Root v R [2011] NZCA 454 (14 September 2011)

Court of Appeal of New Zealand

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Root v R [2011] NZCA 454 (14 September 2011)

Last Updated: 22 September 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA240/2011 [2011] NZCA 454

BETWEEN PAUL RICHARD ROOT Appellant

AND THE QUEEN Respondent

Hearing: 6 September 2011

Court: Harrison, MacKenzie and Asher JJ

Counsel: A J D Bamford for Appellant M J Inwood for Respondent

Judgment: 14 September 2011 at 10.15 am

JUDGMENT OF THE COURT

The appeal is dismissed.
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REASONS OF THE COURT

(Given by MacKenzie J)

[1] The appellant was charged with four counts of breaching a protection order by sending text messages to a protected person. He elected jury trial and was tried in the District Court at Nelson before Judge Harrop and a jury on 28 March 2011. He was found guilty and convicted on one count, and acquitted on three. He appeals against conviction. He was ordered to come up for sentence if called upon within 12 months.[1] There is no challenge to the sentence.
[2] The four counts related to text messages sent by the appellant to his former partner on 7 and 25 October 2009 and 9 and 12 November 2009. The charges were laid under s 49(1)(a) of the Domestic Violence Act 1995. That section was amended with effect from 28 October 2009, by the Domestic Violence Amendment Act 2009. For the first two counts, the relevant provision was:

49 Offence to contravene protection order

(1) Every person commits an offence who, without reasonable excuse,—

(a) Does any act in contravention of a protection order; ...

[3] For the third and fourth counts, the section provided:

49 Offence to breach protection order

(1) Every person commits an offence who breaches a protection order by—

(a) doing any act in contravention of the protection order; or

...

(2) It is a defence in a prosecution for an offence under subsection (1) if the defendant proves that he or she had a reasonable excuse for breaching the protection order.

[4] The appellant’s notice of appeal advances the following grounds of appeal:

(a) The verdict of the jury was against the weight of evidence and is reasonably able to be characterised as perverse given the verdicts of not guilty on the 3 other charges, so that in the circumstances conviction for this charge amounts to a miscarriage of justice.

(b) There was a serious gap in the evidence of phone and text communications between me and the complainant obtained by the Police from Telecom under warrant. It emerged at trial that one important conversation had allegedly occurred on 7 November but there was no data obtained to enable confirmation of whether or not such a conversation had taken place. The absence of this evidence has, given the jury verdict on the charge relating to the 9 November communication, resulted in a miscarriage of justice.

[5] The principles to be applied in relation to inconsistent verdicts were set out by this Court in R v Shipton in these terms.[2]

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 Wharton [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 p 589 per Keith J).

[6] In this case, the difference in verdicts between counts 1 and 2, on the one hand, and count 3 on the other, is, as Mr Bamford acknowledged, readily explicable by change in the legislation. On counts 1 and 2 the onus was on the Crown to negative the existence of a reasonable excuse. On counts 3 and 4, the onus was on the accused to establish, on the balance of probabilities, the existence of a reasonable excuse.
[7] The focus must be on the different verdicts for counts 3 and 4, where the legal test was the same. The text sent on 9 November, the subject of count 3, read: “Are you all good?” The text sent on 12 November, the subject of count 4 read:

Hi, do you know the boys are moving again, would like to talk about what’s happening for them. Don’t know how we can make that happen or even if you want to, but text me if you do

[8] We are satisfied that there is no inexplicable inconsistency between those verdicts. The appellant did not give evidence, or call any evidence, to establish that he had a reasonable excuse for sending any of the messages. For count 4 (on which the appellant was acquitted) the jury might well have found that the message itself was sufficient to indicate a reasonable excuse for making contact. The message related to care arrangements for the children of the appellant and the complainant. There is no such reasonable excuse inherent in the text message in count 3.
[9] The second ground of appeal is based upon the proposition that there may have been a telephone conversation between the appellant and the complainant on 7 November, and that the text message on 9 November might have been a follow up to that conversation. In the course of his interview with police on 14 November 2009, the appellant said that there had been text messages from the complainant, and asked how she could place a protection order against him but still be allowed to contact him. The interviewing officer said in response that:

We’ll have to get a search warrant have a look at her phone and obviously if that’s the case it puts everything in a very different light ... .

[10] The telephone records were not obtained and that was elicited at trial.
[11] The lack of any telephone record cannot provide any basis for a challenge to the verdict on count 3. If the appellant sought to raise the fact of, or anything said in, an earlier text message or telephone conversation as providing a reasonable excuse for sending the text on 9 November, then the onus was on the appellant to adduce evidence of that. The appellant could not properly rely upon the comment by the interviewing officer as relieving the appellant of the onus of establishing a reasonable excuse.
[12] The verdict on count 3 was clearly open to the jury. For these reasons, the appeal is dismissed.

Solicitors:
Bamford Law, Nelson, for Appellant
Crown Law Office, Wellington, for Respondent

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[1] R v Root DC Nelson CRI-2009-042-4457, 28 March 2011.
[2] R v Shipton [2007] 2 NZLR 218 at [75].