MADHUR SHARMA v R [2023] NZSC 34

MADHUR SHARMA v R [2023] NZSC 34 [14 April 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUI O AOTEAROASC 6/2023[2023] NZSC 34BETWEEN MADHUR SHARMAApplicantAND THE KINGRespondentCourt: Glazebrook and O'Regan JJCounsel: N P Chisnall KC and L A Elborough for ApplicantJ E Mildenhall for RespondentJudgment: 14 April 2023JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] Mr Sharma applies for leave to appeal against a judgment of the Court ofAppeal dismissing his appeal against conviction.11 Sharma v R [2022] NZCA 648 (Katz, Mander and Downs JJ) [CA judgment].Background[2] In the District Court, Mr Sharma was found guilty of one charge of sexualviolation by unlawful sexual connection and acquitted on five other charges of sexualviolation against a complainant (M).2[3] The charges were based on the following acts, which allegedly occurred duringthe same sequence of events (while M was highly intoxicated and pretending to beasleep):3(a) Mr Sharma attempted to penetrate M's mouth with his genitalia (chargeone);(b) after this, Mr Sharma removed M's clothing and then digitallypenetrated her vagina (charge five, the charge on which Mr Sharma wasfound guilty) and then raped her (charge two); and(c) following this, he carried her to her bedroom and performed another actof oral sexual violation (charge three), rape (charge four) and a furtheract of digital penetration of her vagina (charge six).[4] After the alleged offending, M underwent a medical examination whichincluded vaginal swabs. Mr Sharma's DNA was later located on these swabs, thoughno trace of seminal fluids was found (the DNA evidence).[5] Mr Sharma initially told police that there had been no sexual activity but in asecond interview stated that there had been consensual sexual activity (he maintainedthis later account at trial).4 There was some variation in M's testimony regarding theorder in which events occurred. She also did not state until trial that Mr Sharma haddigitally penetrated her in the bedroom (charge six).52 Mr Sharma was sentenced in the District Court: R v Sharma [2022] NZDC 5592 (Judge Earwaker)3 CA judgment, above n 1, at [3]–[11].4 At [11].5 At [22].Court of Appeal judgment[6] On appeal, Mr Sharma argued that his conviction on charge five wasunreasonable as it could not be reconciled with the not guilty findings on the othercharges.6[7] The Court of Appeal held that the jury's verdict was not unreasonable.The Court stated that:7apart from charge five, in respect of which there was corroborative DNAevidence, the jury likely considered there were frailties in Ms M's evidencewhich prevented them from being satisfied beyond reasonable doubt on theother charges.[8] This "corroborative" evidence was lacking for the other charges, including therape charges.8 Further, the Court found that the jury might have distinguishedcharge five from charge six (the other act of unlawful digital penetration) becausecharge six was a "late addition to Ms M's narrative raised for the first time at trial, andthe forensic evidence could not assist as to whether that type of act had occurred morethan once".9Applicant's submissions[9] The applicant argues that the Court of Appeal erred in dismissing the appealagainst conviction and that there is a real risk of a miscarriage of justice. Accordingto the applicant, the Court of Appeal failed to recognise that this was an "all ornothing" case, akin to the English case of R v Dhillon where it was held that if the jurywas unsure of guilt on one charge then it could not be sure of guilt on others.10[10] The applicant argues that the DNA evidence was not determinative because theexpert could not distinguish between digital and penile penetration as explanations forhow the DNA was deposited. The applicant argues that (given his admission that hecommitted the actus reus for charges one, three and five), consent or a reasonable6 Criminal Procedure Act 2011, s 232(2)(a).7 CA judgment, above n 1, at [24].8 Though the Court of Appeal does not explicitly state this link, we note that the DNA evidenceshowed no evidence of seminal fluid.9 At [24].10 R v Dhillon [2010] EWCA Crim 1577, [2011] 2 Cr App R 10.belief in consent were the only bases for distinguishing between the charges. As theDNA evidence was only relevant to the actus reus, it could not be rationally relevantto any distinction the jury drew between charge five and the other charges.[11] In addition, the applicant argues that the proposed appeal raises a question ofgeneral or public importance, because it has general significance in relation to the"separate trials" direction given by the trial Judge.11 Specifically, the applicant arguesthat the proposed appeal provides an opportunity to reconcile a tension which heargues exists between the need for a logical basis of differentiation between verdictsand the need to consider distinct charges separately.Respondent's submissions[12] The respondent argues that the leave criteria are not met. The respondentsubmits that this is a factually specific decision which does not have generalimportance. Nor is there a risk of miscarriage of justice. In the respondent'ssubmission, the jury did not place too much emphasis on the DNA evidence. It cannotbe assumed (just because Mr Sharma admitted to performing the actus reus of certainoffences) that consent had to be the determinative issue in the jury's reasoning. Therespondent also argues that it was reasonable for the Court of Appeal to take the"separate trials" direction into consideration, and that it is settled that such directionsare a relevant consideration (particularly in "she said, he said" cases). The respondentsubmits that that the differing verdicts can logically be reconciled on the basis that thejury rejected Mr Sharma's evidence but were unsure the prosecution case was provedon all but charge five.Our assessment[13] The leave criteria are not met.12 The issue is particular to the facts of this case.There is thus no matter of general and public importance. Nor is there a risk of amiscarriage of justice.11 As stated in the CA judgment, above n 1, at [21], the separate trials direction is the "orthodox"direction "on the need to consider each charge separately and to reach separate decisions in relationto each".12 Senior Courts Act 2016, s 74(2).[14] The applicant has not shown the verdicts to be logically irreconcilable. Hisreliance on his admissions ignores the fact that the jury did not have to accept hisevidence, especially as his account had varied between his two police interviews.Nothing raised by the applicant throws doubt on the Court of Appeal's analysis thatthe jury may have felt there was general factual ambiguity, such that only charge five(in the light of the DNA evidence) could be said to have occurred beyond a reasonabledoubt.13 In this case, the DNA evidence provided a rational basis for the jury'sdecision. Dhillon (in which no such evidence existed) can be distinguished. We donot see this as a suitable case to examine the "separate trials" direction (if indeed itneeds reconsideration). This direction was mentioned by the Court of Appeal but wasnot the main reason for the decision.Result[15] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent13 See [5] of this judgment.