MUKOKO v R [2019] NZCA 568

MUKOKO v R [2019] NZCA 568 [19 November 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 AOTEAROACA241/2019[2019] NZCA 568BETWEEN MUNYARADZI CORNELIUS MUKOKOAppellantAND THE QUEENRespondentHearing: 8 October 2019Court: Cooper, Lang and Mander JJCounsel: P J Davey for AppellantJ E L Carruthers for RespondentJudgment: 19 November 2019 at 2.30 pmJUDGMENT OF THE COURTThe appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Lang J)[1] Mr Mukoko stood trial in the District Court on charges of burglary andindecent assault.1 The jury found him guilty on the burglary charge but not guilty onthe charge of indecent assault.1 This was the second occasion on which Mr Mukoko stood trial on these charges. He was foundguilty at an earlier trial but the convictions were subsequently quashed.[2] On 10 May 2019 Judge Dawson sentenced Mr Mukoko to 14 monthsimprisonment.2 He also ordered Mr Mukoko to pay reparation to the complainant ofhis offending in the sum of $2000.3[3] Mr Mukoko appeals against conviction on the basis that the jury's verdictswere inconsistent and the Judge's directions on the burglary charge were inadequate.He appeals against the reparation order on the basis that the Judge did not have anadequate factual foundation on which to make the order of reparation.Background[4] Both charges were laid as a result of an incident that occurred in the early hoursof 7 February 2016. At approximately 3.30 am on that date the complainant woke upwhen she felt somebody touching her foot as she lay in her bed. She saw a malecrouched down beside her bed with his right arm resting on her bed. The complainantimmediately sat up and told the male to get out of the house.[5] The intruder did not leave immediately. He first walked into the complainant'sbathroom before returning to the bedroom and unlocking the bedroom door. He thenleft the address through the front door.[6] The police arrived at the address a short time later. At the rear of thecomplainant's flat they found an upturned "wheelie bin" placed in a position thatwould enable an intruder to gain access to the balcony outside the complainant'sbedroom. The intruder had then gained entry to the bedroom through a set of Frenchdoors that had been left open. Beside the wheelie bin the police located a pair ofNike sandals.[7] The Crown relied on circumstantial evidence at trial. Mr Mukoko lived in aflat next door to the complainant and had spoken to the police when they arrived inthe early hours of 7 February 2016. The police noticed that his pants were wet,indicating he had been outside a short time earlier. They also discovered Mr Mukoko2 R v Mukoko [2019] NZDC 8887 at [11].3 At [10].had spoken to the complainant on at least two occasions in the past and had learnedshe was living alone.[8] Furthermore, DNA consistent from having come from Mr Mukoko was laterlocated on the door handle the intruder had used in the complainant's bedroom.CCTV footage taken at a supermarket at around 10.30 pm on 6 February 2016 alsodepicted him wearing Nike sandals similar to those found by the wheelie bin outsidethe complainant's address. In addition, Mr Mukoko told the police that he had beenaway from his address at the time of the burglary. Finally, the complainant's generaldescription of the intruder was consistent with that person having been Mr Mukoko.She described him as having black skin and fuzzy short hair.[9] Mr Mukoko defended both charges on the basis that he was not the person whoentered the complainant's bedroom and touched her foot.The appeal against convictionInconsistent verdicts[10] At trial, both counsel told the jury they could safely conclude that the intruder'sact in touching the complainant's foot constituted an indecent assault given thecircumstances in which it occurred. As with the burglary charge, both counselconcentrated in their opening and closing addresses on whether the Crown could provebeyond reasonable doubt that Mr Mukoko was the intruder.[11] On Mr Mukoko's behalf Mr Davey submitted that the two verdicts cannot belogically reconciled given that the only issue the jury was required to decide related tothe identification of the intruder. He contends that, once the jury was left in a state ofreasonable doubt that Mr Mukoko was the person who touched the complainant's foot,they were also bound to find he was not the person who entered the complainant'sbedroom.[12] There is no dispute regarding the principles to be applied in the present context.In B (SC12/2013) v R, the Supreme Court reiterated the principles that apply whenverdicts are challenged on the basis they are inconsistent.4 In that case, speaking forthe majority,5 Arnold J said:6(a) There is a distinction between cases involving legal inconsistency andthose involving factual inconsistency. Legal inconsistency occurswhen two verdicts cannot, as a matter of law, stand together.Examples are where a jury convicts a person of both an attempt tocommit an offence and the completed offence or as the thief and thereceiver of the same property on the same occasion.Factual inconsistency occurs where, given the evidence, two verdictscannot stand together.(b) Factual inconsistency can arise either between verdicts involvingthe same accused or between verdicts involving different personscharged in connection with related events. (c) In relation to factual inconsistency arising from "guilty" and"not guilty" verdicts on a multiple count indictment against onedefendant, the test is one of "logic and reasonableness". As the Courtof Appeal said in R v Irvine:7The question which we must ask ourselves is whetherthe acquittal on count one, in all the circumstances ofthis particular case, renders the verdict of guilty inrespect of count two unsafe, in the sense that noreasonable jury could have arrived at different verdictson the two different counts.