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Allegations of Sexual
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One of four men convicted
of raping a woman is free on bail after the Court of Appeal overturned his
conviction and ordered a retrial. The court has dismissed
the conviction and sentence appeals of three other men, and reimposed
suppression orders that might identify any of the four. Lawyers for two of
the men were at the court in Wellington on Tuesday to receive the judgments. The lawyer for the man
granted a retrial said the man was pleased for himself but unhappy the other
appeals had been dismissed. The man was freed from jail, where he was serving
a 5 1/2-year sentence on rape and abduction charges, later in the day after
the High Court approved bail terms agreed between the defence and the Crown. A Queen's counsel
acting for another man who is serving seven years said his client was
disappointed but would be considering his options for taking the case
further. The remaining two men
are serving 8 1/2 years and eight years respectively. They were convicted of
the same rape and abduction charges as the first two, but one had an extra
rape and sexual violation charge, and the other an extra sexual violation
charge. The charges resulted
from an incident in 1989 when the men said a woman, then 20, agreed to have
sex with each of them. The woman said she was raped. The Court of Appeal
agreed that, for one of the men, the trial judge had not properly summarised
his defence. The man had said in evidence that he arrived on the scene as the
others were leaving, but the judge referred only to the Crown allegation that
he was within view throughout the incident. The court said a trial
judge had to identify and remind the jury of the defence case. If the judge
failed to refer to a central argument for the defence in his directions
immediately before the jury retired, it would generally result in the
conviction being set aside. "Where the heart of the defence is omitted,
or some distinctive part of it, there is a very real risk that a jury will
infer that the judge is unimpressed with that defence." Defence lawyers argued
that, because two of the men were acquitted of having used an object for
sexual violation, the verdicts were inconsistent and all convictions should
be overturned. It was said the jury must have disbelieved the woman's account
of that part of the incident, so the rest should have been disregarded as
well. The Court of Appeal
said there could be all sorts of valid reasons why a witness might convince a
jury on one charge but not on another. It was not satisfied that a reasonable
jury could not have reached the verdicts that were reached. It also rejected an
argument that the Crown had put the woman's morality in issue by asking if
she was the type of person who would have agreed to what occurred. The
defence complained that, under the rules about cross-examining a rape
complainant, they were unable to ask questions about her "moral
disposition". It rejected an attempt
to take into account new evidence of friendly contact between the woman and
one of the men. The court said the evidence could have been discovered before
the trial, and included an "unfortunate degree of interaction"
between two potential witnesses. |
