The Queen v Mervyn Finlayson

[2000] NZCA 296

IN THE COURT OF APPEAL OF NEW ZEALAND CA186/00

THE QUEEN

V

MERVYN FINLAYSON

Coram:	Thomas J Blanchard J Tipping J
Judgment: (On the papers)	19 October 2000

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

1. The appellant, Mr Finlayson, was convicted, following a jury trial in the Christchurch District Court, on four counts: one of indecent assault on a boy aged nine years, one of inducing or permitting a boy aged nine years to do an indecent act upon him, one of sexual violation by sodomy and one of sexual violation by having the complainant sodomise him.  He was sentenced to six years imprisonment.  He now appeals against his conviction on each count.

2. The appellant applied for legal aid to conduct this appeal.  The Registrar declined this request following the necessary consultation process in accordance with section 15 of the Legal Services Act 1991.  The appeal has therefore been determined on the basis of written submissions filed by the appellant.

3. The counts on which the appellant was convicted were representative charges, covering offences committed at the appellant’s home over a two week period sometime between 1 June 1997 and the end of August 1997.  The Crown’s evidence, obviously accepted by the jury, was that at the time of the offending, the complainant, along with his mother and siblings, was living in the appellant’s home.  The offending took place in a loft which had been converted into a bedroom.  In early 1999, the complainant disclosed the offending to his grandmother, and later to his mother.

4. The appellant’s first ground of appeal is that the verdict of the jury was against the weight of the evidence. It was submitted that, while the complainant’s evidence was obviously accepted by the jury, it was evidence on which no reasonable jury could have relied, in view of the inconsistencies in his version of events.  In particular, the appellant pointed to the complainant’s confusion about the dates on which the offending was alleged to have occurred, which school he was going to at the time and his mistaken identification of a photograph of genitalia as being the appellant’s genitalia where the appellant’s genitalia had significant differences from those in the photograph.  The appellant also relied on statements now made by three casual visitors to the appellant’s home, all stating that they had never seen the complainant living at the appellant’s home.

5. This ground of appeal must fail. The complainant’s manner in giving evidence and any inconsistencies in the evidence were fairly and squarely matters for the jury in assessing the weight they gave to the complainant’s evidence.  The statements of the casual visitors to the appellant’s home are of little evidential value in establishing the appellant’s assertion that the complainant never lived at his house.  Therefore, this material is not sufficiently cogent to permit the view that if given at trial the jury might have been led to a different conclusion. The credibility of the complainant and other prosecution witnesses was for the jury and the matters raised do not establish the ground of appeal put forward.

6. The appellant’s second ground of appeal is that other evidence which should have been before the jury was not presented.  In particular, he refers to the following items of evidence:

   [a]        His own assertions in his diary as to the complainant’s unusual behaviour and his observation of the complainant inserting objects into his anus;

   [b]        Evidence that the complainant suffered from Attention Deficit Hyperactivity Disorder.

   [c]        Statements made by the complainant’s mother as to sexual abuse of the complainant two years earlier by his stepfather.  The existence of this alleged sexual abuse could lead to the possibility that the complainant was simply “attributing” the events of two years ago to the appellant.

   [d]        Evidence as to the complainant’s mother’s involvement in the theft of the appellant’s car a short time after the appellant was arrested and taken to the police station.  The complainant’s mother was never charged in relation to this incident.

7. The appellant’s own assertions in his diary as to the complainant’s behaviour, and evidence that the complainant suffered from Attention Deficit Hyperactivity Disorder could have been adduced at trial.  This is not “fresh” evidence, as it was available at trial and could have been adduced by the appellant if he had wished.  Nor is it sufficiently cogent to permit the view that if given at trial the jury might reasonably have been led to return a different verdict.

8. The appellant’s assertions as to alleged sexual abuse of the complainant by his stepfather could also have been introduced at trial.  This is not “fresh evidence” and as it is unsubstantiated, it remains only an assertion.  Therefore, it too is not sufficiently cogent to permit the view that if given at trial the jury might reasonably have been led to return a different verdict.

9. Finally, there is little indication that the police had sufficient evidence on which they could charge the complainant’s mother for theft of the appellant’s vehicle.  Therefore, there is little to suggest that this evidence is relevant.

10. The appeal is accordingly dismissed.