R v S (CA362/04)

[2004] NZCA 375

PUBLICATION OF NAMES OR IDENTIFYING PARTICULARS OF COMPLAINANTS PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985

IN THE COURT OF APPEAL OF NEW ZEALAND

CA362/04

THE QUEEN

v

S (CA362/04)

Hearing:         22 November 2004

Court:             Chambers, Baragwanath and Goddard JJ Counsel:     O G Martell for Appellant

S P France for Crown Judgment:  6 December 2004

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Goddard J)

R v S CA CA362/04 [6 December 2004]

Introduction

[1]    The accused was tried on an indictment containing eight counts: detaining the complainant with intent to cause her to be confined (kidnapping); rape; unlawful sexual connection; attempted sexual violation; indecent assault; injuring with intent to injure, assault using a weapon; and wilfully attempting to obstruct the course of justice. He was found guilty of kidnapping but acquitted on all other counts. He appeals against his conviction on the grounds that the verdict was inconsistent with the verdicts of acquittal and not established on the evidence; alternatively, that he should have been discharged without conviction pursuant to s 106 of the Sentencing Act 2002.

Background facts

[2]    The complainant was born in Western Samoa. In her early teens, she was  told by her mother that the appellant was her father. When 20 years of age she contacted the appellant who was living in New Zealand.  He acknowledged her as  his daughter and made arrangements for her to come to New Zealand. She arrived in December 1991 and by arrangement went to live with the appellant’s brother and sister-in-law at their home in Auckland. Early in 1992 the appellant said he was taking the complainant to a birthday party and uplifted her on a Friday evening at around 7pm. Instead of going to a party, however, the appellant drove her to his place of work and there the alleged offending occurred.

The evidence

[3]    The complainant’s evidence at trial was of a sustained episode of sexual abuse which continued over a 12 hour period and until the following morning.

[4]    The appellant also gave evidence at trial and acknowledged that he had taken the complainant to his workplace, but said this was on a Sunday morning and that they had not been there throughout the night. He said his simple purpose in taking

her to his workplace was to discuss her behaviour and the way she was treating his brother and sister-in-law. He said they discussed whether he was her father and she told him that she knew he was not her father and that neither he nor his brother and sister-in-law had the right to interfere with her because they were not her parents and that she wanted to go and live somewhere else. The appellant said he then moved to prevent her from leaving by holding her by both of her hands. His motive for stopping her from leaving was because he wanted to take her to see his mother so that she could explain to his mother why she did not wish to live with their family any longer. He said that after he grabbed the complainant’s hands she kicked him and hit him in an effort to make him let go of her. He explained what happened next as follows:

What happened next? … Then she free both her hand free she turn around to go I grab her collar her top and we kept pushing around until she kept kicking me and kicked my knee … [She] want to go and I kept holding her and I tell her she’s not going so there was a mattress on the floor near the table where the office is and ah, that is the mattress where I wanted to move to and keep holding on [she] push her to me I want her to – I want her to – I want to lay on that mattress and push her over there to hold her –

So she wouldn’t do what ?… When I get near the mattress I drop on the mattress and pull [her] onto the mattress and really I don’t understand how [her] top come out, I know [she] trying to move back, trying to go away and I tried to hold her, I tried to hold her. I think when I got onto the mattress  and pull a bit hard I think that is when [her] top come out and I hop down and pulled her over, now what I can remember [she] didn’t land on the mattress, I land on my knee on the mattress, [she] was lying like this, seating (sic) on the floor with her hands like this on the mattress and that is when I put my hands over here and hold her on the mattress.

…

How long had you been at the warehouse by this time? … How long? How long? … Maybe more than 10 minutes.

More than 10 minutes? … Maybe. But not 10 hours? … No.

[5]    Later, when the charge was directly put to him by his counsel, the appellant said:

Did you do as they said, did you detain her without consent with intent to cause her to be confined? … Well, I’m sure I held her but not for any other reason like having sex or anything like that, no raping or anything like that.

Why did you hold her? … I want to take her to my mother.

[6]    The appellant’s employer also gave evidence at the trial. He described how he had arrived to open the workplace for business on the Saturday morning, at around 9 or 10 o’clock:

… my recollection was that I walked through the front door and I was immediately confronted by the scene of [the accused] kneeling on the floor with – he had his back to me and the girl was leaning against the – a wall.

Who was the girl? … I didn’t know who she was when I walked in uhm, I mean I worked it out later that it was [that accused’s] daughter and when I walked in uhm, I mean [he] was kneeling there and the girl didn’t have – she got up and I noticed that she didn’t have a top on and she ran out the door and she appeared to be distressed, she was crying I think and uhm –

How distressed did she appear to be? … From what I recall she was crying and uhm, and when I walked in she pretty quickly got up and ran out through the front door … she didn’t have a top on uhm, and she ran out onto the street and I stayed in the shop and uhm, then [the accused] slowly got up uhm, and I think I said “what the hell’s going on” or something like – to the effect uhm, and then I don’t have a clear memory of it I think I then – [the accused] then went outside, I followed outside and the girl had run up the road towards the shops she’d run left up along New North Road and a woman stopped in the car a middle aged woman had stopped in the car and was checking to see if she was okay …

[7]In relation to the arrival of his employer at the workplace the appellant said:

… I don’t know what Ralph think because [she] didn’t have a top on and I don’t have a top on myself, and I thought maybe Ralph might think I tried to rape her, but I just said to Ralph I’m sorry Ralph for what happened, what happened here, and then Ralph never say a word …

The sentencing

[8]    Following the verdict of guilty on the kidnapping charge, Mr Harder, who was the appellant’s senior counsel at the trial, applied to Judge Blackie for a discharge pursuant to s 347 of the Crimes Act 1961. This was declined. The appellant was convicted and on sentencing discharged without penalty pursuant to    s 108 of the Sentencing Act 2002. No submissions were filed by counsel on sentencing and the Judge’s sentencing notes have not been requested. The note  taken by the Crown prosecutor at sentencing indicates that the Judge declined to decide if the detention was merely technical or for more serious purposes and

determined instead that the appropriate outcome was a conviction and  discharge. The mitigating factors before the Judge were the appellant’s age of 63 years, the absence of any recent convictions, and the fact that the offending occurred 12 years ago. An additional factor was that the appellant had been extradited from Australia  to stand his trial and held in custody for a period of 18 months pending trial.

Grounds of appeal

[9]    The appeal against conviction was advanced on two grounds: first, that the finding of guilt on the charge of kidnapping was inconsistent with the verdicts of acquittal returned on the other seven charges; secondly, that even if the guilty verdict found some support in the appellant’s own evidence, that support was insufficient to establish all of the requisite elements of kidnapping.

[10]   On the first ground, Mr Martell, who was the appellant’s junior counsel at trial and who argued the appeal, submitted that the “distinctly contrasting versions of events” given by the complainant and the appellant “were, in essence, irreconcilable” and thus required the jury to prefer one version over the other. He said that as the jury had found the appellant not guilty on all but the kidnapping charge and as the kidnapping had allegedly been a significant part of the overall series of events which itself comprised a single continuous transaction, the jury must have preferred the appellant’s version of events over that of the complainant. By their not guilty verdicts the jury must have rejected the complainant’s allegation that the appellant was physically violent, but physical violence had been the foundation of the kidnapping charge. It was not therefore a case where the jury could have accepted parts of the complainant’s evidence and parts of the appellant’s evidence. The essential question on appeal was whether the jury must have accepted certain evidence in relation to the kidnapping charge but rejected that same evidence in relation to one or more of the remaining charges.

[11]   In support of the second ground of appeal, Mr Martell submitted that even if the evidence given by the appellant at trial had provided a foundation for the guilty verdict on the kidnapping charge, any physical restraint had been for such a short or trifling period of time that it was insufficient to establish a kidnapping and the jury

had clearly been misguided in their approach to the relevant issues. He said that whilst the complainant was held back (in the sense of being prevented from leaving), this had not been the result of force, fear or violence but “merely the result of an argument between two adults”. He suggested that the period of struggle or confinement had been no more than 5-10 minutes in duration and may have been less. Furthermore, that the appellant’s intention had not been to confine the complainant but merely to hold her back to persuade her to talk to his mother before she left his brother’s home.

[12]   On the alternative ground of appeal, that a discharge without conviction pursuant to s 106 of the Sentencing Act was an appropriate sentence  in this case,  Mr Martell submitted that the Judge had erred in failing to consider s106 as an option and that the stigma of conviction outweighed the seriousness of the offence in this case.

Discussion

[13]   It is apparent from the above passages of appellant’s evidence that the complainant was physically restrained by him for the purpose of preventing her from leaving the workplace, and the struggle that ensued was not simply fleeting or of an inconsequential nature. As the appellant himself acknowledged, during the struggle he was attempting to push the complainant onto a mattress. He also acknowledged that during the struggle her top came off. The complainant was fighting hard to free herself from the appellant’s grasp and she clearly became extremely distraught in the process.

[14]   The detention only terminated at the point of the arrival of the appellant’s employer. The employer confirmed that the complainant was distressed, crying and unclad on her upper body. His further evidence was that she immediately ran from the workplace, and this gesture of itself graphically confirms her unwillingness to have been detained by the appellant.

[15]   The conviction for kidnapping was not dependent on the entry of convictions for all or any of the remaining charges. Each of the elements of kidnapping was

established on the evidence of the appellant alone. The evidence of his employer provided further independent confirmation of the complainant’s distress and of her desire to escape the situation. The appellant’s restraint of the complainant was physical as he himself acknowledged. The fact that the jury were not satisfied that  he had also assaulted the complainant with a metal pipe or injured her with intent to injure her (as alleged in counts 6 and 7) does not render inconsistent the finding of guilt on the kidnapping charge. Nor do the acquittals on the charges of sexual offending against the appellant render inconsistent the jury’s finding of intentional detention without the complainant’s consent. Given the evidence of the employer, the jury may well have entertained a reasonable doubt that matters had progressed beyond the situation upon which the employer chanced.

[16]   Overall, the admitted physical nature of the detention and its duration provided an ample basis for a verdict of guilty.

[17]   Where inconsistency of jury verdicts is raised on appeal, the test is whether any reasonable jury, applying its mind properly to the facts in the case, could have reached the different verdicts reached: R v Irvine [1976] 1 NZLR 96 (CA). In the present case, there is a reasonable explanation for the different verdicts returned and thus no ex facie inconsistencies. Although the jury may have been left with a reasonable doubt about whether the sexual activity alleged had occurred, there was, as Mr France submitted, sufficient common ground to support a guilty verdict on the kidnapping charge.

[18]   In relation to the alternative submission, that a discharge pursuant to s106 of the Sentencing Act should have been granted in the appellant’s case, the immediate difficulty is that such a discharge was never sought at sentencing. Mr Martell accepted that it should have been sought at sentencing and also accepted that the Judge’s refusal to discharge the appellant pursuant to s 347 of the Crimes Act 1961 was not amenable to appeal.

[19]   The test for a discharge pursuant to s106 of the Sentencing Act is set out in    s 107 of the Act. The test is one of proportionality and the Court is directed not to grant a discharge without conviction unless satisfied that the direct and indirect

consequences of a conviction would be out of all proportion to the gravity of the offence. Whether or not to grant a discharge without conviction is a discretionary exercise.

[20]   Although a discharge without conviction was not sought at sentencing, the prosecutor’s sentencing note does indicate that the Judge turned his mind to this possibility. His election to opt for conviction and discharge under s 108 of the Act was a matter for his discretion and open to him on the facts. It cannot therefore be said that the Judge erred in failing to exercise his discretion or failed to exercise it properly. Indeed, we go further.  In light of the jury’s verdict and the appellant’s  own evidence, this was clearly not an appropriate case for a discharge without conviction.

[21]The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington