined, Dr Hancock was not able to say whether any others also led there. The lacerations were not bleeding. They were moist and looked fresh. Otherwise X‟s anal skin was healthy.

Dr Hancock’s opinion evidence

[25] In evidence in chief, Dr Hancock, when describing the six lacerations, said this (and in this passage, as in others, we have excised hesitations and repeated use of the same word):

A laceration ... is ... an injury that‟s caused by ... blunt force trauma ... which causes the skin to stretch beyond ... the point that it can ... be stretched and then you get the split ... in the skin as a result.

[26] When asked to comment on the location at which any blunt force was exerted she said this:

The presence of these in the anal area ... in the position that they were found

... and .... that one of them was extending into the anal canal itself is ... highly suggestive of recent and penetrative ... blunt force trauma to the anus.

[27] It was at this point that she expressed the opinion that the “lacerations weren‟t bleeding but they had quite a moist mucosal surface so they were looking quite fresh.” She also said:

There was no evidence of any inflammation or ... disease process ... It was healthy anal skin otherwise or healthy perianal and genital findings otherwise.

[28] At the end of her evidence in chief counsel for the Crown invited Dr Hancock to express her conclusions in a more general way. There was this exchange:

Q. Now taking account of all the findings that you made, both external and internal ... what is your comment as to, to the extent that you are able to, as to the cause of the total package if I can put it that way?

A. Yeah, ... in this case where you‟ve ... got a subject with multiple ... injury types, so I‟m talking yeah bruising, lacerations and [abrasions] on multiple body [planes], so that‟s front, back sides, ... and sites ... and ... an area, i.e., the anal area, which is normally very well protected ... while some of the injuries may have been ... accidental ... the most likely ... cause of this pattern of injury would be ... an assault. Assaultative offence, so by that I mean ... an attack by another person.

Q. All right and if we focus particularly on your anal findings then and the fact that there were these six anal lacerations?

A. Mhm.

Q. At least one of which extended into the anal canal, what is your specific finding as far as that is concerned?

A. The ... anal findings are highly suggestive of, recent ... penetrative and blunt force trauma to the anus.

[29] That was the final answer elicited from Dr Hancock in her evidence in chief. In cross-examination Q‟s then counsel focused on the extent to which the anal injuries said anything about the question of consent or the absence of it. The entire exchange was this:

Q. Dr, did you note that the person examined by you had been drinking?

A. Yes.

Q. So it‟s correct isn‟t it, that whether penetration forces an injury, is not dependent on consent or non consent, but a number of other factors?

A. Absolutely, yes.

Q. And specifically the fact is, that maybe the term for it are for example type of penetration, amount of force used, penetrating object, state of the tissues in the beginning and the degree of cooperation or assistance from the person on the receiving end?

A. Yes, I mean as you ... point out, the ... likelihood of any ... penetrative force resulting in injury is ... dependent on ... a wide range of factors which are specific to each case.

Q. And also on the reverse argument, it‟s possible for example often in rape victims, there is no injury?

A. Ah, -

Q. For example, vaginal? A. Yes.

Q. There‟s often just a normal vaginal examination, so it doesn‟t really tell you anything does it - either way does it?

A. Absolutely.

Q. And the anal injuries that you described, again its possible that those could have been caused by a consenting couple not using lubrication for example?

A. Its possible ... its possible. ... though I would ... think unlikely. ... we‟ve got very little data .... on .... anal injuries unfortunately. There‟s a lot more work needs to be done. We‟ve got no data ... from the consenting adult population who partake in anal sex and it would be a very difficult study to get recruits for. ... and there‟s ... not a great deal of data out there on ... situations where anal penetration, ... is alleged as part of an assault. ... we do have figures that range from .... 30 to 50% ... in terms of positive anal findings in those cases but again, the data isn‟t strong.

