RATU v R [2023] NZCA 472

RATU v R [2023] NZCA 472 [29 September 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY PERSONS UNDER THE AGE OF18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA472/2021[2023] NZCA 472BETWEEN RICHARD JUNIOR RATUAppellantAND THE KINGRespondentHearing: 17 February, 17 July and 11 August 2023Court: Katz, Whata and Davison JJCounsel: P I Pati for AppellantZ R Johnston for RespondentJudgment: 29 September 2023 at 9:00 amJUDGMENT OF THE COURTA The application for leave to adduce fresh evidence is declined.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Davison J)Table of ContentsPara NoIntroduction [1]Alleged offending [5]Charge 1 (indecent act on young person) [6]Charge 2 (indecent act on young person) [7]Charge 3 (indecent act on young person) [8]Charge 4 (indecent act on young person) [9]Charge 5 (indecent act on young person) [10]Charge 6 (sexual violation by rape) [11]Trial evidence [13]Ms D's evidence [14]Ms E's evidence [16]The evidence sought to be admitted on appeal [18]Ms A's evidence [18]Ms A's trial evidence [18]Ms A's evidence on appeal [22]Respondent's rebuttal evidence [27]Detective Sergeant Jamieson [29]Detective Sergeant Taylor [33]Ms A's second affidavit [38]Ms C's evidence [43]Submissions [46]The appellant [46]Ms A's affidavits [46]Ms C's affidavit [50]Unreasonable verdict [55]The s 44 ruling of the trial Judge [60]The respondent [63]Approach on Appeal [76]Fresh evidence [77]Discussion [78]Ms A's evidence [78]Ms C's evidence [92]Was the jury's verdict unreasonable, or has there been a miscarriageof justice? [96]Conclusion [97]Result [98]Introduction[1] Mr Ratu (the appellant) appeals his convictions on one charge of sexualviolation by rape,1 and five charges of doing indecent acts on a girl aged between12 and 16 years.2 He was found guilty of the charges by a jury at a trial which washeld in the Manukau District Court in March 2021, and convictions were entered on31 March 2021. On 2 July 2021 he was sentenced by Judge R J Earwaker to 10 years'imprisonment on the sexual violation by rape charge and concurrent sentences of threeyears' imprisonment on each of the indecent act on a young person charges.3[2] Mr Ratu appeals on the grounds that fresh evidence from two witnesses showsthat the verdicts of the jury cannot reasonably be supported and should be quashed.Ms A, the partner of the appellant's son Mr B, gave evidence at his trial and has sincesworn an affidavit stating that her trial evidence on an important issue was incorrect.The second witness, Ms C, is a cousin of the appellant who was not called as a witnessat trial. She has sworn an affidavit stating that she was present on an occasion whenthe complainant said she was indecently assaulted by the appellant. She says that shedid not see the appellant behaving in the manner the complainant said.[3] The appellant applies for leave to admit the two witnesses' affidavit evidencefor the appeal.[4] The Crown opposes the admission of the affidavits as fresh evidence for theappeal. The Crown says the evidence of the two witnesses is not admissible, andfurthermore, even if admitted does not create a real risk of any different outcome ofthe appellant's trial.The offending[5] The complainant was 14 years old in May 2018 when the first indecent actcommitted against her by the appellant occurred. In May 2018 the appellant wasaged 50.1 Crimes Act 1961, ss 128(1)(a) and 128B. Maximum penalty: 20 years' imprisonment.2 Section 134(3). Maximum penalty: seven years' imprisonment.3 R v Ratu [2021] NZDC 13205 at [33]. The appellant filed an appeal against sentence, butsubsequently filed a notice of abandonment for that appeal, dated 1 February 2023.Charge 1 (indecent act on young person)[6] On 19 May 2018 the appellant and complainant, together with a number oftheir family members, were staying the night at a marae. After the family groupreturned to the marae the appellant was drinking alcohol. The complainant said thatthat evening dinner was served at a large table in the marae. She said that while shewas seated at the dinner table on a bench with other family members the appellant satbeside her and put his hand on her leg before slowly sliding it up towards her innerthigh. She said she was wearing baggy shorts and the appellant's hand went up underher shorts. The complainant said that she pushed the appellant's hand away, and toldhim stop. She said that the appellant's response was to say "okay I'm sorry".Charge 2 (indecent act on young person)[7] That same evening the complainant said that she got up and went to get somedessert, returned to the dinner table where she had been sitting, and the appellant whohad also left the table returned to sit beside her. She said that he again touched her onher leg with his hand. She said that on this occasion his hand on her leg was moreforceful than the first time, and it was harder for her to push it away. She said that shetold him to stop, that she did not want him to touch her, and that he was drunk. Shesaid that his arms were big and she found it hard to push his hand away and off her.She said that when she was pushing his hand away, her movements made the dinnertable shake and the appellant stopped touching her. The complainant said that whilethis was taking place one of her cousins, Ms D, who was 15 years old, was standingbehind her and commented to the complainant that she had seen what the appellanthad done.Charge 3 (indecent act on young person)[8] The complainant said that she then moved away from the dinner table, and laterthat same evening was in another part of the marae playing a game of cards with agroup of her younger cousins. They were all lying on mattresses on the floor. Whilethis was taking place the adult members of the family were outside, and there were noadults in the room. The complainant said that the appellant entered the room and wasstanding beside her as she lay on a mattress. He proceeded to rub his foot against herleg, moving from the calves of her legs to her thighs. The complainant described therubbing as "rough and weird". She said that when she turned and saw that it was theappellant touching her, she stood up and went to the bathroom where she startedcrying.Charge 4 (indecent act on young person)[9] The complainant said that after being in the bathroom for a short time shereturned to re-join her cousins playing cards. The complainant said that after she hadreturned to the group, the appellant returned and said that he wanted to join in the cardgame. She said that the appellant then sat and lay down beside her. She said that shewas sitting on the floor and had a pillow on her lap, and while she was dealing out thecards, the appellant put one of his hands on her shirt and her breasts. She said that sheshook him off. The complainant said that to make it appear to the others present thatnothing untoward had taken place, she proceeded to finish the card game that wasunderway. She then stood up and went to the bathroom where she started crying again.She said that when she returned to the marae, she saw that the appellant was asleep.Charge 5 (indecent act on young person)[10] The complainant said "lots of times" between 20 May 2018 and 6 October2018, when she was at the appellant's son's address, the appellant would squeeze orslap her bottom before walking off. She said that the appellant only did this when heand the complainant were alone in the room together.Charge 6 (sexual violation by rape)[11] The complainant said that on an occasion around 6 or 7 October 2018 she wasstaying the night at the appellant's son's residential address, who lived with his partner,Ms A. She was 15 years old at the time. She said she often visited the address andsometimes stayed the night, and when she stayed the night she slept on a mattress inthe lounge. She said that on this particular night she had made her bed in the loungeand after having a shower had got into bed and had fallen asleep. The