THE QUEENvH

[2004] NZCA 454

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA177/02

THE QUEEN

v

H (CA177/02)

Hearing:         30 August 2004

Coram:Chambers J Williams J Doogue J

Appearances: E A Hall for Appellant

B J Horsley for Crown Judgment:  21 September 2004

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

Table of Contents

Paragraph Number

A kidnapping and rape case  [1]

The facts  [4]
Issues  [9]

Alleged counsel error  [15]

Adjournment  [17]

Prior violence evidence  [23]
Instructions as to cross-examination of witnesses  [35]
Prior imprisonment evidence  [39]
Failure to call appellant to give evidence  [48]

R V H (CA177/02) CA CA177/02 [21 September 2004]

Summing up  [55]

Recent complaint  [57]

Consent  [68]

Inconsistency of verdicts  [71]

Result  [75]

A kidnapping and rape case

[1]    The appellant was tried by a jury in the High Court at  Hamilton  in December 2001. He faced eight counts relating to events alleged to have occurred  on 21 and 22 March 2001. We set out the charges and the jury's verdict in respect of each:

•     Count 1: at Hamilton unlawfully detained the complainant without her consent with intent to cause her to be confined. Ms Hall, who appeared for the appellant on the appeal before us, called this count the "kidnapping" count. She gave each of the counts a shorthand name. We shall adopt her shorthand names in this judgment. With respect to this count, the jury found the appellant guilty.

•     Count 2: at Hamilton and Raglan threatened to kill the complainant (the "threat to kill" charge) - guilty.

•     Count 3: at Raglan sexually violated the complainant by rape (the "Raglan rape")

- not guilty.

•     Count 4: at Raglan sexually violated the complainant by having unlawful sexual connection with her occasioned by connection between her mouth or tongue and his genitalia (the "Raglan oral sex") - not guilty.

•     Count 5: at Ohinewai sexually violated the complainant by rape (the “Ohinewai rape") - guilty.

•     Count 6: at Hamilton sexually violated the complainant by having unlawful sexual connection with her occasioned by connection between her mouth or tongue and his genitalia (the "Hamilton oral sex") - guilty.

•     Count 7: at Hamilton attempted sexual violation of the complainant by unlawful sexual connection with her occasioned by penetration of her anus by his penis (the "attempted anal sex") - guilty.

•     Count 8: at Hamilton sexually violated the complainant by rape (the "shower rape") - not guilty.

[2]    The trial judge, Priestley J, sentenced  the  appellant  to  imprisonment  for ten years.

[3]    The appellant has appealed against his convictions. He abandoned his appeal against sentence.

The facts

[4]    The appellant and the complainant lived together in a relationship for approximately three years. There was evidence from the complainant that this was a relationship characterised by occasional violence and that the appellant was also a very controlling person. Sometime towards the end of 2000 the relationship  seems to have ceased and the appellant and the complainant started to live apart. The complainant went to Australia to visit family there.

[5]    When the complainant returned to New Zealand, she went to live in Hamilton with her son, whose father is the appellant. On the morning of 21 March 2001, the appellant went to visit the complainant and his son. It was then decided to go to a lakeside picnic area for lunch. On the way home, the atmosphere changed dramatically. The appellant questioned the complainant about a relationship he thought she was having with another man. Priestley J considered, on the evidence before him, that this relationship was purely a figment of the appellant's imagination. The appellant became agitated. He declined to drive the complainant home. This  was the start of the kidnapping.

[6]    The appellant then drove the car to the Raglan area. He threatened the complainant that he was going to stomp on her head and throw her off a cliff: the

threat to kill. Despite the complainant's protests, the appellant continued to drive the complainant and the child to Raglan and there, in the bush, a sexual encounter took place between the appellant and the complainant. That sexual encounter led to the Raglan rape count and the Raglan oral sex count, in respect of which the appellant was found not guilty.

[7]    After that, the appellant drove back towards Hamilton. But he refused to return the complainant to her home and instead diverted to Ohinewai. During the hours of darkness, the appellant and the complainant remained in a parked car by the side of the road at Ohinewai. It was there that the Ohinewai rape occurred. During the course of that rape, the appellant yelled at the complainant, swore at her, grabbed her by the hair, and banged her head against the side of the car. Clumps of her hair were pulled out. The judge, in the course of sentencing, said that this would have been "by any stretch of the imagination, a terrifying experience for the complainant". During the course of all this, the child was also in the vehicle, apparently asleep.

[8]    The next morning, the appellant drove the complainant to his sister's house in Hamilton. The Hamilton oral sex took place in the car outside that house. At a subsequent stage the appellant took the complainant into the bathroom of his sister's house. It was there that the attempted anal sex took place. Sexual intercourse also took place in the shower, but the jury found the appellant not guilty on that count.

Issues

[9]    As we have said, Ms Hall appeared for the appellant on the appeal, but she was not trial counsel. We wish to compliment Ms Hall on the excellent way in  which she presented the appellant's appeal. Her submissions, both written and oral, were thoughtfully and forcefully presented.

[10]   Ms Hall advanced three main issues on the appeal, although two of the issues have subparts. We shall deal with the alleged errors in trial process in the chronological order in which they are said to have occurred. The first, and most important,  error  was  said  to  have  been  trial   counsel's.   Trial   counsel   was   Mr Laybourn, a very experienced criminal lawyer. The appellant swore an affidavit

in which he set out his complaints about Mr Laybourn. Ms Hall marshalled those complaints into five heads:

(a)  Mr Laybourn failed to give Randerson J sufficient information at a pre-trial conference, with the consequence that the defence application for an adjournment of the trial was unsuccessful and the trial was brought on for hearing too quickly, with inadequate time being available for defence preparation;

(b)  Mr Laybourn failed to apply for a ruling, either before trial or at trial, to prevent the Crown from calling evidence concerning past violence between the appellant and the complainant;

(c)  Mr Laybourn failed to follow the appellant's instructions as to how Crown witnesses were to be cross-examined;

(d)  Mr Laybourn failed to apply for a mistrial after some evidence was given showing that the appellant had previously been in prison;

(e)  Mr Laybourn refused to permit the appellant to give evidence.

[11]   These errors, either singly or taken together, are said to have amounted to radical error on the part of trial counsel, with the consequence that, it is said, a miscarriage of justice has occurred.

[12]   The second issue related to Priestley J's summing up. Ms Hall submitted that the summing up was deficient in the way it dealt with:

(a)  recent complaint evidence; and

(b)  consent.

[13]   Finally, Ms Hall submitted that the verdicts were unsafe because of their inconsistency.

[14]We shall deal with the issues in that order.

Alleged counsel error

[15]   There was no dispute between counsel as to the appropriate test to be applied where counsel error is relied on. The appellant must show that the conduct of the defence case led to a miscarriage of justice, or at least to "a real risk of a miscarriage of justice": R v Quinn [1991] 3 NZLR 146. In order to reach that threshold, the appellant must demonstrate "radical" or "fundamental" mistakes or blunders, not merely decisions that could have yielded better results: R v Pointon [1985] 1 NZLR 109 (CA); R v H [1997] 1 NZLR 673 (CA). If it is established that trial counsel failed to follow his or her client's instructions, the appellant must also show that the failure led to a miscarriage of justice: R v S [1998] 3 NZLR 392 (CA).

[16]   We now turn to the specific complaints that  the  appellant  makes  against  Mr Laybourn.

Adjournment

[17]   The appellant was arrested shortly after the incidents with which we are concerned. He was held in custody.  Initially he had Mr Gorringe as his lawyer.  Then he dropped him and had Mr Matenga. Later, he dismissed him too, and that was when Mr Laybourn started to act for him. The appellant said to Mr Laybourn that he was concerned about the delay until trial: at that time, the trial was not due to be heard until 4 June 2002, by which time he would have been in prison on remand for about 14 months.  The  appellant  instructed  Mr Laybourn  to  apply  for  bail. Mr Laybourn notified the court that an application for bail would be made, because of the unreasonable delay. That prompted the High Court to offer an earlier trial  date:   a   gap   developed   in    the    programme    in    the    week    commencing  10 December 2001.

[18]   Mr Laybourn advised the appellant of that. The appellant then said that that trial date was too early. He instructed Mr Laybourn to seek an adjournment and bail

to  enable  him  to contact witnesses.    Mr Laybourn in his affidavit says that the appellant was vague as to the witnesses he wished to contact.

[19]   In    any   event,   Mr Laybourn   did   apply   for   an    adjournment.    On   22 November 2001 Randerson J refused it.

[20]   There is nothing in this complaint against Mr Laybourn. He did exactly as instructed. Ms Hall was not able to point to any other grounds Mr Laybourn could have advanced in support of the adjournment application. Trial counsel was satisfied that there was adequate time for preparation. It must be remembered that any grant  of legal aid is limited. According to Ms Hall, the allocation at that time for a trial of this kind would have been 15 hours' preparation. We accept that there is  a  possibility of having that allocation increased, but it is nonetheless a guide to what is considered a reasonable preparation period.

[21]   The appellant is unable to point to any specific prejudice arising from the bringing forward of the trial date. We note that even at this stage the appellant has not indicated what evidence his suggested witnesses could give with respect to the matters in issue, still less provided briefs of evidence.

[22]There is no merit in this complaint against Mr Laybourn.

Prior violence evidence

[23]   The Crown led quite a lot of evidence about prior violent episodes between the appellant and the complainant during their relationship.  It  would  appear that  Mr Laybourn made no attack on the admissibility of such evidence. Ms Hall submitted that that was a radical error as this prior evidence was grossly prejudicial to the appellant. Unfortunately, Mr Laybourn did not explain in his affidavit why he did not challenge that evidence. It would have been helpful if he had done so, as it is always important on appeals where trial counsel incompetence is alleged for the appeal court to be informed, with appropriate frankness, as to why impugned decisions were or were not taken. That is because we need to make our assessments in the light of how the trial was progressing and developing at the time the criticised

decision was made or not made, as the case may be. It is very hard on appeal, just from reading a transcript, to recreate the dynamics of a trial. We are very conscious of how easy it can be to see a better path in hindsight.

[24]   The defence in this case did not dispute that sexual activity had taken place between the appellant and the complainant. The defence was consent or, failing that, that the appellant had a reasonable belief that the complainant was  consenting. There was some extrinsic evidence that the activity had been violent. For instance, the police had found in the car a considerable quantity of the complainant's hair, which was consistent with her account that the appellant had pulled out clumps of her hair during the Ohinewai rape.

[25]   It was clearly going to be difficult to explain how this sexual activity was consensual if the complainant was bruised over various parts of her body and when clumps of her hair were found in the car. The defence explanation for this was that this three year relationship had been characterised by physical assaults between the appellant and the complainant, and the assertion was that at times the complainant was the aggressor. The defence line was, therefore, that while there may have been a bit of physical activity on this occasion, it was no different from previous occasions where violence had been followed by consensual, “make up” sex. That was not a hopeless line of defence, particularly given the fact that the complainant admitted that she had had an orgasm during the course of the Raglan sexual encounter. That left it open to the defence to suggest that the complainant liked a bit of "rough stuff". At the very least, it left open the prospect of a defence based on a reasonable belief that the complainant was consenting.

[26]   Mr Laybourn opened his cross-examination of the complainant rather effectively. He got the complainant to admit that at times she had pushed the appellant, although she said it was in self-defence. She accepted that there were times on which she had pulled clumps of hair from his head, that she had scratched his face, and that she had thrown objects at him. She admitted that on one occasion she had taken a watch he particularly cherished and deliberately smashed it under the heel of her foot. On another occasion she had torn and cut up his best clothes.

[27]   Following this list of physical acts on her part, Mr Laybourn put this to the complainant:

So you understand [the appellant’s] defence, it is that there were arguments in the car, there was violence at times, but you were a willing partner to the sexual acts which took place during those times? No. That's not true.

Isn't it very much the pattern of what your relationship demonstrated and as you told us yesterday there would be arguments, sometimes violence, then there would be sex, and then things would calm down? It's more than that, being in that relationship for so many years, he just, you know, I knew what he was like and his control and I feared that and trying to get out was hard.

[28]   There is no suggestion from the appellant that that was not his  defence. Given that, the evidence of prior violence between them was, not only unexceptionable, but positively required. Of course, the Crown wanted the evidence of prior violence for a different purpose. There was evidence in the case that the complainant had removed her own clothes in the car at Ohinewai. The Crown also faced the possible difficulty of explaining, if the activity was non-consensual, why the complainant had not attempted to get out of the situation when she had a number of opportunities to do so. For instance, she was left in the car at the two service stations they stopped at, and during the last Hamilton incident, other adults were around at the appellant's sister's home yet the complainant had not summoned help. The Crown explanation for this behaviour on the part of the complainant was that, because of the violent nature of the relationship, the complainant feared for her life. The complainant's knowledge of the appellant's propensity to violence and of his controlling nature meant that to some extent she had to capitulate to some of the appellant's sexual demands.