Q. But it‟s possible isn‟t it, that if you have a consenting couple and there‟s no lubrication used and the evidence is here that there was no lubrication used in the sex that they were engaged in that similar injuries could be caused?

A. It‟s possible.

[30] When re-examined Dr Hancock explained that the 30 – 50 per cent positive anal injury findings, to which she had referred, derived from the few studies that had been made of vaginal and anal rape victims, who might have been expected to have suffered injury. She added:

... That‟s taking that in isolation rather than in the context of this case with the other injuries which I think is more compelling.

[31] Dr Hancock was then asked whether she could comment on whether the state of X‟s anal tissues could have contributed to the injuries she suffered. Dr Hancock

confirmed that in her view there was no relation between the two. X‟s anal area, she said, indeed X‟s entire genital area, was otherwise very healthy.

Principles of admissibility

[32] In a series of cases recently this Court has held to be inadmissible any expression of opinion by a medical practitioner called by the Crown as to whether injuries within the perimeter of the vulva or anus are more, or less, consistent with non-consensual than consensual sexual relations. Such injuries, the consistent clinical evidence has been, cannot in the majority of cases support any inference.

[33] In Tuhura v R this Court stated the unequivocal effect of those decisions:²

In cases where the injuries suffered by the complainant are not such that a doctor can properly express a view as to whether the sexual contact prior to the injuries being incurred was consensual or not, the doctor should not be asked to express a view. If the question is asked, the response should indicate that he or she cannot properly express a view one way or the other. The issue of consent will be at the forefront of the jury‟s mind. There is a real risk that if an expert suggests that injuries are indicative of non- consensual sexual activity, jurors may decide the case on the false understanding that the fact that the complainant suffered injuries makes it more likely that the associated sexual contact was non-consensual.

[34] To that the Court entered this qualification:³

... The concern in this case and in the cases we have referred to is that the opinion expressed by the medical expert at trial has been found to have been unsustainable. In a case where the injuries suffered are more serious or of a different nature, that may not be so.

[35] The Court did not say what kind or order of injury, whether confined within the vulva or anus, or extending more widely, might permit an opinion as to the presence or absence of consent. It referred instead to R v Honotapu⁴ where that qualification had been entered. That Court too went no further than to identify the

_possibility.⁵

² _{Tuhura v R [2010] NZCA 246 at [56].}

³ _{At [60].}

⁴ _{R v Honotapu [2008] NZCA 582.}

⁵ At [26].

[36] There are then in this case, as there were in Tuhura, and the four cases to which it refers,⁶ two questions. One is as to the nature, range and seriousness of the injuries suffered. The other is as to the opinion expressed as to their tendency. Tuhura itself exemplifies the issues that typically arise.

[37] The complainant there had suffered three fresh lacerations between the vulva and anus. The doctor who examined her, when asked in evidence in chief whether they could have been caused by consensual sexual intercourse, said that was possible. But she qualified that by saying that though clinical research was sparse, “getting this sort of injury from consenting intercourse must be relatively low”. When cross-examined she said that the clinical evidence was that “trauma or lacerations to the genital area is much less common with consenting sex than non-consenting sex”. As to anal sex she said, “one would think that lacerations would be slightly less common in consenting anal intercourse than in non-consenting anal intercourse”. She illustrated that by saying that when a patient‟s rectum is examined clinically a lubricant is used and penetration is effected slowly.

[38] That evidence, the Court was clear, ought not to have been given at all because the clinical indicia were too slight.⁷ And that was essentially the position reached in the four other cases to which the Court referred. The injuries in each of those cases were relatively minor, within the perimeter of the vulva or anus, and an insufficient basis for any inference, even a qualified one as to the presence or absence of consent.

