P v The Queen

• Jurisdiction: New Zealand
• Judge: Courtney J
• Judgment Date: 11 September 2018
• Neutral Citation: [2018] NZCA 361
• Docket Number: CA354/2017
• Court: Court of Appeal
• Date: 11 September 2018

Between

P

Appellant

and

The Queen

Respondent

[2018] NZCA 361

Court:

Gilbert, Courtney and Moore JJ

CA354/2017

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

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”

Counsel:

N P Chisnall and D A Manning for Appellant

J E L Carruthers and H G Max for Respondent

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

• B The appeal against conviction is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Courtney J)

Introduction

1 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.

2 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

3 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.

4 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

5 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

6 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

7 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.

8 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.

9 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 …

10 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 was trying to protect her and stuff so then he jiggled me and then yeah.

Q: Mmm, so was there any part of Mum that Dad did hit when you were trying to protect her?

A: I don't remember.

Q: Mmmhmm, so tell me how Dad jiggled you away, I didn't quite understand what you meant.

A: He was like um like wiggling me and pushing me back at the same time, so basically, um I'll just get something to show you …

Q: Mmmhmm. And was he in front of you or behind you or what when he was doing that?

A: In front of me but then he turned me and um he was going to smack me so I put my hand back.

…

A: So basically he um he went to smack me so, cause he smacks real hard so I put my hand there and he pushed it back.

11 D had also given an EVI on 24 June 2014 and described the incident as follows:

They were, Daddy was being not nice to Mummy and in um in Australia our house, we um we were in my bedroom or the bedroom and then Mummy, Daddy dragged um Mummy into the bathroom and the corner of the bathroom, oh the middle of the wall in the bathroom and um she and my Dad strangled her neck and she pushed her down, she hurt her a lot and in this house, um Dad um was fighting with Mummy and then um my, my big sister [L] was trying to protect Mummy and then Dad um pushed her away and he um slapped her bottom but down, she quickly went like that and then her finger bent back there.

…

I can't remember but um first the thing that I remember is that um they were talking and fighting a lot and then Daddy was being bad to Mummy she was um Dad was slapping her on the face and punching her everywhere and then Dad punched her there on her forehead and she got a big, big, big mark that was purple and brown and stuff.

…

Um, Dad was like that to her and no, Dad went like that was about to slap her and then she quickly went like that and she bent her finger back and she put her arm all the way up there, Dad no he put her, her arm all the way up there, I think he was trying to hurt her more because um it looked like it from me and Mummy looking at Dad hurting her.

12 Under cross-examination D also did not accept the defence proposition that L had been injured as a result of accidentally hitting K's body:

Q: It was when Mum came towards Dad that [L] put her hand out and it...