B (Sc12/2013) v R

JurisdictionNew Zealand
CourtSupreme Court
JudgeElias CJ,McGrath,Glazebrook,Arnold JJ,Arnold J
Judgment Date19 December 2013
Neutral Citation[2013] NZSC 151
Docket NumberSC 12/2013
Date19 December 2013

[2013] NZSC 151



Elias CJ, McGrath, William Young, Glazebrook, and Arnold JJ

SC 12/2013

B (SC12/2013)
The Queen

R M Lithgow QC and N Levy for Appellant

M D Downs and K A L Bicknell for Respondent

Appeal against conviction following jury trial on one count of sexual violation by rape — at the same time appellant was found not guilty of a charge of sexual violation by oral connection arising out of the same incident and concerning the same complainant — appellant said that he had been invited to complainant's house on a pretext and the ensuing sexual activity had been consensual — trial Judge excluded evidence that allegedly showed complainant had previously invited someone to her house on the same pretext and had been wearing nightclothes at the time and that this had made the witness feel uncomfortable — whether proposed evidence was barred by s44(2) (evidence of sexual reputation of complainants in sexual cases) or s44(1) Evidence Act 2006 (evidence of sexual experience of complainants in sexual cases) — whether evidence of sexual disposition could be led at all — whether evidence of previous incident was relevant to defence of consent — whether the two verdicts were inconsistent, making the conviction on the rape charge unsafe.

The issues were: whether the proposed evidence went to the complainant's sexual reputation and was barred by s44(2) EA (evidence of sexual experience of complainants in sexual cases); whether evidence of a complainant's sexual disposition could be led at all; whether the proposed evidence was relevant to the defence of consent; whether the two verdicts were inconsistent, making the conviction on the rape charge unsafe.

Held (per majority): Section 44 largely replicated s23A Evidence Act 1908, New Zealand's original “rape shield” provision enacted in 1977. Rape shield provisions controlled the extent to which complainants in sexual cases might be questioned about their previous sexual history. An important difference between the two sections was that there was an absolute prohibition on leading evidence of sexual reputation under s44(2) whereas under s23A(3)(a), evidence of sexual reputation could be led with the leave of the judge if it was of such direct relevance to a fact in issue that it would be contrary to the interests of justice to exclude it.

Disposition evidence was propensity evidence. Under s40(3)(b) (propensity rule), propensity evidence about a complainant in a sexual case in relation to that person's sexual experience might only be offered in accordance with s44. It was arguable that the effect of s40(3)(b) was that, because sexual disposition was not referred to explicitly in s44, evidence of sexual disposition involving sexual fantasies and such like could not be led at all. Such an outcome seemed consistent with the policy underlying s44 and other rape shield provisions.

Difficulties with s44 EA were that: (a) it referred to sexual experience and sexual reputation, but not sexual disposition (which s23A(3) had done and the equivalent provision in Western Australia still did refer to); and (b) although analytically distinct, the concepts of experience, reputation and disposition might overlap in practice, which might result in problems of application. Legislative clarification was required.

The proposed evidence in this case was not evidence of sexual reputation, falling within the absolute prohibition in s44(2) EA. It was difficult to see how an incident with one person could amount to evidence of sexual reputation (unless it became the foundation for a more widespread belief about the complainant). The only evidence that was arguably suggestive was that the complainant was still wearing her nightie and dressing gown in the middle of the day when the man arrived. There was no evidence that she had said or done anything else that might be regarded as suggestive.

The Judge was right to rule that the proposed evidence was inadmissible for the purpose it was to be used. The fact the complainant had on a previous occasion telephoned one of the patrons at the bar to ask him to come and deal with a mouse problem was potentially relevant in light of B's claim that the complainant had telephoned and asked him to come over and deal with a dead mouse on this occasion. But the evidence was of little or no relevance in fact, given the complainant's acknowledgement in evidence that she did not deal with dead mice herself but asked others to come to her cottage and dispose of them (majority decision).

