The Queen v John Trevor Maddox
[2001] NZCA 39
•1 March 2001
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA424/00 |
THE QUEEN
V
JOHN TREVOR MADDOX
| Hearing: | 27 February 2001 (at Auckland) |
| Coram: | Blanchard J Anderson J Paterson J |
| Appearances: | L J Postlewaight for Appellant M A Woolford for Crown |
| Judgment: | 1 March 2001 |
| JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J |
At trial, the appellant faced five charges of rape and sexual violation between 1986 and 1987. He was acquitted of two counts relating to specific events alleging rape between 1981 and 1986 and a representative charge alleging sexual violation between 1986 and 1987. He was convicted on two representative charges of, respectively rape and sexual violation by rape between 1981 and 1987. He now appeals against those two convictions on the ground that the verdicts are inconsistent and hence unreasonable and unable to be supported by the evidence.
Facts
In 1981 the appellant and his children moved into the household of his new partner on a farm near Mangonui. Also living in the household was the complainant, the 13 year-old daughter of the partner.
The complainant alleged that one day when she was still 13 the appellant took her into his bedroom, showed her a book containing sexually-explicit pictures and then asked her to have intercourse with him. She said the appellant laid her down on the bed, removed her clothing, grabbed her breasts, performed digital penetration with the use of oil and subsequently inserted his penis partway into her vagina. Afterwards she bled from the vagina.
She alleged that a similar event occurred a night later. The complainant gave evidence that on that occasion the appellant touched her breasts and vagina and then penetrated her, while holding her hands above her head. On both occasions, the appellant told the complainant that he was preparing her for marriage and life.
The complainant also alleged that the appellant had non-consensual intercourse with her regularly at the farm at Mangonui. She gave the following evidence:
…you’ve just told us about the second occasion that you said these things had happened to you. After that time how often do you say that the accused did these things to you?….About every night.
Whereabouts were you when they happened?…..Mostly in my bedroom.
Was it the same way or a different way?…..Basically the same way.
You said mainly in the bedroom, did it happen at other places in the house?…..No, outside.
Whereabouts outside”…..Out on the farm.
For how long did it continue for whilst you were at [the farm]?….All the time.
Crown Counsel asked her:
These things, did they happen to you when you were 14? …Yes.
15? … Yes.
16? … Yes.
She also gave evidence of having sex with the appellant in motels “going towards Auckland” when she was 18. This was after the farm had been sold and the family was looking for a new place. He would come into her motel room after her mother was asleep in another room.
The appellant admitted having what he claimed was consensual sex with the complainant but only after she was 16, continuing until she was 18.
Indictment
At trial, the appellant faced five charges of rape and sexual violation between 1981 and 1987 when the complainant was 13 to 18 years old.
Count 1 was a specific count alleging rape between 9 January 1981 and 31 January 1986 in the accused’s bedroom, relating to the incident in para [3] above.
Count 2 was a specific count alleging rape between 9 January 1981 and 31 January 1986 in the complainant’s bedroom, as described above in para [4].
Count 3 was a representative charge and alleged rape between 9 January 1981 and 31 January 1986 at the farm.
Count 4 was a representative charge and alleged sexual violation by rape between 1 February 1986 and 9 January 1987 at the farm.
Count 5 was a representative charge and alleged sexual violation by rape between 1 February 1986 and 9 January 1987 “at Auckland.”
The only significance of 1 February 1986 is that it was the date on which the crime of rape was replaced by the crime of sexual violation by rape. Hence there were representative charges under the old and new sections covering periods on either side of that date. 9 January 1981 was the complainant’s 13th birthday.
The appellant was found guilty only on counts 3 and 4 and acquitted on the other counts.
Submissions for the appellant
On behalf of the appellant Miss Postlewaight said that there was no logical or reasonable explanation for the jury to disbelieve the complainant on counts 1, 2 and 5 but to accept what she said on counts three and four where the evidence for those counts was based on the same story. The Crown case turned solely on the complainant’s credibility. Counsel said that the course of the jury deliberations showed that the jury had difficulty with her credibility. This was a short trial. All the evidence was given in one day and the Judge summed up and the jury retired on the following day. The jury deliberations took them from approximately 11am to 5pm. After five hours the jury had indicated that it had made a decision on three of the counts. After receiving a Papadopoulos direction the jury fairly soon afterwards returned with the guilty verdicts on the two counts.
Counts 1 to 3 were all closely associated by time, place, nature of offending and age. Count 4 also alleged offending of the same kind and at the same place. The only difference with count 5 was that the offending was alleged to have occurred in Auckland. The complainant had given some description of what occurred at motels but the jury had clearly not accepted it. Yet they had convicted on counts 3 and 4 to which little or no separate or additional evidence was directed. The Crown case in respect of those counts relied primarily on the complainant’s evidence about the events charged under the first two counts which the jury had not found to be proved. Without the acceptance by the jury of the evidence given in support of counts 1, 2 and 5, the remaining counts were inadequately supported by the evidence. Essentially her evidence on all counts was said by counsel to be “identical”. No real distinction was drawn between the different periods by either the Crown or the defence. Mrs Postlewaight submitted that the verdicts appeared to be a compromise reached by the jurors. If satisfied about the complainant’s credibility it might have been expected that guilty verdicts would be returned on all counts.
In a separate ground of appeal Miss Postlewaight argued that in his summing up the Judge had not made it sufficiently clear to the jury that on count 3 the Crown needed to prove an instance of rape apart from the two incidents which were the basis for counts 1 and 2. She also submitted that the Judge had not adequately told the jury in relation to count 4 that they must consider the evidence relating to the period between 1 February 1986 and 9 January 1987. She said that the jury may have thought that they could convict on counts 3 and 4 on the basis of the evidence on the specific counts (1 and 2).
Submissions for Crown
It was accepted by counsel for the Crown that in order to support the convictions on counts 3 and 4 the jury must have had to refer to the evidence relating to the specific instances of rape described by the complainant as occurring when she was aged 13. It was submitted, however, that the verdicts of not guilty on counts 1, 2 and 5 did not necessarily lead to the conclusion that the jury did not believe the complainant on those counts. Nor did Crown counsel accept that the Court should draw the conclusion that the verdicts were a compromise between jurors. Mr Woolford said that there was additional evidence on counts 3, 4 and 5 which was not available on counts 1 and 2. In particular, the appellant had given evidence he started to have regular intercourse with the complainant when she was 16 years of age. The jury therefore had corroboration from the appellant himself that there was a sexual relationship with the complainant when she was aged 16 to 18 years and living with him in the family home. They were entitled to look at the respective ages of the complainant and the appellant, and his position as a father figure, and to reject his assertion that the admitted sexual activities were consensual. The period covered in count 3 extended well past her 16th birthday on 9 January 1984. Such corroborative evidence was not available on counts 1 and 2.
The jury had also acquitted on count 5 but it was noticeable that the appellant had said nothing about having sex with the complainant “at Auckland,” as charged in the indictment. Her evidence was about incidents in motels “going towards Auckland” and was rather vague. This provided a clear distinction between counts 4 and 5. It was also submitted that the jury could also have acquitted on count 5 because of their wish to avoid an unnecessary double conviction on a representative charge which covered exactly the same time period as was covered by count 4 (R v H [2000] 2 NZLR 581 at para [27]).
Decision
The authorities on inconsistent verdicts are summarised and discussed in R v H. It is for the appellant to establish that the guilty verdicts cannot stand together with the verdicts of acquittal because no reasonable jury who had applied their collective mind properly to the facts could have reached such a conclusion (R v Irvine [1976] 1 NZLR 96). Interference by an appellate court is called for on the ground of inconsistency only where the difference in the verdicts requires that the jury must have accepted certain evidence in relation to one count but rejected the same evidence in relation to another count so that the verdicts are not susceptible of reasonable explanation.
Because of the way in which the prosecution chose to adduce evidence from the complainant the focus of the case against the appellant was on the two specific incidents when she was 13. In her evidence in chief she was asked nothing about subsequent events at the farm near Mangonui except for the brief passage quoted in para [5] of this judgment. The Crown’s approach appears to have been that having, it was hoped, proved the two specific incidents to the requisite standard, it would prove a continuance of like offending by means of this passage of evidence in order to establish the representative counts charged in relation to events at the farm before and after 1 February 1996 (counts 3 and 4).
The complainant said that “these things” (those occurring on the first two occasions) happened about every night, mostly in her bedroom but also out on the farm – not indicating whether this was at night – and “basically in the same way”. She was not asked about any particular event, not even something occurring out on the farm.
The difficulty which has now presented itself arising from this approach by the Crown is that the conduct which was said to have continued was not accepted by the jury as proving rape on the two earliest occasions. If the jury was not prepared to accept her evidence, given in some degree of detail, on the first two counts, why should it accept her very generalised evidence as proof to the requisite standard of lack of consent on the representative counts charged in respect of the sexual activity at the farm? The response of Mr Woolford, who was not the prosecuting counsel at trial, was that the jury may not have rejected the complainant’s evidence on counts 1 and 2 and that it is more likely that they were just not satisfied by it, in the absence of other proof, beyond reasonable doubt. In other words, counsel said, the jury must have been reluctant to convict on the word of the complainant alone but on counts 3 and 4 that word was supplemented by other evidence.
That argument might be persuasive if it appeared that there was indeed any evidence about events after the first two occasions which probatively added something to the evidence about those two events. Mr Woolford pointed to the appellant’s admission of sexual intercourse after the complainant was 16. But the appellant admitted the acts of sex only, not that they occurred without consent or reasonable belief in consent. There was nothing in his evidence by way of concession or otherwise which could be taken to have added anything significant on these critical questions. In fact, he claimed it was the complainant who initiated their sexual encounters.
Nor can it be said that what the complainant briefly said in evidence about occurrences in motels going towards Auckland can add to the evidence on counts 1 and 2, for it too was rejected by the jury notwithstanding that it was not specifically contradicted by the appellant. He gave only a general denial of any non-consensual sexual relations.
It is possible to rationalise the not guilty verdict on count 5 either on the basis of a literal interpretation by the jury of the indictment (there was no evidence of anything being done “at Auckland”) or, more likely, on the basis of the jury’s wish to avoid overlapping convictions (counts 4 and 5 covered the same period), but because the complainant’s evidence on count 5 was not found sufficiently probative - despite an absence of a specific denial by the appellant of sexual relations in motels - that evidence can provide no support for the conviction on count 4.
We are driven to the conclusion that this is one of those comparatively uncommon cases in which there is no satisfactory explanation for the differing verdicts and that the inconsistent guilty verdicts must be regarded as unreasonable.
It is unnecessary to say anything about the other ground of appeal save that it appeared to take matters no further than the inconsistency point.
Accordingly we allow the appeal and quash the convictions. In the circumstances there will be no order for a retrial.
Solicitors
L J Postlewaight, Whangarei
Crown Solicitor, Auckland
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