(d) Courts are reluctant to conclude that jury verdicts are inconsistent,both because the jury's function must be respected and because thereis general satisfaction with the way juries perform their role. If thereis some evidence to support the verdict said to be inconsistent,an appellate court will not usurp the jury's function by substituting itsview of the facts for that of the jury. (f) The obligation to establish inconsistency rests with the personchallenging the conviction. Where inconsistency is established,the court must make such consequential orders as the justice of the caserequires.8[13] Mr Davey's argument assumes the jury must have been left in a state ofreasonable doubt regarding the identity of the person who touched the complainant'sfoot. We do not accept, however, that this was necessarily the basis for the jury's4 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261.5 Comprising McGrath, Glazebrook and Arnold JJ.6 At [68], referring to MacKenzie v R (1996) 190 CLR 348 at 366–368.7 R v Irvine [1976] 1 NZLR 96 (CA).8 See also R v Pittiman 2006 SCC 9, [2006] 1 SCR 381 at [14].decision on the charge of indecent assault because other explanations are readilyavailable.[14] In particular, it was ultimately for the jury to determine whether the intruder'sact in touching the complainant's foot amounted to an indecent assault. An informalconcession by counsel for the defendant that this was the case could not usurp oroverride the jury's function in determining whether the Crown had proved that elementof the charge beyond reasonable doubt.[15] As Mr Carruthers points out for the Crown, there are several possibleexplanations for the not guilty verdict on the indecent assault charge. The jury mayhave been left unsure exactly how the touching occurred because the complainant gavediffering accounts. This is perhaps not surprising given the fact that the touching issaid to have begun whilst she was still asleep. When the complainant initially spoketo the police shortly after the incident she said there had been skin on skin contact, butat trial she suggested the bed sheet may have been between her foot and the intruder'shand. Another possible explanation is that the jury may not have accepted the touchingwas intentional given the fact that the intruder had entered a darkened room and mayhave been attempting to find his bearings.[16] Regardless of the reasoning process the jury may have employed, we are notsatisfied the two verdicts are logically inconsistent. Although the case for the Crownon the burglary charge was circumstantial, it was nevertheless quite strong for thereasons we have set out above.9 We consider the jury could reasonably have concludedthat Mr Mukoko was the person who entered the complainant's bedroom but couldhave been left in reasonable doubt as to whether he indecently assaulted her.[17] We therefore do not consider the verdict on the burglary charge was renderedunsafe by the not guilty verdict on the charge of indecent assault.The Judge's directions[18] The Judge provided the jury with a question trail in the following terms:9 At [7]–[8] above.Charge 1:Step 1: Are you sure that on or about 7 February 2016 MunyaradziMukoko entered the building at [complainant's address]?If "no", find the defendant "not guilty" of Charge 1.If "yes", go to Step 2.Step 2: Are you sure that Munyaradzi Mukoko had no authority to enterthat building?If "no", find the defendant "not guilty" of Charge 1.If "yes", go to Step 3.Step 3: Are you sure that Munyaradzi Mukoko entered that buildingwith the intention of committing a crime?If "no", find the defendant "not guilty" of Charge 1.If "yes", find the defendant "guilty" of Charge 1.[19] When summing up, the Judge did not provide the jury with directions inrelation to the ingredients of the offence of burglary and he did not go through thequestions in the question trail. The Judge's directions on the burglary charge were asfollows:We will just turn to the question trail, please, and turn to the second page,where it begins with charge 1. As I said to you earlier, these are the variousconstituent parts that make up a charge before a finding of guilt can be found,and we call those the elements of the offence. Each of these questions thatyou are asked to consider deal with an element of the offence and, in charge1, all three of those elements need to be proved beyond reasonable doubtbefore you can come to a finding of guilt. Of course, there are five steps incharge 2.What you need to do is begin at charge 1, step 1, and work your way through.As I said to you before, if on any of the steps before the final step you are notsatisfied, then you would find him not guilty and need to go no further withthe remaining steps. If you are of the view that counsel has not raised an issuewith any of those steps, and they do not appear to be in dispute, you still needto look at that question to satisfy yourself that it is proved beyond reasonabledoubt.[20] The Judge then began summarising the Crown and defence cases onthe burglary charge.[21] We accept Mr Davey's submission that it is generally desirable for a trial Judgeto take the jury through the individual questions in a question trail, particularly whereone or more of them may require some explanation. In the present case, Mr Daveypoints out that the Judge failed to provide the jury with any assistance regarding thethird question in the question trail. This required the Crown to prove the intruderentered the complainant's bedroom with the intention of committing a crime therein.Mr Davey submits the jury were effectively left to speculate regarding this particularissue.[22] In many cases the fact that an intruder has entered a building with intent tocommit a crime will be obvious from what occurs once entry is gained. That is usuallythe case when an intruder steals property after breaking into a building. The presentcase is not so clear cut and we accept it would have been prudent and desirable forthe Judge to have directed the jury that they needed to be sure that, if they concludedMr Mukoko was the person who entered the complainant's bedroom, he did so withthe intent to commit some form of sexual crime therein.[23] We do not consider failure to give this direction has created a miscarriage ofjustice, however, because the Crown case throughout was clearly that the intrudergained entry to the complainant's bedroom with the intention of committing someform of sexual offence against her. Consistent with that in summarising the Crowncase the Judge said:The Crown, in their closing address, say that we know a man scaled the wallto the balcony of [the complainant's] flat, got into her flat and touched herfoot. They say the circumstances of that entering show that it was notauthorised, and that the touching was indecent. [24] The jury must have been aware they were required to find that this was the casein order to answer the third question in the question trail in favour of the Crown.[25] The appeal against conviction fails as a result.The appeal against the order for reparationThe order[26] The Judge did not order a reparation report to be prepared prior to sentencing.A transcript of the discussion between the Judge and counsel at the commencement ofthe sentencing hearing reveals that counsel for the Crown had just provided the Judgewith a bundle of material in support of a submission that he should include an orderfor reparation in the sentence to be imposed. Mr Davey, who also appeared forMr Mukoko in the District Court, had received a copy of the material earlier that day.[27] The material comprised a schedule of expenditure incurred by the complainantwith copies of invoices attached. In large part these related to services provided tothe complainant between February and July 2016. The services comprisedkinesiology, psychological counselling and chiropractic intervention. The schedulesought reimbursement of expenditure totalling $3,351.03.[28] The transcript makes it clear that both the Judge and Mr Davey were havingdifficulty in understanding how some of these claims could form the basis of an orderfor reparation. Counsel for the Crown could not assist other than to say she understoodthe complainant had incurred the expenditure in undertaking holistic forms of therapyfor the trauma she had suffered as a result of the burglary.[29] Mr Davey advised the Judge that Mr Mukoko did not consent to a reparationorder being made, but he recognised that the Judge had the power to make such anorder. He suggested that, if the Judge was minded to make an order, it should not befor more than $1315. This figure represented additional rental the complainant hadbeen required to pay after leaving her flat because she was not prepared to remainthere following the burglary. It also included an allowance for counselling she hadundertaken. Mr Davey advised the Judge his client could pay reparation at the rate of$50 per week.[30] The Judge declined to adopt this approach and ordered Mr Mukoko to payreparation in the sum of $2000. He did not explain how he reached this figure.The appeal[31] Mr Davey accepts that sentencing judges are required to approach the issue ofreparation "in a broad commonsense way, and resort to refined causation arguments isnot to be encouraged".10 He submits, however, that there was no proper evidentialbasis for the Judge to be satisfied that reparation should be ordered in the present case.Matters were also exacerbated by the fact that neither he nor the Judge had any realisticopportunity to assess the validity of the items of expenditure for which reparation wassought.[32] Mr Davey also says Mr Mukoko has now made further enquiries and does notaccept that any order of reparation was appropriate. He therefore invites us to quashthe order and, if necessary, remit the issue to the District Court so that a formalreparation report can be prepared.Decision[33] Section 12(1) of the Sentencing Act 2002 (the Act) provides:12 Reparation(1) If a court is lawfully entitled under Part 2 to impose a sentence ororder of reparation, it must impose it unless it is satisfied thatthe sentence or order would result in undue hardship for the offenderor the dependants of the offender, or that any other specialcircumstances would make it inappropriate.[34] Section 32(1) is contained in Part 2 of the Act. It provides:32 Sentence of reparation(1) A court may impose a sentence of reparation if an offender has,through or by means of an offence of which the offender is convicted,caused a person to suffer—(a) loss of or damage to property; or(b) emotional harm; or(c) loss or damage consequential on any emotional or physicalharm or loss of, or damage to, property.10 Donaldson v R CA227/06, 2 October 2006 at [36].[35] In the present case the Victim Impact Statement makes it clear the offendinghas had very significant and long lasting effects on the complainant. There can be nodoubt she has suffered emotional harm as a result of the burglary and this is notsurprising. It is reflected in the fact that she did not feel able to remain living in herflat following the burglary. This means the Judge had the power under s 32(1)(b) and(c) to order reparation to compensate the victim for both the emotional harm she hadsuffered and any loss or damage consequential on that emotional harm.[36] We accept that it remains unclear whether all of the expenditure set out in theschedule amounts to consequential loss or damage under s 32(1)(c). It seems likely,however, that much of it fell within that description given the proximity of theexpenditure to the date of the burglary. Quite apart from the expenditurethe complainant had incurred, however, the Judge had ample justification for makinga reparation order to compensate the complainant for the emotional harm she hadsuffered. Taking those factors into account, we do not consider the Judge erred inrequiring Mr Mukoko to pay reparation in the sum of $2,000.Result[37] The appeal against conviction and sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent