R v Burns CA55/06

[2006] NZCA 416

NOTE:  PUBLICATION OF NAME(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139, CRIMINAL JUSTICE ACT

1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA55/06

THE QUEEN

v

ROSS FERGUSON BURNS

Hearing:         1 June 2006

Court:            O'Regan, John Hansen and Gendall JJ Counsel:        R J Laybourn for Appellant

K J Beaton for Crown

Judgment:      12 June 2006

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

REASONS

(Given by Gendall J)

[1]      The appellant was convicted after a jury trial in the District Court at Hamilton on 7 December 2005 on one count of indecent assault of a girl under the age of

12 years.  He appeals against that conviction.

R V ROSS FERGUSON BURNS CA CA55/06  12 June 2006

[2]      At trial he faced a separate count alleging sexual violation by unlawful sexual connection through digital penetration of the complainant’s genitalia.  He was found not guilty of that charge.  The grounds advanced in support of the appeal are that the verdict was unreasonable and not supported by the evidence and, as an allied ground that the guilty verdict was inconsistent with the acquittal on the first count, so that it was unreasonable and the conviction unsafe.

Background

[3]      Both  counts  involved  representative  charges,   alleging   events   between

1 February and 7 July 2000, when the complainant was then aged six years.  She is the daughter of the then partner of the appellant.  In about July 2000 the complainant complained to her mother about actions that the appellant performed with her.  She said it involved a “game” where the appellant would place the complainant on his stomach and slide her across it, causing her pain in her genital area.

[4]      The complainant underwent an evidential interview in which she said this type  of “game”  took place  frequently,  always  in  the  evening  in  the  appellant’s bedroom, in the absence of the complainant’s mother, who was at work.   In the interview the complainant said that both were wearing clothes and that the appellant had said to her “don’t tell anyone that I do that to you”.  However, the complainant did not say anything which could fairly be taken as describing any offence on the part of the appellant.  She indicated to the interviewer that the game caused pain to her legs and stomach (in contrast to what she was said to have indicated to her mother).   When asked to demonstrate the game using dolls, she placed the doll representing her on top of the stomach of the doll representing the appellant.

[5]      Because  of  something  the  complainant   later  said  to   her  mother  the complainant was interviewed again two weeks later on 25 July 2000.  She said that the appellant had done something to her “ages ago” but, although she had told her mother earlier in the day, she could not remember what it was, other than that it happened when she and the appellant were lying on a couch.

[6]      The appellant was interviewed by a police officer on 9 August 2000.   He acknowledged that he played a game with the complainant, generally as she had described in the first interview, but denied that it had any sexual connotation, contact or intent on his behalf.  The police chose then not to charge the accused.

[7]      In August 2002 the complainant’s mother assaulted the appellant.  She said she did so because of what she believed he had done to the complainant.

[8]      In early 2004, when the complainant was aged 10 years, she again spoke of the allegations to her mother, the content of which was not, and could not have been put before the jury.  A third evidential interview took place on 14 April 2004.  In that interview the complainant alleged that the accused would lay down with her on a couch and touch her private parts with his fingers.  She went on to further describe, or elaborate on, what happened during the game playing when she was required to “go up and down” on top of the appellant with her genital area touching him.  When asked why she had not elaborated in that way in the earlier interviews her response was  that  she  was  young,  did  not  know  what  was  going  on  and  had  felt uncomfortable.    Following  that  interview,  the  appellant  was  charged  with  both counts.

[9]      At trial the defence essentially was, that whilst there had been “play” type of activity as alleged, it was innocent, did not constitute assault and any contact carried no sexual connotations.  The allegations of digital penetration were false, as were the expanded details of the “game” activity, having been conjured up at a much later date.  The defence said the mother had a grudge against the appellant (exemplified by the assault referred to earlier) and instigated the complainant to make the 2004 complaints.  This was put to the mother who denied the suggestion.

Counsel’s submissions

[10]     Mr Laybourn submitted on behalf of the appellant that the jury’s two verdicts cannot be rationalised.  He said that non-disclosure of sexual offending at the first and second interviews, prior to delayed disclosures four years later, could only point, in the circumstances of this case, to  a  manipulation  of the  complainant  by  her

mother.  He said that the provision of more detail in relation to the “game playing” events was important because the conduct originally she complained of was not sufficient on which to base criminal charges.  He emphasised that the assessment of the complainant’s credibility was critical and the jury could not logically reject the explanation in respect of the sexual violation count yet accept it for the count of indecent assault.   He argued that as both counts involved “new” and conflicting stories the potential for compromise was obvious, and the jury could not properly have accepted the complainant’s explanation in respect of one count whilst rejecting it   for   another,   given   that   the   jury   was   presented   with   “identical   Crown rationalisation” on both counts.

[11]     The Crown’s submissions were that there was a clear evidential basis for the jury to distinguish between the counts to enable it to properly convict on the indecent assault count, yet acquit on the sexual violation count.  In respect of the latter count there  was  no  recent  complaint  evidence  and  indeed,  a  complete  denial  by  the appellant.   In respect of the indecent assault count there was a disclosure which could be regarded as a “recent complaint” so as to reflect upon the credibility of the complainant’s evidence.  There was an admission to the police on 9 August 2000, by the appellant, that the complainant “sits on my stomach;  “I lift her up and down”. The Crown disputed the claim by the appellant that the indecent assault count was a completely new allegation and said that the jury were entitled to consider what was later said in the third video interview as an incremental disclosure, being entirely explicable  given  her  age.    In  particular,  the  complainant  had  said  in  the  first interview  that  a game  involving  her  straddling  the  appellant’s  body  took  place regularly, always at night, when the complainant’s mother was at work, and that she had been told not to tell anyone about it.  The Crown submitted there was a rational basis upon which a different jury’s verdicts could be understood.

Discussion

[12]     The law as to inconsistent verdicts is well known and recently described in

R v A B C D CA301/05, 295/05, 310/95, 288/05 11 April 2006 at [75]-[77]:

[75]     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 Stone [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 589 per Keith J).

[76]     A prima facie inconsistency is never enough to set aside a verdict. Once a  prima  facie inconsistency  is  established,  the Court  must  inquire whether  there is  any  rational  or  logical  explanation  for  the  inconsistent verdict.  Sir John Smith has stated the requisite approach admirably:

[T]he jury system is workable only if we assume that, in the absence of any evidence to the contrary, the inscrutable jury has behaved rationally.  So where verdicts are alleged to be inconsistent, the court must consider whether there is a rational way in which the jury could have arrived at the two verdicts and, if there is, to assume that this was the path which the jury followed … The jury is not, of course necessarily saying by its differing verdicts that some allegations are untrue, only that they are not sure that they are true.  (In a case note to R v JK [1999] Crim LR 740 at 741).

[77]     Time after time in appeals to this Court it is argued, as counsel argued here, that because the jury must have “disbelieved” a  witness  to acquit on one count, it was inconsistent to rely on her to convict on another count.  The argument is utterly fallacious;   there may be all sorts of valid reasons why the jury may be convinced by a witness on one count but not on another.  To put this another way, there is no reason why credibility must be static.  As was said in R v G [1998] Crim LR 483, “A person’s credibility is not a seamless robe, any more than is their reliability.” It is not necessarily illogical for a jury to be convinced as to the credibility of some aspects of one person’s story, but not as to others, a fortiori where it is convinced, but not beyond a reasonable doubt.

Discussion

[13]     There  may  be  some  force  in  counsel’s  submission  that  emerging  detail through  successive  evidential  interviews  is  of  concern,  and  detracts  from  the Crown’s case.  But this would have been squarely put before the jury in counsel’s addresses.  Indeed, Mr Laybourn acknowledged that the defence contention was that the  complainant’s  mother  instigated  false  complaints,  which  led  to  the  third interview.   What was critical to the jury, however, was the credibility of the complainant, both in her evidential video interviews and cross-examination before the jury.

[14]     In respect of the indecent assault count there were a number of matters of evidence, which distinguished it from the sexual violation count.  They included the evidence of “recent complaint” to the mother which led to the first video interview; the opportunity afforded to the appellant on multiple occasions to participate in the “game” activity in the absence of the complainant’s mother, at night in the bedroom, and the appellant’s statement in which he confirmed, broadly, the bodily positions as described by the complainant.   The complainant’s evidence was that “I hopped on his stomach” and “we slide” were matters which, if the jury believed her, were in part confirmed by the appellant’s statement to the police that she sat on his stomach and he lifted her up and down.  It was open to the jury to conclude that the “game playing” was a pretext for prurient contact with the complainant.

[15]     In contrast, there was nothing in what the complainant said in the her initial complaint to her mother or the first two interviews that could be said to amount to a general description of the alleged conduct which was the basis of the digital penetration count.  The complainant did refer in the second interview to something happening on the couch, but was unable to describe it.  The appellant himself said nothing in his police interview which could have been seen as confirming that this conduct happened.  So the only evidence before the jury on the digital penetration allegation was the complainant’s account.

[16]     It is obvious that the evidence in respect of both counts was sufficient for them to  be left  to the jury.   We do  not accept that the jury rejected all of the complainant’s evidence, and that it had to do so, simply because it acquitted the appellant on the digital penetration count.  That count related to separate allegations at a separate place in the home and for which there was no acknowledgement by the appellant or other evidence which might support the accuracy.   But a rational explanation for the guilty verdict existed, namely that there was further evidence available to the jury to accept as credible the complainant’s evidence and complaints about the physical acts associated with the “game” yet be left with a reasonable doubt about the allegation of actual digital penetration of the genitalia.

[17]     It is not open for us to speculate on the jury’s reasoning process where, as here, there was sufficient  evidential foundation for it  to convict  on the separate

count.  This Court cannot interfere with a jury’s verdict unless it is unsafe, so that there arises a risk of a miscarriage of justice.  Juries are told that they may bring in different verdicts on different counts.

Result

[18]     We are not satisfied that the different verdicts were inconsistent, there being a rational explanation for them.  The appeal against conviction is dismissed.

Solicitors:

Till Henderson King, Hamilton for Appellant

Crown Law Office, Wellington