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Allegations of Sexual
Abuse |
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A "Rape
shield" was turned on four pack-rape accused and used as a sword, the
lawyer for one of the men has told the Court of Appeal. In Wellington yesterday
lawyer Greg King said the so-called "rape shield" was intended to
protect complainants. It included a ban on
asking about sexual experiences with anyone other than the accused, but it
had been turned around and the prosecutor had used it as a sword against the
four men charged with raping a woman in Mt Maunganui 17 years ago, Mr King
said. Acting for Tauranga
fireman Warren Graham Hales, Mr King said the Crown had put in issue the
complainant's reputation when it asked the jury to consider if she was the
type of woman who would agree to group sex with comparative strangers in a
hut. But the defence could
not play the reputation or character card in return by bringing up
information about the complainant's past, Mr King said. There was material
that could have been "thrown" at the trial. Mr King said lawyers
acting for sex accused knew how hard it had become to defend cases because of
the range of measures aimed at protecting complainants. Where the odds were
stacked against an accused, the rules should be strictly applied, Mr King
said. Hales, 41, raised
several appeal points, including that even having paid nearly $80,000 to
lawyers, his defence was still not clearly put and his instructions were not
followed. Neither did the judge accurately summarise his evidence, that the
others had already finished when he arrived, Mr King said. Hales was jailed for
5<<1/2>> years on charges of rape and abduction resulting from an
incident in early 1989. Mt Maunganui
businessman Peter Mana McNamara, 47, and two men, aged 53 and 48, whose names
are suppressed in the meantime are also appealing against their convictions. McNamara was sentenced
to seven years jail for rape and abduction. The 53-year-old man received
eight years for rape, unlawful sexual connection and abduction and the
48-year-old is serving 8<<1/2>> years on two charges of rape and
one each of unlawful sexual connection and abduction. Paul Mabey, QC, and
Bill Nabney, acting for the two unnamed men, said the jury's decision to
acquit them of having violated the woman with an object, was an inconsistency
that made the guilty verdicts unsafe. The three judges
debated whether it meant the jury thought the woman had lied. The judges put
up alternative theories including a compromise among jurors and giving the
accused the benefit of the doubt in the absence of supporting evidence. But Mr Mabey said if
the woman's detailed evidence was rejected, it could only be because the jury
thought it was a lie. "The evidence was black and white . . . it either
happened or it didn't." McNamara's lawyer,
Bruce Squire, QC, said the trial judge should have told the jury that if it
rejected some of the woman's evidence that could affect whether they believed
the rest of what she said. All four are appealing
against their convictions, and all except Hales have also appealed against
their sentences. The hearing continues
today. |
