Matenga v R
[2009] NZSC 18
•13 March 2009
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ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED
IN THE SUPREME COURT OF NEW ZEALAND
SC 50/2008 [2009] NZSC 18
SHANE HUIA MATENGA
v
THE QUEEN
Hearing: 10 February 2009
Court: Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ Counsel: W C Pyke for Appellant
J C Pike and M D Downs for Crown
Judgment: 13 March 2009
JUDGMENT OF THE COURT
A The appeal is allowed.
B The convictions are quashed and a new trial ordered.
MATENGA v R SC 50/2008 [13 March 2009]
REASONS
(Given by Blanchard J)
Introduction
[1] Section 385(1) of the Crimes Act 1961 contains directions to an appellate court about the determination of an appeal against conviction at a trial before Judge and jury. The meaning and application of the subsection, and of equivalent provisions in other jurisdictions, has long been a matter of some uncertainty, especially in relation to the proviso. The subsection reads:
385 Determination of appeals in ordinary cases
(1) On any appeal [against conviction] the Court of Appeal or the
Supreme Court must allow the appeal if it is of opinion—
(a)That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b)That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) That on any ground there was a miscarriage of justice; or
(d) That the trial was a nullity—
and in any other case shall dismiss the appeal:
Provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
[2] The particular difficulty with which the Court is faced in the present case concerns the direction in subs (1)(c) that the appeal must be allowed if “on any ground there was a miscarriage of justice”, contrasted with the power given to the Court nevertheless to dismiss the appeal “if it considers that no substantial miscarriage of justice has actually occurred”. In this context, what is the distinction between a miscarriage and a substantial miscarriage; and how should the Court proceed if it finds that there has been a miscarriage?
[3] The facts of the present case provide an illustration of the problem. The appellant, Mr Matenga, who was undoubtedly affected at the time by alcohol, went to visit a male friend at about 8.30 one morning. He was unable to gain entry to his friend’s residence. He then encountered a female neighbour, the complainant, outside her home. The two had never previously met. The complainant suffers from intellectual difficulties but may appear more intellectually disabled than is in fact the case.
[4] On her account, she invited the appellant into her home to await the friend and have a cup of tea. Almost immediately he began touching and kissing her and, despite her protests, he forced her into her bedroom and had non-consensual intercourse, including anal intercourse, with her. Afterwards he left and a neighbour heard sounds of distress from the complainant and, on going to the complainant’s home, found her on the telephone to the police. On the other hand, on the appellant’s account, the sexual activity was either consensual or he had reasonable grounds to believe that consent was being given.
[5] The appellant was found guilty on the two counts of sexual violation which he faced. Both the unsuccessful appeal to the Court of Appeal and the further appeal to this Court have centred on a portion of the evidence given by a medical practitioner who examined the complainant on the morning of the incident. She found a small triangular split in the posterior forchette area of the complainant’s vagina. She gave evidence that in her opinion the injury was likely to have resulted from penile penetration and that injuries of this type were “extremely rare” or “relatively uncommon” in consensual intercourse, though conceding that she could not say “it definitely was not consensual”.
The Court of Appeal judgment
[6] In the Court of Appeal,1 it was accepted for the Crown, as it is in this Court, that the doctor’s evidence concerning whether the vaginal injury was likely to have resulted from consensual activity was not founded on a secure clinical basis and that the opinion expressed to the jury was therefore inadmissible in evidence.2
[7] The Court of Appeal considered that the wrongful admission of the opinion evidence “was not such as to undermine the integrity of the trial”.3 But, given the nature and substance of the inadmissible evidence, it said a miscarriage of justice was “at least a risk”.4 It concluded, however, that, in terms of the proviso, it could be satisfied that no substantial miscarriage of justice had actually occurred because:5
The Crown case in support of an absence of consent was overwhelming. All of the contextual circumstances were inconsistent with consensual sexual activity. The neighbour’s evidence concerning the complainant’s distress immediately after the event was compelling. The appellant’s description of the sexual encounter was inherently implausible. We are in no doubt that the jury would still have found an absence of consent, absent the inadmissible evidence.