In minority decisions: (a) Elias CJ considered the evidence was inadmissible under s44(2); and (b) William Young J was of the view that s44 was not engaged but the evidence was not relevant under s7(3) EA (fundamental principle that relevant evidence admissible) so was therefore not admissible.

A jury's verdict would be unreasonable if, “having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty” (R v Owen). The principles relevant to inconsistent verdict arguments were set out in MacKenzie v R (Australia) and R v Pittiman (Canada). The law of New Zealand, like that of Australia, Canada and the United Kingdom, allowed some limited scope for inconsistent verdict appeals, both factual and legal.

The jury clearly rejected B's claim that the complainant consented to the sexual intercourse and, in all probability, also rejected his claim that she consented to the oral sex. Having reached that point, the jury had to consider whether it was a reasonable possibility that B thought, on reasonable grounds, that the complainant was consenting. The jury might well have given B the benefit of the doubt in relation to the oral sex but concluded that by the time he penetrated the complainant, her lack of consent had been manifested unequivocally, both by words and conduct, so that he could not possibly have had a reasonable belief that she was consenting. This was an analysis which was open on the evidence. In light of the evidence therefore the jury's verdicts were not inconsistent.

The Court of Appeal in R v H accepted that apparently inconsistent verdicts could be justified on the basis that they were the result of the jury's innate sense of justice. R v H was an unusual case and when considering inconsistent verdicts lacking any apparent logical explanation, an appellate court should be slow to conclude that the jury were being merciful in acquitting. But that did not mean that a court should never reach that conclusion. There was widespread acknowledgement that juries sometimes applied their innate sense of justice by convicting a defendant on one count and acquitting on another, even though the evidence would support convictions on both. There was a general acceptance that the fact this sometimes happened was, on balance, a beneficial feature of the jury system (the jury acting as the conscience of the community).

The decisive issue in case such as this one was not whether the acquittal was reasonable, but whether the conviction was unreasonable (Pittiman). There was a basis on the evidence for the jury's differing verdicts. However it was accepted that this was one of those relatively rare cases where the jury might have thought that a conviction on the rape count sufficiently captured B's culpability for what was in substance a single sexual interaction of relatively brief duration (majority opinion).

In the absence of necessary inconsistency in the verdicts, the minority opinion of Elias CJ was that there was no basis for speculation that the verdicts represented a compromise.

Appeal dismissed.

The appeal is dismissed.


Elias CJ


McGrath, Glazebrook and Arnold JJ


William Young


Elias CJ

The appellant was convicted after jury trial in the District Court of one count of sexual violation by rape. At the same time he was found not guilty of a charge of sexual violation by oral connection arising out of the same incident and concerning the same complainant. The appellant's appeal to the Court of Appeal was dismissed. 1 He appeals further to this Court on two grounds. First, he says the trial Judge wrongly excluded evidence relevant to his defence of consent. Secondly, he says that the two verdicts were inconsistent, making his conviction on the rape charge unsafe.


The charges arose out of events after the appellant visited the complainant at her home at night. The complainant and the appellant and their respective partners were known to each other. Earlier in the evening both had been drinking at a pub in the small settlement where they both lived.


The complainant left the pub at about 9.30 pm and went home where she changed into her nightwear. She discovered a dead mouse in a trap in the kitchen. The complainant dislikes handling mice and usually asks someone else to do so. She telephoned the pub to try to persuade her daughter, who was there, to come to the house to remove the mouse. The daughter refused. The complainant said that the appellant had then turned up at the house, saying he had come to dispose of the mouse. The appellant said the phone had been passed to him at the pub (the daughter said it was possible, although she could not recall giving the phone to the appellant) and that the complainant had asked him to come to the house to deal with the mouse.


The evidence was that after the appellant had disposed of the mouse, he and the complainant sat outside smoking and then went back into the house and sat on a couch. The complainant said that the appellant pushed her down, took off her underpants and licked her vagina before raping her. The appellant,...

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