<&>Wellington Corpus of Spoken New Zealand English Version One <&>Copyright 1998 School of Linguistics & Applied Language Studies <&>Victoria University of Wellington <&>side one <&>0:10 mister foreman members of the jury i must explain to you at the outset three matters of general importance tut they apply to this case just as they apply to every criminal trial tut some of you er may of er served on a jury in the past and be well aware of these matters others of you er may know them from your general knowledge bear with me please they're matters of fundamental importance unless you thoroughly understand and apply what i'm going to say to you you can't begin to do your job <&>1:00 properly <,> tut the first regards the respective functions of you as the jury and myself as the judge quite obviously we've got different tasks to carry out tut it's my job to preside over the conduct of the trial you've seen me doing that during the day <,> it's also my job to direct you as to the law which you must apply to this case <,> i ask you please to accept that what i tell you about the law is correct tut because that's my special contribution tut <,> as i told you at the outset however the decision on any question of fact in this case is a matter for you the jury and a matter for you alone if you should think that in the course of what i'm going to say to <&>2:00 you i seem to hold some views of my own about the facts you're perfectly free to ignore any such view of mine because i repeat and i stress to you that a decision as to what the facts are and the decision as to what verdict must be given are matters for you and not for me or anyone else <,> tut the second point is that you must come to your verdict solely upon the evidence before you in this court again as i told you this morning if you should have heard anything about this case outside the court please dismiss that from your minds cases in this country are not decided by listening to gossip or by tuning into the local grapevine the law requires that you come to your decision solely upon the evidence which has been sworn <&>3:00 to in this court that's the evidence given from the witness box by the various witnesses and it of course includes the various exhibits which have been produced you must consider the whole of that evidence and in weighing it up you will of course have regard to the addresses which have been made to you this afternoon er by both counsel <,> tut it's for you to say which of the witnesses you accept and which if any you do not tut it's for you to say which parts of the evidence of which er witness you accept and which if any you reject you are entitled to accept parts of the evidence of a witness and to reject other parts that's a decision er for you to make <,> tut you have to decide on the reliability of the witnesses you've seen and heard each witness as er he or she er gave <&>4:00 evidence you've had the opportunity to assess their demeanour in the witness box as they gave that evidence now you have to judge what you make of their reliability and their credibility tut it's not an easy task never is sitting in judgement on another human being <,> take some comfort however from the fact that you go into the jury room able to draw on a fund of experience er that no one person er can ever have you've all had differing experiences of life follow differing occupations come from differing backgrounds have differing interests <,> when twelve men and women with that variety of experience are gathered together they can draw on resources that no one person can ever have <,> tut one term for those resources is <&>5:00 collective common sense when you're considering the evidence and weighing it up you're expected to apply that collective common sense along with your knowledge of human nature and your experience of the world you're entitled to draw inferences from the evidence that however doesn't mean that you can guess or speculate you must also put aside er any feelings of prejudice or sympathy which may occur to you one way or the other as counsel properly reminded you and do your best to arrive at your verdict dispassionately <.>bli by applying the law as i am going to tell you it is er to the facts as you find them to be <,> tut the third of the general matters is of special importance and it <&>6:00 relates to the onus of proof <,> the onus of proof of the charge and each ingredient of that charge rests on the crown the crown brings the charge the crown must prove that charge if it can that is an onus which rests on the crown from the beginning of the case to the end of the case and it never shifts there's no onus on an accused at any stage to prove his innocence or indeed to prove anything else he does not need to give evidence he does not need to call witnesses the law is that the crown which brings the charge must prove that charge and each ingredient of it beyond reasonable doubt before there may be a verdict of guilty there's no magic about the phrase reasonable doubt it means exactly what it says it's a doubt based upon reason it doesn't mean some vague or fanciful doubt something which you pluck out of <&>7:00 thin air to avoid doing an unpleasant duty it means a doubt which you the jury decide is reasonable in the circumstances of this particular case <,> really it comes down to this er before you can convict someone of a crime you must be sure of the guilt of that person <,> tut mister foreman when you deliver your verdict whatever it may be er it must be the unanimous verdict of all twelve of you tut you are not required to give reasons for your verdict you must simply decide whether your verdict is one of guilty or not guilty in relation to the single charge which is presented for your consideration but whatever that verdict may