appellant's son,Mr B, and his partner, Ms A, had gone out to spend the evening at the AucklandCasino, and she had been alone in the house. She said that although the appellant oftenvisited his son and his partner at the address, he was not at the house that night whenshe went to bed. She said sometime later she woke up and saw the appellant standingbeside her, but went back to sleep. She said she then realised that the blanket of herbed was being pulled off her and the appellant proceeded to take off her shorts andunderpants. The complainant said that the appellant told her that everything was okayand not to tell anyone. The complainant said she was scared and that the appellantthen lay on top of her and was trying to put his penis into her vagina. She said whenshe tried to push him away and stop him he became angry. She said the appellant thenforcibly put his penis into her vagina and started "humping [her] and raping [her]".She said that she told him to get off her, but could not say it properly, and when theappellant finished and got off her, she went to the bathroom and realised that she wasbleeding from her vagina which was very sore. She said that when she went to thebathroom she was crying and the appellant told her to shut up. She said that when shereturned from the bathroom the appellant was asleep on the couch.[12] Later, when Mr B and Ms A arrived home from their visit to theAuckland Casino, the complainant asked Mr B if he would stay with her and sleep inthe lounge, which he did.Trial evidence[13] We provide a brief summary of the evidence of two Crown witnesses to providethe context and relevance of the affidavit evidence the appellant seeks to haveadmitted.Ms D's evidence[14] Ms D is a cousin and close friend of the complainant. She was 17 years old atthe time of the appellant's trial. Ms D said that she was present at the marae on theoccasion when the family had gathered. She gave evidence that everyone ate togetherat the same time seated around the table. She said she did not notice anythinghappening to the complainant during dinner, but said she saw her get up and go to thebathroom. She said that she saw the appellant enter the wharenui where the youngmembers of the family had gathered one or two hours after dinner. She said he was"walking very funny" and appeared to be drunk. She said he walked over to wherethe group were playing cards and sat down beside the complainant. She said that shesaw the appellant trying to put his hands "by her private part" through the blanket.[15] Ms D said that when this happened she saw the complainant's whole facechange, but she just stayed there. After the appellant had left the room and returnedshe said that she could see him standing where the complainant's legs were as she waslying down and that he was playing with her feet with his feet. Ms D said that thecomplainant then ran into the wharekai where dinner had been served earlier, and shefollowed her to see if she was alright. She said that the complainant disclosed to herthat the appellant had touched her when they were playing cards and that she wasupset.Ms E's evidence[16] Ms E is Ms D's younger sister who was around 12 or 13 years old at the timeof the events she described in her evidence. She said that she was present in the maraeon the occasion when she and several of her cousins, including the complainant, weresitting or lying on the mattresses on the floor and playing cards. She gave evidencethat around 10 to 15 minutes after they had started playing cards she had noticed theappellant come into the room. She said she saw him placing his hand on thecomplainant's upper chest and "then rolling it down to her waist and stuff". She gaveevidence that he did this for around 10 seconds, and in response the complainantgrabbed a pillow and placed it where he was touching her, after which the appellantstarted laughing and then put his hand by her thighs, trying to push his hands into thepillow.[17] Ms E said that at that point the complainant walked out of the room and wentto the toilet. She said that she could see that the complainant was uncomfortable andso she ran after her and asked her if she was alright. She said that the complainant"just looked frightened" and told her not to say anything.The evidence sought to be admitted on appealMs A's evidenceMs A's trial evidence[18] As we have noted, Ms A is the partner of the appellant's son, Mr B. They resideat the address where the complainant gave evidence that she was raped by theappellant.[19] Ms A made a written statement to the police on 8 May 2019, and was called asa prosecution witness at the appellant's trial. She gave evidence that on1 January 2019 she and Mr B were at a family gathering when she overheard thecomplainant talking to some of the other girls present. Ms A said that as a result ofwhat she overheard she spoke to Mr B, and he then spoke privately with thecomplainant. She said that after Mr B had spoken to the complainant he told Ms Athat they had to go and speak to the appellant immediately. Ms A said that she and thecomplainant left the family gathering and were driven by Mr B to the appellant'sresidence. She said that Mr B was in a state of "rage" on the way to the appellant'shouse, and the complainant was trying to get her to stop Mr B from confronting hisfather. She said that when they were nearly at the appellant's residence, Mr B shoutedat the complainant, saying that she should tell Ms A what she had told him. Ms A'sevidence at trial was that the complainant disclosed to her that the appellant "touched[her]" and when she asked how, the complainant responded "[h]e put it in". Ms A saidthat was all the complainant had said.[20] Ms A was not cross-examined by the appellant's trial counsel regarding whatshe said the complainant had said to her in the car.[21] Ms A's evidence about what the complainant said to her in the car while beingdriven by Mr B to the appellant's residence was consistent with the statement she madeto the police on 8 May 2019, in which she said:When we got to [the appellant's address] [Mr B] said to [the complainant],"You better tell her or else I will." That's when [the complainant] said,"[The appellant] touched me." I clarified, "What do you mean touched you?"[The complainant] replied, "He put it in me."Ms A's evidence on appeal[22] In her affidavit sworn on 12 January 2022 which the appellant seeks to haveadmitted as fresh evidence, Ms A said that she was at her home on the night that thecomplainant says she was raped, but at a time after the complainant said it occurred.Referring to the conversation in the car on 1 January 2019 she states:When I was in the car, this was the first time that I had been told about therape. My partner was very angry and was telling the victim to tell me exactlywhat had happened.She was reluctant at first, but my partner told her to tell me otherwise he wouldtell me himself. She then said that the appellant had "put it in [her]". I immediately started to think what exactly did she mean because abuse canmean a lot of things.She then went on to say that the appellant had raped her by putting his penisin her rear end or more accurately her "bum". She then said it was bleedingafter it happened.I tried to ask her more details about what happened because I did not knowwhether to believe her or not.I remember when meeting with the police that I did say this about the victimsaying that she was raped in her rear end. However in my statement that I hadsigned it does not have this detail in it. All it says is that I said that the victimtold me that the appellant put his penis in her without any other detail.If I knew that this was the case earlier I would have told the police about thiserror. As I've said earlier, at the time when I signed my statement I did notread it properly before I signed it.[23] The respondent required Ms A for cross-examination at the hearing of theappeal. Ms A confirmed that the complainant responded to her question aboutwhat she meant by her statement that the appellant had "put it in [her]" by saying that"he put it in her bum".[24] Ms A said that when she was making her statement to the police, theinterviewing officer Detective Sergeant Mark Jamieson was typing the statement andduring this process, at her request, he made a number of amendments and producedseveral printed versions which were further amended before she signed what becamethe final version. The cross-examination transcript states:Counsel: Obviously you got asked about the rape allegation with[the appellant] and the complainant.Ms A: Hmm Hmm.Counsel: Can you remember when he was asking you questions around that,whether that was the time when he needed to correct what he had typed downat all?Ms A: Can't remember the time but after about the third time he had writtenit and I went back to the same spot, I said to him he still hadn't put it down.And then the fourth time he wrote it, it was there, but when I signed it, andthen when I seen it in court, when I had to stand, I told that pakeha cop straightaway there was something missing from there.Counsel: Well, can I ask you this then, did you read the final version of thestatement before you signed it after 12.00 o'clock?Ms A: I think I did, I'm not sure. I think I just roughly did it because I wasover it by then and just kind of signed because I had had enough.Counsel: So, when you say "I roughly read [i]t", can you expand on what youmean by that in terms of understanding everything that was typed out, please?Ms A: So, I kinda just went through hard and fast, signed it then left.[25] She said that when she went to Court to give evidence at the appellant's trialshe told the police officer who gave her a copy of her statement to read that somethingwas missing from it. She said in response to questions:Counsel: Now at court you've said to the other lawyer that there was aconversation between you and the officer about your statement. I just want tobe very clear again. Are you saying that that was the only time you had readthe statement you had signed since that day that you originally signed it?Ms A: Yes, that's correct....Counsel: Sorry, what was said between the two of you – you had said to theother lawyer about things not being right in the statement?Ms A: When we came into court, I said to him there was a piece missing andthe piece missing was about [the complainant] saying that [the appellant] had"put it in her bum". And then he told me that's irrelevant to the court case.It's the Crown versus [the appellant] and at the moment you're on the Crownand I said but that's not right.[26] Ms A's cross-examination evidence was therefore to the effect that:(a) she told the interviewing officer that on 1 January 2019 the complainanthad told her that the appellant had anally raped her but that the policeofficer had not recorded that in the typewritten statement;(b) after arriving at Court and shortly before she gave evidence at trial shewas given a copy of her statement to read and told the police that therewas a piece missing; and(c) the police officer responded that she was a witness on the Crown side,and so when she gave evidence she did not mention that thecomplainant had said that she had been anally raped by the appellant.Explaining why she did not mention in her evidence being told by thecomplainant that she had been anally raped she said, "[t]hey didn't ask me".Ms A accepted that despite the outcome of the trial and the appellant beingsentenced to imprisonment, the first time that she had mentioned in her swornevidence that the complainant had told her that the appellant had anally rapedher was when she swore her affidavit for the current appeal.Respondent's rebuttal evidence[27] Ms A's evidence regarding telling a police officer that there was "a piecemissing" from her statement only emerged in the course of her evidence at the hearingof this appeal and had not been referred to in her affidavit. Therefore, we adjournedthe appeal to enable the Crown counsel to take instructions, and we granted leave tothe respondent to file affidavits in reply by the police officers referred to by Ms A.[28] The respondent subsequently filed affidavits by Detective SergeantsJamieson,4 and Taylor.5 Detective Sergeant Jamieson interviewed Ms A at theManukau Police Station on 8 May 2019 and prepared her witness statement which shehad signed at the conclusion of the interview. Detective Sergeant Taylor was the policeofficer who spoke to Ms A at the Manukau District Court shortly before she gaveevidence at the appellant's trial.4 Sworn 8 March 2023.5 Sworn 9 March 2023.Detective Sergeant Jamieson[29] In his affidavit Detective Sergeant Jamieson said that the interviewing processwith Ms A included asking her questions and typing her answers in the form of anarrative statement. He said that had Ms A disclosed an allegation that the appellanthad put his penis inside the complainant's "bum" or "rear end", he would haverecorded that information in Ms A's statement. He said that when the statement wasconcluded he printed off a hard copy and gave it to Ms A to read. He said that Ms Aappeared to take time to read each page of the statement to herself, before writing herinitials on each page, and signing and endorsing it as accurate.[30] Detective Sergeant Jamieson denied Ms A's claim that when she questionedthe accuracy of an aspect of her police statement, he had responded: "Well, this is whatwe're going to go off because they were against my father in law." He said that if anyerrors or corrections were requested to be made by Ms A, he would have made thembefore giving the statement to her to read. Regarding Ms A's claim that he had had tomake changes to her statement four or five times, Detective Sergeant Jamieson saidthat while it would not be unusual for a statement to have amendments made to it, hedoubted that he would have made that number of changes. He said however thathaving given Ms A a hard copy of her statement to read, had any changes beennecessary he would have made them immediately.[31] When cross-examined Detective Sergeant Jamieson said that on 8 May 2019,after he had finished preparing her statement, Ms A had not asked him whether shecould go away and think about it before signing it. He said that unless a witness madesuch a request his practice was to give them their statement to read, make anyappropriate changes they requested, and have them sign it. Detective SergeantJamieson firmly denied that Ms A had complained about the way he had writtensomething at any time during the preparation of her statement, or that he had told herthat he was not going to change what he had written. He also said that he did not recallMs A appearing "hōhā" during the taking of her statement, and said he was"100 per cent" sure that she had not told him at any stage that the complainant hadtold her that the appellant had put his penis in her "bum". He said: and I spent the better part of three hours with [Ms A] taking a detailedstatement from her. If something like that had been raised, I would have madethose changes and I know for a fact that was not raised at all.[32] Detective Sergeant Jamieson also denied Ms A's claim that at one stage duringthe process of preparing her statement he had amended it to include her account of thecomplainant telling her that the appellant had put his penis in her "bum", but that hehad subsequently removed that detail from her statement.Detective Sergeant Taylor[33] In his affidavit Detective Sergeant Taylor explained his responsibilities asofficer in charge of the investigation. He was not present in the interview room duringMs A's police interview.[34] Detective Sergeant Taylor said that on 25 February 2021 when he served Mr Band Ms A with their summons requiring their attendance at the trial, Ms A told himthat due to personal matters she was not in a state to deal with the witness summonsand trial issues, and that she would not be appearing in court. Detective SergeantTaylor explained:I did not provide the statements to either [Ms A] or [Mr B] that I had broughtto the address with me. This was due to what [Ms A] had told me, that shewould not be appearing in court, and the hostility I was receiving at theaddress. I left a short time later.[35] Detective Sergeant Taylor said that during the week prior to the trial he wasnotified that Ms A had attended the public counter of the Manukau Police Station andrequested to withdraw the statement she had made to police, saying that she was goingthrough personal issues and did not want to have any further involvement with thematter. Detective Sergeant Taylor said that on 16 March 2023 he sent Ms A an emailadvising that the prosecution considered her and Mr B's evidence to be essential andthat the prosecution had applied to the Court for a summons requiring them both toattend. He said that he did not receive a reply to his email.[36] The trial commenced on 22 March 2023, and after neither Ms A nor Mr Battended the Court as required, the Crown applied for the issue of warrants for theirarrest. Detective Sergeant Taylor said that enquiries by the police on 23 and 24 March2023 to locate Ms A and Mr B proved unsuccessful, and on the morning of 25 March,he had still not heard from them or located them. At around 10.00 am on 25 MarchMs A and Mr B unexpectedly arrived at the Manukau District Court.Detective Sergeant Taylor describes what then happened:The Court adjourned and I went out and greeted them. I then took them intoa breakout room at court.In the breakout room, I provided them both a copy of their statements to read.The adjournment in court, using the times listed in the notes of evidence, was16 minutes. The court adjourned at 10:15 am. Court resumed at 10:31 am.I explained to [Ms A] that she would be the first witness to give evidence incourt. I explained the process of swearing or affirming prior to givingevidence. I explained the prosecutor will ask questions first, followed by thedefence lawyer.I explained that the prosecutor would ask questions in relation to the statementshe had just read. I asked if there were any questions she had about herstatement or in relation to giving evidence. [Ms A] confirmed that she had noquestions.[Ms A] did not at any stage mention there was a piece missing from herstatement, nor did she say to me anything [to the effect] that [the appellant]had "put it in her bum". This is incorrect.If a witness would have said something was missing from her statement,I would have recorded this in my notebook, the changes to their statement.I would have raised this with the prosecutor and asked for further time todocument these changes prior to court.In response to [Ms A] stating that I told her; "that's irrelevant to the court case.It's the Crown versus [the appellant] and at the moment you're on the Crownand I said but that's not right". This is incorrect. This conversation never tookplace between us.[37] In cross-examination Detective Sergeant Taylor denied each of the allegationsmade against him by Ms A.Ms A's second affidavit[38] Ms A replied to the affidavits of the two police officers in a second affidavitdated 7 April 2023. She said that only a small part of her interview withDetective Sergeant Jamieson concerned the conversation she had with the complainantabout what the appellant had done to the complainant. She said that she is adamantthat she told Detective Sergeant Jamieson that the complainant told her that theappellant had "put it in her bum", and said that she is unsure why the Detective didnot make a record of this conversation in her statement. She said:When [Detective Sergeant Jamieson] eventually handed me a copy of mystatement to read over and sign, I remember I had to ask him numerous timesto change words in the statement. I asked [him] to change the wording of thestatement as I believed that it did not sound like me, and felt as though it wastrying to portray me as someone I am not. I was also unhappy with thestatement because [he] was using language that I would not use, as if he wastrying to mould my words. I think [his] use of language was a means of tryingto sum up what I had said, as opposed to recounting the details.I recall that I had to request [him] to make changes to the statement at leastthree times. By the time I read the third hard-copy statement, I decided justto sign it as I was becoming more impatient and [hōhā], the longer theinterview proceeded. I signed the statement so that I could leave the PoliceStation.[39] Ms A said that: prior to the trial she went to try to retract her statement andgave her email address for the officers to contact her; shortly before the trial date,when she was extremely upset due to a recent bereavement, she was visited at herhome by Detective Sergeant Taylor; and she explained the circumstances to theDetective who replied that she had to attend the court or she would be arrested.[40] Describing the day on which she gave evidence at the trial Ms A says:On the morning in which I was called as a witness, I went to Court. I was with[Mr B] and we were taken to a room in the Court. I had what felt like fiveminutes to briefly skim-read my statement just before I gave evidence. Thiswas the first time I had seen my statement since I had signed it. It was me,[Mr B] and [Detective Sergeant Taylor] in the room. We were not in there forlong before I had to go into Court and give evidence.While in the room, I was talking to [Detective Sergeant Taylor] about myconcerns with the statement. I am certain that I did raise the fact that [thecomplainant] had said that "he put it in the bum" in my original interview. Hesaid that we are not here about that. My response to him was like "What thehell?" and he said that that's irrelevant. He then said something like "It's theCrown versus [the appellant] and [you are] standing for the Crown", I thensaid "I'm not with the Crown, I'm not with anyone."I had then told him that there were a number of [other] problems with thestatement, there were things about [Mr B] and [the complainant] that werewrong. He told me that this was irrelevant and had been pushed out by theCrown. It was no longer part of the case.[41] As Ms A was unable to attend the hearing on 17 July 2023 to be cross-examinedon her second affidavit, the appeal was adjourned and resumed on 11 August 2023.Under cross-examination by Ms Johnston for the Crown, Ms A was asked why she hadnot said anything about the complainant telling her that the appellant had put his penisin the complainant's "bum" at the trial. She said she hadn't mentioned it, "cause theydidn't ask [about] that part".[42] In relation to her police statement, Ms A said under cross-examination that shetold Detective Sergeant Jamieson a number of times that the complainant had told herthat the appellant had put his penis in her "bum". She said the fourth time she raisedit the Detective wrote it in her statement and that it was there when she signed it.Therefore, her evidence was that the comment was removed at some time after shesigned the statement. When Ms A came to Court she said she had a brief chance toread the statement and went to that section first:Counsel: Why was that?Ms A: Because that was one thing that I knew she had told me and then whenI had a look it wasn't in there.Counsel: And did you know at that time, the day of the trial, what it was that[the complainant] had said to police about what had happened?Ms A: No, I had no information of what she had told them.Counsel: But at that time what she had said to you about where[the appellant's] penis went was significant?Ms A: Yes, because that was the one thing that stood out to me.Counsel: And I think that you said in your second affidavit, "I knew theimportance of these comments to the case", do you stand by that?Ms A: Yes, I do.Counsel: And you knew that at the time of trial?Ms A: Yes.Ms C's evidence[43] The appellant also seeks to have the affidavit of Ms C admitted as freshevidence on the appeal.[44] Ms C was 13 years old when she swore her affidavit in December 2021. Shesaid that she was one of the young people present in the wharenui of the marae playingcards (at the time the events giving rise to charge 4 were said to have occurred). Ms Csaid that she remembers the appellant coming into the wharenui during the card gameand asking if he could join in. She said that the appellant looked like he had beendrinking because he was louder than anyone else and appeared happy. She said thatshe watched the complainant and the appellant the "whole time they were playing and[she] did not see anyone get up to leave at any time". She said she then saw them go"to their beds".[45] Ms C said that she was told about the appellant's trial and what it was about,but she did not think that it was "a kid's job to come forward and talk about things tothe Court for an adult". She said that her older siblings did not want to talk to anyoneabout the case and that she had told her mother that she did not either. She said thatwhen she found out that the appellant had been found guilty of the charges, she spoketo her mother and a lawyer about what she had seen.SubmissionsThe appellantMs A's affidavits[46] Mr Pati acknowledges that Ms A's evidence about what the complainant toldher and which was not included in her police statement, was evidence which waspotentially available at trial. Mr Pati submits however that it was incumbent onDetective Sergeant Jamieson as the interviewing police officer to clarify the matterwith Ms A and to accurately record what she said she had been told. Mr Pati submitsthat because of the way in which Ms A's police interview was conducted, thecomplainant's statement to her was not available to be utilised by defence counsel atthe trial. Therefore, the apparent contradiction between the statement to Ms A to theeffect she had been anally raped, and the complainant's trial evidence that she wasvaginally raped, could not be put to her.[47] Mr Pati submits that had the contradiction between the two differing accountsgiven by the complainant been put to her at the trial, the jury would then have beenable to make a better informed assessment of the respective veracity of thecomplainant and the appellant. He submits that Ms A's failure to give evidence at theappellant's trial regarding what the complainant had told her about having been anallyraped, can be explained by her ignorance "regarding the use of ambiguity at trial". Hesubmits that there is no evidence to show that Ms A's further evidence is the result ofany coercion or pressure being applied on her.[48] Mr Pati notes that Ms A's affidavit evidence, if admitted, is still inculpatory ofthe appellant. He submits that this is not a case of a witness seeking to recant herevidence given at trial, but rather Ms A seeking to clarify an important aspect of herevidence. And he notes that the only other person present in the car when the statementwas made by the complainant was Mr B who, according to the evidence, was in a veryangry state at the time and unlikely to recall the conversation clearly.[49] Mr Pati says regardless of whether the evidence is fresh it should be admittedbecause it is credible and not admitting it risks a miscarriage of justice occurring.Mr Pati submits that its introduction at trial would have significantly strengthened thedefence case. He submits that had the jury heard evidence that the complainant hadsaid she had been anally raped by the appellant the jury may have come to a differentconclusion on the charges because of the effect the evidence would have had on thecomplainant's credibility.Ms C's affidavit[50] Mr Pati submits that Ms C's evidence is of significance because although shedid not participate in the card game she was present and had a clear view of the gamebeing played from start to finish. Ms C therefore had an undistracted view of events.He submits that in the context of the conflicting evidence about what occurred , Ms C'sevidence would provide a jury with another account of the card game and the actionsof those involved.[51] Mr Pati notes that in her evidential police interview statement which wasproduced and played to the jury as her evidence-in-chief the complainant said that shehad left the card game to go to the toilet twice. She said she did so once after theappellant had been touching her leg up her calves right up to her thighs, and again afterhe had touched her around her chest and breasts. Mr Pati further notes that Ms E, oneof the other girls involved in the card game, gave evidence that she had been sittingbeside the complainant during the game and that the complainant left the game to goto the toilet only once after Ms E had observed the appellant touching the complainanton her upper chest and putting his hand by her thighs. Ms E said that she had followedthe complainant to the toilet and spoke to her there about what had happened. Mr Patisays that the significance of that evidence is that the complainant herself did notmention Ms E following her to the toilet.[52] Mr Pati also notes that Ms D, who had participated in the card game, gaveevidence that she observed the appellant "trying to put his hands by[the complainant's] private part through the blanket". Ms D said that when thishappened she saw the complainant's whole face change but the complainant stayedthere and did not do anything. Ms D said that after she observed the appellant touchingthe complainant's feet with his feet the complainant ran out of the room and shefollowed her into the wharekai to see whether she was alright. Therefore, Mr Patisubmits that Ms D's evidence contradicts the complainant's account of having gone tothe bathroom twice during the game.[53] Having regard to the differences in the accounts of these two witnesses and thecomplainant's evidence, Mr Pati submits that the Crown witnesses do not present aclear and consistent narrative. He notes that none of the other young people presentduring the card game and who were called to give evidence by the defence said thatthe complainant had left the card game to go to the toilet at any stage. And he submitsthat the inconsistent evidence of those prosecution witnesses is further contradicted byMs C's affidavit evidence in which she says that the complainant did not leave the cardgame at any stage.[54] Mr Pati submits that the complainant's evidence that she went to the toilettwice, each time immediately after she says the appellant had indecently touched her,is a crucial aspect of her version of events. He submits that the inconsistenciesbetween the evidence of the complainant and the Crown witnesses and the defencewitnesses and Ms C, are of significance and go directly to the veracity of the Crownwitnesses. He says that if Ms C's evidence had been before the jury at trial, noreasonable jury could have reached a guilty verdict.Unreasonable verdict[55] Mr Pati submits that having regard to what he terms the extremely concerningdiscrepancies between the complainant's evidence and the evidence of both the Crownand defence witnesses the verdicts of the jury were unreasonable.[56] He identifies discrepancies relating to the night when the complainant reportedshe was raped as being:(a) The complainant's evidence that she first disclosed the rape when shespoke to Mr B on New Year's Day 2019. Ms E said that thecomplainant had told her about the rape on a different and earlieroccasion.(b) The complainant gave evidence that the appellant was not at the housewhen she went to bed and fell asleep, and later woke to find theappellant standing beside her. However, Ms E's evidence was that thecomplainant had told her she had been in the shower when the appellanthad arrived at the house. On Ms E's account, the complainant had seenhim when he arrived and after her shower she had made her bed on thelounge and gone to sleep, before being woken by the appellant rapingher.(c) Ms A and Mr B gave evidence that the complainant was asleep in thelounge when they arrived back home after their night at the casino.They said that the appellant was sitting in the lounge and that thecomplainant did not wake up or speak to them. However although inher evidential police interview the complainant said she was pretendingto be asleep when they arrived home, in her trial evidence she said thatwhen Ms A and Mr B arrived home from the casino she heard their carcome down the driveway and when they came inside she spoke to themand asked Mr B if he would also sleep in the lounge, which he agreedto do.[57] Mr Pati also identifies a number of other discrepancies between thecomplainant's evidence and other evidence, including:(a) As regards the complainant's evidence that the appellant touched herwhile she was seated at the dinner table and Ms D followed her whenshe left the table and went to the toilet, in her evidence Ms D said thatshe did not see anything untoward happen at the dinner table and hasno recollection of following the complainant to the toilet to console her.(b) The complainant told the police in her evidential video interview thatwhen the appellant touched her with his foot he was standing beside heras she was laying on the mattress on the floor playing cards, while attrial she said that this happened while they were both sitting. However,under cross-examination the complainant said that the appellant hadbeen standing up and then he lay down, on his side with his feet facingher, and she was sitting with her legs crossed.(c) While the complainant did not say that the appellant touched her in thearea of her vagina or below the waist during the indecent touching inthe wharenui, both Ms D and Ms E said that they observed him doingso.(d) Three other young people who were present while the card game wasbeing played gave evidence that they noticed nothing untoward asregards the appellant's conduct towards the complainant.[58] Mr Pati therefore submits that in every instance where material aspects of thecomplainant's evidence against the appellant could be corroborated by evidence fromother witnesses, her evidence was consistently undermined by the evidence of thoseother witnesses, including Crown witnesses. He submits that the contradictoryevidence of the other witnesses strikes at the heart of the material issues relating to thecharges. Mr Pati submits that there is scarce reliable evidence upon which the jurycould have found that the acts of the appellant at the marae occurred.[59] Mr Pati submits that the jury verdicts were the likely product of irrationalemotion rather than a forensic assessment of the evidence and an application of thestandard of proof of beyond reasonable doubt. Mr Pati submits that if this Courtadmits and accepts the fresh evidence of Ms A and Ms C, it should find that the juryverdicts are unsafe and allow the appeal.The s 44 ruling of the trial Judge[60] Prior to the trial the appellant made an application pursuant to s 44 of theEvidence Act 2006 for permission to question the complainant on her prior sexualexperience. The application related to a number of Facebook messages exchangedbetween the complainant and her cousin in November 2018, in which the complainantappears to refer to having being "touched" by several males, including one referred toin the same way she referred to the appellant.[61] Mr Pati submits that with the admission of the fresh evidence of Ms A, there isa clear contradiction between what the complainant told a witness and what she toldthe police when interviewed. He submits that had the fresh evidence been availablewhen the pre-trial s 44 application was made it would have been a factor that wouldhave greatly assisted the appellant's application.[62] In a ruling delivered on 10 February 2021, Judge Earwaker dismissed theapplication.6 The Judge found that the defence had failed to advance any basis as tohow the evidence would be relevant or suggest a motive for a false complaint.76 R v Ratu [2021] NZDC 2124.7 At [25]–[26].The respondent[63] Ms Johnston submits that Ms A's and Ms C's affidavit evidence should not beadmitted as fresh evidence on the appeal. The respondent submits that the proposedevidence is neither fresh, credible nor cogent.[64] The respondent submits that in substance Ms A's evidence on appeal is arecantation of her trial evidence. Ms Johnston submits that what Ms A now says aboutwhat the complainant told her during their conversation in the car about having beenanally raped does not mean that the evidence that she gave at trial regarding what thecomplainant said to her should be considered as being unreliable. The respondentsubmits that the critical enquiry is whether Ms A's recantation is because her evidenceat trial was either untrue or incorrect, or because other pressures have come to bearupon her leading her to change her evidence about what the complainant said.[65] Ms Johnston notes that Ms A's further evidence relates to what she says shetold the police on 8 May 2019 well prior to the trial. Ms Johnston notes that regardlessof how Ms A's formal written statement was prepared, her evidence at trial was elicitedin response to an open question, to which Ms A responded by saying that her accountof what the complainant said was "[a]ll she said" and then she added, "that was it".The respondent submits that Ms A's trial evidence overtook any error which may havearisen from the way in which her statement was previously recorded by the police, andthere was nothing preventing her from telling the jury what she is now saying that thecomplainant told her in the car. Ms Johnston submits that it is therefore evidence thatcould have been given at trial and it is not fresh evidence.[66] The respondent also submits that Ms A's further evidence lacks credibility. Therespondent disputes Ms A's claim that she told the police that the complainant told herthat the appellant had anally raped her. Ms Johnston says that such an important detailwould have been noted and recorded by the police officer, and that her failure tomention this detail in her trial evidence tells against her credibility on this importantissue.[67] Ms Johnston submits that Ms A's further evidence also lacks cogency, and shenotes that none of the other witnesses gave evidence of the complainant saying thatthe appellant had anally raped her, including Mr B who was present in the car at thetime. Moreover, the complainant herself did not tell the police that she was anallyraped. The respondent submits that the most that can be said regarding the possibleeffect of Ms A's evidence is that it would introduce another inconsistency into thecomplainant's account of what took place, in a case in which although the jury wereinvited to consider a number of inconsistencies in the complainant's evidence, itnevertheless accepted the key parts of her evidence and found him guilty of thecharges.[68] Regarding Ms C's evidence, the respondent acknowledges that Ms C was oneof the young people present at the marae and in the wharenui when the card game wasbeing played. The respondent also notes that her father was a witness called by thedefence at the appellant's trial. The respondent submits that Ms C was available as awitness at the time of the trial and with reasonable diligence her evidence could havebeen presented at trial. The respondent accordingly submits that Ms C's evidence isnot fresh, and should not be admitted for the purposes of the appeal.