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THE QUEEN v MARK PETER HAGEN [2002] NZCA 300 (4 December 2002)

Nature of the appeals

[1] These appeals against conviction and sentence relate to the sexual violation of a young man with the handle of a broom.On the evening of 16 October 2001 a number of senior students at a North Island high school attended a party at the home of one of them whose parents were abroad.Alcohol was obtained and drunk to excess, including by the victim.At about midnight some of his classmates sought to humiliate him by partially shaving off his eyebrows.There is evidence that this caused him much distress.

[2] Later, when the victim was sleeping, some of the students thought it would be amusing to apply a broomstick, smeared with Vicks VapoRub (a pungent embrocation) in the vicinity of the youth's buttocks.A group entered the room where the victim was sleeping and attempted such an assault; but because the victim's pants were not able to be sufficiently removed Vicks was applied only to the cleft of the buttocks.

[3] About half an hour later another, more organised, attempt was made.Roles were assigned.Some students were to turn on the light, others were to hold the victim down and one, a youth named Andrew Castles, was to use the broom. The group went back into the bedroom, the victim was grabbed, held down and his pants drawn off his buttocks.Andrew Castles then pushed the broom handle some 10 centimetres into the victim's rectum, causing him excruciating pain. After a couple of seconds Andrew Castles withdrew the broom when it became obvious to him how painful it was for the victim.The serious consequences for the victim are discussed later in this judgment.

[4] The appellants, Andrew Castles and three others, were subsequently charged with sexual violation and attempted sexual violation.Mr Castles pleaded guilty to each charge and agreed to give evidence for the Crown in the trial of the others.He was sentenced to two years six months imprisonment for sexual violation and one year six months for attempted sexual violation.An application by the Solicitor-General to appeal against those sentences on the grounds of manifest inadequacy was dismissed by this Court R v Castles, CA 105/02, 23 May 2002.

[5] The indictment upon which the Crown proceeded against these appellants and the other three youths contained counts of indecent assault as alternatives to those of sexual violation and attempted sexual violation.Each of the appellants was convicted of sexual violation, for which sentences of two years six months imprisonment were imposed, and of attempted sexual violation, for which there were concurrent sentences of 18 months imprisonment.

Conduct of the trial

[6] The Crown opened its case on the basis that, Mr Castles being the principal offender, each accused was guilty as a party in terms of either subs (1) or (2) of s66 of the Crimes Act 1961 which provides as follows:

66Parties to offences

(1) Every one is a party to and guilty of an offence who--

(a)Actually commits the offence; or

(b)Does or omits an act for the purpose of aiding any person to commit the offence; or

(c)Abets any person in the commission of the offence; or

(d)Incites, counsels, or procures any person to commit the offence.

(2)Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.

[7] The Crown alleged that in the case of any particular accused he was guilty because he actually knew that the broom handle was to be inserted in the victim's body and meant to assist in that purpose or, alternatively, that each particular accused was party to a common plan to indecently assault the victim by applying the irritant to his buttock area in proximity of the anus and knew that a probable consequence of the prosecution of the plan was deliberate penetration of the anus.

[8] At the conclusion of the Crown's evidence counsel for all the accused sought a direction by the Judge requiring the Crown to elect whether it relied on subs (1) or subs (2) of s66.Although acknowledging that, as a matter of law, the Crown might be correct in its submission that it could rely on both subsections, having regard to the nature of the case and the state of the evidence, the Judge nevertheless directed the Crown to make an election in respect of each particular accused.The Judge founded his direction on "general discretion, and so as to avoid the potentiality for confusion, complication and possible unfairness to the accused".

[9] Before the trial resumed the Crown elected to proceed against each accused on the basis of s66(2) in respect of attempted sexual violation and sexual violation, (counts 1 and 3) and on the basis of s66(1) in respect of the counts of indecent assault, (counts 2 and 4).

[10] It seems that counsel for the accused had expected and wanted the Crown to elect to rely on s66(1), which suited a defence tactic of challenging the credit of Mr Castles and the cogency of his evidence.This led to a further application by counsel for the accused, at the conclusion of all the evidence, for a direction from the Judge requiring the Crown in effect to reverse its election and rely solely on subs (1).The Judge held that he could not require the Crown to take that course and the Crown declined to do so.