[29]   So at the trial both counsel wanted the evidence of prior violence, for different reasons. The appellant cannot now complain about the admissibility of this evidence when there was no objection to it at trial and when it was allowed in because counsel wished to make use of it: R v T [1998] 2 NZLR 257 at 269 (CA); R v H [1997] 1 NZLR 673 at 681.

[30]   It is possible that other trial judges would have exercised somewhat tighter control over the amount of evidence of prior violence, especially during the complainant's evidence-in-chief when the defence strategy would not have been

clear. But in the end, nothing turns on that, because the defence themselves chose to emphasise the prior violence and to turn it to their advantage with respect to the defence to the specific charges the appellant faced.

[31]   When the judge was summing up, he emphasised a point that had been made by Mr Laybourn in his closing address:

He says the history of past abuse has some relevance but the accused is not on trial for possible past abuse. It may be that their past relationship was one of a pattern of arguments and making up and it was that pattern which led to the accused believing on 21 and 22 March that [the complainant] was consenting to sexual activity. He agrees with Ms Dunn [the prosecutor] that this case is all about whether [the complainant] is reliable.

[32]   That did put the evidence of past violence in its context, so far as the defence was concerned.

[33]   How past violence was treated was a question of trial tactics. We are not satisfied that Mr Laybourn made any error, let alone a radical or fundamental error, in his decision not to challenge the evidence of prior violence. On the contrary, the evidence of prior violence was essential to the defence which was to be run.

[34]There is nothing in this point.

Instructions as to cross-examination of witnesses

[35]   The appellant's third complaint is that Mr Laybourn "did not use the instructions he was given by the appellant in his questioning of the Crown witnesses". This point was not really developed at all by Ms Hall in her  submissions. All she submitted was that "the failure to draw from the instructions impacted on the purported election by the appellant not to give evidence". She submitted that, had the appellant given evidence, there were substantial areas of the account that would not have been put to the complainant. The appellant in his affidavit said that he had "instructed Mr Laybourn" to address certain matters, which were not put to the complainant.

[36]   We have looked at the appellant's list of topics. Some of the matters listed were put. Others were not put, and indeed could not have been put because they would have been irrelevant. We accept that there are some matters the appellant listed which were  not  put,  but  we  do  not  think  that  there  was  any  error  on  Mr Laybourn's part in not putting them. It is never easy cross-examining a complainant in a sexual violation case. As well, we do not know what the complainant would have said had a number of the matters the appellant lists been put to her. A number of the allegations which were put to the complainant - obviously  on the basis of the appellant's instructions - were vehemently denied by her. Every counsel knows that a skilful cross-examination may often be a relatively brief one, steering well clear of matters which might backfire. That is particularly the case where a defendant and his lawyer are still uncertain as to whether it is going to be sensible for the defendant to give evidence.

[37]   We are also mindful of Priestley J's comments during the sentencing of the appellant. By the time of sentencing, the appellant had dismissed Mr Laybourn because of what the appellant considered to be his incompetence. The judge observed that it was not for him to comment on what instructions may or may not have been given to Mr Laybourn. But, he said, he was bound to say this:

It seemed to me that Mr Laybourn represented you competently. He was highly skilled as counsel; he cross-examined and addressed with considerable effect in some areas, and in my view the three not guilty verdicts which the jury came back with would probably not have been achievable had you been represented by counsel of lesser competence than that which Mr Laybourn displayed.

[38]   The trial judge was in a good position to assess Mr Laybourn's cross-examination technique. We have read the transcript. The trial judge's view accords with ours. It follows that there is nothing in this complaint.

Prior imprisonment evidence

[39]   The admission of evidence of the appellant's previous imprisonment came about through no-one's fault. The judge innocuously asked a question of the complainant at one stage, "He left you, he left the house. Is that what happened?"

The judge no doubt expected an answer, "Yes.” Instead, the complainant said, "He went to jail."

[40]   Before any further evidence of the appellant's previous incarceration was given, the trial was stopped and Mr Laybourn responsibly sought instructions from his client. Mr Laybourn in his affidavit says that he advised the appellant that this evidence could provide him with an opportunity to abort the trial. During those discussions, according to Mr Laybourn, it was agreed that the reference to the appellant's having been in custody could be useful for the defence, in that it could be shown to the jury that the complainant, as an alleged victim, nonetheless continued to keep in  contact  with  the  appellant  while  he  was  at  prison.  It  was  agreed, Mr Laybourn said, that this area of evidence could undermine the complainant's allegations and support the defence of consent and false complaint.