[8] The Court of Appeal accepted the submission of the Crown that the inadmissible evidence was less relevant to whether Mr Matenga had “an honest belief in consent”. But, it said, even assuming the doctor’s evidence could have influenced the jury to reject the assertion of honest belief, it considered that “the Crown case was overwhelming on this aspect as well. Acceptance of the complainant’s evidence, and rejection of the appellant’s account, effectively negatived the possibility of any doubt concerning the existence of an honest belief.”6
So did certain answers given by the appellant in the course of a video interview with the police.
1 R v Matenga [2008] NZCA 260 (Arnold, Panckhurst and Fogarty JJ).
2 Indeed in two other cases the Court of Appeal has overturned convictions where similar evidence was given by a medical practitioner: R v Garraway [2008] NZCA 2 and R v Honotapu
[2008] NZCA 582.
3 At para [41].
4 At para [42].
5 At para [43].
6 At para [44].
[9] The proviso to s 385(1) is appended to all four paragraphs which state when the Court must otherwise allow an appeal. In R v Owen,7 where this Court clarified para (a), we concluded that it cannot possibly apply to that paragraph since the rendering of an unreasonable verdict must always constitute a substantial miscarriage. The same fundamental discordance would exist if the proviso were to be used in relation to para (d), where the trial was a nullity. That paragraph did not appear in the United Kingdom or Australian equivalents and may have been added in
this country only out of caution, as a trial which is a nullity would certainly also be a miscarriage within para (c) and also a substantial miscarriage. Something that is a nullity, for example a trial in the wrong court, however properly conducted and fair, is unlawful and cannot be upheld. That has rightly been the view taken by the Court of Appeal.8
[10] That leaves only paras (b) and (c). Even in relation to para (b), however, the language is strained. The Court is directed to allow the appeal if it is of the opinion that the judgment, i.e the verdict, “should be set aside” on the ground of a wrong decision on any question of law; yet despite being of the opinion that the judgment should be set aside, the Court may dismiss the appeal under the proviso. The Court may uphold a conviction where the issue of law must certainly have been immaterial to the guilty verdict, for example, an incorrect direction by the Judge on a peripheral issue which the appeal Court considers could not have influenced the jury. However, in such a case it might be expected that the Court would not have formed the opinion that the conviction should be set aside on the ground of the wrong decision. Nevertheless, it has long been accepted that para (b) is not to be read as having that literal effect and that the proviso can be applied in relation to an error of law falling within its scope. If it were otherwise, different approaches might be required as between paras (b) and (c) which would add an additional complication to what is already a troublesome provision.
7 [2008] 2 NZLR 37 (SC).
8 R v Blows (Court of Appeal, CA103/95, 31 August 1995) and R v O (No 2) [1999] 1 NZLR 326 at p 329 (CA).
[11] Para (c) appears on its face to be a residual provision. It applies where the Court is of the opinion that on any ground there was a miscarriage of justice. It is wide enough to be capable of overlapping with paras (a), (b) and (d) but is properly used in situations which do not comfortably fit within the other paragraphs, often where, as in the present case, inadmissible evidence has been admitted.9 It can potentially apply to anything falling outside the other paragraphs which has gone wrong with the substance or process of the case and has not been cured or become
irrelevant to the verdict. That can include something which has occurred either before or during the trial. It includes prosecutorial or juror misconduct and failures of any kind by the Judge which cannot accurately be described as a wrong decision on any question of law.10 It must also be taken to include situations where admissible defence evidence is wrongly excluded or where after the trial fresh and cogent evidence comes to notice and casts doubt on the guilty verdict.11
[12] For the last decade the leading case upon the combination of para (c) and the proviso in New Zealand has been R v McI.12 The principal focus of the judgment of the majority (Keith and Tipping JJ) was to reconcile the various semantic variations which had been employed in earlier cases which examined whether the jury would have convicted despite the error or irregularity constituting the miscarriage. In McI the Court was not required, as we are here, to consider whether the crucial perspective should be that of the Court itself rather than that of a hypothetical jury.
The majority said that when the Court came to the proviso in a para (c) case it had already decided that there was a miscarriage of justice. The word “actually” in the proviso was strictly redundant and included for emphasis. But there was no contradiction because of the word “substantial”. The paragraph applied when there had been a miscarriage but no substantial miscarriage had actually occurred. Para (c) was said to be primarily concerned with process. The majority said that even if
9 An incorrect ruling on the admissibility of evidence may also be able to be dealt with under para
(b) as an error on a question of law.
10 For example, the failure by the Judge to exercise proper supervision of the trial because he was asleep: Cesan v R (2008) 83 ALJR 43 (HCA).
11 The discovery of new evidence does not comfortably fit within para (a) because the reasonableness of a verdict can only fairly be judged on the basis of the evidence which the jury
heard.
12 [1998] 1 NZLR 696 (CA).
something has gone wrong with the process, the Court may, not must, dismiss the appeal if it considers that in substance the conviction was justified. However, the appeal court was not invited by the proviso to come to its own view about whether the appellant was in fact guilty:13
Rather, the Court is required to assess whether, without the error or deficiencies of process, the jury would still have convicted. It is what the jury would have done without the errors or deficiencies which is the issue, not what the Court thinks of the ultimate merits of the conviction. If, in spite of the errors or deficiencies, the jury would have convicted anyway, there can be no prejudice to the appellant from those errors or deficiencies.
[13] The threshold for the application of the proviso was said to be a high one in a case where, ex hypothesi, there has been a miscarriage of justice. The court was entitled to consider that no substantial miscarriage of justice had actually occurred if, but only if, the jury “would without doubt have convicted” had the error or deficiency not taken place. That phrase originated in Stirland v Director of Public Prosecutions.14 After describing different semantic formulations which have appeared in case law, Keith and Tipping JJ concluded as follows:15
Before the proviso may be applied, this Court must be sure that the jury would without doubt have convicted had the matter or matters giving rise to the initial miscarriage of justice not been present.
13 At p 711.
14 [1944] AC 315 at p 321. Viscount Simon LC, whose speech had the concurrence of the other
Law Lords, said:
When the transcript is examined it is evident that no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken. There was, therefore, no miscarriage of justice,
and this is the proper test to determine whether the proviso to s 4, sub-s I, of the
Criminal Appeal Act, 1907, should be applied … A perverse jury might conceivably announce a verdict of acquittal in the teeth of all the evidence, but the provision that the Court of Criminal Appeal may dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred in convicting the accused assumes a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict.
In Director of Public Prosecutions v Stonehouse [1978] AC 55 at p 70, Lord Diplock, applying this test, said that it was cynical to suggest that an accused was entitled to his chance of a perverse verdict of acquittal.
15 At p 712.
The other Judge in McI, Thomas J, was of the view that the necessary consequence of the proviso was that:16
it is not every error of law or breach of the rules of evidence or procedure which have evolved to ensure a fair trial for an accused which is necessarily fatal. Any such error or irregularity needs to be material to the outcome of the trial. Unless it is, no injustice has been done. The Court is not a referee blowing the whistle at every perceived or real infringement of the “rules of the game”. … The very terms of s 385(1) mean that errors or irregularities, even though they may be perceived as a miscarriage of justice, are not necessarily fatal unless this Court considers the miscarriage of justice to be substantial.
[14] Another way of putting the point, Thomas J opined, would be to say that, although a ground of appeal may disclose a miscarriage of justice, it does not represent an injustice in the particular case unless it would have made a difference to the case. He observed, however, that the Court had a discretion and that a decision not to apply the proviso might be appropriate, even though the Court might consider that no substantial miscarriage had occurred, in a case where it was necessary to protect the integrity of the criminal justice system, for example to vindicate a person’s fundamental rights or mark the Court’s unwillingness to accept a particular instance of police practice or conduct.17
[15] Thomas J also pointed out that in many cases where the proviso was in issue it would be necessary for the Court to consider the evidence in considerable detail. That would not involve, he said, an intrusion into the province of the jury:18
Rather, a complete grasp of the evidence and an assessment of the strength of the case against the accused is generally imperative to enable the Court to decide whether, on the admissible evidence, a reasonable jury could have failed to convict. Otherwise the Court is in danger of arriving at a decision divorced from the facts or based on a superficial understanding of them.
[16] In relation to New Zealand case law, we were also referred by counsel to obiter dicta in R v Sungsuwan19 from two members of this Court. Elias CJ said that miscarriage of justice does not arise because of incidental errors or irregularities in
16 At p 701.
17 At p 702.
18 At p 702.
19 [2006] 1 NZLR 730 (SC).
the trial, unless they amount to denial of the right to a fair trial contained in s 25(a) of the New Zealand Bill of Rights Act 199020 or unless they are significant enough in themselves to cause the appellate court to consider the verdict to be unsafe:21
Where the ground of miscarriage of justice under s 385(1)(c) is made out, application of the proviso to s 385 is not likely to be appropriate. It is difficult to envisage that a verdict reached without fair trial or which is unsafe will not amount to a substantial miscarriage of justice.
Tipping J described what in his view constituted a miscarriage of justice:22
Ordinarily two things must be shown. First, something must have gone wrong with the trial or in some other relevant way. Secondly, what has gone wrong must have led to a real risk of an unsafe verdict. That real risk arises if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong. It is, of course, trite law that an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe. The presence of a real risk that this is so will suffice.
[17] He qualified this statement, noting that sometimes, albeit rarely, things might have gone so badly wrong that a miscarriage of justice would have occurred without reference to whether there was a real risk of an unsafe verdict. Conversely, he said, in other rare cases, the Court might find it appropriate to intervene on account of a real risk of an unsafe verdict without specifically identifying anything which could be said to have gone wrong. The real risk would itself be enough to constitute a
miscarriage without the need to identify a specific error or irregularity as its cause.23
[18] On the basis of this view of miscarriage, Tipping J, like the Chief Justice, was now of the opinion that there should be no room to apply the proviso once a para (c) miscarriage has occurred:24
Analysing a miscarriage for para (c) purposes as involving both defect and impact effectively fuses para (c) and the proviso. The purposes of the proviso are already subsumed in the criteria for establishing the ground.
20 In R v Condon [2007] 1 NZLR 300 (SC) at paras [77] and [79] this Court equated breach of the right to a fair trial with a substantial miscarriage of justice.
21 Sungsuwan at para [6].
22 At para [110].
23 At para [111].
24 At para [113].
[19] The principal judgment in Sungsuwan, given by Gault J, does not deal with the proviso, which was not the focus of that case.
Weiss v R25
[20] As it happened, the application of the proviso (in a statutory provision bearing much similarity to s 385(1)) was, some four months after Sungsuwan, the subject of the single judgment of six members of the High Court of Australia in Weiss v R. The historical analysis in that judgment sheds much light on the intended operation of our section and is supported by the research of Rosemary Pattenden which appears in English Criminal Appeals 1844 – 1994,26 a text not mentioned by the High Court of Australia.
[21] Weiss is an important decision. The High Court noted that the language of the Australian provision was taken from s 4(1) of the Criminal Appeal Act 1907 (UK), as was, we should add, the language of s 385(1).27 The 1907 Act replaced the old procedure in the Court for Crown Cases Reserved and was enacted against a background where the understanding of when a new trial would be ordered was that, as it was put in R v Gibson by Lord Coleridge CJ, “if any bit of evidence not legally admissible, which might have affected the verdict, had gone to the jury, the party against whom it was given was entitled to a new trial”.28 This was known as the Exchequer rule. The proviso was intended to change this position. The High Court in Weiss commented:29
What the history reveals is that a “miscarriage of justice”, under the old Exchequer rule, was any departure from trial according to law, regardless of the nature or importance of that departure. By using the words “substantial” and “actually occurred” in the proviso, the legislature evidently intended to require consideration of matters beyond the bare question of whether there had been any departure from applicable rules of evidence or procedure. On that understanding of the section as a whole, the word “substantial”, in the
25 (2005) 224 CLR 300.
26 Pattenden, English Criminal Appeals 1844 – 1994 (1996).
27 See R v Owen at para [6].
28 (1887) 18 QBD 537 at pp 540 – 541. The Exchequer rule was originally applied in both civil and criminal cases but had been abolished for civil matters in 1873: see Weiss at pp 306 – 307 and
Traynor, The Riddle of Harmless Error (1970), pp 8 – 10.
29 At para [18].
phrase “substantial miscarriage of justice”, was more than mere ornamentation.
[22] However, the way in which the statutory provision was interpreted was influenced by the theories that had supported the Exchequer rule. The High Court called these the right to a trial according to law and the right to the verdict of a jury.30 The High Court pointed out that the section was not consistent with either of these rights in their absolute form. If an appellate court finding error at trial could decline to set aside a verdict, the relevant inquiry about when that was to be done could not be answered by the existence of an unqualified right to it not being done.
And the appellate court’s power to set aside a jury’s verdict as unreasonable meant that the right to a jury verdict was qualified by the possibility of appellate intervention.
[23] Turning to the application of the proviso, the High Court described the way in which courts had sometimes applied a test of what the jury in the particular case would have done if the irregularity had not occurred and sometimes applied a test of what a reasonable jury would have done. The Donovan Committee had concluded that in Stirland that issue had been resolved in England in favour of the “reasonable jury” test which the Committee articulated as follows:31
Could a reasonable jury, properly directed, have failed to convict?
[24] The High Court said that the task was not to be undertaken by attempting to predict what a jury would or might do. The appellate court must itself decide whether a substantial miscarriage of justice had actually occurred. That was an objective task not materially different from other appellate tasks. It was to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it was not an exercise in speculation or prediction. The standard of proof to be applied was the criminal standard of guilt beyond reasonable doubt.32 Reference to the jury was liable to distract attention from the statutory task
30 At paras [26] – [27].
31 Report of the Interdepartmental Committee on the Court of Criminal Appeal, Cmnd 2755, (August 1965), para [161].
32 At para [39].
by suggesting that the appeal court was to do other than decide for itself whether a substantial miscarriage of justice had actually occurred.33
[25] The High Court stated the statutory task as follows:34
The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the “natural limitations” that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.
[26] Amongst other observations made in the reasons of the High Court are that the task must be undertaken on the whole of the record of the trial, including the fact that the jury returned a guilty verdict; that the court must be persuaded that the evidence properly admitted at the trial proved, beyond reasonable doubt, the accused’s guilt; and that there may be cases where it would be proper to allow the appeal and order a new trial even though the court was persuaded to the requisite degree of the appellant’s guilt, for example, where there had been a significant denial
of procedural fairness at trial.35
The proper approach
[27] We are persuaded of the soundness of the general approach taken by the High Court in Weiss, which we consider should now be followed in New Zealand, but subject to two qualifications which are identified below. That approach is unlikely to lead to results significantly different from those which would follow if the Court of Appeal continued to guide itself by reference to McI. Certainly it is not in practice different from the actual practice of appeal courts in England prior to reforms of the section in that jurisdiction, which included removal of the proviso in
33 At para [40].
34 At para [41].
35 At paras [43] – [45].
1995.36 The Donovan Committee, after formulating the question, “Could a reasonable jury, properly directed, have failed to convict?”, said that despite the form of the question “the result is that the Court itself decides whether the only reasonable verdict was one of guilty”.37
[28] It is artificial to say that Judges, while holding one view themselves, may ascribe a different view to the hypothetical jury. Therefore, in reality, and this should be reflected in the test, the decision to confirm a jury verdict, despite something having gone wrong, depends upon whether the appellate court considers a guilty verdict was inevitable on the basis of the whole of the admissible evidence (including any new evidence). The Court must also be satisfied that overall there has been a fair trial. The Bill of Rights Act guarantees of a trial by jury and an appeal38 do not require that a further jury trial should necessarily be ordered if a miscarriage at the first trial has been identified. Nothing in that Act prevents the appellate court from considering whether, despite the miscarriage, the verdict already rendered by a jury should stand.
[29] Following conviction, after a fair trial by jury, Parliament has given the appeal courts an ability to uphold the conviction despite there being a miscarriage of justice in some respect. While the jury is in general terms the arbiter of guilt in our system of criminal justice, the very existence of the proviso demonstrates that Parliament intended the Judges sitting on the appeal to be the ultimate arbiters of guilt in circumstances in which the proviso applies. The general rule that guilt is determined by a jury rather than by Judges does, however, mean that the proviso should be applied only if there is no room for doubt about the guilt of the appellant; and, as we will mention again below, considerable caution is necessary before resorting to the proviso when the ultimate issues depend, as they frequently will, on the assessment of witnesses.
36 The current grounds for appeal in England and Wales are stated in s 2(1) of the Criminal Appeal
Act 1968:
Subject to the provisions of this Act, the Court of Appeal –
(a) shall allow an appeal against conviction if they think that the conviction is unsafe; and(b) shall dismiss such an appeal in any other case.