[39] The term “blunt force trauma”, we should add, is not in itself problematic as long as the doctor makes clear that it is a neutral clinical term which has no bearing on consent. That is the effect of the very recent case L v R.⁸

[40] There the doctor who examined the complainant was absent overseas at the time of trial. The jury received her depositions statement and at depositions that

_{statement had concluded in this way:}

⁶ R v A CA136/03, 24 July 2003; R v Matenga [2008] NZCA 260, [2009] NZSC 18, [2009]

_{3 NZLR 145; Honotapu and R v Garraway [2008] NZCA 2.}

⁷ _{At [60].}

⁸ L v R [2010] NZCA 131.

The presence of the stated injuries to the genitalia are suggestive of blunt force trauma. These genital injuries occurred in at least three distinct areas which make it more likely that the trauma was non-consensual in origin.

The statement the jury received did not contain the second of those sentences. It had been excised at the request of counsel for the defence. But on the later appeal against conviction the appellant contended that the jury‟s verdict could have been prejudiced by the clinical opinion expressed in the first sentence.

[41] In this the appellant relied on a medical opinion that the examining doctor should only have used the term “blunt force trauma”, if she made clear the range of likely causes for the injuries suffered. Otherwise the jury might infer that the term carried the connotation of lack of consent. The Court did not address that explicitly. It focused on the fact that the sentence in which “blunt force trauma” appeared carried no conclusion. The sentence that followed had been excised. Though the Court allowed the appeal, it did so for other reasons.

[42] Finally, where medical evidence as to whether force exerted was consensual or non-consensual is inadmissible, the Supreme Court in R v Matenga recently confirmed, that in itself can be the source of a substantial miscarriage of justice.⁹ It held that, on an appeal to this Court, the s 385(1) proviso could only be invoked to save a verdict if that verdict was the only one possible on the admissible evidence.¹⁰

[43] The Crown case against the appellant, the Supreme Court said, was strong. However, everything turned on the credibility. The Court said:¹¹

The only physical evidence of possible significance, the type of vaginal injury found by the medical practitioner, was relatively minor ... According to the medical opinion of another practitioner admitted on appeal and accepted by the Crown, that injury was not probative of non-consensual intercourse. It was consistent with both consensual and non-consensual intercourse. ... [T]he Court ... could not in the circumstances of this case properly conclude that if the inadmissible (and incorrect) medical opinion had been excluded, the only reasonably possible verdict was one of guilty.

[44] In this case there is not only Dr Hancock‟s evidence to consider. In their closing addresses counsel referred to, and emphasised, the evidence they had elicited

⁹ _{Matenga at [35].}

¹⁰ _Ibid.

¹¹ Ibid.

from her when she was examined in chief, cross-examined, and re-examined. That element of the case is no less significant, as is the Judge‟s summing up.

Closing addresses

[45] In her closing, counsel for the Crown began by describing to the jury the sequence of the evening and invited the jury to accept X as both credible and reliable. X was adamant, counsel said, that she had been penetrated anally in the two ways that Q eventually conceded and that she did not consent. Nor, counsel said, could Q have believed on any reasonable basis that she did consent.

[46] At the conclusion of her closing address Crown counsel summarised X‟s evidence in this way:

She told him she wanted the normal sex to stop. She had told him she did not want to perform oral sex on him. She tried to push against his hand as he pushed her head towards his penis. She told him she didn‟t want to have anal sex with him. She moved her body away from him as he tried to get it in. She got up and started getting dressed to leave. He knew she didn‟t want anal sex because he used it as a threat when he said if she didn‟t suck his penis he wanted to put it in her bum. When he put his penis into her anus she cried and told him it hurt. He then put his finger hard into her anus.

[47] Counsel for the Crown invited the jury, in a passage to which we must return, to accept Dr Hancock‟s evidence as corroborating X‟s account. She asked them to reject Q‟s contrasting evidence. When first confronted by Detective Sergeant Patterson he had denied any form of anal sexual activity with X. His concession in evidence that he did penetrate her with his penis and then his finger, counsel said, was forced on him by the forensic evidence.

