FARMER v R [2019] NZCA 430

FARMER v R [2019] NZCA 430 [16 September 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA437/2018[2019] NZCA 430BETWEEN JASON GRAHAM FARMERAppellantAND THE QUEENRespondentHearing: 27 November 2018Court: Williams, Peters and Gendall JJCounsel: A J D Bamford and E J Riddell for AppellantM A Corlett QC and E McGill for RespondentJudgment: 16 September 2019 at 11.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] Following a trial by jury in the District Court at Nelson, the appellant wasfound guilty of one charge of sexual violation by unlawful sexual connection (USC)and one charge of indecent assault both in relation to the complainant A. The appellanthad also been charged with kidnapping A but was acquitted on that charge.On conviction, the appellant was sentenced to three years' imprisonment on the leadcharge of sexual violation and a concurrent term of nine months' imprisonment onthe indecent assault charge.1[2] The appellant appeals both conviction and sentence.The facts[3] The appellant and A were neighbours. On A's account they were merelyfriends. On the appellant's account he "quite liked her" but she was "hot and cold".[4] On Christmas Eve 2016, A had been drinking at her mother's house. She leftthere and went to the appellant's flat about 30 metres away to wish him a happyChristmas. They sat and talked downstairs in his flat. On her account of whathappened next, the appellant grabbed her, threw her over his shoulder and carried herupstairs to his bedroom (the kidnapping charge). He then threw her on his bed,digitally penetrated her vagina (the sexual violation charge), and at some point gaveher a "hickey" (the indecent assault charge). He did not let her leave the bedroomuntil she offered to go downstairs to fetch them both a drink. Once she got downstairs,she escaped. Apart from the initial conversation downstairs, A said everything thathad occurred in the house was without her consent. A said she fought the appellantboth when he manhandled her downstairs and while they were upstairs in the bedroom.She did not fight him as he carried her up the stairs as she feared this would causea fall.[5] The appellant gave evidence. On his account, he accepted the sexual activitydescribed occurred, but said it was all consensual. He said they kissed downstairswhere he gave her the hickey. He said A laughed as he threw her over his shoulderand carried her upstairs. There was no fighting. He said they kissed upstairs and heonly ceased digitally penetrating her when he thought there was something wrong.At that point he let her go.1 R v Farmer [2018] NZDC 8643 at [22]–[23].[6] A's house was ten metres away from the appellant's. A's flatmate was homeat the relevant time. Her evidence was she heard no yelling and that althoughthe appellant had a dog, it did not bark at all that night. The appellant said this createdreal doubt about A's account of ongoing physical conflict.Conviction appeal[7] The appellant advanced two grounds in his conviction appeal. First, theacquittal on the kidnapping charge was so inconsistent with the sexual violation andindecent assault verdicts as to render the mix of verdicts inconsistent and irrational.The essence of this argument was that the detention of A in the appellant's housewhereby he forcibly carried her to his bedroom and refused to let her leave was soinextricably intertwined with the sexual charges that the only rational verdicts wereacquitted on all charges or guilty on all charges.[8] The second ground related to the direction given by Judge Treston unders 92(2)(b) of the Evidence Act 2006 where he pointed out that defence counsel failedto fully put the appellant's version of events to A. The effect of this direction,the appellant submits, was to predispose the jury against the defence case.The appellant submitted that the Judge was not required by s 92 to give sucha direction and should not have done so. The result was an unfair trial.Inconsistent verdicts[9] The leading decision on inconsistent or irrational verdicts is B (SC12/2013)v R.2 There the Supreme Court held that appellate court intervention will be necessarywhere different verdicts returned by a jury are an "affront to logic and commonsense",3because such verdicts will strongly suggest a compromise of the performance ofthe jury's duties. As noted, the appellant argues that because the alleged sexualviolation occurred in the course of a lengthy alleged unlawful detention, primarily inthe appellant's bedroom, conviction on the violation charge could not logically standnext to acquittal on the detention charge.2 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261.3 At [68(e)], applying the principles in MacKenzie v R [1996] HCA 35, (1996) 190 CLR 348 at 366–368.[10] We do not see any inconsistency here. The jury was directed that it was up tothem what evidence to accept or reject and what weight to give any part ofthe evidence. They are entitled to believe a part of what A said but not other parts.4[11] The Crown case was that the kidnapping charge covered the whole incidentfrom the carrying upstairs to A's escape. The acquittal on the kidnapping charge islikely to have reflected the evidence of A's flatmate about not hearing any noises thatmight be associated with any kind of altercation in the appellant's house. This musthave created a reasonable doubt in the minds of the jury as to whether A had actuallybeen taken upstairs against her will. The jury may have thought this was enough toacquit even though A said she had to trick the appellant into letting her leavethe bedroom once she was there. The appellant got the benefit of that doubt.[12] Alternatively, it was open to the jury to entertain a reasonable doubt aboutwhether the appellant intended to detain A in his bedroom, even if A genuinely thoughthe was doing so.[13] Either way, it was still open for the jury to accept the rest of A's evidence; thatis, that A actively protested against the digital penetration and associated indecentassault. Therefore, whatever the position in respect to the detention, the jury couldhave found that A did not consent to the digital penetration and her protest was suchthat no reasonable person in the appellant's position could believe she was consenting.[14] The verdicts are therefore consistent.Section 92 direction[15] Section 92(1) of the Evidence Act provides:In any proceeding, a party must cross-examine a witness on significant mattersthat are relevant and in issue and that contradict the evidence of the witness,if the witness could reasonably be expected to be in a position to giveadmissible evidence on those matters.4 R v Shipton [2007] 2 NZLR 218 (CA) at [77], quoted with approval in B (SC12/2013) v R, aboven 2, at [80].[16] Despite this, two aspects of the defence case were not put to A incross-examination. The first related to the suggestion that A rubbed the appellant'sleg and groin on the sofa downstairs, and the second the suggestion that they were"kissing and rubbing" each other upstairs in the bedroom. The Crown pointed to thisfailure in closing and the Judge decided to direct the jury on the omissions pursuant tos 92(2) of the Evidence Act. The appellant submits that this biased the jury against hiscase. The duty contained in s 92 is to protect fairness.5 It is therefore not absolute andneed not be "slavishly followed"6 where it would be clear to the jury the parties are atloggerheads on that aspect of the evidence and the likely response is plain. In thiscase, A gave evidence before the appellant. She did not know what his evidence wouldbe so there is an argument that the defence should have given A a proper opportunityto respond to those particular allegations. But the appellant's essential narrative ofconsensual engagement until part way through the digital penetration was put to A inclear terms:Q. And you started making it clear that you were interested in a bit morethan a friendship, you put your hand on his knee?A. No that's not true.Q. And you kissed – the two of you kissed each other on the sofa?A. No that's not true either.Q. And he got up and put his glass on the kitchen bench because he didn'twant to have another drink, and you followed him over and you kissedhim again when he was standing beside the bench?A. No that did not happen.Q. And you had your arms around each other?A. No that did not happen.Q. And he gave you a hickey on your neck at that time?A. No.Q. He then picked you up and put you across his shoulder which I thinkyou accept?A. Yeah.5 R v Soutar [2009] NZCA 227 at [27].6 At [27].Q. You were across his right shoulder, so he was – it was his right armthat he had around you?A. Yeah.Q. And he walked around the room and the two of you were laughing, hedidn't go straight up the stairs, he walked around the room. More ofa joke thing and you were laughing and he was laughing?A. Nope that is not true.Q. And he walked up the stairs and you were not protesting and you werenot fighting and you were not trying to get off?A. That is not true.Q. And he didn't throw you on the bed, he put you on the bed. He wasn'tholding you down, he lay down beside you?A. No that is not true.Q. And you made another comment about how you, you thought he hadwanted more than that and you didn't have a problem with beingsexual buddies?A. That's absolutely not true, noQ. He put his hands down your pants, you accept that?A. Yes.Q. He put his finger inside you?A. He forced his fingers inside me, yes.Q. And he inserted his finger three or four times into you and thensomething happened and you conveyed to him at that point, and thatpoint only, that something was wrong.A. That's not true.[17] At each point A responded with clear and straightforward refutations.The rubbing downstairs and upstairs were points of detail with a wider context andwould undoubtedly have produced the same sort of response as those provided inrelation to the surrounding allegations.[18] We are satisfied, therefore, that fairness did not require a s 92 direction.But that does not necessarily mean the giving of such direction in this case createdsubstantive unfairness for the appellant by predisposing the jury against him. The s 92direction the Judge gave was careful and balanced. He made a point of not beingcritical of counsel or the defendant, and acknowledged the omission could well havebeen an innocent oversight. He said:7[67] So in evaluating the defendant's evidence on this point, you areentitled to take into account that in relation to these particular aspects, hisversion of events was not put to [A] for comment. However, of course it'simportant to recognise that counsel are human and can make mistakes.A failure such as here may simply be an oversight if [A]'s evidence on thatpoint was not correct when she made it, it doesn't become correct simplybecause it wasn't challenged.[68] So, the failure to put these matters which you may or may not, it's upto you, consider relevant, particularly in the aspect of honestly held belief isa matter of weight. Then it's certainly, even though the witness wasn'tchallenged on this point, and didn't have an opportunity to respond, inassessing what weight you give to the contrary evidence, this should be bornein mind. The Crown takes a different view, the Crown has said you ought todisregard the evidence of the [defendant] in that regard about the rubbing ofthe groin area and rubbing upstairs because it wasn't put, that's a matter foryou to assess and decide upon.[19] These aspects of the defence case were omitted in cross examination and it wasopen for the jury to take that into account. Though unnecessary, the direction wascorrect as far as it went. We are satisfied that no miscarriage could have resulted fromthe way in which this matter was handled.Sentence Appeal[20] The final effective three years imprisonment related to the lead charge of sexualviolation. The Judge applied the guideline judgment in R v AM (CA27/2009).8He found that the offending should be placed in the middle of USC band one (two tofive years) and adopted a starting point of three and a half years.9 He deducted sixmonths after taking into account letters of support from his employers, family and7 The Judge at [68] is recorded as saying "the Crown has said you ought to disregard the evidenceof the complainant ". We take this to be an error and that the Judge meant "defendant".8 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750.9 R v Farmer, above n 1, at [22].a court officer, who all spoke of his good character; and the fact that he had apologisedto A in writing.10[21] The appellant submits that the starting point was too high. The starting pointshould have been two and a half years in his submission because the offendinginvolved none of the aggravating features the Judge identified. These were the use ofviolence, harm to the victim (genital bruising and post-traumatic stress disorder), andvulnerability due to A's intoxication and her small stature.11[22] The appellant submits that the acquittal on the kidnapping charge suggestedthere was no particular narrative of violence in this case. Further, the harm tothe victim was overstated. The appellant submits that A was in fact already onmedication for post-traumatic stress before the incident, and the genital bruising wasnot significant. Nor was A particularly intoxicated and her small stature did not makeher especially vulnerable.[23] The court in R v AM (CA27/2009) held that the starting point for USC bandone should be "closer to the top of the band" where one or more of the aggravatingfactors identified is present to a low or moderate degree.12 Among those factors is"more than mild" violence associated with the offending.13[24] We accept that there was violence to a low or moderate degree in this case,even without the kidnapping and detention narrative. The genital bruising confirmedin medical evidence tended to support the suggestion that there was roughness inthe bedroom (and A said she was thrown onto the bed before the violation). We doubtthat there is much in the intoxication and small stature points relied upon by the Judge,but on any view of it, the incident exacerbated A's mental condition which was itselfa vulnerability.10 At [22].11 At [20].12 R v AM (CA27/2009), above n 8, at [114].13 At [38].[25] A starting point at three and a half years was, we think, high but not so high asto be out of range for a sentencing judge who saw and heard the evidence from bothsides.14 We conclude that the starting point was available in this case.Result[26] The appeal against conviction is dismissed.[27] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent14 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [39].