[11] Counsel for the accused then asked the Judge to give the jury an accomplice warning about Mr Castles, in terms of the Evidence Act 1908 s12C. The Judge reserved the point until the conclusion of addresses and then declined to give such a warning, holding that in the circumstances it was not appropriate to do so.

Grounds of appeal against conviction and submissions

[12] A ground cited in the Notices of Appeal of all three appellants is that the Judge erred in allowing the Crown to elect which subsection of s66 it relied upon rather than directing the Crown to proceed upon subs (1).

[13] Counsel for Mr Hagen submitted that the Crown should have been directed to rely only on subs (1) because there was evidence to support that approach and that if it were a matter of election for the Crown then it should have been put to its election before opening and calling evidence.

[14] Counsel for Mr Gemmell submitted that the Crown should not have been allowed to proceed under subs (2) because there was no evidence to justify that approach and its adoption invited speculation as to known probable consequence. Because the Crown case to the extent that it was based on subs (1), depended on Mr Castle's evidence implicating appellants in terms of a joint intention to effect penetration, the jury should have been directed to disregard that evidence; and the residual evidence was insufficient to support a conviction on the basis of subs (2).

[15] Counsel for Mr Lloyd accepted that there was sufficient evidence upon which a jury might reasonably convict but submitted that the jury was not given correct directions as tools for the assessment of the evidence.In counsel's submission, it was unlikely that by the end of the Crown case the jury would convict solely on the basis of Mr Castles' evidence.Although, as a general proposition, ingredients established in satisfaction of subs (1) requirements could also, in some cases, satisfy the requirements for conviction under subs (2), the jury was ultimately required, by virtue of the Crown's election, to consider the case in terms of subs (2).

[16] In respect of that basis the jury was directed, consistently with R v Gush [1980] 2 NZLR 92 that "probable" meant "could well happen"; but in counsel's submission the principle should be articulated, at least in cases of alleged sexual offending, as "more probable than not".Otherwise there is a risk that a jury will convict of sexual violation by negligence.Obviously if the meaning "more probable than not" were to be endorsed the jury must have been misdirected.

[17] But even if the conventional interpretation for "probable" were to be maintained the jury was nevertheless misdirected in relation to the standard of proof, including in respect of subjective knowledge by a particular appellant and in respect of their consumption of alcohol.Counsel also criticised the absence of an accomplice warning.

[18] Thus, the composite grounds of appeal against conviction, relevant to each appellant, were:

(1) The Crown should not have been permitted to present its case on the counts of sexual violation and attempted sexual violation on the basis of s66(2) because that basis was inapt, particularly having regard to Mr Castles' evidence which pointed to a subs (1) basis.

(2) Charged with considering the case in terms of subs (2), the jury should have been told by the Judge to disregard Mr Castles' evidence, directed as it was to a subs (1) basis of culpability and the Crown having elected not to rely on such a basis.

(3) Particularly, but not necessarily, excluding Mr Castles' evidence, there was an insufficient evidential basis for conviction.

(4) The meaning of "probable" as pronounced in R v Gush should be revisited and held wrong with a consequential finding by this Court of material misdirection on the part of the Judge.

(5) The absence of an accomplice warning was a misdirection.

(6) The Judge misdirected the jury on the standard of proof, including in respect of subjective knowledge.

(7) The Judge misdirected the jury on the relevance of intoxication.

The Crown's submissions

[19] The Crown submitted that in the particular case it was appropriate for the Crown to rely on both subsections of s66.However, having been required by the Judge on the application of the accused to make an election, the Crown could not fairly be criticised for electing as it did.The Crown's case under subs (2) was that there was a common intention by the appellants and others to assist each other in indecently assaulting the complainant by applying Vicks to his backside with a broom and each knew it could well happen that the broom would be deliberately inserted.

[20] Evidence of a common intention or plan, sounding against all three appellants could be found in the evidence of Mr Hagen himself, the testimony of another accused Mr Burns and of Mr Castles.This evidence showed that Mr Castles and Mr Lloyd had asked Mr Gemmell and Mr Hagen to help them rub liniment on the victim's backside in connection with the first incident; that they had talked about going back in to the bedroom because they were unsuccessful the first time; that the incidents involved the rubbing of "Deep Heat" on the buttocks; that tasks were assigned in respect of the second incident with the group organised into teams to hold the victim down and smear Vicks on his backside; and that each appellant actively assisted in both incidents.

[21] In respect of Mr Gemmell alone there was evidence in his videotaped Police interview that there was a plan to hold the victim down and do something to him with a stick with "vapour rub" on it and the plan on the second occasion was to do the same sort of thing but more efficiently.

[22] In respect of Mr Hagen alone there was evidence in his videotaped Police interview of a plan to wipe Vicks on the victim's backside.

[23] In respect of Mr Lloyd alone there was his videotaped Police interview of a similar nature as well as testimony from another classmate to the effect that Mr Lloyd said he thought the broom was just going to be rolled around, not put in.

[24] The Crown submitted that the jury were entitled to infer from the following matters knowledge by each appellant of the probable consequence of deliberate insertion of the broom:

(1) The fact that a broomstick with Vicks smeared on the end was to be targeted at the complainant's bare backside.

(2) The victim testified that the appellants were present earlier in the evening when Mr Castles and others were talking about shoving a broomstick up the backside.

(3) Mr Castles gave evidence about Mr Lloyd discussing putting a broom up the backside and Mr Burns testified that in the presence of the appellants Mr Castles had said something about wanting to stick it up the backside.

(4) A female classmate who had witnessed the first attempt was too distressed to remain in the room on the second occasion having "figured out" what would happen from the nature of the first incident.

[25] The Crown submitted that the Judge's directions were more than adequate in respect of the matters to be proved and the requisite standard of proof except in perhaps one respect.The reservation was in relation to the Judge's direction concerning intoxication being relevant only in relation to intent but the Crown contended that was remedied by a later direction that drunkenness was a factor to take into account as to whether a particular accused actually knew what was happening and going on.The Crown submitted that the summing up had to be read as a whole and when so read it was adequate.Indicative of its adequacy was the way the jury drew distinctions between accused and counts in returning their verdicts.

Discussion

[26] We have difficulty appreciating why the Judge required the Crown to elect the basis upon which the case would be put.Given an adequate evidential basis it is not a judicial function to direct either the Crown or an accused how to present its case.Of course the Court may and should withdraw from the jury's consideration an issue which cannot be supported in law or on the evidence; and the Crown has on occasions been rightly criticised by Courts for unnecessarily or inappropriately relying on both subsections of s66.But here was a case of truly alternative propositions in respect of each accused.There was a greater prospect of difficulty for the jury in the course taken than if the Crown had been allowed to follow a course properly open to it.For example, if the jury was prepared to accept Mr Castles' evidence that Mr Lloyd raised the issue of broomstick insertion and knew the object of the assaults, they would be entitled to wonder why only the subs (2) approach was available to them.

[27] In strict terms, as counsel for Mr Lloyd acknowledged, conduct falling within subs (1) can also be gathered up by subs (2).The Judge's ruling imposed a potentially artificial template on the jury's analysis.Indicative of difficulty they experienced was a question asked on the second day of their retirement in the following terms:

Can the jury have s66(1) and (2) explained in simple terms giving relevant examples for both?

[28] The Judge's response was extensive but he declined to give any examples because "they are as wide and as broad as the universe".We think, with respect, that what would have assisted the jury would have been an example specifically featuring one of the accused, say, the first mentioned in the indictment.The Judge could have directed the jury to consider, in relation to count 1, whether they were satisfied beyond reasonable doubt that Mr Cutbill, for example, had a common intention with any other or others of the accused to apply embrocation by means of a broom handle to the victim's backside and if so whether they were also satisfied beyond reasonable doubt that Mr Cutbill actually knew that one or more of the persons involved in that plan would probably try to put the broom handle into the victim's anus.If so satisfied, the jury should convict on count 1.But if they were not so satisfied in all of these respects they should then consider count 2.If satisfied beyond reasonable doubt that any one of the accused, including Mr Cutbill, did apply embrocation by means of a broom handle to the victim's person, and they were equally satisfied that this was an indecent assault and that Mr Cutbill deliberately performed or assisted someone to perform that indecent assault, then they should convict him on count 2.If not, they should acquit him on that count also.And so on.

[29] On balance we think the requirement for the Crown to elect the basis on which it was intending to put its case was not bound, necessarily, to result in unfairness to any accused.The prospect was unfairness to the Crown.But it was an unnecessary complication.

[30] Of somewhat more concern is whether sufficiently clear directions were given to the jury to consider the subjective knowledge of each particular accused in relation to probable consequence.At times the directions are expressed in passive and collective terms when active and subjective analysis was called for.For example the Judge said at para [45] of the summing up, after explaining the concepts of common intention to prosecute an unlawful purpose:

If you are satisfied that that was the case, then all then will be parties to any offence which is committed while they are putting the agreement into effect if and only if, that particular offence was known to be something that could well have happened while they were carrying out the agreement.So if and only if that particular offence was known to be something that could, not would, could well happen while they were carrying out the agreement.I emphasise that Crown does not have to satisfy you that they knew it would certainly happen. Also whether they intended or wanted it to happen is not the point.If you are satisfied that they knew it could well happen that will suffice.It will follow of course that if you think the particular offence was a piece of individual enterprise on the part of one of them which the others did not foresee as being likely they will not be parties to it.

[31] Again, when answering the jury question about s66:

Section 66(2) only applies to counts 1 and 3.For counts 1 and 3 the Crown's case is not concerned with aiding or abetting in terms of which I have just discussed.Under subsection (2), a person can become a party to a crime in a situation where two or more people firstly, come to an agreement between themselves to do something that is unlawful and to help each other in doing whatever that might be.Each of them will be a party to any offence committed by the others in the course of carrying out that agreement if that offence was known to be a probable consequence of the carrying out of the agreement.

...

I emphasize it does not have to be proven that the persons who were parties to the agreement, the joint enterprise, knew that it would certainly happen. Also, whether they intended or wanted it to happen is not the point.If those persons knew that it could well happen then that will suffice but it follows naturally that if a particular offence is a piece of individual enterprise on the part of one which the others did not foresee as being likely then they are not parties to it.

[32] There were occasions in the course of the summing up when the Judge did refer to individual cases.At para [90] of the summing up he said:

The Crown says on all the evidence it was a known risk that the indecent assault might become even more serious indecent assault through the deliberate penetration - that it could well happen.The Crown tells you to look at each accused individually as I have told you.The Crown says realistically what occurred in the end on both occasions could not have been achieved by Andrew Castles without the willing participation and assistance of others who knew, the Crown says, that in the course of carrying out the plan, the purpose, that the stick might well go up [his] anus deliberately.

[33] It is the case that the Judge directed the jury, towards the beginning and towards the end of his summing up, to consider the case of each accused separately using the following terms:

There are separate accused obviously.There are six of them and each is entitled to be tried solely on the evidence applicable and admissible as to that accused.You must consider the position of each accused separately and come to a separate considered decision about each.Because they are jointly charged does not mean that they are all guilty or not guilty.

Generally let me say this and I will repeat it.If the Crown has not proved beyond reasonable doubt the necessary ingredients of the count you are considering against the accused, then your verdict will be on that count not guilty.If, however, the evidence that you accept satisfies you of proof beyond reasonable doubt in respect of that count and that accused, then your verdict will be guilty.

[34] We think however, in the circumstances of this case, the generalities needed to be complemented by specific examples relating to an accused and a count.There needed to be an emphasis on the actual knowledge of probable consequence by each particular accused under consideration.

[35] It could not have helped the jury to focus on subjective actual knowledge of probable consequence when in the Judge's introductory remarks concerning parties, obviously with reference to s66(2), he said:

If two or more people come to an agreement to do something unlawful and to help each other to do it, then each of them will be a party to and guilty of any offence committed by the others in the course of carrying out their agreement but that will be so, however, only if the offence was foreseeable as something that could well happen in the course of carrying out the agreement.

[36] With respect to the Judge, it would have been more helpful to the jury and fairer to the accused if the Judge had emphasised that in considering the position of a particular accused the jury had to be satisfied beyond reasonable doubt that such accused was not only a party to the common plan but also actually knew, not ought to have known, one of the parties to the plan probably would deliberately penetrate the victim's anus with the broom handle.

[37] It is against this background that we have come to the conclusion the Judge misdirected the jury in respect of intoxication.