[48] Q‟s counsel, in closing, invited the jury to assess the issue of consent against the reality that these two young people had clearly been drinking and that they had met expressly to have sexual relations. He accepted on Q‟s behalf that the acts on which the Crown relied had happened but said that X consented, or if she did not do that, Q had reasonable grounds to believe she did consent.

[49] Q‟s counsel emphasised to the jury that as X herself conceded, it was she who went to Q‟s home, equipped to remain the night with him. She entered by the bedroom window. They had, as she accepted, consensual relations that were extensive. He invited the jury to take no account of the injuries that she had suffered. Those to her neck she described as “hickeys”, or love bites. Others, he said, she suffered after she had punched Q to the head. Q pushed her and she knocked her head against the stereo. As she said herself, when she left, it did not seem serious. It had happened before. The lacerations to her anus, standing alone counsel said, were of no significance.

[50] Ultimately, Q‟s counsel said, though Q was persistent in wanting anal sex, X had a choice. She could have got up and walked away at any stage, as she did at the end, without any difficulty. The Crown could not rely, he contended, on Q‟s answer when first spoken to. When he said “it did not happen”, he was responding to a compound question. That question assumed anal penetration had happened without consent. Q denied an absence of consent. As he said himself in evidence, he is not to be taken to have denied penetration.

[51] The result was that in these closing addresses, counsel invited the jury to focus quite differently on the injuries Dr Hancock identified. Counsel for the Crown invited the jury to focus on the injuries in their totality. Counsel for the defence invited the jury to focus just on the injuries to X‟s anus and we begin with what he had to say.

[52] Q‟s counsel told the jury that the anal injuries would not help them on the consent issue, which he described as “whether there‟s consent or not just because the injuries are there”. He then reminded the jury of the evidence he had elicited from Dr Hancock on that issue:

She said it is possible that consenting couples not using lubrication could have similar injuries and that‟s logical isn‟t it? If you don‟t use lubrication, injuries like that might occur. She talked about these other issues you have to take into account like what was the tissue like beforehand and all that sort of stuff. So the fact that there was a penetrating injury doesn‟t mean therefore that it was a non-consensual act that took place. That‟s the essence of what she was saying.

[53] As against that the jury had to weigh what counsel for the Crown invited them to take from Dr Hancock‟s evidence as to the injuries in their totality:

You will recall that not only did she find multiple injuries to X‟s body externally, which incidentally were more readily apparent in person on that night than what we see in the photograph booklets you have. But she also found six anal lacerations, at least one of which extended into X‟s anal canal. And I say at least one of which, because X was in such discomfort at the time of the examination that Dr Hancock was unable to examine further how far the rest of the lacerations extended.

Now recall Dr Hancock‟s evidence that all of the injuries taken together, and that‟s meaning the external injuries, as well as those internal, indicated to her that the most likely cause of that pattern was an attack by another person, and focusing specifically on the anal lacerations she stated that those findings were highly suggestive of recent penetrative blunt force trauma to the anus.

Now you‟ll recall my learned friend asking Dr Hancock whether the absence of a lubricant with a consenting couple could have caused these injuries. She was of the view that while this was possible, it was also unlikely. And as Dr Hancock pointed out, here we have the other external injuries as well don‟t we? And in combination with the anal lacerations I suggest they provide very compelling support for, or corroboration of, X‟s account.

Judge’s summing up

[54] The trial Judge, Judge Wolff, began by saying that there was no dispute as to penile and digital penetration. The issue was as to consent or belief on reasonable grounds that there was consent. A true consent, he explained, was one made rationally and freely. An absence of protest or physical resistance did not amount to consent. If X had been so drunk that she did not know whether or not to consent, she would not have consented, though consent could be given by a person disinhibited by alcohol.

[55] The Judge went on to explain that, though Q had given evidence, he had not added to the case against himself. The Judge described the three ways in which the jury could treat the evidence depending on what they made of it. He explained that the jury were entitled to draw logical inferences from proved facts. He gave an example, which he described as neutral, unrelated to the case. Then he turned to the issue of inference that arose in this case from, as he described it, the medical evidence.

[56] The Crown‟s case was, the Judge said, that:

... you can conclude from the medical evidence and particularly the injuries to the anal area of the complainant, that the activity that took place there was forceful and that because it was forceful it hurt and because it hurt she indicated that she wanted the activity to stop and that the injuries are caused by a forceful disregard of that.

[57] Then the Judge put the defence stance, inviting the opposite inference:

The defence would say, having cross-examined the doctor, that those injuries do not go that far. They can only go so far as to say that the sort of accepted activities that occurred, even if consensual, could have caused the same injuries.

[58] Counsel for the Crown, the Judge next said, had referred to the medical evidence as evidence of corroboration. But, he said, corroboration was not required. The jury could rely solely on the evidence of the complainant if they believed her. He said:

... wherever the Crown has referred to corroboration it is an indication that they are asking you to infer that the evidence which supports her account also supports the account that it was forceful and non-consensual.

[59] The Judge next explained to the jury how they might assess the credibility of

Q and X and recommended that they set it against the wider evidence. He said this:

The next way of testing what a witness has said, whether you accept what they say, is to test it against whether there is anything independent of the witness that they could not influence in any way that supports their account, and in this case of course the medical and scientific evidence supports the complainant‟s account that activity occurred. The question for you is whether that activity was without consent so there is some separate support for that.

[60] The Judge then returned to Q‟s response when spoken to by the police, which he said was “of a particular significance to the Crown case”. As to that he put the Crown and defence positions and, having done that, said finally this:

The reality of this case is that you will be considering an assessment of the complainant. You will be considering whether her account to you has been factual, accurate and truthful and whether it is sufficient that you accept what she says notwithstanding the accused‟s account which denies it and which says to the contrary that she did not consent.

After that the Judge put the Crown and defence cases broadly as we have described them. He did not return to the medical evidence.

Conclusions

[61] Dr Hancock‟s use evidence in chief of the term “blunt force trauma”, did not, we consider, involve any expression of opinion on the subject of consent. She immediately explained that term as a neutral clinical description of the injuries sustained, related to their proximate physical cause, namely the exertion of some force. She went no further.

[62] Dr Hancock‟s expression of opinion about the presence or absence of consent, when questioned by Q‟s then counsel, did, we consider, clearly enough transgress the proper bounds of expert evidence. Her opinion was based solely on the injuries X suffered to her anus. Those six lacerations were insufficient to permit any inference as to consent or the absence of it, and the fact that this opinion was elicited by the defence makes no difference. The opinion expressed was inadmissible.

[63] Defence counsel‟s questions were asked, however, against the context of Dr Hancock‟s evidence in chief as to the implication of all the injuries X had suffered that evening. There Dr Hancock had gone further, when effectively invited by counsel for the Crown to do so. She said X‟s total injuries were consistent with a sustained assault culminating in the two anal penetrations. The implication has to be that they were in all likelihood without consent.

[64] If those wider injuries had preceded the acts of penetration, the subject of the offences charged, Dr Hancock‟s inference might have been legitimate. But on the evidence of X herself, as well as Q, the injuries X suffered beyond the anus happened during consensual relations, or when Q reacted to being punched in the back of the head, or when X got out the window. They are not consistent with a single sustained assault of the kind Dr Hancock was invited to infer.

[65] Dr Hancock‟s inadmissible expressions of opinion could well have influenced the jury‟s verdict; and the opinion elicited by counsel for the Crown is likely to have been significantly more influential than that elicited by counsel for the defence. The risk inherent in those expressions of opinion, moreover, was compounded when counsel, especially for the Crown, closed before the jury on the effect of Dr Hancock‟s evidence.

[66] The Judge might perhaps, by a strong direction, have cured the tainting effect of this opinion evidence, compounded in closing by counsel, principally counsel for the Crown. The Judge confined himself, however, to identifying for the jury the contrasting inferences that the Crown and defence took from this evidence. He did not instruct the jury to disregard the opinions expressed and the related closing submissions. He did not instruct them to confine themselves to the issue what inference as to consent, or reasonable belief in consent, if any, could be taken from the injuries, given the sequence in which they were suffered.

[67] Even that might have come too late. But the absence of any such direction has to increase, we consider, the risk that the jury‟s verdict was, if not dictated by, then heavily influenced by, impermissible opinion evidence compounded by the two addresses. Nor can that risk of injustice be cured by this Court invoking the proviso to s 385(1). It cannot be said that the jury‟s verdict was the only one open to it on the admissible evidence. For that reason alone the verdicts must be set aside.

[68] Strictly speaking that means that we have no need to comment on the remaining grounds of appeal. But we consider that the verdict is also unsafe for the reason advanced on the third ground; and the second ground raises an important issue of practice as to how verdicts are to be taken where a jury at first agrees on some counts but not others. We wish to endorse what the Judge then did.

Second ground - taking of verdicts

[69] In taking the jury‟s verdict on the second count, the digital penetration, and then giving the jury a Papadopolous direction on the first count, the penile penetration, Q‟s counsel on this appeal contends, the Judge took an unusual course.

Indeed he erred. He ought, if he elected to take the verdict on the second count, to have discharged the jury from giving any verdict on the first. Counsel has, however, since we heard this case, referred us to an English decision in which this practice was not deprecated.¹²

[70] The Crown‟s stance is that the course the Judge adopted is consistent with the governing provisions of the Juries Act 1981, and that no unfairness resulted. But the Crown does accept that the course taken by the Judge was unusual and says it ought not to be endorsed. The taking of verdicts in phases, counsel for the Crown submits, could encourage inconsistent verdicts.

Sequence

[71] According to the note taken by Q‟s trial counsel, the jury retired at 2.05 pm and at 4.50 pm, two hours and 45 minutes later, they sent out this note that the Judge recorded in his contemporary Minute, dictated in chambers in the presence of counsel:

We have a unanimous decision on one charge. On the [other] charge, we have 11 in favour of one decision and one against. What does the Judge wish us to do?

[72] In his Minute the Judge recorded that, having discussed this with counsel, he had decided to take the jury‟s verdict as to the count on which they were unanimous. That, he said, was consistent with the direction they had received that each count involved a separate trial. He intended then, he said, to give the jury a Papadopolous direction as to the remaining count.

[73] The Judge then recorded that he intended to allow the jury a further hour that evening to consider their verdict on count one. If they had not within the hour reached a verdict, he intended to have them return the next day (which was a weekday so that presented no issue). He did not, he said, intend to tell them he had

_{the power to discharge them after four hours. In excess of another hour had still to}

¹² R v Thornton (1989) 89 Cr.App.R. 54 (CA).

elapse. The only result might be, he said, that the jury might sit out that next hour or so in a state of stalemate.

[74] The Judge must have taken the verdict on count two and given the Papadopolous direction on count one quite shortly after 4.50 pm, when he received the jury‟s note, because the jury, according to Q‟s then counsel, returned with its unanimous verdict on count one at 5.15 pm. They must have reached that decision shortly after receiving the Judge‟s direction.

Conclusions

[75] The Judge was correct to take the jury‟s verdict on the count on which they could agree unanimously, count two. As to that the Supreme Court recently was very plain.¹³ The Judge was also right, we consider, to give the jury a Papadopolous direction to encourage them to reach agreement on count one, as to which they were nearly unanimous.

[76] At the time when the Judge took the verdict on count two he could not have taken the majority verdict that the jury had intimated as to count one. Four hours had not elapsed.¹⁴ He could not, for the same reason, have discharged them because they had been unable to agree.¹⁵ There could be no suggestion that he could then have discharged them because there had been an emergency or casualty calling for that in the interests of justice.¹⁶ The jury had not then been deliberating for even three hours and were close to unanimity.

[77] By giving the jury the Papadopolous direction as to count one, to encourage them to reach a unanimous verdict on that count, the Judge obviated the need to consider whether to take a majority verdict on that count or whether as to that count to discharge the jury. The issue is whether he did so sufficiently, which leads to the

_{third ground of appeal.}

¹³ _{Buddle v R [2009] NZSC 117, [2010] 1 NZLR 717.}

¹⁴ _{Juries Act 1981, s 29C(2).}

¹⁵ _{Section 22(3)(b).}

¹⁶ Section 22(3)(a).

Third ground - incomplete direction

[78] Q‟s final point is that when the Judge gave the jury the Papadopolous direction endorsed in R v Accused,¹⁷ but omitted the third cardinal point, he effectively directed the jury to reach a unanimous verdict. This placed undue pressure on the juror standing out to surrender to the majority opinion contrary to his or her oath.

[79] The Crown is right to say that the Papadopolous direction does not have to be adhered to literally on all occasions. Though Cooke P did say in R v Accused that usually the direction should be given in its entirety, there have been instances where something less will serve. The Crown relied especially on R v Sila.¹⁸ But that case is not to be compared with this.

[80] There the jury, after deliberating for two days, asked for guidance in the event that they reached an impasse. The Judge answered that by saying that Judges hesitate to discharge juries because normally the case would have to be tried again and experience had shown juries often agree if given more time. This Court saw no difficulty with that brief direction. The question answered was then hypothetical. The jury reached its verdict a day later without apparent difficulty.

[81] In this case, by contrast, when the Judge, as we agree he needed to do, gave the Papadopolous direction, the jury had largely completed its task. It was nearly unanimous as to the one count outstanding. It was poised to make a decision as to that count. That it did so, so soon after the Judge gave the direction suggests that it was pivotal and his omission to include the third cardinal point could well have been critical.

[82] The purpose of the first two cardinal points of the direction, Cooke P said in R v Accused, is to bring home to the jury their responsibility to reach a unanimous verdict if they can, understanding that a disagreement could not bring finality,

_{because a further trial was likely, and understanding also that they had the ability to}

¹⁷ _{R v Accused CA 87/88 [1988] NZCA 263; [1988] 2 NZLR 46 (CA).}

¹⁸ R v Sila [2009] NZCA 233.

compromise.¹⁹ The third cardinal point, which he described as “an elementary and essential bulwark of the jury system”, by contrast, provides the essential counterbalance. That point, as Cooke P described it, is simply this:²⁰

... no juror should change his or her mind merely for the sake of conformity or out of submission to pressure by other jurors; in the end no juror should vote against his or her conscientious view based on the evidence.

[83] That third point is expressed in the direction the Court then endorsed and which is now usual, if not invariable:²¹

But of course no one should be false to his or her oath. No-one should give in merely for the sake of agreement or to avoid inconvenience. If in the end you honestly cannot agree, after trying to look at the case calmly and objectively and weighing carefully the opinions of others, you must say so.

[84] Absent that third cardinal point, the juror who clearly joined with the majority in a unanimous verdict so soon after that direction was given may well have considered that to do so was what his or her oath called for. Quite contrary was the case. For this reason also we consider the verdict unsafe.

Result

[85] We grant the appeal on the first and third grounds of appeal, but not the second. Q‟s convictions will be quashed and his sentence also. We direct that he be retried on the two counts in the indictment.

[86] Publication of the judgment or any part of the proceedings in the news media or on the internet or other publicly available database is prohibited until final disposition of the retrial. Publication in a law report or law digest is permitted, however.

Solicitors:

Crown Solicitor, Tauranga for Respondent

¹⁹ _{At 48.}

²⁰ _{At 58.}

²¹ At 59.