R v Herbert

The appeal in this case was brought by the appellant, Edward Rawiri Herbert, against his conviction and sentence for sexual violation by rape. The appeal was heard by the Court of Appeal of New Zealand and was decided on 29 November 2007. The appellant was represented by G J King, while the respondent was represented by H D M Lawry. The court found that the appeal against conviction should be allowed, the conviction should be quashed, and a new trial should be ordered on the count of sexual violation by rape.

The appellant was initially tried in May 2007, but the jury could not reach a unanimous verdict. The jury indicated to the trial judge that they were ten to two in favour of acquittal on the charge of rape. In July 2007, the appellant was found guilty on one count of sexual violation by rape and acquitted on a charge of assaulting a female. The appellant was sentenced to seven years and six months imprisonment by Judge John Walker, the trial judge. The appellant now appeals against his conviction and his sentence.

The court found that the verdicts were unreasonable because of their inconsistency. The jury's verdicts were inconsistent because it was a logical impossibility for the jury to find the appellant not guilty of assault but guilty of rape. The court also found that the judge did not misdirect the jury as to the complainant's capacity to consent to sexual intercourse. However, the court did not address the other ground of appeal against conviction or the appeal against sentence.

As a result of the appeal, the conviction on the count of sexual violation by rape is quashed, and there will be a new trial on that count. This judgment is not to be published in the news media or on the internet or other publicly accessible database until the completion of the new trial. Publication in a Law Report or a Law Digest is permitted.