[69] The respondent also submits that Ms C's evidence does not add anything to theevidence of the other witnesses who gave accounts of what they observed happenedin the wharenui. The Crown notes that Ms C's affidavit was sworn in December 2021,around three years after the events in question. At the time of the offending Ms C was10 years old. The respondent notes that Ms C's evidence is inconsistent with theappellant's evidence that the group moved their game to be close to where his bed waslocated while he played and then moved away again towards the centre of thewharenui, and Ms D's evidence that the card game was moved to be near where hermattress was after the appellant had left the room. However Ms C's evidence isconsistent with Ms E's evidence that the complainant got up and walked out of thewharenui, went to the bathroom and from there went outside to where the adults were;and the appellant's young son's evidence that the card game took place in the maraenext to his father's mattress bed.[70] The respondent therefore submits that Ms C's evidence supports aspects of theevidence given by both the prosecution and defence witnesses, and had it been beforethe jury it could not reasonably have led to a different verdict more favourable to theappellant.[71] In response to the appellant's identification of inconsistencies, the respondentnotes that by the time of the trial the events at the marae were three years in the past.Having regard to that passage of time, the ages of the young witnesses when the eventsoccurred and the nature of memories such inconsistency between their recollectionsare to be expected.[72] At trial the Crown invited the jury to consider that the existence of theinconsistencies was an indication of an absence of collusion between the cousinsregarding their accounts of what they said they saw and what happened. Therespondent notes that these points were repeated by the trial Judge in his summing upto the jury, and he told the jury that it was up to them to assess how much theinconsistencies identified by defence counsel mattered when they were consideringthe main thrust of the prosecution allegations against the appellant. The Judge alsogave the jury a conventional direction about human memory and recall.[73] The respondent submits that despite the defence having identified the existenceof the inconsistencies, the jury found the charges proven beyond reasonable doubt.The respondent submits that even were the fresh evidence to be admitted, it would notmaterially detract from the prosecution case presented at trial and accepted by the juryas having proved the charges to the required standard.[74] Ms Johnston submits that the application under s 44 of the Evidence Act forpermission to refer to the complainant's informal disclosures of sexual offending byother family members was rightly refused by the trial Judge. Ms Johnston says thatthere is no evidence that the complainant was lying about the allegations she madeagainst the appellant, and that the complainant's disclosures in the Facebook messagesshe sent to a relative in which she said that she had been touched by several othermales, is irrelevant to the allegations made against the appellant. Moreover, the freshevidence, if admitted, would not provide any support for the appellant's s 44application.[75] The respondent therefore submits that the appeal should be dismissed.Approach on appeal[76] The Criminal Procedure Act 2011 provides for a right of appeal againstconviction.8 In the case of a jury trial the appellate court must allow the appeal if it issatisfied that having regard to the evidence, the jury's verdict was unreasonable, or ifa miscarriage of justice has occurred for any reason.9 A miscarriage of justice meansany error, irregularity, or occurrence relating to the trial that has created a real risk thatthe outcome of the trial was affected or resulted in an unfair trial, or a trial which wasa nullity.10Fresh evidence[77] The principles for the admissibility of new evidence are settled. Generally,new evidence will need to be credible and fresh.11 The overriding criterion is theinterests of justice.12 In R v Bain this Court explained:13[22] An appellant who wishes the Court to consider evidence not called atthe trial must demonstrate that the new evidence is: (a) sufficiently fresh; and(b) sufficiently credible. Ordinarily if the evidence could, with reasonablediligence, have been called at the trial, it will not qualify as sufficiently fresh.This is not an immutable rule because the overriding criterion is always whatcourse will best serve the interests of justice. On the other hand the Courtcannot overlook the fact that sometimes, for whatever reason, significantevidence is not called when it might have been. The stronger the furtherevidence is from the appellant's point of view, and thus the greater the risk ofa miscarriage of justice if it is not admitted, the more the Court may be inclinedto accept that it is sufficiently fresh, or not insist on that criterion beingfulfilled.8 Criminal Procedure Act 2011, s 229(1).9 Section 232(2)(a) and (c).10 Section 232(4).11 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120]; and R v Bain [2004] 1 NZLR 638 (CA)at [22].12 Lundy v R, above n 11, at [119]; and R v Bain, above n 11, at [22].13 R v Bain, above n 11.DiscussionMs A's evidence[78] Having seen and heard Ms A give evidence and be cross-examined we rejecther account of what she says she told Detective Sergeant Jamieson regarding thecomplainant telling her about being anally raped by the appellant.[79] In reaching that conclusion we note that there are significant inconsistenciesbetween the different accounts given by Ms A regarding this issue. In her first affidavitshe said that she told the police officer of what the complainant had said about being"raped in her rear end" and did not know that her statement did not include this detail.She said had she known that earlier, she would have told the police about this error.[80] This initial evidence can be contrasted with the more detailed version she gavein evidence before us on 17 February 2023. In her evidence on that date, Ms A saidthat she had asked the interviewing officer four or five times to make changes to whathe had typed onto the computer. She said that the police officer had made the changesbut had got the words wrong regarding what she had said about being told by thecomplainant regarding the allegation of anal sex. She said that despite her mentioningthis to the police officer he failed to write it down. Under cross-examination, she saidthat shortly before giving evidence at the appellant's trial she had told the police officerthat there was a piece missing from her statement. However, that matter was notsomething she mentioned in her first affidavit.[81] During re-examination by the appellant's counsel she said that: after about the third time he had written it and I went back to the same spot,I said to him he still hadn't put it down. And then the fourth time he wrote it,it was there, but when I signed it, and then when I [saw] it in court, when Ihad to stand, I told that Pākehā cop straight away there was something missingfrom there.[82] Further on in her re-examination she gave a yet more detailed account of herconversation with the complainant. She said:Counsel: And just so we are all very clear now, what did she actually say toyou when you asked her about what exactly happened?Ms A: So she told me that [the appellant] had touched her. I said to her "whatdo you mean touched?" Because there's many different things to touching.Then she said to me that "he had put it in her". So, I said to her – "wait, whatthe fuck do you mean put it in you?" Then that's when she told me he "put itin her". I said "where, what are you talking about?" And then she said "heput it in his bum – in her bum["].[83] We consider that these differences are a significant internal inconsistency inMs A's evidence. Moreover, her claim to have told Detective Sergeant Taylor thatthere was a "piece missing" immediately before she went into Court to give herevidence is not consistent with the evidence she then gave at the trial in which shefailed to say that the complainant had told her that she had been anally raped.[84] When giving evidence at the appellant's trial Ms A had an opportunity to saythat the complainant had told her about being anally raped by the appellant. If she hadraised the issue of a "missing piece" with Detective Sergeant Taylor only a matter ofminutes before giving her evidence at trial, it is inconceivable that she would not havegiven evidence to that effect when asked by the prosecutor about what the complainanthad said to her. Ms A was asked directly about what the complainant said to her in thecar and she said:Counsel: Okay, and did [the complainant] tell you?Ms A: All she said was: "[the appellant] touched me", and then I said: "How?",and then she said: "He put it in"; that was it.[85] Her evidence that "that was it", is wholly inconsistent with the account she hasgiven in her affidavit and evidence before us that the complainant told her on thatoccasion that she had been anally raped. Furthermore we agree with the respondentthat it is significant that none of the other witnesses to whom the complainant spokeabout the appellant heard her say that she had been anally raped, including Mr B whowas in the car with Ms A and the complainant when Ms A says the statement wasmade.[86] We also note that in her first affidavit Ms A said that if she had known earlierthat the police had made an error by omitting her reference to the anal rape complaint,she would have alerted the police to their error. However, if her account of tellingDetective Sergeant Taylor that there was a piece missing from her statement, shortlybefore she went into Court to give her evidence at the appellant's trial, is a correctaccount of what she actually did, that would have been an occasion on which she hadtold the police about the "error".[87] Ms A elaborated on her first version of what she told Detective SergeantJamieson in her second affidavit, explaining that she was unsure why the Detectivedid not keep a record of the conversation she had had with the complainant that shehad told him.[88] And when giving evidence at the resumed hearing on 11 August 2023, Ms Asaid she had asked Detective Sergeant Jamieson to make "quite a lot of changes" toher statement as it was being prepared, and that he had printed out hard copies of herstatement for her to read, three or four times. She said that she had asked him toinclude her account of being told by the complainant that she had been anally rapedbecause it was not in there from the first version. She said that the fourth time sheraised the matter the police officer amended her statement and she said it was in herstatement when she signed it, but when she went to court to give evidence and readher statement that piece was missing.[89] Ms A's final version of the circumstances in which her police statement wasprepared, markedly conflicts with the version she gave in her first affidavit in whichshe said that the statement she signed did not include her reference to the complainantsaying she had been anally raped.[90] Set against the inconsistent accounts of Ms A, is the evidence ofDetective Sergeants Jamieson and Taylor, who both deny that Ms A ever mentionedthat the complainant had said she had been anally raped. Having heard their evidencewe are satisfied that, had Ms A mentioned that matter to them, they would haverecorded it and brought it to the attention of the prosecutor responsible for conductingthe appellant's trial.[91] Having rejected Ms A's evidence as lacking credibility, we consider that it fallswell short of meeting the criteria for admission as further evidence for the purposes ofthis appeal. Further, her evidence cannot be regarded as being fresh, there having beena clear opportunity for her to give the evidence at trial. We find that the interests ofjustice do not require the admission of her evidence.Ms C's evidence[92] In assessing Ms C's evidence and its significance in relation to the appellant'sdefence at trial, we note that although she says that no-one left the card game at anystage, there was other evidence that the complainant did leave the game and go to thetoilet and the wharekai where she was spoken to separately by two of the girls whohad been present during the card game and was observed by them to be in a distressedstate as a result of what the appellant had just done. One of those witnesses, Ms D,said that the appellant himself left the marae at one point and when he returned heproceeded to stand beside the complainant and was touching her feet with his feetshortly before the complainant got up and went out to the wharekai followed by MsD, who went to see if she was alright.[93] We note that the appellant said in evidence that he only played one card gamein the area where his bed was located in the wharenui, and when the game finished thegroup involved in the game moved away back to the middle of the wharenui. He saidthat neither the complainant nor any of the other participants in the game left at anystage during the game.[94] We consider that Ms C's account and evidence regarding whether any of thoseinvolved in the card game had left at any stage could have been readily obtained bythe appellant and his trial counsel prior to the trial. As someone present in thewharenui during the card game, Ms C's account of what occurred could have beenreadily obtained with the assistance of her parents, and we note that her father wascalled as a defence witness. However, as there was defence evidence, including fromthe appellant, which contradicted the evidence of the complainant and the otherprosecution witnesses regarding whether the complainant and those witnesses had leftthe card game at any stage and had gone to the toilet area, we do not consider thatMs C's evidence would have been of any material significance regarding that issue.The jury clearly accepted the complainant's account of what she said the appellant haddone while she was playing cards as one of the group present in the wharenui, andaccepted that she had left the game on two occasions shortly after the appellant hadindecently touched her. We do not consider the interests of justice require theadmission of the evidence.[95] Our finding that neither Ms A's nor Ms C's evidence is admissible also informsour finding that their evidence would not have affected the Judge's pre-trial s 44 rulingdenying the appellant's application for permission to cross-examine the complainantregarding her sexual history. That ground of appeal necessarily fails as a result.Was the jury's verdict unreasonable, or has there been a miscarriage of justice?[96] On the basis of the jury's acceptance of the complainant's evidence and that ofthe other prosecution witnesses whose evidence provided support for the allegationsshe made against the appellant, there was clearly sufficient evidence to support theverdicts of guilty returned by the jury on all of the charges. We are well satisfied thatthe jury's verdict was not unreasonable despite the inconsistencies that Mr Pati hasraised on appeal. The Crown was able to prove the charges to the requisite standardat trial through the case and evidence it presented, despite the defence havingidentified the existence of inconsistencies in the evidence from the various witnesses.Therefore, this ground of appeal must also fail.Conclusion[97] We accordingly find that the appellant has failed to show that any miscarriageof justice has occurred as a consequence of the jury not hearing Ms A's evidence aboutwhat she says she was told by the complainant. She was asked about that at theappellant's trial, and she gave an account of what the complainant said to her which isconsistent with the complainant's own evidence. We also find that the appellant hasfailed to show that a miscarriage of justice has occurred as a result of the jury nothaving heard the evidence that the appellant says Ms C could have given at his trial.There is no basis upon which to conclude the jury's verdicts were unreasonable or thata miscarriage of justice has occurred in this case.Result[98] The application for leave to adduce fresh evidence is declined.[99] The appeal is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent