Roosenbrand v The Queen - [2012] NZCA 151

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA723/2011
[2012] NZCA 151

BETWEEN KYLE JOHN ROOSENBRAND
Appellant

AND THE QUEEN
Respondent

Hearing: 21 March 2012

Court: Wild, Chisholm and MacKenzie JJ

Counsel: P F Wicks for Appellant
S B Edwards for Respondent

Judgment: 17 April 2012 at 11.30 am

JUDGMENT OF THE COURT

The appeal, which is against conviction only, is dismissed.

____________________________________________________________________

REASONS OF THE COURT
(Given by Wild J)

Introduction

Mr Roosenbrand appeals against his conviction following trial before Judge Gittos and a jury in the Auckland District Court in August 2011.
The jury found Mr Roosenbrand not guilty on the first count, of sexually violating the complainant (AB) by raping her, but guilty on the second count, of unlawfully sexually violating AB by having anal intercourse with her. Both charges arose out of the same incident.
Mr Roosenbrand appeals his conviction on three grounds:
(a)Jury misdirected on the burden of proof: In summing up to the jury, the Judge erred in his directions on the burden of proof in relation to count two.
(b)Prosecutorial misconduct: The trial was made unfair by over zealous prosecution, in particular through the introduction of prejudice and emotion and the use of inflammatory and pejorative language by the prosecutor.
(c)Inconsistent verdicts: The guilty verdict on count two is unsafe because it is inconsistent with the not guilty verdict on count one. The different verdicts indicate that the jury must have accepted certain evidence in relation to the count of rape but rejected the same evidence in relation to the count of unlawful sexual connection.

What happened

Mr Roosenbrand and AB did not know each other. On the night in question Mr Roosenbrand was at the home of relatives of AB. He had gone to bed in a bedroom in the house and was asleep when AB was placed by one of her relatives on the bed to sleep.
Mr Roosenbrand had been asleep on the bed for some time and was not intoxicated. AB had been drinking and using drugs that night. She had been vomiting outside on the lawn and was assisted into the bedroom and put to bed to recover.
Shortly after Mr Roosenbrand and AB were in the bed together vaginal and then anal intercourse took place. The focus of Mr Roosenbrand’s defence was that on reasonable grounds he believed AB was consenting to the sexual activity that took place.
The accounts of AB and Mr Roosenbrand in evidence about the sexual activity diverged sharply. AB’s evidence was that she went straight to sleep after being put on the bed. She then felt someone touching her thighs and bottom and then having sexual intercourse with her. However, she did not wake up — or wake up properly — until she felt pain in her anus and realised her anus was being penetrated by a man’s penis.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZCA 151
Decision Date: 17 April 2012

CaseChat Overview and Summary

The case of Roosenbrand v The Queen involved an appeal against conviction by Kyle John Roosenbrand, who was found guilty of unlawfully sexually violating AB by having anal intercourse with her, but not guilty of raping her. The appeal was heard by Wild, Chisholm, and MacKenzie JJ in the Court of Appeal of New Zealand. Roosenbrand's defence argued three grounds for the appeal: the jury was misdirected on the burden of proof, there was prosecutorial misconduct, and the verdicts were inconsistent. The court found that the misdirection did not result in a miscarriage of justice as the jury would have understood the onus of proof rested on the Crown. Regarding prosecutorial misconduct, the court found that while some of the prosecutor's conduct was improper, it did not deprive Roosenbrand of a fair trial. Lastly, the court found that the verdicts were not inconsistent as the jury followed the Judge's directions to approach each count separately.

In conclusion, the Court of Appeal of New Zealand dismissed the appeal against conviction, finding that none of the three grounds of appeal had merit. The conviction of Roosenbrand for unlawfully sexually violating AB by having anal intercourse with her stands.

Orders