be all twelve of you must agree on it we don't have majority verdicts er <&>8:00 in this er country at least in so far as er criminal matters er are concerned <,> now there's a couple of er small er incidental matters that i want to talk to you about briefly er before i come to the law in relation to indecent assault <,> you've heard er evidence from er two witnesses er first er from sean willis and secondly from er missus deb smith the assistant principal er to effect that john er made a complaint er very soon after the alleged assault now the terms of those complaints can't as a matter of law be treated as evidence that the assault actually took place tut the only relevance of the complaint evidence if you <&>9:00 accept that such er evidence er is there is that it er may show that john's conduct after the alleged assault is consistent with his evidence about it so the complaint doesn't prove that the assault took place that's really what i'm trying to tell you but it may go er to er his consistency er as far as er his evidence generally is concerned that's a matter of course entirely for you the second matter is the question of consistency er between the evidence john gave today and the evidence er contained in the statement er which he gave to a constable on the twenty sixth of september that statement being used as the basis for his er deposition statement er which was er produced at the er earlier hearing er or <&>10:00 lower court hearing er of this case now a witness in crossexamination can be challenged as to previous inconsistent er statement oral or written and any inconsistency thrown up er goes again to this question of credibility the written statement which it's alleged is inconsistent with the evidence given today er is not of itself evidence of the truth of its contents er as opposed to the sworn evidence with which it is inconsistent the later statement given in evidence before you er may be accepted by you it's a matter for you and the weight that you give an earlier inconsistent er statement and the weight that you give his evidence generally er is as i said <&>11:00 before entirely a matter er for you the defence argues of course that inconsistency er goes to make er unreliability the crown argues that the inconsistency may have a perfectly simple er explanation and unreliability does not necessarily follow well it's a matter for you to steer a course er around er those er contending views and er reach your er own decision er as to the weight to be given er to the complainant's evidence <,> now when you retire you'll have with you an <.>ex in addition to the exhibits this document here which is called the indictment that is simply and upmarket word er for a charge sheet it's a document which sets out the single charge or <&>12:00 count er faced er by the accused and broadly the accused is charged that he indecently assaulted a boy aged er between twelve and sixteen er years of stokes valley on or about the twenty fifth of september er nineteen ninety three <,> tut there are three broad elements that have to be proved the first is that the accused must have been a male that's not in dispute so you don't need to waste any time over that tut the second that the accused indecently assaulted the complainant that of course IS in dispute tut thirdly that the complainant was a boy er aged between twelve and er sixteen at the time of the alleged assault er that er matter of age i <&>13:00 suggest has been amply proved er by the evidence of john's mother missus harper er and er again there er is no dispute er about it so two of the three elements that the accused is a male and that the complainant is er a boy aged between twelve and sixteen er will not detain you i suggest for very long <,> it's the second matter was there an indecent assault of the complainant er around which er your deliberations er must be based er what is an indecent er assault well again there are three matters to be considered was there an assault that is the act of er applying or attempting to apply force er to the person of another the <&>14:00 degree of force is irrelevant tut second the crown has to prove er that if force was er applied er to the person of another er that it was done intentionally er if an application of force is er accidental or indeed even negligent or careless er that's still not er an assault tut and thirdly the er application of force in addition er to being intentional er must also be indecent that means an act of assault however slight accompanied by circumstances of indecency intent of course is also necessary er not only must the assault be intentional but the accused er must have intended it to be an <&>15:00 indecent er assault what is er indecent well that means conduct which would be considered by ordinary new zealanders to be indecent that is contrary to normal standards of decency and it's for you to say er whether what the crown alleges took place er breaches er those er standards the real issue i suggest in this case is whether events happened as the complainant says they did or whether they happened er in the way which the accused has said they took place er in his er statement and er the er complainant er completely misunderstood er his sympathetic er gesture leapt to the wrong <&>16:00 conclusion and er <,> accordingly er the er <,> er matter is er one for you er to resolve so those are the er elements er in relation to er indecent assault and the real question er is what was the extent of the touching was there as the crown says a er grope er inside the er trousers er of the voc complainant a grope which er succeeded in er touching and er fondling er the complainant's er genitals or was the touching limited er to a er sympathetic er touching er of the er complainant's er leg <&>17:00