[38] The evidence showed that a considerable quantity of alcohol was drunk by the school pupils in the course of the evening.A 50 litre keg of beer was exhausted.Mr Gemmell gave evidence that he had three or four jugs of beer and after more was bought from a supermarket he had maybe four cans. Another accused, Kent Burns, testified to the consumption by him of seven or nine jugs from the keg.There was evidence that all three appellants had been drinking.In circumstances where actual subjective knowledge of probable consequence was in issue the evidence of significant intoxication was an important factor.The jury should have been told that when considering any particular accused's actual knowledge of probable consequence the effect of alcohol on that accused's actual knowledge of what could well happen should be examined; and that if they were left with a reasonable doubt, whether by reason of alcohol or for any other reason, whether the particular accused did have actual knowledge of what could well happen, namely an attempt to penetrate the victim's anus (count 1) or a successful attempt at such penetration (count 3) they must acquit that accused on the count.

[39] What the jury in fact was told appears, first, in paras [80] to [82] inclusive of the summing up:

There was reference to quantities of alcohol drunk by 18 year old boys and you might be astonished at that but let it clearly be understood that intoxication is not of itself a defence to any charge.The only relevance of evidence about intoxication is as to intent.I have already mentioned that often the decision about whether you are satisfied about intent will come from the consideration of inferences or conclusions that you can properly draw from the evidence that you regard as credible and reliable.

One of the pieces of evidence you take into account is the evidence of intoxication as it relates to each accused. It is often the case of course, you will know that from your commonsense and general knowledge, that people may do things when intoxicated that they wouldn't do otherwise.But the law is that an act that is intentionally done, even if the intent is held by alcohol is something the person is responsible for.A drunken intent is still an intent. But if having considered all the evidence you think it's a reasonable possibility that one or other accused were so grossly intoxicated that he did not form any conscious intent at all then you have to say you have a reasonable doubt about the issue of intent and the Crown has not proved that issue to the necessary standard.

The Crown needs to leave you satisfied that an individual accused intended to do what he did even if it was an intent formed whilst affected by alcohol to some degree.Intoxication is only a factor in deciding issues of intent if you think it is reasonably possible that an accused was so drunk that he did not form any intent at all.

[40] There is an important distinction between intent relating to the execution of a common purpose and actual knowledge of a probable consequence.The Judge's direction wrongly excluded alcohol from relevance when the jury were considering the latter concept which was a real and significant issue in the circumstances.

[41] The Judge referred to intoxication at a later stage in his summing up when outlining the submissions made by counsel for Kent Burns (para [127]):

This was dynamic situation; lots of alcohol; lots of conversation; voices raised; people talking over each other and all of these things.He agrees that drunkenness was no defence but he has properly put it as a factor to take into account and know what it was that Kent Burns actually knew was happening and going on.

[42] Although closer to the mark this direction still fell too short.The misdirection, and the context which we have discussed concerning the awkward constraints of the Judge's direction to the Crown as well as the passive and collective analysis of the Judge's directions in respect of s66(2) leaves us very concerned about the safety of the verdicts on counts 1 and 3.We find they cannot be upheld.

[43] We are not concerned about the Judge's decision, pursuant to s12C of the Evidence Act, not to instruct the jury on a need for special caution in considering the evidence of Mr Castles.Section 12C provides as follows.

12CWitnesses having some purpose of their own to serve

Where in any criminal proceedings it appears to the Judge that a witness may have some purpose of his or her own to serve in giving evidence and that for that reason there is a risk that the witness may give false evidence that is prejudicial to the accused, the Judge shall consider whether or not it would be appropriate to instruct the jury on the need for special caution in considering the evidence given by the witness.

[44] The defence application to the Judge for such a direction was reserved by him until he had heard counsel's addresses and upon further reflection he decided he would not give such a direction.He was not satisfied that Mr Castles had a purpose of his own to serve in giving evidence which for that reason could lead to a risk of false evidence prejudicial to the accused.As everyone knew, Mr Castles had pleaded guilty to attempted sexual violation and sexual violation and had in fact been sentenced by the particular Judge. Having regard also to the fact that some accused had given evidence they also became witnesses in the case susceptible to a s12C direction.The matter was further complicated by the fact that some of the accused relied on part of Mr Castles' evidence.He also thought, in respect of the possible purpose suggested by counsel, that Mr Castles sought to minimise his actual involvement by casting blame on others, that his evidence did not have that character in respect of all accused.It was in fact helpful to one of the accused.

