<I>

  <&>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</&>
  

  <WSC#MUJ010:0005:MJ>
      mister foreman members of the jury i must explain to you at the
      outset three matters of general importance

  <WSC#MUJ010:0010:MJ>
      <O>tut</O> they apply to this case just as they apply to every
      criminal trial

  <WSC#MUJ010:0015:MJ>
      <O>tut</O> some of you er may of er served on a jury in the past
      and be well aware of these matters

  <WSC#MUJ010:0020:MJ>
      others of you er may know them from your general knowledge

  <WSC#MUJ010:0025:MJ>
      bear with me please

  <WSC#MUJ010:0030:MJ>
      they're matters of fundamental importance

  <WSC#MUJ010:0035:MJ>
      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 <,>

  <WSC#MUJ010:0040:MJ>
      <O>tut</O> the first regards the respective functions of you as
      the jury and myself as the judge

  <WSC#MUJ010:0045:MJ>
      quite obviously we've got different tasks to carry out

  <WSC#MUJ010:0050:MJ>
      <O>tut</O> it's my job to preside over the conduct of the trial

  <WSC#MUJ010:0055:MJ>
      you've seen me doing that during the day <,>

  <WSC#MUJ010:0060:MJ>
      it's also my job to direct you as to the law which you must
      apply to this case <,>

  <WSC#MUJ010:0065:MJ>
      i ask you please to accept that what i tell you about the law is
      correct <O>tut</O> because that's my special contribution <O>tut</O>
      <,>

  <WSC#MUJ010:0070:MJ>
      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

  <WSC#MUJ010:0075:MJ>
      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 <,>

  <WSC#MUJ010:0080:MJ>
      <O>tut</O> 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

  <WSC#MUJ010:0085:MJ>
      if you should have heard anything about this case outside the
      court please dismiss that from your minds

  <WSC#MUJ010:0090:MJ>
      cases in this country are not decided by listening to gossip or
      by tuning into the local grapevine

  <WSC#MUJ010:0095:MJ>
      the law requires that you come to your decision solely upon the
      evidence which has been sworn <&>3:00</&> to in this court

  <WSC#MUJ010:0100:MJ>
      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

  <WSC#MUJ010:0105:MJ>
      you must consider the whole of that evidence

  <WSC#MUJ010:0110:MJ>
      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 <,>

  <WSC#MUJ010:0115:MJ>
      <O>tut</O> it's for you to say which of the witnesses you accept
      and which if any you do not

  <WSC#MUJ010:0120:MJ>
      <O>tut</O> it's for you to say which parts of the evidence of
      which er witness you accept and which if any you reject

  <WSC#MUJ010:0125:MJ>
      you are entitled to accept parts of the evidence of a witness
      and to reject other parts

  <WSC#MUJ010:0130:MJ>
      that's a decision er for you to make <,>

  <WSC#MUJ010:0135:MJ>
      <O>tut</O> you have to decide on the reliability of the
      witnesses

  <WSC#MUJ010:0140:MJ>
      you've seen and heard each witness as er he or she er gave
      <&>4:00</&> evidence

  <WSC#MUJ010:0145:MJ>
      you've had the opportunity to assess their demeanour in the
      witness box as they gave that evidence

  <WSC#MUJ010:0150:MJ>
      now you have to judge what you make of their reliability and
      their credibility

  <WSC#MUJ010:0155:MJ>
      <O>tut</O> it's not an easy task

  <WSC#MUJ010:0160:MJ>
      never is sitting in judgement on another human being <,>

  <WSC#MUJ010:0165:MJ>
      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

  <WSC#MUJ010:0170:MJ>
      you've all had differing experiences of life

  <WSC#MUJ010:0175:MJ>
      follow differing occupations

  <WSC#MUJ010:0180:MJ>
      come from differing backgrounds have differing interests <,>

  <WSC#MUJ010:0185:MJ>
      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 <,>

  <WSC#MUJ010:0190:MJ>
      <O>tut</O> one term for those resources is <&>5:00</&>
      collective common sense

  <WSC#MUJ010:0195:MJ>
      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

  <WSC#MUJ010:0200:MJ>
      you're entitled to draw inferences from the evidence

  <WSC#MUJ010:0205:MJ>
      that however doesn't mean that you can guess or speculate

  <WSC#MUJ010:0210:MJ>
      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 <,>

  <WSC#MUJ010:0215:MJ>
      <O>tut</O> the third of the general matters is of special
      importance and it <&>6:00</&> relates to the onus of proof <,>

  <WSC#MUJ010:0220:MJ>
      the onus of proof of the charge and each ingredient of that
      charge rests on the crown

  <WSC#MUJ010:0225:MJ>
      the crown brings the charge

  <WSC#MUJ010:0230:MJ>
      the crown must prove that charge if it can

  <WSC#MUJ010:0235:MJ>
      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

  <WSC#MUJ010:0240:MJ>
      there's no onus on an accused at any stage to prove his
      innocence or indeed to prove anything else

  <WSC#MUJ010:0245:MJ>
      he does not need to give evidence he does not need to call
      witnesses

  <WSC#MUJ010:0250:MJ>
      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

  <WSC#MUJ010:0255:MJ>
      there's no magic about the phrase reasonable doubt

  <WSC#MUJ010:0260:MJ>
      it means exactly what it says it's a doubt based upon reason

  <WSC#MUJ010:0265:MJ>
      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

  <WSC#MUJ010:0270:MJ>
      it means a doubt which you the jury decide is reasonable in the
      circumstances of this particular case <,>

  <WSC#MUJ010:0275:MJ>
      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 <,>

  <WSC#MUJ010:0280:MJ>
      <O>tut</O> mister foreman when you deliver your verdict whatever
      it may be er it must be the unanimous verdict of all twelve of
      you

  <WSC#MUJ010:0285:MJ>
      <O>tut</O> you are not required to give reasons for your verdict

  <WSC#MUJ010:0290:MJ>
      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

  <WSC#MUJ010:0295:MJ>
      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 <,>

  <WSC#MUJ010:0300:MJ>
      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 <,>

  <WSC#MUJ010:0305:MJ>
      you've heard er evidence from er two witnesses

  <WSC#MUJ010:0310:MJ>
      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

  <WSC#MUJ010:0315:MJ>
      now the terms of those complaints can't as a matter of law be
      treated as evidence that the assault actually took place

  <WSC#MUJ010:0320:MJ>
      <O>tut</O> 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

  <WSC#MUJ010:0325:MJ>
      so the complaint doesn't prove that the assault took place

  <WSC#MUJ010:0330:MJ>
      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

  <WSC#MUJ010:0335:MJ>
      that's a matter of course entirely for you

  <WSC#MUJ010:0340:MJ>
      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

  <WSC#MUJ010:0345:MJ>
      now a witness in crossexamination can be challenged as to
      previous inconsistent er statement oral or written

  <WSC#MUJ010:0350:MJ>
      and any inconsistency thrown up er goes again to this question
      of credibility

  <WSC#MUJ010:0355:MJ>
      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

  <WSC#MUJ010:0360:MJ>
      the later statement given in evidence before you er may be
      accepted by you

  <WSC#MUJ010:0365:MJ>
      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

  <WSC#MUJ010:0370:MJ>
      the defence argues of course that inconsistency er goes to make
      er unreliability

  <WSC#MUJ010:0375:MJ>
      the crown argues that the inconsistency may have a perfectly
      simple er explanation and unreliability does not necessarily
      follow

  <WSC#MUJ010:0380:MJ>
      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 <,>

  <WSC#MUJ010:0385:MJ>
      now when you retire you'll have with you an <.>ex</.> in
      addition to the exhibits this document here which is called the
      indictment

  <WSC#MUJ010:0390:MJ>
      that is simply and upmarket word er for a charge sheet

  <WSC#MUJ010:0395:MJ>
      it's a document which sets out the single charge or <&>12:00</&>
      count er faced er by the accused

  <WSC#MUJ010:0400:MJ>
      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 <,>

  <WSC#MUJ010:0405:MJ>
      <O>tut</O> there are three broad elements that have to be proved

  <WSC#MUJ010:0410:MJ>
      the first is that the accused must have been a male

  <WSC#MUJ010:0415:MJ>
      that's not in dispute so you don't need to waste any time over
      that

  <WSC#MUJ010:0420:MJ>
      <O>tut</O> the second that the accused indecently assaulted the
      complainant

  <WSC#MUJ010:0425:MJ>
      that of course IS in dispute

  <WSC#MUJ010:0430:MJ>
      <O>tut</O> thirdly that the complainant was a boy er aged
      between twelve and er sixteen at the time of the alleged assault

  <WSC#MUJ010:0435:MJ>
      er that er matter of age i <&>13:00</&> suggest has been amply
      proved er by the evidence of john's mother missus harper

  <WSC#MUJ010:0440:MJ>
      er and er again there er is no dispute er about it

  <WSC#MUJ010:0445:MJ>
      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 <,>

  <WSC#MUJ010:0450:MJ>
      it's the second matter was there an indecent assault of the
      complainant er around which er your deliberations er must be
      based

  <WSC#MUJ010:0455:MJ>
      er what is an indecent er assault

  <WSC#MUJ010:0460:MJ>
      well again there are three matters to be considered

  <WSC#MUJ010:0465:MJ>
      was there an assault that is the act of er applying or
      attempting to apply force er to the person of another

  <WSC#MUJ010:0470:MJ>
      the <&>14:00</&> degree of force is irrelevant

  <WSC#MUJ010:0475:MJ>
      <O>tut</O> 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

  <WSC#MUJ010:0480:MJ>
      er if an application of force is er accidental or indeed even
      negligent or careless er that's still not er an assault

  <WSC#MUJ010:0485:MJ>
      <O>tut</O> and thirdly the er application of force in addition
      er to being intentional er must also be indecent

  <WSC#MUJ010:0490:MJ>
      that means an act of assault however slight accompanied by
      circumstances of indecency

  <WSC#MUJ010:0495:MJ>
      intent of course is also necessary

  <WSC#MUJ010:0500:MJ>
      er not only must the assault be intentional but the accused er
      must have intended it to be an <&>15:00</&> indecent er assault

  <WSC#MUJ010:0505:MJ>
      what is er indecent

  <WSC#MUJ010:0510:MJ>
      well that means conduct which would be considered by ordinary
      new zealanders to be indecent

  <WSC#MUJ010:0515:MJ>
      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

  <WSC#MUJ010:0520:MJ>
      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

  <WSC#MUJ010:0525:MJ>
      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

  <WSC#MUJ010:0530:MJ>
      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

  <WSC#MUJ010:0535:MJ>
      was there as the crown says a er grope er inside the er trousers
      er of the <O>voc</O> complainant a grope which er succeeded in
      er touching and er fondling er the complainant's er genitals

  <WSC#MUJ010:0540:MJ>
      or was the touching limited er to a er sympathetic er touching
      er of the er complainant's er leg <&>17:00</&>
</I>
