NEHO v R [2019] NZCA 537

NEHO v R [2019] NZCA 537 [6 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 AOTEAROACA71/2019[2019] NZCA 537BETWEEN ROBERT MATTI NEHOAppellantAND THE QUEENRespondentHearing: 14 October 2019Court: French, Lang and Mander JJCounsel: R M Lithgow QC for AppellantS K Barr for RespondentJudgment: 6 November 2019 at 9.30 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Neho was tried by a jury in the District Court at Invercargill onseven charges against his partner. The jury acquitted him on six of those charges butfound him guilty of one charge of sexual violation by rape. The trial was presidedover by Judge Mark Callaghan.[2] Mr Neho now appeals his conviction on the ground that there is no rationalexplanation for the different verdicts and therefore having regard to the evidence,the jury's verdict on the single conviction was unreasonable. A second ground ofappeal relating to the Judge's direction on family harm and counter-intuitive evidencewas not pursued at the hearing.The Crown case and the trial[3] The seven charges comprised two sets of alleged offending.[4] The first set concerned alleged physical violence and unlawful detention saidto have occurred between July 2016 and January 2017 when the couple were living inthe North Island.[5] In January 2017, the Family Court made a temporary protection order againstMr Neho. Mr Neho breached the order and in May 2017, the complainant moved toInvercargill. Mr Neho also subsequently moved to Invercargill after having serveda prison sentence for breaching the protection order.[6] It was in Invercargill that the second set of offending was alleged to haveoccurred. It comprised three incidents of alleged sexual offending followingthe complainant undergoing keyhole surgery for appendicitis at Southland Hospital.The three incidents were as follows:(a) an allegation of non-consensual oral sex which the complainant saidoccurred on 13 July 2017 while she was still in hospital recovering fromthe operation;(b) an allegation of penile rape in the hospital shower area on 16 July 2017;and(c) an allegation of anal rape said to have occurred on 20 July 2017 ina hostel after the complainant had been discharged from hospital.[7] It is the second alleged incident — penile rape in the hospital shower area on16 July 2017 — that is the subject of the conviction and hence the appeal.[8] At trial, the defendant denied all charges. He had not given a police statement,nor did he give evidence. The defence theory of the case in respect of all charges wasthat the incidents had simply not occurred, except in relation to the penile rape charge.In relation to that charge, the defence accepted that sexual intercourse had taken placein the hospital shower area but contended it had been consensual and initiated bythe complainant because she was concerned Mr Neho was having sex with otherwomen.[9] The complainant was cross-examined at length. The cross-examinationestablished inconsistencies between the affidavit the complainant swore forthe purposes of the protection order and her evidence in chief relating to the events inthe North Island as well as inconsistencies between her testimony and police records.There was also an inconsistency between the evidence of the complainant that she hadtold a nurse about the oral sex allegation and the evidence of the nurses that this hadnot been reported to any of them.[10] Significantly for present purposes, the complainant was also cross-examinedon text messages she sent to Mr Neho on 16 July 2017 after he had left the hospitalhaving allegedly raped her in the shower area. The text messages containedexpressions of love and also an unsolicited reference that he must be feeling tired"after that quickie".[11] The complainant denied that she had initiated the sexual encounter inthe shower area. Her explanation for the text messages was that they were designedto keep the peace and that she was worried about the safety of the staff and the otherpatients.[12] The verdicts, including the guilty verdict on the penile rape charge, were allunanimous.Argument on appeal[13] On behalf of Mr Neho, Mr Lithgow QC emphasised that the central issue attrial was the credibility of the complainant and that the six acquittals meant the juryhad clearly found the complainant was not credible. The only distinction betweenthe penile rape charge and the other charges was that the defence accepted the act hadoccurred. However, that could not possibly be a rational explanation for a differentverdict. The jury still needed to be sure the complainant had not consented and thatwas something, like each element of the other charges, that depended on the credibilityof the complainant.[14] In Mr Lithgow's submission, if anything the Crown case in relation tothe penile rape charge was the weakest of the seven because of the text messages.At best for the Crown, it was indistinguishable from the other two alleged sexualincidents. All were accompanied by additional violence and all were said to havecaused the complainant pain.[15] The guilty verdict on one incident was, Mr Lithgow said, illogical, perverseand unreasonable. It smacked of the jury wanting to "get [Mr Neho] for somethingbecause they didn't like him". That might, he accepted, be speculation but so too wasthe Crown's attempt to rationalise the outcome of the trial.Analysis[16] The principles relating to appeals based on inconsistent verdicts are wellestablished. As noted in the Supreme Court decision of B (SC12/13) v R:1(a) The obligation to establish inconsistency rests on the personchallenging the conviction.(b) The test for inconsistency is one of logic and reasonableness.1 B (SC12/13) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [68].(c) Where they deliver multiple verdicts which are not capable of logicalreconciliation, juries give some insight into their thought processes.Logically irreconcilable verdicts may indicate that the jury's thinkinghas gone awry in some fundamental way: in particular the jury mayhave acted on a misunderstanding of the law or reached an illegitimatecompromise.(d) In such circumstances, a court may feel it necessary to intervene inorder to ensure that justice is done despite its respect for the jury'sfunction in the criminal process.(e) Courts will be reluctant to reach a conclusion of inconsistency. If thereis some evidence to support the verdict said to be inconsistent,the appellate court will not usurp the jury's function by substituting itsview of the facts for that of the jury.[17] Applying those principles to this case, we are satisfied that the conviction canproperly be sustained.[18] The first point we would make is that Mr Lithgow's submission is premised onthe basis that the jury must have concluded the complainant was a liar and rejected herevidence outright. However, that is not necessarily so. It is possible they consideredwhat she was saying in relation to the other charges was likely to be true or even highlylikely to be true, but they could not be sure. Further, the jury was not obliged to eitheraccept or reject everything the complainant said. They were entitled to accept someaspects and reject others.[19] The second related point is that the shower incident was a stand-alone eventand as the Judge directed, the jury was required to consider the evidence relating tothat event alone. It occurred on a different day and the circumstances were different.[20] We agree with Mr Lithgow that the fact the conduct was accepted as havingtaken place does not of itself provide a rational explanation for the different verdict.However, what does provide a rational explanation is when that difference is combinedwith the following further factors.[21] Unlike the other two sexual abuse allegations, the admitted sexual conductoccurred in a more public area and importantly involved the complainant bending overa basin and so putting direct pressure on her surgical wounds, while her face was intothe tap. The jury may well have concluded she was most unlikely to have agreed tohave done that voluntarily let alone initiated it. There was also evidence on the policerecord that she had told police she was not concerned about Mr Neho having sex withother women, something that was said to police before it was ever suggested to herthat was the reason she initiated the sex in the shower.[22] Another difference is that on the day of the alleged shower rape after Mr Nehohad left the hospital, the complainant told a nurse during a risk assessment that he hadsexually abused her while she was in the hospital.[23] As for the text messages, the complainant's explanation for that apparentinconsistency was supported by the observations of two nursing staff about Mr Neho'sbehaviour towards the complainant. Mr Neho was described as controlling andpossessive. The nurses said that he would follow the complainant everywhere, evento the toilet, standing outside it or sometimes going in. He would even answer forthe complainant when they asked questions about her pain etc. They tried toencourage her to answer for herself. One of them said that the complainant "actedtimid" during her stay in hospital. "[I]t was like she was walking on egg shells around[Mr Neho] the whole time."[24] Also significantly as regards the credibility of the complainant's explanationfor the texts, there was evidence that during the conversation with the nurse on the dayof the alleged shower rape, as well as telling the nurse that Mr Neho had sexuallyabused her in hospital, the complainant also said that he was "good most of the timelike 70 per cent of the times" and that she just needed "to learn to keep her mouthshut."[25] It will be recalled that part of the complainant's explanation for the texts wasa professed concern for the safety of the staff and other patients. That there was reasonto be concerned was supported by other independent evidence. Nursing staff testifiedthat Mr Neho was verbally aggressive towards them, while a security guard describedMr Neho's behaviour to the nurses as intimidating.[26] In light of this supporting evidence, we consider the jury would have been fullyentitled to view the complainant's explanations for the inconsistent text messaging ascompelling and to treat the text messages differently from other inconsistenciesidentified by the defence as raising a doubt in relation to other charges.[27] It follows we do not accept that the different verdicts are an affront to logic andcommon sense or unreasonable as contended by Mr Lithgow. We are satisfied thatappellate intervention is not warranted.Result[28] The appeal is accordingly dismissed.Solicitors:Crown Law Office, Wellington for Respondent