R v Cornwall

[2003] NZCA 446

PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139, CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA441/02

THE QUEEN

v

RONALD GEORGE CORNWALL

Hearing:13 March 2003

Coram:Glazebrook J
Hammond J
O'Regan J

Appearances:  B J Horsley for Crown

A J S Snell for Appellant

Judgment:18 March 2003 

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

[1]       Mr Cornwall stood his trial before a jury in the District Court at Hamilton in September 2002, on six counts of rape.  The six counts covered a period from the end of April 2000 to the end of October 2000.  The complainant (T) was the same in respect of each count.

[2]       The jury returned verdicts of not guilty on the first five counts.  It found the appellant guilty on the sixth count.  He was subsequently sentenced to five and a half years imprisonment.

[3]       Mr Cornwall now appeals to this court against his conviction, on the ground “that the conviction [on count six] was perverse given that the evidence in relation to [that count] was no weaker or stronger than the other five counts (but particularly in relation to counts four and five)”. 

The Facts

[4]       T was a 38 year old woman.  She first met Mr Cornwall in October 1985.  Mr Cornwall was then a supervisor with the [Y Department], 52 years old, and married.

[5]       T was working near [City X] in an enterprise in which she carried out general clerical duties.  The parties came first to know each other in that work setting.  T alleged that Mr Cornwall was predatory, and began touching her inappropriately.  She also maintained that he had sexual intercourse with her against her will, although that forms no part of the charges with which this court is now concerned.

[6]       Eventually T decided to look for a new job and left that work.  There was still however, some contact by him with T thereafter. 

[7]       In 1989 Mr Cornwall moved to Australia.  He lived there until 1992, when he returned to New Zealand.

[8]       In 1993 T was living with [A and B] in [City X].  Mr Cornwall visited her.  She alleged that he again forced himself upon her and had sexual intercourse with her against her will. 

[9]       T consulted her doctor (Dr L) about this alleged incident.  Dr L is a member of Doctors for Sexual Abuse.  She had been T’s Doctor since November of 1981.  Consequently she had available to her medical records, taken over a long period of time, relating to T’s physical and emotional state.  The latter were of some distinct relevance, because it is common ground that T is a particularly vulnerable woman with a history of emotional instability.  She has had to be hospitalised on occasion for treatment for psychiatric or psychological difficulties.

[10]     In April of 1994, T again presented to Dr L with distinct injuries - abdominal tenderness, bruised thighs, and abrasions in the vaginal wall - which were consistent with rape rather than consensual sexual intercourse.  The suggestion appears to have been that the accused was responsible for these injuries, but again there was no charge relating to this incident.

[11]     There was then a gap of several years to April 2000 during which there was little, if any, communication between Mr Cornwall and T.  At that time Mr Cornwall telephoned T to advise her that he would be visiting [City X] on the last weekend in that month.  T expressed her concern to Dr L about this intended visit.

[12]     The events of that visit were the subject of count 1.  The Crown case was that in the weekend of 28 April 2000 Mr Cornwall turned up at T’s house in [City X].  He renewed his advances, if they can be so described.  T was very tearful, she did not want to go to a bedroom with him, and told him to stop, but he nevertheless had intercourse with her against her will.

[13]     Count 2 relates to a mid May 2000 incident, when Mr Cornwall again visited [City X].  He wrote to say that he was coming to [City X].  T presented to her doctor in advance of his visit in a “suicidal” state.  On the Saturday evening T was home alone when Mr Cornwall arrived.  Her evidence was that she did not want sex but that Mr Cornwall replied that “she should be flattered that someone like him would want to have sex with someone like her”.  Again the allegation was of being taken through to the bedroom; she was undressed, and non-consensual sex taking place.

[14]     T was subsequently examined by Dr L.  Dr L wrote to Mr Cornwall advising that any further contact with T would result in police action.

[15]     Notwithstanding that advice, Mr Cornwall continued to telephone and write to T.  On 20 July 2000 she caused a Trespass Notice to be sent to him.  Mr Cornwall acknowledged receipt of the Trespass Notice.  In that letter he expressed his concern about being charged with rape, acknowledged the stupidity of his actions, and expressed his love for the complainant.  He said he would not visit [City X] again.

[16]     Notwithstanding that acknowledgement, in August 2000 Mr Cornwall wrote to T saying he would be in [City X] in the first week of September 2000.  He suddenly walked in on her at her [City X] address.  The sequence of events was alleged to be very like those of the other incidents, and is the subject of count 3.

