R v T (CA81/02)

[2002] NZCA 402

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

IN THE COURT OF APPEAL OF NEW ZEALAND CA81/02

THE QUEEN

V

T(CA81/02)

Coram:	Blanchard J McGrath J Anderson J
Counsel:	P Le’au’anae for the Appellant A Markham for Crown
Judgment (on the papers):	12 December  2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

1. This appeal against conviction has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offence

1. The appellant was convicted after trial by jury in the District Court at Manukau on one count of sexual violation by unlawful sexual connection and one count of attempted sexual violation by rape. The complainant is a 32 year old female relative of the appellant.

Relevant facts

1. On Saturday 28 April 2001 the complainant was with friends at a nightclub in Mangere. The appellant was there also and agreed with the complainant to drop her and a friend home when the club closed at around 3.30am.

2. After taking the friend home the appellant drove the complainant to a secluded location, explaining that he wanted to talk to her about family matters. When it became apparent that a security light was operating in the area the appellant drove to another location. Here the appellant told the complainant that he wanted her to be his wife.

3. When the complainant objected to this the appellant seized the complainant’s mouth, with such force as to loosen one of her teeth, and forced his hand inside her trousers and underwear and digitally penetrated her vagina. The complainant screamed for help – a cry which a nearby truck driver attested to hearing – and managed to get the passenger door open. A struggle ensued and the appellant grabbed the complainant’s arm, bending her fingernails and causing them to bleed. The complainant slid out of the passenger door onto the ground and was pinned down by the appellant whose fingers remained inside her vagina at that stage. 

4. Once on the ground the appellant held the complainant with one hand and using the weight of his body, and with the other hand removed his clothing and the complainant’s trousers and underwear. Sometime during this process the appellant again inserted his fingers into the complainant’s vagina. He was unable to get an erection.

5. With his fingers remaining in the complainant’s vagina the appellant then rubbed his penis over the complainant’s vulva, forced her hand onto his penis, unbuttoned her blouse and sucked her breast. Shortly afterwards a car pulled up and the complainant, released by the appellant, put on her underwear, wrapped a jacket around her waist, and ran to this car for help. Two of the vehicle occupants gave recent complaint evidence at trial, describing her as distressed, shaking and repeating that the appellant had “tried to force her”.

6. The following evening the complainant’s family held a meeting and it was agreed she should make a complaint to the police. A medical examination was conducted and the complainant was found to have injuries consistent with the incident described above, which included a missing tooth, tender shoulders, injuries to her fingernails, and bruising and scratches on her thigh.

Grounds of appeal

1. The appellant appeals the conviction on the sole ground that the Judge’s summing up did not fairly put the defence case.  In particular, it is submitted that the Judge failed to set out an essential part of the defence case, which was that it was physically impossible for the events as portrayed by the complainant to occur.  It is submitted that the appellant could not have kept his fingers in the complainant’s vagina throughout the whole incident and could not have completely undressed himself whilst remaining on top of the complainant.

Decision

1. We are satisfied that the summing up was not unfair to the appellant.  It is not the role of the Judge to detail all inconsistencies in evidence given by witnesses when summing up the case for the jury.  The critical consideration is how the Judge dealt with the evidence overall.

2. The issue for the jury in this case was credibility, meaning that the jury had to choose whether they preferred the evidence of the appellant or the complainant.  The Judge made it clear to the jury that they should not convict the appellant on the basis of the complainant’s account if there was any room for reasonable doubt:

   The burden of proof is on the Crown…You must be satisfied in order to convict the accused that it is the account of [the complainant] that is the correct version, that she is telling the truth.  You believe her and you believe her beyond reasonable doubt.

3. The Judge also outlined the complainant’s account and defence counsel’s cross-examination, where the appellant’s version of events was put to the complainant, and discussed the issue of credibility:

   You heard her answer that proposition that she had had sex with the accused before.  You heard her answer to that and that is all material for you to consider when you are assessing her overall credibility, her truthfulness and the reliability that you can place on her account of events.

4. These comments were reiterated by the Judge at the conclusion of his summing up.  The jury can have been left in no doubt about what the Crown had to prove and how the issue of credibility was to be approached.

5. The alleged inconsistencies in the complainant’s evidence do not exist.  We have reviewed the transcript of the complainant’s evidence and do not accept that the complainant was saying that the appellant’s fingers remained in her vagina throughout the whole incident.  It must be remembered that the complainant, who is Samoan, was having difficulty with her English when giving evidence.  Our reading of her evidence when cross-examined is that the appellant removed his fingers once outside the car.  It is also not at all improbable that the appellant could remove clothing while on top of the complainant as she described.

6. Her testimony is to be assessed in light of other evidence, including that given by the truck driver and the occupants of the other car, and the medical evidence.  That other evidence generally supports the complainant’s account.

7. For these reasons the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington
Panama Le’au’anae, Auckland