37 At para [161].
38 New Zealand Bill of Rights Act 1990, ss 24(e) and 25(h).
[30] The Weiss Court accepted that a miscarriage under our para (c) is anything which is a departure from applicable rules of evidence or procedure. We have hesitated about whether in its statutory context that is the meaning which should be given to the word, lest it might lead to the application of the proviso in a large number of cases. Few trials are perfect in all respects. Frequent use of the proviso may create the false impression that the appeal court is too ready to resort to it despite the existence of a miscarriage of justice. In the end, departing in this respect from Weiss, we consider that in the first place the appeal court should put to one side and disregard those irregularities which plainly could not, either singly or collectively, have affected the result of the trial and therefore cannot properly be called miscarriages. A miscarriage is more than an inconsequential or immaterial mistake or irregularity.
[31] Proceeding in this way and having identified a true miscarriage, that is, something which has gone wrong and which was capable of affecting the result of the trial, the task of the Court of Appeal under the proviso is then to consider whether that potentially adverse effect on the result may actually, that is, in reality, have occurred.39 The court may exercise its discretion to dismiss the appeal only if, having reviewed all the admissible evidence, it considers that, notwithstanding there has been a miscarriage, the guilty verdict was inevitable, in the sense of being the
only reasonably possible verdict, on that evidence. Importantly, the Court should not apply the proviso simply because it considers there was enough evidence to enable a reasonable jury to convict. In order to come to the view that the verdict of guilty was inevitable the Court must itself feel sure of the guilt of the accused.40 Before applying the proviso the Court must also be satisfied that the trial was fair41 and thus that there was no breach of the right guaranteed to the accused by s 25(a) of the Bill
of Rights.
39 A “substantial” miscarriage is one which in substance, that is, in reality, affected the result of the trial.
40 The function of the court under para (a) (reasonableness of verdict) and its function under the proviso are quite different. Under para (a) the court considers whether a reasonable jury could have convicted, whilst under the proviso, having identified a miscarriage, it is considering
whether, nonetheless, the guilty verdict was the only verdict which reasonably could have been
arrived at.41 The assessment of fairness is to be made in relation to the trial overall: Condon at para [78].
[32] In coming to its conclusion concerning the inevitability of the verdict, the appeal court must of course take full account of the disadvantage it may well have in making an assessment of the honesty and reliability of witnesses on the sole basis of the transcript of the oral evidence. In a case turning on such an assessment the Court will often be unable to feel sure of the appellant’s guilt and will therefore be unable to apply the proviso.
[33] There is a second respect in which Weiss should be qualified. The High Court said that the appellate court’s task under the proviso was to be undertaken on the whole of the record. That is correct. However it expressly included in the record the fact that the jury has returned a guilty verdict. But of course the jury’s verdict may have been influenced by the existence of the miscarriage. Whilst the verdict may indicate the jury’s view on some question unrelated to the miscarriage, the appeal court must form its own view on whether a finding of guilt was, notwithstanding the miscarriage, the only reasonably possible verdict.
This case
[34] The case against Mr Matenga was a strong one. The complainant’s account of what occurred was, taking into account her intellectual difficulties in relation to both how she described what happened and how she would likely have appeared to the appellant on the morning in question, a great deal more plausible than the account given by the appellant in evidence and earlier in a video interview with a police officer. It seems very unlikely that a woman in the complainant’s circumstances would after encountering an unknown man, affected by alcohol, outside her home at 8.30 one morning almost immediately consent to sexual activity involving not only vaginal but also anal penetration. The evidence given by the female neighbour of the complainant’s distress tends to confirm the complainant’s account. Moreover, the appellant’s account was weakened by his statement to the police officer that the complainant had consented “maybe seventy percent, I assumed”.
[35] However, this was a case very much turning on the credibility of the complainant and the accused. The only physical evidence of possible significance,
the type of vaginal injury found by the medical practitioner, was relatively minor (“superficial splitting damage”). 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. In our view, the Court of Appeal 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. It is not enough that a jury could reasonably have convicted on the basis of the admissible evidence. When, because of the miscarriage, the Crown needed to rely upon the proviso it had to go further and satisfy the Court that the guilty verdict was not only reasonable but inevitable. We are not satisfied that has been established.
[36] Accordingly, this was not a case in which the Court of Appeal should have applied the proviso and the appeal should be allowed, the convictions quashed and a new trial ordered.
Solicitors:
Crown Law Office, Wellington
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