[45] The effect of s12C is to render what used to be known as the "accomplice warning" an entirely discretionary matter for the Judge.We are not satisfied there is any proper basis for interfering with the Judge's discretion in this case.

[46] Nor are we persuaded to eschew the meaning accorded to "probable consequence" in s66(2) by this Court in R v Gush,where the meaning "could well happen" was expressly preferred to "more probable than not".The Court's preference in that case was informed by considerations of both policy and legislative purpose and has been acted upon for more than 20 years.It was accepted by this Court as correct when considering R v Piri [1987] 1 NZLR 66.

[47] Counsel for Mr Lloyd submitted there was a risk of conviction for negligence when the conventional meaning of "probable consequence" is applied to a case such as the present and he submitted that if the Court should not be disposed to adopt the meaning "more probable than not" then nevertheless the jury should have been directed in terms of the concept of real or substantial risk and more than a bare possibility.This was the construction preferred by McMullin J in relation to s167(b) and (d) of the Crimes Act 1961, which deals with the likelihood of murder.But we see the danger of an appropriate assessment by a jury arising, not from the conventional meaning of "probable consequence" but from an inadequate direction and focus concerning the requirement that the Crown prove beyond reasonable doubt actual knowledge by an accused as to what could well happen.It was inadequacies in this respect rather than in the construction of the term that gives us concern in the present case.

[48] As we have indicated, the appeals against conviction should be allowed in respect of counts 1 and 3 but the question arises whether a new trial should be ordered.The consequences of such a course for the victim, who has been gravely injured in his person and his dignity by those he counted as friends, causes us concern.

[49] As a result of the attack on him the victim suffered internal bleeding and tearing around his rectum with severe bruising to the anus.His wounds bled for more than a week and discomfort lasted for several weeks.He has suffered continual nightmares and disturbed sleep.He has suffered from depression, severe mood swings and personal anguish.He felt humiliated by the attack and fearful of the medical consequences because he had suffered childhood disorders of the bowel.His trust in people he considered friends has been destroyed. It is plain from his victim impact statement that he has felt further victimised by reticence on the part of other school mates in dealings with them.The attack occurred several weeks prior to his sitting seventh form bursary exams and in consequence of the attack he could not study properly, subsequently failing to obtain the grades necessary to enter university as he had hoped.

[50] It was solely with the victim in mind that we raised with counsel the width of this Court's powers when dealing with appeals.Under s385(2) of the Crimes Act 1961 the Court has a discretion to direct a new trial after quashing a conviction but is not obliged to do so.Another course is open pursuant to s386(2) which provides as follows:

(2)Where an appellant has been convicted of an offence and the jury could on the indictment have found him guilty of some other offence, and on the finding of the jury it appears to the Court of Appeal that the jury must have been satisfied of facts which proved him guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence, and pass such sentence in substitution for the sentence passed as may be warranted in law for that other offence, not being a sentence of greater severity.

[51] In the present case the jury must have been satisfied of facts which proved the alternative counts 2 and 4 which alleged indecent assault.The whole of the evidence including the videotaped Police statements of the appellants made certain conviction for at least indecent assault.The misgivings which we have expressed concerning the Judge's directions relate to the additional ingredients of known probable consequence.

[52] Rather than allowing the appeals against conviction on counts 1 and 3, and ordering a new trial, the Court could substitute convictions in respect of each appellant for indecent assault in terms of counts 2 and 4.Although unusual, such a course is not unprecedented.See for example R v B, CA 353/01, 1 May 2002; R v H, CA 81/98, 13 August 1998; R v Houkamau CA 440/96, 23 April 1997.

[53] Yet the discretion does not seem to have been exercised by this Court in a case where there was an adequate evidential basis for a verdict on the greater charge.This is not surprising because it is essentially the responsibility and prerogative of the State as prosecutor, not the Courts, to decide what charges are to be brought.

[54] So we think the correct course in this case is to quash the convictions and order a new trial.It will be for the Crown to assess the situation, having regard to the strength of the respective cases in relation to the alternative counts, the possibility of early closure, and perhaps the nature of any consultation with the complainant.

[55] For these reasons the appeals against conviction are allowed, the conviction and sentences are quashed, and a new trial is ordered.

Solicitors

Greig Davidson, Gallagher, Wellington for Appellant Hagen

John Smith, Tauranga for Appellant Gemmell

Crown Solicitors, Napier for Crown