Roosenbrand v The Queen
[2012] NZCA 151
•17 April 2012
| 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 |
| AND THE QUEEN |
| Hearing: 21 March 2012 |
| Court: Wild, Chisholm and MacKenzie JJ |
| Counsel: P F Wicks for Appellant |
| 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. She rolled over to face this person and “freaked out”, repeatedly asking him who he was and calling out for her cousin. AB said that Mr Roosenbrand said “you know who I am” and told her to go back to sleep. He left the bedroom and she got up and told the others in the house that she had been raped.
This exchange gives the essence of Mr Roosenbrand’s evidence-in-chief to the jury:[1]
QNow Mr Roosenbrand, just before the lunch break I think you’d just told His Honour and the jury that you had placed your hand on [AB’s] thigh and rubbing around the top of her leg and thigh. Now when you were doing this, what was her response, if any?
AShe seemed fine with it in that she made no attempt to move away or push me off.
QIn your own time, could you please now describe what then followed?
AShe then reached around and started playing with my penis through my underwear. I in turn put my hand down her pants and she placed her hand on top of mine. I then told her that there was condoms in the bedside drawer and she said to me, “No just do it.” I took that to mean that she wanted to have sexual intercourse with me so we both moved so that I could enter her vagina. We had sex for about four or five minutes and she – during this she asked me what my name was and whether I had any diseases. I told her my name was Rosi and that I was clean. She also asked about having a threesome with someone. I wasn’t sure who she meant and I don’t recall getting a response. We carried on having sex for a little while and then she started talking about having anal intercourse and she said to me, “Spit on my arse and put it in my arse” so I did as I was asked. She then, she then started, she said that she was, she asked me if I’d like to put it in her arse and said, “I’m going to come.” She then started moaning loudly and acting as if she was coming. I then withdrew and rolled over.
Ground One: Jury misdirected on the burden of proof
[1] Notes of evidence 139/3–25.
At about the mid-point of his comprehensive summing up, Judge Gittos discussed the range of conclusions open to the jury on the divergent evidence of AB and Mr Roosenbrand. At one end of that range, the jury could find AB wholly credible and reliable and accept her evidence, and reject Mr Roosenbrand’s account as untruthful and self-serving.[2] At the other end of the range, the jury could dismiss AB’s evidence as untruthful, or as confused and unreliable, and accept that of Mr Roosenbrand as truthful.[3]
[2] R v Roosenbrand DC Auckland CRI-2010-004-12343, 15 August 2011 [Summing up].
[3] Summing up at [45].
The Judge then said this:[4]
[46] In between those two extremes you may think there is a whole range of possibilities, and that of course, is where you will need to analyse the evidence and see what you make of it. You may think, and it is entirely a matter for you, that the complainant was so “out of it” that when someone started handling her and having intercourse with her she believed that she was in bed with her boyfriend. You might have the view that she did in that befuddled state of mind reach around and take hold of the accused and co-operate with what he was doing, believing that it was somebody else, and it was not until something further happened that she realised that was not the case.
[47] Well if that were the situation you might think that she was not consenting to intercourse with the accused but that he might well believe that she was if she was assisting him in this way by her posture and by what she was doing with her hands, even if nothing was said at all, so you might, if you came to the view, it is entirely a matter for you, that the accused had endeavoured to make his position better by suggesting that there had been things said that were not said. Even so, even if you did not believe what he said about that, you might find that if she was reacting in a physical way to the presence of somebody behind her in the bed, even if she was thinking it was somebody else, the accused might have reasonable grounds for believing that what he was doing was something that she was happy to have happen and was indeed co-operating with that might on its own help you to a conclusion that if that was the way the evidence struck you as to how the first count might be resolved favourably to the accused, whether that in your minds would provide a sufficient foundation to support the second count without more is another matter. You might think, and it is a matter for you, that the second count really depends upon an oral invitation to “go there” insofar as the anal penetration is concerned, and so you may think that the threshold of proof is different and is rather more difficult in that charge than in relation to the first one, but it is all very much a matter for you, members of the jury.
[48] I make those comments simply to emphasise that these are separate charges and need to be looked at separately. The evidence, as it supports consent and a belief in consent, might be more readily available in relation to the first count than to the second, but that is entirely a matter for you. What you do need to do is to analyse each of the two counts in relation to what evidence there is to indicate that there was not consent or, from the accused’s point of view, that there was or that there was a reasonable belief in consent.
[49] So, members of the jury, that is not by way of trying to suggest to you how you should reach your conclusions at all, they are matters entirely for you. It is simply to say that you need to look at the two counts separately and look carefully and analytically at the evidence around the issues of consent and belief in consent as they relate to each of the charges, because they do not necessarily stand or fall altogether. It depends on what you make of the evidence and how you analyse it.
[4] Emphasis added.
The passages we have highlighted form the basis of this first ground of appeal. Mr Wicks submitted that those passages, in combination:
(a)Erroneously reverse the burden of proof, or at least confuse that burden, in that the Judge suggests it is for Mr Roosenbrand to prove he believed on reasonable grounds that AB consented to anal intercourse.
(b)Significantly undermine and confuse the critical requirement that the Crown must establish beyond reasonable doubt that Mr Roosenbrand did not have reasonable grounds for his belief that AB consented to anal intercourse.
(c)Seriously undermine and confuse the Judge’s standard direction to the jury[5] that they must not jump automatically to a conclusion of guilt if they did not accept all or part of what Mr Roosenbrand said in his evidence.
[5] Which the Judge gave at [121] of the summing up.
Mr Wicks also submitted that in those parts of his summing up the Judge was effectively directing the jury to reach its verdict on count two solely on the basis of whether or not they accepted Mr Roosenbrand’s evidence that AB had invited him to have anal intercourse. He argued that that narrowing down did not adequately allow the jury to understand that, if they rejected Mr Roosenbrand’s evidence that AB had invited him to have anal intercourse, they still needed to look at the rest of the evidence relevant to whether on reasonable grounds Mr Roosenbrand believed AB consented to anal intercourse.
In the course of oral argument, Ms Edwards rightly accepted that the last sentence in [47] of the Judge’s summing up contained a misdirection. So the issue for us is whether a miscarriage of justice resulted.
For three reasons, our decision is that there was no resulting miscarriage of justice. First, the misdirection is to be looked at in its context, not in isolation. As Ms Edwards pointed out, the jury heard the whole summing up, not just the impugned paragraphs, or one sentence of one of them. In its context it is clear that what the Judge was intending to convey to the jury was along the lines “the evidence is different and is somewhat more favourable to the Crown on count two than it is on count one”.
We are confident the jury would have understood that that was the nub of what the Judge was saying in that part of his summing up, and would not have thought that the Judge was directing them that a different onus of proof applied to count two, and that Mr Roosenbrand carried the onus of satisfying them that he reasonably believed AB was consenting to anal intercourse.
Secondly, in at least 11 places through his summing up, both before and after paragraphs [46]–[49], the Judge directed the jury that the onus of proving each charge was on the Crown, and the fact that Mr Roosenbrand had given evidence did not change that. The Judge’s directions are at [14], [15], [33], [36] to [38], [42], [72], [110] and [117] of his summing up.
These directions cannot have left any doubt in the jury’s mind that the burden of proof on count two, as for count one, rested squarely on the Crown. We see no risk that the misdirection in [47] confused the jury about that, still less misled them.
Our third reason is much less important, and certainly not of itself determinative. But it serves to confirm our view that no miscarriage resulted from the misdirection. It is that Mr Wicks, at the conclusion of the Judge’s summing up, did not ask the Judge to clarify or correct what he had said in [47]. And nor did the jury seek clarification, although it did ask the Judge two unrelated questions.
We dismiss this first ground of appeal.
Ground Two: Prosecutorial misconduct
Mr Wicks submitted that the prosecutor, Ms T Robertson, had infringed the well established principles and standards for a prosecutor.[6] Mr Wicks contended she had infringed those principles by introducing prejudice, sarcasm, derogatory and inflammatory comment and emotion to such an extent that the cumulative effect resulted in a real risk of a miscarriage of justice. In support of that submission Mr Wicks referred us to numerous passages in the prosecutor’s cross-examination of Mr Roosenbrand and in her closing address to the jury.
[6]R v Stewart (Eric) [2009] NZSC 53, [2009] 3 NZLR 425 at [19]–[22]; R v Hodges CA435/02, 19 August 2003 at [20]; R v Roulston [1976] 2 NZLR 644 at 654.
Ms Edwards rejected some of Mr Wicks’ criticisms. For example, Mr Wicks criticised the prosecutor for unfairly and gratuitously contrasting AB’s attractiveness with Mr Roosenbrand’s plainness. Ms Edwards submitted that this was part of a legitimate challenge to Mr Roosenbrand’s credibility. Mr Roosenbrand’s evidence was that he did not notice what AB looked like when the lights in the bedroom were turned on while she was placed on his bed, nor when he returned to the bedroom after going to the toilet. Under cross-examination, Mr Roosenbrand agreed that AB could have been the most sexually unattractive woman that he had ever seen in his life. Ms Edwards argued that the questions were relevant to Mr Roosenbrand’s credibility because the jury were being asked to believe that he — and on his evidence also AB — were so indiscriminate that they would engage in sexual intercourse with a complete stranger within minutes of meeting and without there being any physical attraction or interest.
We accept that those aspects of the prosecutor’s cross-examination and closing address legitimately challenge Mr Roosenbrand’s credibility.
However, Ms Edwards was constrained to accept “that some of the expressions used were better avoided, i.e. ‘bad porn music starts up in the background’ and ‘like a bandit in the night from behind’”. Ms Edwards also accepted that the prosecutor had arguably gone too far in her criticisms of Mr Roosenbrand’s exculpatory statement. Those are proper concessions.
Our difficulty as an appellate Court is that defence counsel and the Judge at trial were much better placed than are we to “judge the effects of the Crown address in the dynamics of this particular trial”.[7]
[7] Payne v R [2011] NZCA 127 at [7].
During the trial Mr Wicks (who defended Mr Roosenbrand) did not raise with the Judge concerns about the tone of the prosecutor’s cross-examination of Mr Roosenbrand, nor did he raise any concern about the Crown’s closing address. There is no record of the Judge expressing any concerns of his own. We accept that that is not determinative of this ground of appeal. This Court made that clear in R v Mussa.[8] However, the Court in Mussa also made the point that the lack of objection during the trial may indicate something of the “flavour” of the trial.[9]
[8] R v Mussa [2008] NZCA 290 at [38].
[9] At [38].
Assessing that “flavour” as best we can as an appellate court, we are not persuaded that the prosecutor’s conduct deprived Mr Roosenbrand of a fair trial. We do not think that the prosecutor’s departure from proper standards diverted the jury from reaching its verdicts upon the evidence. A powerful indication that that is so is the jury’s verdict of not guilty on count one.
We dismiss this second ground of appeal. In doing so, we record Ms Edwards’ assurance that the lapse in proper prosecuting standards during this trial has been appropriately addressed.
Ground Three: Inconsistent verdicts
To succeed on this ground, Mr Wicks needed to persuade us that no reasonable jury, properly directed, could have reached the different verdicts returned by this jury.[10]
[10] R v Shipton [2007] 2 NZLR 218 (CA) at [75].
Mr Wicks has not so persuaded us. The jury’s not guilty verdict on count one suggests that they were in reasonable doubt as to whether or not Mr Roosenbrand reasonably believed AB consented to vaginal sexual intercourse, and that they correctly gave him the benefit of that doubt.
On count two, on Mr Roosenbrand’s own account in his evidence, it was AB’s invitation to him that gave him the basis for believing she consented to anal intercourse. That appears from that part of his evidence we have set out in [8] above.
If the jury disbelieved Mr Roosenbrand’s evidence of that invitation, as obviously they did, then they were left with AB’s evidence about the anal intercourse. We have summarised that in [7] above. The essence is that when she felt pain and realised she was being anally penetrated, she abruptly awoke, realised what was happening and immediately confronted Mr Roosenbrand, and then promptly complained to others in the flat.
Rather than pointing up an inconsistency, all of this demonstrates that the jury followed the Judge’s directions, in particular his directions as to how they should approach Mr Roosenbrand’s evidence[11] and the need for separate consideration of each count and the evidence relating to it.
[11] We are referring to the Judge’s “tripartite” direction at [118]–[121] of the summing up.
We dismiss this third ground of appeal also.
Result
As none of the three grounds of appeal has succeeded, the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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