[17]     T visited Dr L after this event.  Dr L urged her to go to the police.  With the assistance of a counsellor, T in fact went to the [City X] Central Police Station, where she spoke with a female police officer.  Although she told the police what she claims had happened, she decided not to make a formal statement, or undergo a full medical examination.

[18]     At the end of September 2000, Mr Cornwall again visited T at her [address] in [City X].  This is the subject of count 4.  Again the sequence of events is said to have been very similar.  T thereafter went to see Dr L, but she refused to be examined and blamed herself for what had happened.

[19]     By the first week in October a medical alarm had been arranged for T to wear.  She was wearing this when, on 21 October 2000, Mr Cornwall again visited her house in [City X] and had sexual intercourse (she says) with her against her will.  She subsequently told Dr L that she was too scared to activate the medical alarm button.  This visit was the subject of count 5.

[20]     Count 6, on which Mr Cornwall was convicted, came about this way.  About 7 pm on 26 October 2000, Mr Cornwall was alleged to have telephoned T, using his mobile cellphone.  He told her he was in [City X] and that he would come around and see her.  T immediately phoned Dr L, to express her concern.  Within a short time Mr Cornwall arrived at the complainants house.  He let himself in.  Her evidence was that she was sitting on a sofa, Mr Cornwall approached her and put his arm around her.  He started to kiss her and began to fondle her.  Mr Cornwall took her hand and led her into the bedroom.  She said that she was scared but at the same time was unable to prevent what was happening and “through fear” complied with his request.  Mr Cornwall undressed her.  She was told to lie on the bed.  He got undressed himself and then got on top of her and had sexual intercourse with her against her wishes. 

[21]     Immediately after this incident, T rang Dr L.  She thereafter went to the Police Station with the doctor where she underwent a full medical examination and a formal complaint was made.

[22]     When Mr Cornwall was spoken to by the police in mid February 2001, he admitted having seen T on three or four occasions.  He said there had been consensual sex on two occasions.  He denied any sexual contact at all on 26 October 2000. 

[23]     By the time of the trial, Mr Cornwall was 68 years old, and retired.

[24]     The Crown case was that this was a particularly vulnerable and disadvantaged complainant; that Mr Cornwall recognised this; and that over an extensive period he took callous advantage of her vulnerability, calling on her and having sex when he felt like it, in spite of T telling him that she didn’t want to have sex with him.

[25]     The defence case was that sex was consensual, whenever it occurred.  The defence said the incident founding count 3 had not happened at all.

The Summing Up

[26]     There is no complaint about the summing up.  On the question of separate counts, the Judge gave a perfectly adequate direction to the effect that each charge must be given separate consideration.

[27]     Moreover, the very experienced District Court Judge recognised the difficulties in this case.  The jury were very fully warned that T had a history of instability, and that real caution was required as to her relationship with Dr L.  The Judge said:

[42]   I would hope that I am not being thought of as being critical of the complainant.  She is clearly a woman who has serious mental health difficulties, and certainly had over that period.  I raise it more as a warning, that the complainant is a person whose credibility you must assess very carefully indeed.  In the end, of course, it is a matter for you, and you may decide this case on the basis of the complainant’s evidence.  You may accept it and you may convict the accused.  Those are matters entirely for you.  And I do not wish to be thought of as saying you should not accept the complainant’s evidence or you should accept the accused’s evidence.  I am not giving you any such indication at all.  I am simply raising with you that because of all these issues that we have heard in this case, you must be careful indeed when you come to assess the credibility of the complainant.

[43]   I am also not being critical of Dr L.  Clearly, she is a medical practitioner with a warm heart and an impressive devotion to the best interests of her patients.  While there is no question, I am sure, that Dr L was attempting to do anything but the very best for the complainant, the real issue for you might well be here – but it is for you – is there not at least a possibility that Dr L was quite carefully misled by a tragic and unwell woman who relied so much on receiving continued support and the attention of her medical practitioner?  It is a matter for you members of the jury, but I raise this because it seems to me to be a serious issue in this case that you will need to focus upon entirely and you cannot avoid it.

[50]   The Crown case is that when the accused returned in July the complainant did not want a sexual relationship with him of any sort, and indeed actively sought to protect herself from him by such means as having a trespass notice delivered to him and also having her doctor write to him telling him to stay away.  And so the issue is, are these clear and incontrovertible steps that provide support for the complainant’s account, or is it part of a lie being lived?  And that is the difficult question for you.  The defence case is that the sex was consensual whenever it occurred, and that was without any doubt at all on the part of the accused.

[28]     When he came to sentence Mr Cornwall, in November of 2002 the Judge said:

The verdict of the jury in relation to 26 October 2000 has to be accepted by me as an acknowledgement that you took advantage of her vulnerability, that you had sexual intercourse with her on that day and that you knew at the time that you had sexual intercourse with her that she was not consenting.  There can be no other conclusion that I can draw from that verdict and it is the only basis upon which I can sentence you.  I cannot go behind the verdict of the jury.

The Law:  Inconsistent Verdicts

[29]     This Court may quash a guilty verdict as unsafe if it is inconsistent with a not guilty verdict on another count.  The long established test is that laid down by this Court in R v Irvine [1976] 1 NZLR 96, following the observations of Devlin J in R v Stone (unreported, 13 December 1954, Court of Criminal Appeal (UK) viz:

When an appellant seeks to persuade this court as his ground of appeal that the jury had returned a repugnant or inconsistent verdict, the burden is plainly upon him.  He must satisfy the court that the two verdicts cannot stand together, meaning thereby that no reasonable jury who had applied their mind properly to the facts in the case could have arrived at the conclusion, and once one assumes that they are an unreasonable jury, or they could not have reasonably come to the conclusion, then the convictions cannot stand.  But the burden is upon the defence to establish that.

[30]     If there is some reasonable explanation for the differences in the verdicts, then they cannot be regarded as inconsistent.  (R v Hayward, CA 375/98, 11 March 1999).  Different verdicts are not inconsistent where they may be explained on the basis that the jury must have accepted some parts of the evidence of a witness and rejected other parts of that same witness’ evidence, particularly in a case where the acceptance or rejection may itself reflect the presence or absence of corroborative evidence.  (See R v Nuttal CA 260/99, 17 December 1999; R v Evans, CA 411/99, 30 March 2000).

[31]     The law in this subject area was recently reviewed by this Court in R v H [2000] 2 NZLR 581. Even where a verdict might be said to be “inconsistent” in some way(s), a verdict may still be reasonable, and hence supportable. The innate sense of fairness and justice of the jury might have properly been applied to reach a verdict of acquittal to avoid an unnecessary double conviction, or for other appropriate reasons.

[32]     It is not necessary for us to revisit the reasoning in that decision.  We think this case can be disposed of comfortably within the traditional authorities, which emphasise the need to pay close regard to the evidence in the particular case.

Counsel’s Submissions

[33]     Mr Snell accepted that there was something of a “watershed” between the early counts, and the three later counts.  He then posed the question – what (if anything) was different about count 6 from counts 4 and 5, on which the jury had acquitted?  He accepted that, in terms of the evidence, there were two and possibly three factors which might be said to give rise to a difference – in relation to count 6 there was a formal complaint to the police; Mr Snell responsibly recognised (as he had to, on the evidence) that there were some inconsistencies in Mr Cornwall’s evidence on count 6; and there was an equivocal diary note on count 6.  But these, he said, were small things which could not justify the difference, where the defence had been run on an “all-or-nothing” basis, and the fact of sexual intercourse had been formally admitted in relation to count 6 at the commencement of the trial.

[34]     Mr Horsley submitted that the fact that, this time, T went through with a complaint to the police was very significant, and a genuinely differentiating factor.

Resolution

[35]     In our view there is no proper basis on which this Court could or should interfere in this instance.

[36]     First, it is not appropriate to speculate in this Court.  At the most general level jury verdicts should be read as having been rendered in good faith.  It is very difficult to see in cases of this kind, where a number of successive sexual acts are alleged, why a jury could not be in reasonable doubt on some counts, and sure on one.

[37]     Secondly, that said, there are two quite plausible evidentiary explanations in this case.  The first is that by the time the end of this “chain” of incidents had been reached, the jury could have been well satisfied that (finally) it had been made plain to the appellant that T did not want to have sex with him, that he proceeded against her will, and she then did complain to the police.  That is, that until there was a formal complaint, the jury was not prepared to attach criminal liability, and it was not prepared to do so retrospectively.  The second point is that, relatedly, the jury may not have seen the differentiating factors as being of such a minor character as Mr Snell submitted.

[38]     Thirdly, the jury may also have thought that only the one conviction was reasonably required, in all the circumstances of this case.  In particular, there is the factor of T’s omission to take concrete steps at an earlier point of time.

[39]     Whatever the actual reasoning of the jury, and notwithstanding Mr Snell’s full and able submissions, we are not persuaded that the verdict was unreasonable, let alone perverse.  We therefore dismiss the appeal.

SOLICITORS:

Crown Law Office, Wellington