The Queen v Nevin

[2008] NZCA 16

IN THE COURT OF APPEAL OF NEW ZEALAND

CA535/07
[2008] NZCA 16

THE QUEEN

v

TIMOTHY JUSTIN NEVIN

Hearing:14 February 2008

Court:Ellen France, Williams and Heath JJ

Counsel:P J Davey for Appellant

H D M Lawry for Crown

Judgment:21 February 2008 at 11.30 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

Introduction

[1]       Mr Nevin was tried in the High Court at Auckland, before Courtney J and a jury, on charges arising out of two incidents, each involving a female complainant.

[2]       The Crown brought charges against Mr Nevin alleging that, on 27 December 2005 at Waiheke Island, he had possession of an offensive weapon (a knife) and that he used it to assault the first complainant.  The Crown also contended that Mr Nevin had unlawfully detained the first complainant and threatened to kill her.  Not guilty pleas were entered to all four charges.

[3]       The remaining four charges arose out of an incident on 15 March 2006, on the Auckland isthmus.  The charges related to the second complainant and were almost identical in nature; the only difference being that the Crown alleged that Mr Nevin threatened to cause grievous bodily harm to the second complainant, as opposed to threatening to kill.  Not guilty pleas were entered on those charges as well.

[4]       During the trial, Mr Nevin entered guilty pleas to the four charges stemming from the March 2006 incident.  On the Waiheke Island charges, the jury found Mr Nevin guilty of assault with a weapon and unlawful possession of an offensive weapon.  The jury returned not guilty verdicts on the kidnapping and threatening to kill charges.

[5]       Mr Nevin appeals against the convictions entered as a result of the two guilty verdicts.  No appeal is brought against sentence.  The sole ground of appeal is that the guilty verdicts were unreasonable.  It is contended that the guilty verdicts were inconsistent with the not guilty verdicts.  Reliance was placed on the circumstances in which the jury came to deliver their verdicts.

The facts in outline

[6]       No more than a brief outline of relevant facts is required.  In summary:

(a)Mr Nevin and the first complainant were in a relationship.  Over the Christmas period in 2005, they were staying at a property on Waiheke Island.

(b)During their stay, an incident occurred, in the course of which the complainant said she was assaulted with a knife by Mr Nevin.

(c)On the complainant’s evidence, Mr Nevin had a knife which he used to threaten her in a manner that amounted, legally, to an assault.  She went on to say that Mr Nevin threatened to kill her, saying that he intended to “watch the blood drip from her throat”.

(d)The first complainant also alleged that, during the course of the incident, Mr Nevin stabbed furniture and tied up her hands with a stocking.  She said that she was held in that situation for five to seven hours.

Competing submissions

[7]       Mr Davey, for Mr Nevin, submitted that it was not open for the jury, in the circumstances of this particular case, to find the first complainant a sufficiently credible and reliable witness to prove the offences on which Mr Nevin was found guilty, but not accept her evidence on the kidnapping and threatening to kill charges. The case had been run at trial on the basis of a continuous sequence of events.  He said that at the heart of the trial was the credibility contest between the first complainant and Mr Nevin.

[8]       Mr Davey submitted that the verdicts appeared to have been the result of an improper compromise by members of the jury.  He submitted that rendered the guilty verdicts unsafe.  To support that submission, Mr Davey relied on a series of events, recorded by the trial judge, which explain the circumstances in which the verdicts came to be delivered.  We refer to those events later.

[9]       Mr Lawry, for the Crown, submitted that there were rational and logical explanations for the differing verdicts returned in respect of the December 2005 incident.  He submitted that the jury could have believed part of the first complainant’s evidence (to the extent that it demonstrated that Mr Nevin was in possession of a knife and assaulted her with it) but was not persuaded beyond reasonable doubt that her evidence proved the essential elements of the kidnapping and threatening to kill charges.  Alternatively, he contended that the jury was being merciful to Mr Nevin, in the sense of limiting its guilty findings to charges which, in its view, reflected the totality of the criminal conduct involved.

[10]     Mr Lawry submitted that there was nothing in the events surrounding the jury’s deliberations that gave cause to question the safety of the challenged verdicts.

Analysis of competing submissions

[11]     An appeal against conviction will ordinarily be allowed if an appellate Court was satisfied that the verdict was unreasonable and a miscarriage of justice has resulted: s 385(1)(a) Crimes Act 1961.  A verdict will be regarded as “unreasonable” if, on the basis of all of the evidence, a jury acting reasonably ought to have entertained a reasonable doubt as to an appellant’s guilt: see Owen v The Queen [2007] NZSC 102 at [14] and [15], which approved R v Munro [2007] NZCA 510 at [86] and [87] (CA).

[12]     To succeed on an appeal based on inconsistent verdicts, an appellant must demonstrate that no reasonable jury, applying its mind properly to the evidence, could have arrived at the different verdicts it returned: R v Irvine [1976] 1 NZLR 96 at 99 (CA), as applied subsequently in R v O (No 2) [1999] 1 NZLR 326 at 333 (CA) and R v H [2000] 2 NZLR 581 (CA).

[13]     A concise summary of the circumstances in which an appeal on this ground might succeed was given in R v H:

[27]     To summarise to this point, a guilty verdict which is apparently inconsistent with an acquittal might be held to be not “unreasonable” if:

•     the verdict is not so inconsistent as to call for interference by an appellate Court (Archbold [Criminal Pleading, Evidence and Practice 2000 at 901]); or

•     if the record contains evidence for a proper conviction and there is no need to defer to the acquittal (Supreme Court of Canada in Koury v R [[1964] SCR 212]); or

•     the innate sense of fairness and justice of the jury might properly have been applied in reaching the verdict of acquittal, for instance to avoid an unnecessary double conviction (King CJ in R v Kirkman [(1987) 44 SASR 591], approved by the High Court of Australia in MacKenzie v R [(1996) 190 CLR 348]; see the related suggestion by Sir Francis Adams mentioned in Irvine).

[14]     If the evidence disclosed a reasonable basis on which the jury could accept part (but not all) of the complainant’s evidence (enough to prove the essential elements of the two charges on which guilty verdicts were returned) an appellate Court will not interfere with the verdicts.

[15]     In our view, there was evidence on which a reasonable jury could have acted to find that Mr Nevin had possession of the knife and held it against the first complainant’s throat.  Support for that conclusion could have come from the evidence given by the second complainant which was, in effect, accepted by Mr Nevin when he entered pleas of guilty to the four similar charges arising out of March 2006 incident.  Also, there was some medical evidence in relation to the Waiheke Island events that was corroborative in nature.

[16]     In sentencing Mr Nevin, Courtney J stated her view of the rationale for the jury verdicts.  It was important that she do so to identify the basis on which she was to sentence.  Her Honour said:

[26] I am satisfied from [the first complainant’s] evidence that you had been acting unpredictably and in a paranoid manner that day.  At the time of the assault you had a large kitchen knife in your hand.  You presented the knife to her in a threatening manner.  I am satisfied having heard the evidence that you did on at least one occasion hold the knife close to her throat.  The more extreme allegations made against you were not accepted by the jury.  Nevertheless, your behaviour in respect of those aspects which were accepted was completely unacceptable and clearly terrifying for her.

[17]     Having reviewed the evidence, we are satisfied that it was open to Courtney J to form the view that the jury accepted evidence establishing the elements of the possession and use of weapon charges but were not satisfied that elements of the balance of charges had been proved.  Our assessment is that Courtney J’s reference to “the more extreme allegations made against” Mr Nevin captured the likely jury approach in rejecting other parts of the first complainant’s evidence: the discussion in [6](c) and (d) above refers.

[18]     For that reason, we cannot accept Mr Davey’s submission that the evidence in relation to the four charges involving the first complainant was so inextricably linked that there was no logical basis for the jury to find two of the counts proved but to return not guilty verdicts on the others.

[19]     Further, the jury deliberation point does not assist Mr Nevin.  We will briefly summarise the circumstances which give rise to this submission.

[20]     The jury retired during the course of the afternoon.  At about 8.45pm the Judge asked the Registrar to inform the jury that overnight accommodation would be arranged if required.  The Judge’s record of what followed subsequently states:

[3] At approximately 9:45 pm I indicated to Madam Registrar that I wished to see the jury, it being my intention to ask them to cease their deliberations for the day at about 10:00 pm and retire for the night.  At that stage the jury indicated that it wanted another 20 minutes.  I saw counsel shortly after 10:00 pm and Mr Davey expressed concern at the lateness of the hour.  I indicated to him that it was my intention to ask the jury to end their deliberations for the day and retire until tomorrow.  The jury was brought in at 10:10 pm.  However, as I was asking them to retire for the evening and resume tomorrow the foreman indicated that the jury had a verdict.  At Mr Davey’s request I asked the jury to retire for a few minutes.  He once again expressed concern to me about the lateness of the hour and his worry that some jurors may have felt pressured into agreeing on a verdict because of the lateness of the hour.

[4] At 10:18 pm I brought the jury back in.  I explained to the jury that there was no pressure to return a verdict tonight and that if anybody felt they would benefit from having a night’s sleep and further time in the morning there would be absolutely no difficulty with that.  However, the foreman indicated to me that in the preceding few minutes in the jury room they had discussed this very point and were all content with the verdict.  I asked for confirmation from the jury members and they all indicated their agreement to this.  That being the case I proceeded to take the verdict.

[21]     Mr Davey submitted that chronology demonstrated the jury’s desire to complete its task without the need to retire overnight, something, he submitted, that was indicative of compromise verdicts.

[22]     It is clear from Courtney J’s minute that she provided proper information to the jury about the availability of overnight accommodation.  She also dealt appropriately with any concern that jurors might have been pressured into a verdict.  The care taken by the Judge to ensure all verdicts were returned in accordance with the jurors’ oaths renders the compromise verdict point of no significance:  cf R v Butler [2007] NZCA 127 in which this Court endorsed a similar approach on an appeal which also involved a suggestion of inconsistent verdicts.

Result

[23]     The appeal against conviction is dismissed.

Solicitors:

Crown Law Office, Wellington