ROBERTS V R [2016] NZCA 145

ROBERTS V R [2016] NZCA 145 [22 April 2016]NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDCA228/2015[2016] NZCA 145BETWEEN BOYD NAPIER ROBERTSAppellantAND THE QUEENRespondentHearing: 4 April 2016Court: Stevens, Asher and Williams JJCounsel: T W Fournier for AppellantS K Barr for RespondentJudgment: 22 April 2016 at 11.30 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Stevens J)Introduction[1] Mr Roberts was found guilty by a jury in the Christchurch District Court of two charges of unlawful sexual connection (one representative and one non-representative count) and three charges of doing an indecent act on a child under 12 (all representative). He was sentenced by Judge Callaghan to six years,six months' imprisonment.1 He now appeals against his conviction on the non- representative count of unlawful sexual connection only.[2] Mr Roberts appeals on the basis that the guilty verdict for the charge of unlawful sexual connection (count 6) is inconsistent with the not guilty verdict for a charge of rape (count 7) that was alleged to have occurred at the same time. He submits the inconsistency means that the guilty verdict for the unlawful sexual connection charge is unreasonable as the jury could not have been satisfied beyond reasonable doubt.2Background[3] The complainant, X, was friends with Mr Roberts' daughter, C. Between2005 and 2007, when she was aged between eight and 10, X stayed over at Mr Roberts' house on many occasions, particularly on weekends. One representativecharge of unlawful sexual connection (by way of digital penetration) and three representative charges of doing an indecent act on a child under 12 arose from offending at Mr Roberts' house during this time. The convictions on therepresentative charges are not subject of an appeal.[4] The remaining charge of unlawful sexual connection (by way of digital penetration) stemmed from a weekend trip to Kaikoura. X, C and Mr Roberts allstayed in a motel for three nights. The essence of X's evidence was that one of thenights, after dinner, Mr Roberts and X were on the bed together and Mr Robertsforced his fingers inside X's vagina. This formed the basis for the unlawful sexualconnection charge (count 6). He then removed his pants and lay on top of X, and forced his penis inside her vagina. This formed the basis for the rape charge (count 7), on which Mr Roberts was found not guilty by the jury.1 R v Roberts DC Christchurch CRI-2011-009-2399, 11 March 2015.2 The notice of appeal included an appeal against sentence in order to preserve Mr Robert'sposition if the conviction appeal is successful. As the conviction appeal fails, it is not necessary to deal with the sentence appeal any further.Trial context[5] The main evidence against Mr Roberts for all charges came from X. She gave two evidential video interviews to police in 2010, some years after theoffending, both of which were played to the jury as X's evidence-in-chief. She was also cross-examined and re-examined at trial via closed-circuit television.[6] The first evidential interview took place in August 2010 when X was 13 years old. In relation to the events in Kaikoura, X said that they ate dinner and watched some movies before going to bed. X, C and Mr Roberts were all in the same bed. She stated that Mr Roberts started "feeling [her]" while she tried to get to sleep, andhe digitally penetrated her. She said things started feeling "weird" and "creepy" andit began to hurt, so she got out of bed to get some water. When she went back, he kept doing it to her until she fell asleep.[7] The second interview took place in December 2010. X stated that they went out for dinner and when they returned, C went onto the balcony and X was left alone with Mr Roberts. Mr Roberts kept grabbing her and pushing her on the bed. He took her clothes off and put his fingers inside of her. He then penetrated her with his penis, holding her down with his knees and arms. After about 10 minutes, C started coming through the front door, at which point in time Mr Roberts stopped.[8] In cross-examination, X acknowledged that the two versions she gave were completely different. She said that she gave the second interview to finish her story as she was too uncomfortable to say everything the first time. In re-examination, the following exchange took place between the prosecutor and X:Q. Just to clarify is what you said in your first interview correct?A. Yes but it proceeded and it's like, the second, the stuff that happenedin the second interview and it was a very conjoined event.Q. So both events happened?A. Yes but they were together and kind of continued along each other.The issue on appeal[9] Mr Roberts appeals against his conviction for the unlawful sexual offending charge on the basis that the guilty verdict is unreasonable, because it is inconsistent with the not guilty verdict for the rape charge alleged to have occurred at the same time.[10] The entire prosecution case was essentially a 'he said/she said' case, with themain evidence against Mr Roberts coming from X. Mr Roberts denied what X was saying. The only evidence offered by the Crown to prove the unlawful sexual connection and rape alleged to have taken place in Kaikoura came from X. Mr Fournier for Mr Roberts submits that the same evidence was relied on by the Crown for both counts, and this was dependent on the credibility and reliability of X as a witness. It is therefore difficult to postulate a plausible narrative of events in which the jury could reasonably have found Mr Roberts not guilty on the rape count but guilty on the unlawful sexual connection count. There was no evidence external to that provided by X to make the unlawful sexual connection case stronger.3[11] Mr Fournier submits X's evidence of the Kaikoura offending was that it wasa single interlinked incident — "a very conjoined event" — in that the two offencesoccurred together and "kind of continued along each other". Counsel submits that,where the alleged offences are simply different facets or acts in the course of a singlesexual encounter, if the jury is unsure of the complainant's evidence with respect toone count (either because it was unreliable or lacking credibility) it is more difficult for a jury to be sure that the evidence on the other count is reliable and credible than it would be with respect to chronologically separate encounters.4 Here, the Crown inclosing focused on X's evidence from the second video interview and indicated that the unlawful sexual connection count was interlinked with the rape count so the factual matrix for the jury was the same in relation to both counts. On this basis, Mr Fournier submits that if the jury was not satisfied beyond reasonable doubt on the rape count they could not be so satisfied on the unlawful sexual connection count. The guilty verdict is therefore unreasonable.3 Adopting the reasoning of William Young J in B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [129].4 Citing Dhillon v R [2010] EWCA Crim 1577, [2011] 2 Cr App R at [42].Applicable legal principles[12] There is no dispute as to the law when a jury's verdict is challenged as beingunreasonable on the basis of inconsistency between verdicts.5 Unreasonableness will be found where the court concludes that no reasonable jury could, on evidence properly used, have arrived at different verdicts on the different counts.6 The Supreme Court in B (SC12/2013) v R set out some principles of general application when a challenge to conviction based on inconsistency is made:7(a) There is a distinction between cases involving legal inconsistency and those involving factual inconsistency. Legal inconsistency occurs when two verdicts cannot, as a matter of law, stand together.8(b) Factual inconsistency occurs when, given the evidence, two verdicts cannot stand together. This may be between verdicts involving the same accused or between verdicts involving different persons charged in connection with related events.(c) In relation to factual inconsistency arising from "guilty" and "not guilty" verdicts on a multiple count indictment against one defendant, the test is one of "logic and reasonableness".(d) Courts are reluctant to conclude that the jury verdicts are inconsistent,both because the jury's function must be respected and because of ageneral satisfaction with the way juries perform their role. If there is some evidence to support the verdict said to be inconsistent, anappellate court will not usurp the jury's function by substituting its view of the facts for that of the jury. But, any reasonable explanationfor the difference between the two verdicts "must be found in the evidence properly used".95 Under s 385(1)(a) of the Crimes Act 1961.6 B (SC12/2013) v R, above n 3, at [24] per Elias CJ.7 At [68] per McGrath, Glazebrook and Arnold JJ.8 Which does not arise here.9 Citing this Court in R v O (No 2) [1999] 1 NZLR 326 (CA).(e) An appellate court will intervene in cases where the different verdictsreturned by the jury represent "an affront to logic and commonsensewhich is unacceptable and strongly suggests a compromise of theperformance of the jury's duty".(f) The obligation to establish inconsistency rests with the person challenging the conviction. Where inconsistency is established, the court must make such consequential orders as the justice of the case requires.[13] Arnold J, writing on behalf of himself, McGrath and Glazebrook JJ, observed:10 A verdict of not guilty does not necessarily imply that a complainant has been disbelieved, or a want of confidence in the complainant. It may simply reflect a cautious approach to the discharge of a heavy responsibility. In addition to want of supporting evidence, other factors that might cause a jury to draw back from reaching a conclusion beyond reasonable doubt in relationto some aspects of a complainant's evidence might be that the complainanthas shown some uncertainty as to matters of detail, or has been shown to have a faulty recollection of some matters, or has been shown otherwise to be more reliable about some parts of his or her evidence than about others.[14] On appeal the focus must be on the reasons for conviction rather than acquittal; the decisive question is not whether the acquittal(s) are reasonable but whether the conviction was not.11 This requires the appellate court to perform a review function and examine the evidence before the jury.12 If the court finds itdifficult to understand on what basis the jury accepted a complainant's evidence at some points but not others, it is entitled to consider whether the jury may have given a not guilty verdict out of an innate sense of justice.13 However, this outcome is likely to arise rarely and it may not provide an adequate explanation of an apparently illogical inconsistency. Ultimately, the court must be satisfied there is a logical and reasonable explanation for the differing verdicts and that these were not simply the result of improper compromise.1410 B (SC12/2013) v R, above n 3, at [81], citing MFA v R [2002] HCA 53, (2002) 213 CLR 606 at [34].11 At [69], citing R v Pittiman 2006 SCC 9, [2006] 1 SCR 381 at [10].12 R v Owen [2008] 2 NZLR 37 (SC) at [13].13 B (SC12/2013) v R, above n 3, at [105] per McGrath, Glazebrook and Arnold JJ.14 At [106].Our analysis[15] It may be unusual for different verdicts to be arrived at on counts that are alleged by the complainant to have been a part of the same incident of offending. But this does not mean that there can never be a logical and reasonable explanation for a conviction on one count but acquittal on another. The mere fact that the different verdicts were given in a case that depended on the evidence of a single witness does not necessarily set up an inconsistency.15 There may be many valid reasons why the jury is convinced by a witness on one count but not on another. Concepts of credibility and reliability are not static. It follows that it is not necessarily illogical for a jury to be convinced as to the reliability of some aspects ofthe witnesses' evidence but not as to others.16[16] Mr Barr for the Crown submits that there is a logical and reasonable explanation for the different verdicts. He submits that the jury was entitled to convict Mr Roberts in relation to count 6 but find reasonable doubt in respect of the rape because the jury:(a) was clearly satisfied that Mr Roberts had digitally penetrated X on more than one occasion at his house, given the guilty verdict on the representative unlawful sexual connection count.17 It would have been open to jury to conclude that Mr Roberts' tendency to digitally penetrate X added to the probability of his having committed that offence at Kaikoura. Such reasoning was not available in respect of the rape allegation;(b) may have entertained a reasonable doubt about the rape allegation on the basis of the defence submission that it was inherently unlikely that Mr Roberts, being a "massive man", could have raped a small nine15 At [25] per Elias CJ.16 R v Shipton [2007] 2 NZLR 218 (CA) at [77].17 The conviction for the representative sexual connection count is not challenged, and Mr Roberts expressed remorse (and obtained credit for) at sentencing.year old girl without her being able to describe some of the details18 or recall it until the second interview;(c) may have been influenced by the defence challenge to the reliability of the allegations, particularly the rape allegation made by X in the second interview. The defence submitted to the jury that thecomplainant's comments in the second interview revealed she haddiscussed the account with others19 and emphasised the risk of contamination. The jury therefore may have reached the view that X was generally reliable and credible but given Mr Roberts the benefit of the doubt on the rape charge, relying on the allegation made in the first interview to find Mr Roberts guilty of the digital penetration;(d) may have been unable to entirely reject C's evidence. C gaveevidence that she never left the motel room on the night of the Kaikoura offending, that she was always present when Mr Roberts and X were together, and that she never saw anything untoward. The Judge said that if C was truthful and she would have known what was happening to X, or if her evidence left the jury unsure, then they should acquit. He made special mention of the two aspects of X'sevidence that C denied: that C saw Mr Roberts kissing X's body, andthat C left the Kaikoura motel room. Mr Roberts was acquitted on thetwo charges which depended on the jury fully rejecting C's evidencein order to convict; and(e) may have relied on the allegation made in the first interview and notthe second. It would have been fortified in light of C's evidence thatshe did not leave the motel room alone whilst in Kaikoura, which wasconsistent with X's evidence in the first interview. This is particularlyso given the Judge's direction to the jury on how they might assess theevidence of C.18 X's evidence of the alleged rape was that "it really hurt", she did not really know what washappening, and her body was aching a bit afterwards.19 Particularly her step-mother, who was a social worker.[17] We are satisfied there is a logical and rational basis for the different verdicts for the reasons just summarised. Although the Crown only relied on the evidence of X to prove both charges, a narrative by which Mr Roberts was not guilty of rape but guilty of unlawful sexual connection may be easily identified. There were two video interviews, both of which were evidence in the case. The digital penetration allegation was made in both interviews; the rape allegation only made in the latter. At no time did X retract what she said in the first interview. She said it happened as she said but then progressed into the rape as alleged in the second interview. The digital penetration offending was also consistent with other similar allegations on which Mr Roberts was found guilty. Thus, the evidence for the unlawful sexual connection charge was stronger, despite the fact it all came from the complainant.[18] It is also apparent that the jury found X to be a credible and reliable witness, as evidenced by the convictions on the other counts, the soundness of which are not challenged. The fact the jury acquitted on the rape charge does not necessarily mean they did not believe X, or questioned her credibility or reliability generally in relation to the Kaikoura encounter. Rather, a logical explanation is that the jury could not be sure in relation to the rape charge in light of the possibility of external influence between the first and second interviews, the somewhat opaque descriptionof the rape, and the fact they would have needed to entirely reject C's evidence.These doubts would not arise for the unlawful sexual connection charge, making it entirely rational for the jury to be satisfied beyond reasonable doubt that it happened.[19] For these reasons, the conviction on the unlawful sexual connection charge (count 6) cannot be seen as unreasonable.Result[20] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent