JELLYMAN v R [2016] NZCA 440

JELLYMAN v R [2016] NZCA 440 [15 September 2016]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA103/2016[2016] NZCA 440BETWEEN GRAHAM COLIN PAUL JELLYMANAppellantAND THE QUEENRespondentHearing: 1 September 2016Court: Kós P, Mallon and Whata JJCounsel: D M Goodlet and S J Burlace for AppellantJ E L Carruthers for RespondentJudgment: 15 September 2016 at 3.30 pmJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] The appellant, Mr Jellyman, faced two sets of charges relating to sexual offending on the evening of 23 December 2014. He was found guilty on the first set and acquitted on the second set. He appeals against his convictions on the basis that the verdicts of guilty were impermissibly inconsistent with the acquittals on the other charges.Background[2] This is a summary of the alleged offending. One evening, shortly before Christmas 2014, the complainant C and her 19-month-old daughter were sleeping inthe living room at Mr Jellyman's brother's house. Mr Jellyman was also at the house that night. He lay down beside her, made sexual advances, first kissing her and then touching her breasts and genitalia. She told him to stop. He raped her. C then left the room with her child to wake up another occupant of the house but was unsuccessful in doing so. She then returned to the living room and lay down again. She says Mr Jellyman repeated what he had done earlier and raped her again.[3] At trial C relayed her version of events to the jury. Mr Jellyman also gave evidence. He said they had consensual sexual intercourse on one occasion that evening. He denied there was a second incident.[4] The jury found Mr Jellyman guilty on all charges in relation to the first incident of sexual offending and not guilty on all charges in relation to the second incident of alleged sexual offending.Ground of appeal[5] There was one ground of appeal, namely that the inconsistency of the verdicts makes the guilty verdicts unsafe due to illegitimate compromise, particularly given the following events immediately leading up to the delivery of the verdicts:(a) At 3.10 pm on 10 December 2015, the jury provided the Court with a question which reads: "at this point and time the jury is struggling or unable to come to a unanimous decision, the general consensus at this stage is 8 find Mr Jellyman guilty and 3 are unsure (some doubt). Establishing reasonable doubt has been an issue. We have attemptedto discuss the matters further but the 3 jurors remain uncertain".(b) At 3.38 pm the Court noted an answer to the question: "Thank you,you need to continue your discussions with a view to reachingunanimous verdicts".(c) Within 10 to 15 minutes of the jury receiving the answer to its question, the Court was advised that the jury had reached its verdicts and the verdicts were delivered at 4.10 pm.Assessment[6] The law dealing with inconsistent verdicts is now well established. For present purposes, the following passages from B (SC12/2013) v R are particularly apposite:1 Logically irreconcilable verdicts may indicate that the jury's thinking hasgone awry in some fundamental way: in particular, the jury may have acted on a misunderstanding of the law or illegitimate compromise. In such circumstances, the court may feel it necessary to intervene in order to ensurethat justice is done, despite its respect for the jury's function in the criminal process.[7] And further:2 If the court finds it difficult to understand on what basis the jury accepteda complainant's evidence at one point and not another, it is entitled toconsider whether the jury may have departed from its instructions in giving a not guilty verdict, out of an innate sense of justice.However, this is an explanation that an appellate court would accept only rarely. It is likely to do so only in cases of factual inconsistency arising on a multiple count indictment involving both acquittal(s) and conviction(s) in respect of the same defendant. Even in such a case, it may not provide an adequate explanation of an apparently illogical inconsistency. Whether it does or not will depend on the particular factual circumstances. The court will, of course, need to be satisfied that the verdict was not simply the result of an improper compromise.[8] Ms Goodlet accepted in oral argument that the verdicts were logically available to the jury. To illustrate, the jury might reasonably have concluded that thecomplainant's evidence was credible in respect of the first incident, but that thesecond incident was not proven beyond reasonable doubt. As the Court inB (SC12/2013) v R observed, referring to the decision in R v Dhillon:3In sex cases where sexual incidents are alleged to have occurred on separate occasions, inconsistency will not arise simply because the jury accepted partof a complainant's evidence but was not sure about other parts.1 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [67] (footnote omitted).2 At [105]–[106].3 At [83] referring to R v Dhillon [2010] EWCA Crim 1577, [2011] 2 Cr App R 10.[9] It may also be that Mr Jellyman's evidence raised a sufficient doubt in relation to the second set of charges to justify acquittal on all of that second set. Thispossibility was quite properly foreshadowed in Ms Goodlet's closing to the jury when talking about Mr Jellyman's account:If you think, oh, God, I don't know, maybe it's, maybe it's the truth, I don'tknow, he probably, he's probably telling the truth, maybe he is, I don't know,you must acquit him [10] As noted by Mr Carruthers a similar outcome in terms of apparently inconsistent verdicts arose in Mahupuku v R.4 In dismissing the appeal, the Court there cited differences in the evidence relating to each charge. In particular, that the appellant in that case had denied any sexual activity in relation to one charge but had accepted that sexual activity had occurred in relation to the other (submitting that the latter was consensual).5[11] In the present case, Mr Jellyman admitted to the first set of sexual activity but not to the second set. The issues on the first incident were therefore consent and reasonable belief in consent. In contrast, the only evidence of the second set of offending came from C. The significance of C then returning to the lounge where Mr Jellyman was after the first rape was highlighted to the jury together with a number of inconsistencies in C's evidence about the circumstances of the offending.6The jury may have reasonably assumed doubt about the second set of offending,while nonetheless believing the complainant's account on the first rape offending.[12] Ms Goodlet nevertheless submits the jury's question reveals that it wasstruggling to reach a consensus about the verdicts. She submits it also indicates a misapprehension that reasonable doubt had to be established, which was not4 Mahupuku v R [2015] NZCA 510.5 At [44].6 By way of illustration, Ms Goodlet highlighted that C had given evidence that somebody hadcome to the door of the living room from the kitchen and asked, "Are you OK?" and thatMr Jellyman had placed his hand over her mouth to prevent her from saying anything. Ms Goodlet told the jury that C had given inconsistent evidence as to whether this occurred before the first rape (as she said in her police interview) or during the second rape (as she said in her evidence at trial) and that C was inconsistent as to whether one or two people were in the kitchen when the person came to the door. Significantly, Ms Goodlet emphasised that C said that Mr Jellyman kept his hand was over her mouth until the person disappeared from the door. Ms Goodlet said to the Jury, "That's then the time to yell out, but [C] didn't".corrected by the Judge. Finally, she submits that the short time for deliberation afterthe Judge's direction means that an issue of illegitimate compromise is raised.[13] We accept the jury's question expresses the onus of proof inaccurately if thejury had in mind that reasonable doubt must be established by the defence. But that interpretation was not something that occurred to trial counsel or the Judge at the time. Ms Goodlet also accepted that she had not brought the appeal on the basis of a failure to redirect on this issue. In any event, we do not accept that the jury was in fact confused about the burden and standard of proof. The jury was expressly directed on the burden and standard of proof in the summing-up on a number of occasions and in every question in the question trail. The closing address for Mr Jellyman had also made this clear. The focus of the jury's question was toconvey to the Judge that the jury was divided (possibly as to the offending as a whole, although that is not clear and it is inappropriate to speculate) and strugglingto reach a consensus. The Judge's answer responded to that focus by informing thejury that it was to continue its discussions.[14] Accordingly, we are not satisfied that the content and timing of the jury'squestion provides a proper basis for finding that the verdicts are the product of an illegitimate compromise. As Mr Carruthers submitted, there were clear factual differences between the two sets of offending and a jury, previously divided on both counts, might reasonably agree that consent was absent in the first set of offending and then agree that there was a reasonable doubt about whether the second set of offending occurred at all. To the extent that a "compromise" was reached over the intervening hour since the jury's question was posited, it was both logical andreasonable in the circumstances.[15] The appeal is therefore dismissed.Solicitors:Crown Law Office, Wellington for Respondent