[41]   At the end of that discussion, Mr Laybourn wisely gave the appellant a sheet of paper, which read as follows:

ACKNOWLEDGEMENT OF THE ACCUSED AS TO DISCLOSURE OF “JAIL” SENTENCE IN EVIDENCE

I, [the appellant], confirm my lawyer Roger Laybourn advised me of my right to seek a mistrial on the basis of the complainant stating I "went to jail" in her evidence.

I have instructed my lawyer not to seek a mistrial.

I wish the complaint to be questioned about her regular contact with me during the time I was in jail.

[42]   The   appellant   then   signed   that   acknowledgement.   Following   that,  Mr Laybourn did in fact cross-examine the complainant in terms of the instructions given by the appellant.

[43]   The appellant, in his affidavit, did not mention the acknowledgement - perhaps he had forgotten he had even signed it. But he did accept that he did decline a mistrial "on the basis that now that the prison history was in evidence Mr Laybourn would ask [the complainant] questions about my stay in prison and her visits with ongoing contact during the time I was there". The appellant says that he could not

understand Mr Laybourn's advice not to seek a mistrial, but that he went along with the advice.

[44]   We have no hesitation in preferring Mr Laybourn's version of what happened. We consider that this is a classic example of the defendant wishing he had made a different decision, now that the trial did not work out exactly as he hoped. It must also be observed that it is by no means certain, had a mistrial been sought, that it would have been granted. The appellant appears now to have it in his head that a mistrial was his for the asking. It was not.

[45]   We consider that Mr Laybourn's actions were appropriate. This evidence having come in unexpectedly, the trial was stopped to enable him to obtain instructions. He talked the matter through with his client. A decision was reached. Other counsel may have advised an application for mistrial. But this is one area where there is no right or wrong answer. Mistrials inevitably mean delays for everyone, including, of course, the defendant, who in this case had already been in prison on remand for some eight months.

[46]   The judge, during the course of the trial, gave the jury a direction that the information about the accused's prior imprisonment was irrelevant and must not be taken into consideration by them in considering their verdicts. A similar direction was given during the course of his summing up.

[47]   The appellant is bound by the election he made during the trial on this topic. That election was not so obviously wrong as to lead to concerns that a miscarriage of justice arose.

Failure to call appellant to give evidence

[48]   Ms Hall's final point under the "trial counsel incompetence" point was that Mr Laybourn "did not permit the appellant to call evidence".

[49]   There is a fundamental conflict between the evidence of the appellant and the evidence of Mr Laybourn on this issue. The appellant said in his affidavit that

during the trial he "kept asking Mr Laybourn" to call his witnesses, whom he then lists.  There  are  on  that  list  12  people.  The  appellant  also  said  that  he  told  Mr Laybourn that he  wanted to  give  evidence.  He said that, before he knew  it,  Mr Laybourn had told the court that the defence was not going to call any evidence. According to the appellant's account, he asked to see Mr Laybourn after that because he wanted to discuss it with him. He said that Mr Laybourn refused to see him in the cells and that he gave him a piece of paper to sign while they were still in court, but after the judge and jury had gone out. The appellant said that the note said that he didn't want to call evidence. He signed that piece of paper, he said, because he thought it was too late to call evidence. He thought that the judge was going to be angry if he called evidence now, Mr Laybourn having already told them that he did not wish to call evidence.

[50]   Mr Laybourn said that at the conclusion of the Crown evidence he took instructions from the appellant as to whether any defence evidence was to be called. He said that he provided advice on the issue of the appellant giving evidence and that he did not take a strong stance either way. He said that he had personal reservations about the appellant giving evidence, but he did not express them. The decision was left to him. He said there had never been any suggestion of other defence witnesses. He disputed that the decision not to call defence evidence was made without consultation. He said that he followed his standard practice of advising the appellant clearly that the decision whether or not to call defence evidence was always that of the client. He also said that he had those instructions reduced to writing, as is his normal practice. He annexed those instructions to his affidavit.

ACKNOWLEDGMENT OF ACCUSED OF DECISION NOT TO GIVE AND/OR CALL DEFENCE EVIDENCE

I, [the appellant] hereby confirm that have I elected NOT to give evidence myself and NOT to call any other defence evidence, although I have been informed it is my right to do so.

I am happy with the way Mr Laybourn has conducted my case.

[51]The acknowledgement has then been signed by the appellant and dated.

[52]   Given the acknowledgement, we again prefer Mr Laybourn's version of events to the appellant's. It would be unthinkable for a practitioner of Mr Laybourn's seniority and experience to determine this question without clear instructions from his client. We find the appellant's explanation as to why he signed the acknowledgement unconvincing. We would also point out that the appellant was no stranger to the criminal courts: he had a very long list of prior convictions. We consider that the appellant was properly advised on this topic and made a clear election, by which he is now bound.

[53]   Nor do we think the election an unwise one. There were real risks to the defence if the appellant gave evidence, given the nature of the possible defence. There is no evidence whatever that any of the potential defence witnesses, even if their names were given to Mr Laybourn, would have been of any assistance to the defence. For instance, the first two names on the appellant’s list were the complainant's parents. It would be a very courageous defence counsel who called  the complainant's parents in circumstances where he knew they were supportive of their daughter. But in any event, even now, the appellant has not given any  indication as to what evidence these other witnesses could have given had they been called.

[54]   In summary, therefore, on this first  ground of appeal, we do not find that   Mr Laybourn made any fundamental or radical errors. Indeed, the trial judge considered that he had performed competently. We have not been shown anything which causes us to doubt that assessment.

Summing up

[55]   Ms Hall made a number of complaints about Priestley J's summing up to the jury. She submitted that the summing up was deficient insofar as it dealt with prior violence and also insofar as it dealt with the evidence as to the appellant's prior imprisonment. We do not need to deal with those topics in this section of the judgment, as those topics (and the judge's treatment of them) have already been dealt with earlier in this judgment.

[56]   That leaves two discrete matters of complaint. One relates to the judge's direction concerning recent complaint evidence. The other relates to one aspect of the judge's direction on consent. We deal with those in turn.

Recent complaint

[57]   Shortly after the Hamilton oral sex, the attempted anal sex, and the shower rape incident, the appellant took the complainant to the home of a friend, Mrs W. When the complainant and Mrs W were alone, the complainant made a complaint to Mrs W.

[58]   The complainant, in her evidence, said that she had told Mrs W that the appellant had taken her out and had been hitting her. She said that the conversation was just a "general account".

[59]   Mrs W was called as a "recent complaint" witness. She said that the complainant had told her that the appellant had taken her without her consent and raped her.  She said that the complainant told her that the appellant had driven the  car and that they had ended up out in the bush. According to Mrs W, the  complainant said that he had made her kiss him and then, when she had said she did not want to, he had told her "to suck his dick". According to Mrs W, the  complainant said that the appellant had had sex with her a couple of times without her consent. The complainant said that she had kept saying "No, no" and that she did not want to do it. She had said that she wanted to go home.

[60]   Mr Laybourn, when cross-examining Mrs W, highlighted the difference in the account of the conversation given by the complainant and the account given by Mrs W. The complainant's account had not mentioned sex or rape. Mr Laybourn tried to get Mrs W to concede that all the complainant had mentioned at this initial stage was the assault. Mrs W was adamant, however, that rape had been mentioned in that first conversation. Mrs W accepted that hitting might also have been mentioned, but it was the complaint of rape which had stuck in her mind.

[61]   Ms Hall in her submissions questioned the admissibility of the recent complaint evidence given the apparent discrepancy between the complainant's account and Mrs W's. But this idea was not developed at all, and rightly so. That discrepancy could not, of course, affect admissibility. Indeed, it is not even  necessary that the complainant give evidence as to what she remembers saying.

[62]   Ms Hall’s real complaint was with respect to the judge’s direction on recent complaint evidence. The judge utilised the standard direction on recent complaint, but Ms Hall submitted that that direction was insufficient in circumstances where the complainant's account of the conversation and the recent complaint witness's account of the conversation differ.

[63]   The judge commenced his direction on recent complaint in the following way:

I need to say something to you about recent complaint. This relates to the evidence of [Mrs W] where [the complainant] was living in March in her home. First, it is for you to decide whether the complaint was in fact made, the complaint being what [the complainant] said to [Mrs W]. So first of all you have to decide, did she say those things?

[64]   Ms Hall's submission is that "those things" was the subject of conflicting evidence. She said that the judge should have highlighted the discrepancy in the two accounts and should have said that the first thing the jury had to determine was which account of the conversation was accurate.

[65]   It may have been helpful for the judge to point out that accounts were different, but there is, with respect, an air of unreality about this point. The fact that the complainant did not in the witness box remember everything she may have said to Mrs W may simply go to show the shock she was suffering as the result of her ordeal. We know after all, and the jury knew, that she did, not very long after the conversation with Mrs W, go to the police to make a complaint of rape.  So there  was in this case no delay in making a complaint of rape. The real question in these cases, where a complaint is made to the police promptly, is whether recent complaint evidence is needed or should be permitted at all. That is a significant question which may at some stage need to be looked into in detail by either this court or the Supreme

Court, but this is not the case for such a reappraisal. It is abundantly clear  on existing authority that a prompt complaint to the police does not prevent the Crown from calling a "recent complaint" witness, who can testify to an even earlier complaint to him or her.

[66]   The judge then went on to explain the limited relevance of recent complaint evidence. His instruction was copy book. Ms Hall submitted that the way in which the judge expressed it might have led the jury to consider that they could rely on the evidence of recent complaint as being evidence to conclude that the complainant had not consented. We disagree. The judge made it perfectly clear that the  only relevance of the evidence was that it may show consistency between what the complainant said and did soon after the event and what she now says about it. That might be of assistance in assessing the complainant's credibility. The judge specifically told the jury that what the complainant told Mrs W did not, of itself, prove that the events in fact occurred.

[67]We reject this complaint about the summing up.

Consent

[68]   Ms Hall took exception to the following paragraph in Priestley J's summing up:

If what you've heard from [the complainant] and the other Crown witnesses satisfies you that she was not consenting and that there was no belief on reasonable grounds so far as the accused was concerned that she was consenting then guilty verdicts will follow. If you have doubts on those issues, however, then there will be not guilty verdicts.

[69]   Ms Hall's complaint appears to be that the loose reference to "other Crown witnesses" may have led the jury to believe that Mrs W's evidence could be taken into account on this question of consent.

[70]   We reject that submission. This paragraph in the summing up preceded the judge's directions on recent complaint. It would have been obvious to the jury that not all Crown witnesses had given evidence relevant to the question of consent.

Clearly, for instance, the scientific witnesses’ evidence was not relevant to that topic at all. The jury would have realised that. And the jury, from the judge's later directions concerning the use to which Mrs W's evidence could be put, would have known that that evidence was not relevant as to whether or not consent had occurred, but was solely relevant as a possible guide to consistency in account and accordingly as to the complainant's reliability. That later direction completely clarified what use could be made of Mrs W's evidence.

Inconsistency of verdicts

[71]   Ms Hall submitted that the mixture of guilty and not guilty verdicts in this case was inexplicable on any rational basis. She submitted, in terms of R v Irvine [1976] 1 NZLR 96 (CA), that no reasonable jury could have reached the conclusion reached here, with the consequence that the guilty verdicts should be quashed.

[72]   The trial judge, in the course of his sentencing, considered the mixture of verdicts to be "easily explicable". We too think they are.

[73]   With respect to the incident involving oral sex and sexual intercourse at Raglan, there was the evidence that the complainant had had an orgasm during the encounter. That could clearly and reasonably have left the jury with a doubt: they might well have concluded that the Crown had not disproved the possibility of his reasonable belief that she was consenting to the encounter.

[74]   The guilty verdict on the attempted anal sex charge and the not guilty verdict on the shower rape charge are a little more difficult to explain, but we are nonetheless satisfied that there is a reasonable explanation for the difference. When the appellant tried to have anal sex with the complainant, the complainant said that she had pulled away and said, "Stop it. I don't want you to do this." There was no comparable evidence of "pulling away" with respect to the sex in the shower. That may have been a difference which appealed to the jury. In addition, the jury may have considered that the appellant could have had a reasonable belief in her consenting to ordinary sex, given that not many hours before she had in fact had an

orgasm during it. They may have been less inclined to accept that he reasonably believed she was consenting to the quite different act of anal intercourse.

Result

[75]   We are not persuaded that there was a miscarriage of justice. The appellant might well consider himself lucky with the three acquittals which Mr Laybourn did win for him.

[76]We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington