P v The Queen

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeCourtney J
Judgment Date11 September 2018
Neutral Citation[2018] NZCA 361
Date11 September 2018
Docket NumberCA354/2017

[2018] NZCA 361




Gilbert, Courtney and Moore JJ


The Queen

N P Chisnall and D A Manning for Appellant

J E L Carruthers and H G Max for Respondent

Criminal — appeal against a High Court conviction for assault — application to adduce expert evidence about memory — appellant was found guilty on one charge of assault and three of breaching a protection order — he was acquitted on four charges of assault — the jury could not reach agreement on the remaining six charges — he was retried and acquitted — whether the guilty verdict on the assault charge was unreasonable — consideration of “relationship evidence”

The Court held the evidence available to the jury in respect of the charges was sufficiently different to explain the different verdicts. K, L and another child all described the assault on L in broadly the same terms. There was no inconsistency in the jury's conclusion regarding the charge and its inability to reach a conclusion on another assault charge.

Memory was usually treated as a jury matter because it was deemed to lie within the experience and understanding of jurors. There was nothing in the proposed evidence, or the factual background that suggested that L's reliability was outside the type of case that juries were routinely asked to assess. The proposed evidence would not be substantially helpful.

In cases of domestic abuse it was helpful, and even necessary, for the jury to have access to evidence that placed the allegations in the context of the family dynamic. Evidence tendered to show P's previous conduct towards K to establish the context in which the offending occurred and to explain the nature of the relationship between the defendant and victim, was sometimes called relationship evidence. Relationship evidence was not propensity evidence in the traditional sense, despite falling within the scope of s40 Evidence Act 2006 (“EA”) (propensity rule) because it did not primarily depend on ideas of linkage and coincidence. It was led for the purpose of informing the jury of the nature of the relationship. The factors in s43(3) EA (Propensity evidence offered by prosecution about defendants) would generally be of less significance in determining the probative value of the evidence than it would be in cases where ideas about linkage and coincidence were relied on. The contested evidence was relationship evidence that gave context to the circumstances in which the allegations were made. Such background information provided important context for the allegations of breaching the protection order. Its probative value was not outweighed by the risk that it would have an unfairly prejudicial effect and was sufficiently connected to the context of the alleged offending that it was not a gratuitous blackening of character.

The application for leave to adduce fresh evidence on appeal was declined. The appeal against conviction was dismissed

  • A The application for leave to adduce fresh evidence on appeal is declined.

  • B The appeal against conviction is dismissed.


(Given by Courtney J)


In March 2016, the appellant stood trial on 14 charges relating to alleged domestic violence. 1 He was found guilty on one charge of assaulting his daughter, L, (charge 7) and three of breaching a protection order. He was acquitted on four charges of assault. The jury could not reach agreement on the remaining six charges, including one of assaulting his wife, K, (charge 6). He was retried in March 2017 and acquitted on the remaining charges.


The appellant appeals the convictions on the grounds that:

  • (a) the guilty verdict on the charge of assaulting L (charge 7) was unreasonable because it was inconsistent both with the jury's inability to reach a verdict on charge 6 at the first trial, and the not guilty verdict at the second trial; 2

  • (b) L was an unreliable witness, which resulted in a miscarriage of justice. 3 The appellant seeks leave to adduce expert evidence about memory to support this ground of appeal; and

  • (c) the trial Judge wrongly allowed inadmissible evidence to be adduced as propensity evidence, which resulted in a miscarriage of justice. 4

First ground of appeal: inconsistent verdicts
Relevant principles

Where no reasonable jury could, on the evidence properly available, have arrived at different verdicts on different counts, a resultant conviction may be regarded as unreasonable and liable to be set aside under s 232(2)(c) of the Criminal Procedure Act 2011. 5 In B (SC12/2013) v R, the Supreme Court, discussing the nature of factual inconsistency (where the verdicts cannot stand on the evidence adduced as opposed to legal inconsistency, where the verdicts cannot, by law, stand together), observed that: 6

In relation to factual inconsistency arising from “guilty” and “not guilty” verdicts on a multiple count indictment against one defendant, the test is one of “logic and reasonableness”. As the Court of Appeal said in R v Irvine: 7

The question which we must ask ourselves is whether the acquittal on count one, in all the circumstances of this particular case, renders the verdict of guilty in respect of count two unsafe, in the sense that no reasonable jury could have arrived at different verdicts on the two different counts.


The Supreme Court also referred to the decision of the Supreme Court of Canada in R v Pittiman, in which the latter said that inconsistent verdicts may be unreasonable “when the evidence on one count is so wound up with the evidence on the other that it is logically inseparable”. 8

Ground of appeal

The appellant relies on two asserted inconsistencies. The first is between the guilty verdict on charge 7 and the failure to reach a verdict on charge 6 at the first trial. This is usually described as an instance of inconsistent outcomes rather than inconsistent verdicts. 9 The concept of inconsistency between a verdict on one charge and a failure to reach a verdict on another has been contemplated as arguable, though has never arisen for serious consideration. 10


The second inconsistency relied on is between the guilty verdict on charge 7 at the first trial and the not guilty verdict on charge 6 at the retrial. We are unaware of any case in which it has been regarded as tenable to assert inconsistency on the basis of verdicts reached at separate trials. To the contrary, this Court has previously expressed doubt about the idea. 11 In any event, this is not a case in which the concept justifies serious consideration because of the important differences between the two trials. In particular, the appellant gave evidence in his own defence at the first trial but elected not to give evidence at the retrial, and the part of L's evidential video interview (EVI) relating to charge 7 was not played at the retrial. For that reason, we intend to approach the issue of inconsistency only by reference to the differences in outcome on charges 6 and 7 at the first trial.

The evidence

The incident that gave rise to charges 6 and 7 occurred on 24 February 2014 at the family home occupied by the appellant, K and their three children. L was the eldest child and aged nine at the time of the incident. One of L's sisters, D, was aged seven at the time. K, L and D all gave evidence about the incident.


K said that the appellant had threatened to kill her and had tried to punch her and was hitting her. He wrestled her to the ground and had the crook of his elbow by her neck. K said this resulted in a big bump on her head. K said that L then intervened to stop the attack. The appellant took L by the shoulders, dragged her away, shaking her as he did so, then:

[H]e put her down in the kitchen and told her to, to – she was stupid and stop getting in the way and grabbed her, her, her arm and put her arm right up the back of – right up her back, all the way up and I was looking. He had it up, right up back up the top of her head, all twisted up the back and he went to hit her with her – his other arm and as he was twisting her hand back up that way his arm came down on her fingers and flicked her fingers all the way back.


L's evidence in chief was given by way of her EVI made on 24 June 2014. She said:

… I can remember that um Dad was hitting Mum and um screaming at her and then um ah I think [E], 12 I think [E] was around, I know she might've been watching TV or something and then [D], I'm not sure where she was but I was there, cause I tried to stop Dad from hitting Mum so I was trying to like protect Mum and stop Dad from hitting Mum so um like putting my hands out and stuff and then he was telling me not to but um I did it cause I wanted Mum to be safe and so um and then he jiggled me back and then um he hurt me and then I could feel my middle finger touching here so it was back and then um then I started holding my hand cause it hurt …


Later in the EVI she was asked to elaborate:

Q: … So what, what hitting was happening before you tried to protect your Mum?

A: Um …

Q: What was happening, what was …

A: Um I dunno just hitting bad hitting and lots of, lots of yelling.

Q: And hitting to what sort of hitting?

A: Think smacking and, just pushing her.

Q: Cause you said you were trying to protect her?

A: Yeah.

Q: What, what did you see happening, just before you were trying to protect her like what were you trying to protect her from happening?

A: Um he was yelling and then I knew he was going to hit her, so I put my hand in front just below her face so, cause um and then um and then yeah so there, so then I was trying to, and then I took my hand away cause um started hitting stuff so I tried to get Mum to go away cause so she doesn't get hurt but she wouldn't but it's um she wouldn't but anyway so yeah and so then I...

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