R v A (CA432/03)

[2004] NZCA 337

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF APPELLANT AND COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA432/03

THE QUEEN

v

A(CA432/03)

Hearing:         20 May 2004

Coram:O'Regan J Wild J Doogue J

Appearances: N J Sainsbury for Appellant

A Markham for Crown Judgment:  27 May 2004

JUDGMENT OF THE COURT DELIVERED BY WILD J

[1]                 The appellant appeals against his conviction on three counts of sexually violating by raping his niece at Porirua between January 2001 and June 2002. The niece was ten years old at the start of that time period.

[2]                 The trial was in the District Court at Wellington on 1-3 October 2003 before Judge Mackintosh.

[3]The appeal invokes s385 Crimes Act 1961 which provides:

R V A(CA432/03) CA CA432/03 [27 May 2004]

385. Determination of appeals in ordinary cases – (1) On any appeal against conviction the Court of Appeal shall 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.

[4]                 The appellant accepts that the s385 threshold is high. The well established test is that the verdicts can only be set aside if a jury acting reasonably must have entertained a reasonable doubt as to the appellant’s guilt: R v H 28/10/98 CA200/98, confirming R v Ramage [1985] 1 NZLR 392 (CA), 393 and citing R v Allandale and Dennett (1905) 25 NZLR 507 (CA).

[5]                 Mr Sainsbury referred to R v K 21/02/00 CA449/99 as having some broad similarities to the present appeal: three convictions for sexual offences committed against a 13 year old niece over an 18 month period. The appeal in R v K was dismissed. Perhaps for that reason, Mr Sainsbury pointed to what he submitted were key differences between that appeal and this one. We see no need to explore any differences, because we agree with Mr Sainsbury’s underlying submission that reference to other appeals under s385 is unhelpful, since each turns on its own evidence.

[6]                 A complaint was first made to the Police by the complainant’s parents on or about 29 July 2002. A videotaped interview of the complainant took place that day  at the Porirua Police Station. That tape became the complainant’s evidence in chief at trial. She was closely cross-examined.

[7]                 The complainant alleged she had been raped in three separate incidents. Although unsure, she put the first at around mid-2001, the second during holidays later in 2001 and the third earlier (than July) in 2002. The appeal focused on three aspects of the evidence, and upon a question asked by the jury in the course of its deliberations. Although the appellant obviously relies on the combined effect of those points, it is convenient first to look at each individually.

Timing of the rapes

[8]                 As we have mentioned, the complainant’s recollection was that she had first been raped around mid-2001. She recalled that she was wearing a pair of jeans on that occasion, because the appellant broke the zipper in the course of undressing her and she had difficulty fastening the jeans after pulling them on again following the rape.

[9]                 The evidence of two other Crown witnesses suggested that she could not  have been wearing those jeans in mid-2001. The first witness was the complainant’s mother, who said the jeans had been a present to the complainant for Christmas 2001. The mother said the jeans were the complainant’s favourite trousers, which  she wore all the time. If that evidence was correct, then the complainant could not have been raped in mid-2001 while wearing those jeans. The other witness was the complainant’s cousin who said she had borrowed the jeans from the complainant on 14 June 2002 and not returned them until the Police asked her for them. The complainant said that her cousin took the jeans about three or four weeks after the first rape. That would put the first rape around April or May 2002, rather than approximately a year earlier. A further consequence of that evidence is to compress the three rapes which the complainant said had occurred well apart into the four months between about April 2002 and the complaint to the Police on or about        29 July 2002. Mr Sainsbury’s submission was that such a significant mistake as to timing makes the complainant’s story inherently flawed.

[10]              For a number of reasons, we do not accept that. First, the complainant’s evidence as to the timing of the rapes was vague from the outset. The indictment reflected that vagueness (each of the three counts charges a rape committed between 1 January 2001 and 14 June 2002). The appellant’s wife, called for the defence, said in evidence that the complainant began staying with them toward the end of 2001, suggesting that the complainant’s evidence that she was first raped by the appellant in mid-2001 was incorrect. Secondly, the complainant’s mother may have been wrong in saying that the jeans were the complainant’s Christmas 2001 present. The mother said herself she was not sure. The complainant gave clear evidence that her mother had given her the jeans to wear to church, and was very specific about the

clothing she had been given at Christmas 2001: long cargo pants and shorts, both creamy coloured, plus a grey vest and a sports T-shirt. The jury may well have thought that a child was more likely to remember detail of that sort, than was a busy parent. Thirdly, the complainant’s evidence about the time gap between her being given the jeans and the cousin taking them may be incorrect, and/or the cousin’s evidence about the date on which she took the jeans might be wrong. The latter is less likely, since the cousin  fixed  that  date  in  relation  to  a  teachers’  strike  on 14 June 2002.

[11]              On the timing point, Ms Markham submitted that, even if the complainant’s evidence about the timing of the rapes is demonstrably wrong, it does not follow that a reasonable jury must have harboured a reasonable doubt as to the substance of her account of the rapes. We agree. It is trite that a jury is entitled to accept part of a witness’s evidence and reject other parts, and juries are routinely so directed. That also disposes of Mr Sainsbury’s submission that the Crown’s failure to resolve, or even to attempt to resolve “this crucial conflict of evidence between its own witnesses” means that the verdicts are unsafe.

Bizarre account

[12]              For the appellant Mr Sainsbury submitted that the timing point was compounded by “the vague, impossible and bizarre account of the rapes themselves given by the complainant”. He made three points. First, the complainant said the  first rape  had  lasted  “an  hour”,  the  second  longer  and  the  third  still  longer.  Mr Sainsbury contended that it defied logic that the appellant had raped the complainant during periods of over one hour. That may be so, but the jury would doubtless have borne in mind that this was the evidence of a young girl, who seemed not to have a very good grasp of time and timing, recounting traumatic events. Further, the submission needs to be assessed against the evidence the jury actually heard. For example, in relation to the first incident the question put to and answer given by the complainant when first interviewed were:

Q.       Mm, and tell me about how long that seemed to happen for?

A.       An hour.

And under cross-examination:

Q.And I think you estimated that he had his penis inside you, for what about an hour?

A.       Yep.

[13]              And as to the third incident, the question and answer on the videotaped interview were:

Q.       And how long did it seem to happen for?

A.       Ages, it took ages, I was getting tired and was getting bored.

[14]              The second point is that the complainant, although she said she had first been raped in mid-2001 (i.e. in mid-winter) outdoors for an hour, did not remember the cold. Again, the submission was that that defied belief.  We have already pointed  out that the complainant may well have been considerably out on her timing, both as to when the first rape occurred and about its duration. This second point is  predicated on the first rape having occurred in mid-winter, which may not have been the case. In any case the traumatic episode described may have made the complainant’s awareness of the circumstances and her memories of them less than complete.

[15]              The third point is the complainant’s evidence that the appellant licked her “tummy” while raping her on each of the three occasions. That was submitted to be “anatomically impossible”. Our view on that is, again, to accept Ms Markham’s submission that that evidence, coming from a traumatised girl, does not mean that a reasonable jury must have disbelieved her. The licking may not have been contemporaneous with penetration and was of other parts of the complainant’s body as well, e.g., her “tits” and face.

Medical evidence

[16]              The next aspect related to the medical evidence. Upon examination, the complainant’s hymen was found to be intact. The Crown’s medical expert opined that that was not necessarily inconsistent with intercourse having occurred.

Mr Sainsbury submitted that the basis in the medical literature for that opinion was weak. He accepted that the point is a make weight one.

Jury question

[17]              The final part of the appellant’s case related to the following question from the jury, and Judge Mackintosh’s answer to it. These were:

Q.Is the Judge able to tell us (as a matter of law) in the most simplest    of examples, is a “mere allegation”/statement of something, sufficient to discharge the burden of proving beyond reasonable doubt? (if there was nothing else) – or is that a question she cannot really provide us an answer to.

A. No a mere allegation of a crime by a complainant is not sufficient to discharge the onus of proof. You have to consider all of the  evidence in the case. However the law is you are entitled to convict on the complainant’s evidence alone so long as you believe her and are satisfied on her evidence that the elements of the charge are proved beyond reasonable doubt, which means you must be sure.

[18]              Whilst accepting that it was difficult to identify the thinking which had led to this question, Mr Sainsbury suggested that the question indicated “the jury heading down a path of failing to consider all the evidence before the Court”. His point was that the jury must have reached their verdicts of guilty despite, and without regard to, the flaws in the evidence to which he directed us. He added that, by her answer, the trial Judge was unable to get them “back on track”.

[19]              Given the opaqueness of the jury’s question, the Judge’s answer to it is admirably clear and helpful. We do not share Mr Sainsbury’s analysis of the jury’s thinking. An alternative, if not preferable, view is that it indicates the jury’s concern about the inconsistencies in the evidence of the Crown’s witnesses, and their realisation that the credibility of the complainant was the overriding issue for them. As the defence was that the complainant had fabricated her allegations, those allegations were thoroughly tested by cross-examination. In closing to the jury, defence counsel no doubt made great play of those inconsistencies and what he contended were the implausible aspects of the complainant’s evidence. No criticism is made to us of the Judge’s summing up, in particular of the defence case, and nor could it be. Everything now put to us was squarely before the jury. Indeed, the

alleged inadequacy of the Crown case had formed the basis of an unsuccessful s347 application to the Judge at the end of the Crown case. There is considerable force in Ms Markham’s submission that this appeal is essentially an attempt to relitigate what was unsuccessfully put to the trial Judge on the s347 application, and unsuccessfully to the jury as the appellant’s defence to the charges.

[20]              In her submissions, Ms Markham reminded us in some detail of the complainant’s evidence about the rapes. We see no need to go into that evidence. It is sufficient to say that we accept that the complainant gave a fairly detailed, and at times graphic, account of each of the three rapes, including when it occurred (although we accept she may have been significantly out on her dates), where it occurred, how it occurred, and the aftermath for her. To give just one example, her evidence about the aftermath was of feeling considerable soreness in her private parts, noticing when she went to the toilet that it was “red” and a sensation of “wet

… like I pissed my pants”. She mentioned “walking funny” and described the soreness like “lots and lots of needles going through … whenever I did a wee it would go sore …”.

[21]              Ms Markham also pointed to other evidence tending to corroborate the complainant’s account. The following are examples:

(a)Because the complainant was able to identify the location where she had first been raped, that area was photographed and the photographs were put in evidence. They showed an area of bushes mulched with bark, which accorded with the complainant’s account that the ground she was lying on when first raped “was bark … and rocks … little ones”.

(b)The jeans were an exhibit and there was no dispute that the zipper on them was broken.

(c)It was also common ground that the appellant and the complainant went out together in the appellant’s car on a number of occasions during the period in question. The complainant’s mother also

confirmed that the appellant usually picked up and dropped off the complainant when she went to the appellant’s home to care for his children. Her evidence was that there were no particular  arrangements as to time, and sometimes the drop off was at night time. The appellant’s wife confirmed in evidence that there was a Sunday when the family woke too late to go to church, and agreed  that on another occasion the complainant and the appellant had gone out together in the car and returned home later than she expected, with an explanation that they had gone to pick up some clothes for the complainant from her home. That evidence coincided with the complainant’s account of the third and second rape incidents respectively.

(d)There was evidence that the complainant, prior to the rapes, got on well with her aunt and uncle and enjoyed staying with them and looking after their children. The complainant’s siblings also liked  their aunt and uncle. No motive for the complainant to make false rape allegations against her uncle was apparent. That could be  coupled with the evidence of the complainant’s mother that the complainant became reluctant to stay with her uncle and aunt on the last occasion, about two weeks after Easter 2002.

(e)There was recent complaint evidence from a school friend of the complainant that the complainant had said she was worried that she might have a baby “because her uncle keeps on having sex with her”.

Result

[22]              We have considered the evidence at the appellant’s trial. Although no complaint is made about it, we have read the trial Judge’s summing up. We do not agree that the jury in the trial, acting reasonably, must have entertained a reasonable doubt as to the appellant’s guilt. On evidence put fairly and squarely before them, and summed up by the Judge in a manner to which no exception is or could be taken, we consider the verdicts reached by the jury were open to them.

[23]Accordingly, the convictions are to stand and we dismiss the appeal.

Solicitors:

Crown Law Office, Wellington