BARTRAM v R [2019] NZCA 305

BARTRAM v R [2019] NZCA 305 [11 July 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA530/2018[2019] NZCA 305BETWEEN KEITH BARTRAMAppellantAND THE QUEENRespondentHearing: 21 May 2019Court: Kós P, Peters and Mander JJCounsel: D J Allan for AppellantA J Ewing for RespondentJudgment: 11 July 2019 at 3.00 pmJUDGMENT OF THE COURTThe appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, Mr Bartram, was convicted of one charge of aggravated robberyfollowing a jury trial before Judge Spear in the District Court in Hamilton inAugust 2018. The Judge later sentenced Mr Bartram to seven years, six months'imprisonment.11 R v Bartram [2018] NZDC 18481.[2] Mr Bartram appeals against conviction on the grounds that errors by the Judgein relation to a prosecution witness, Ms Corey Summersby, gave rise to a miscarriageof justice. Ms Summersby was Mr Bartram's partner at the time of the aggravatedrobbery.[3] Mr Bartram appeals against sentence on the ground that it is manifestlyexcessive.Background[4] The Crown case was that Mr Bartram was a party to the aggravated robbery ofa bar in Hamilton in March 2017. The Crown alleged that Mr Bartram droveMr Jayden Kennedy to the bar in Mr Bartram's vehicle, and that their partners,including Ms Summersby, were in the car also. Mr Kennedy then went into the bar,presented a sawn-off rifle to the staff and the staff put cash in a bag that Mr Kennedygave them. On Mr Kennedy's return to the vehicle, Mr Bartram sped away, drivingall concerned to Auckland and dividing the cash with Mr Kennedy en route.The Crown case was that Mr Bartram was a party to the offending because he providedthe rifle that Mr Kennedy presented and was the get-away driver.[5] The case went to trial against Mr Bartram only, Mr Kennedy having pleadedguilty.[6] The Crown case relied principally on Ms Summersby's evidence and evidencederived from a cellphone.[7] Ms Summersby had been in a relationship with Mr Bartram for several weeksat the time of the robbery, and was 20 or 21 years of age at the relevant time.Mr Bartram was aged 31.[8] Ms Summersby's evidence was that the rifle used in the robbery wasMr Bartram's, that Mr Bartram had been the get-away driver, and that the cellphonewas Mr Bartram's or at least was the cellphone he used. The cellphone was importantbecause polling data showed that it had travelled from Auckland to Hamilton and backon the day of the robbery. Accordingly, the cellphone placed Mr Bartram in Hamiltonat the time of the robbery, if it was in his possession as Ms Summersby said.The cellphone also had photographs on it showing large sums of cash and whatMs Summersby identified as Mr Bartram's tattooed arm holding the gun.[9] The defence did not call evidence at trial. However, its case was that the Crowncould not prove Mr Bartram was involved in the aggravated robbery, thatMs Summersby was not to be believed and, in fact, such evidence as there wasimplicated Ms Summersby. The police had stopped Ms Summersby and Mr Bartramin Auckland, two or three weeks after the robbery. Mr Bartram fled when he learnedthere was a warrant for his arrest. Ms Summersby remained and was found to havethe rifle in a bag of her clothes, ammunition for it in her wallet, and possession of thecellphone. She also told the police that she owned the vehicle that Mr Bartram wasalleged to have driven on the day of the robbery. In addition, although sometext messages on the cellphone appeared to be from or for Mr Bartram, some alsoappeared to be from or for Ms Summersby.[10] All of this meant Ms Summersby's credibility was very much in issue atthe trial.Evidence[11] Mr Allan submits that parts of Ms Summersby's evidence-in-chief andre-examination were highly prejudicial to Mr Bartram and inadmissible, and the Judgeshould have intervened to stop the evidence being given. He also submits that part ofher evidence in re-examination should not have been allowed because it comprisedleading questions, did not arise from cross-examination, and was prejudicial.[12] In her evidence, Ms Summersby was at pains to exonerate herself from anywrongdoing or participation in the offending. In the parts of her evidence-in-chief ofwhich Mr Allan complains, Ms Summersby:(a) said she had first become involved with Mr Bartram because he said hewas "going to take" her 14-year-old sister if Ms Summersby did not gowith him willingly; and(b) said she resumed contact with Mr Bartram after being apprehended bythe police because he said that if she ran away "he would go back toGisborne and he would kill my parents and ... he would take my littlesister and do worse to her than he'd done to me".[13] Ms Tustin, defence counsel at trial, did not object to these parts ofMs Summersby's evidence. In cross-examination, Ms Tustin put to Ms Summersbyall the items of evidence that had been in Ms Summersby's possession when she wasapprehended, statements she had made to the police but now recanted, andinconsistencies between her evidence in chief and some of the irrefutable evidence atthe trial. In response to some of Ms Tustin's questions, Ms Summersby repeated herallegations regarding Mr Bartram's conduct, such as his alleged threats to killmembers of her family. She also claimed that Mr Bartram had raped her and that shehad received letters from Mr Bartram when he was remanded in custody, these alsothreatening her and her family.[14] Rather than object to any of these claims, Ms Tustin put it to Ms Summersbythat she was just making things up as she "[went] along".[15] We consider it clear that Ms Tustin decided that it was in Mr Bartram'sinterests to let Ms Summersby continue uninterrupted, so that the jury could draw itsown conclusions — essentially to let Ms Summersby hang herself. This was areasonable tactic to adopt and we do not consider the Judge erred in failing to intervenewhen it so obviously was Ms Tustin's tactic. On the contrary, Ms Tustin might havehad grounds to complain if the Judge had stopped Ms Summersby. In addition, MsTustin was able to make much of Ms Summersby's claims in her closing remarks tothe jury. For instance, Ms Tustin said to the jury that Ms Summersby was "unreliable",her evidence implausible, that Ms Summersby had a "vivid imagination" and had "letit run wild", and that "[w]henever she was pushed too much her backstop was always,'Oh he raped me, he had kidnapped me, he was blackmailing me, he had control overme'". She said to the jury that Ms Summersby had done everything she could toblacken Mr Bartram's name, that Ms Summersby was lying, that she constantly tolddifferent stories — one version to the police, another to the jury, that her evidence wasinconsistent with other evidence and so on.[16] This Court will not revisit a tactical decision of this nature unless it is one nocompetent lawyer would have made, and if what occurred may have affectedthe outcome.2 Neither apply in this case.[17] We said above that Mr Allan also complained about Crown counsel'sre-examination of Ms Summersby. These complaints concern Ms Summersbyrepeating what she had said in cross-examination regarding Mr Bartram's threats andthat he had raped her. Mr Allan also complains that Crown counsel asked severalleading questions. There is nothing in these points. The re-examination added nothingto what had already been said.[18] Mr Allan raised a separate point about Ms Summersby's evidence regardingthe letters she said she had received from Mr Bartram. Crown counsel sought leavefrom the Judge to question Ms Summersby about one of these letters because itincluded a statement by Mr Bartram which indicated the cellphone was his. The Judgeallowed this and Crown counsel proceeded to put the letter to Ms Summersby.[19] Mr Allan's complaint on appeal is that the letter contained no threat ofthe nature Ms Summersby had referred to in evidence. We do not understand why thisshould be a ground for complaint. The absence of any threat in the letter meant thiswas another instance in which Ms Summersby's allegations were not borne out byreality. Defence counsel drew attention to that in her closing address. It cannot havebeen lost on the jury, and could only have further undermined Ms Summersby'scredibility.Direction as to motive to lie and observation as to Ms Summersby's credibility[20] Mr Allan takes issue with two aspects of the Judge's summing up.[21] First, he submits that the Judge should have, but did not, direct the jury ofthe need for caution as regards Ms Summersby's evidence as she had a motive to lieand to give false evidence prejudicial to Mr Bartram.32 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [77].3 Evidence Act 2006, s 122(2)(c).[22] Although Ms Tustin did not ask the Judge to give such a warning, we acceptthat the Judge was required to consider giving such a warning. That said, nothingturns on the point in this case. The jury could not have been in any doubt followingcounsel's closing remarks and the Judge's summing up that the key issue was whetherthey believed Ms Summersby. Her motive to point the finger at Mr Bartram, anddeflect it from herself, was clear.[23] Mr Allan also complains that [34] of the Judge's summing up was overlysympathetic to Ms Summersby. We do not accept this submission. The passage needsto be read in the context of the preceding paragraphs, which were as follows:[31] [Ms Summersby] says that the cellphone is the defendant's. She saysthat the firearm belongs to the defendant. That's challenged by the defence,and the defence challenges her credibility and asks you to take particularnotice that the only evidence that the defendant was present in Hamilton onthe 18th of March 2017 is from [Ms Summersby]. Furthermore, that she wasfound on the 5th of April with the firearm and the cellphone, not the defendant,and that you cannot dismiss the possibility that [Ms Summersby] is attemptingto remove herself from the frame for the aggravated robbery by attributingresponsibility for the possession of the firearm to the defendant, from whomshe was totally estranged at the time she spoke to the police.[32] The Crown in this respect points to the text from the cellphone thatsuggests that Keith, which of course is the defendant's first name, usedthe cellphone on the 20th of March, just two days later, but I suggest to youthat the likelihood is that this cellphone, if you accept that the defendant usedit on the 20th of March, "Hey it's Keith here," this was a phone used by bothof them over the period and that whether it's entirely hers or entirely his is notthe point so much. The value of this evidence is that it points to this cellphonecoming down from Auckland to Hamilton at the relevant period of time andthen heading back to Auckland and so who had it depends upon[Ms Summersby's] evidence.[33] The defence ask you to accept that [Ms Summersby's] knowledge ofthe circumstances surrounding the aggravated robbery, the connection withthe gun, the timing, the general area in Hamilton, asks you to accept that thisis because she was involved and she is trying to distance herself from this byblaming the defendant - and that is a matter for you. The credibility of[Ms Summersby] is critical to this case.[34] Can I just make one comment on the statement made by her inthe course of her evidence that she was with the defendant because he hadeffectively kidnapped her and raped her and had made threats to do harm toher family. You may think that those comments on her part were a bit of anoverstatement, that is a matter for you, but you might think that. Does thatdestroy her credibility in all respects, or was this simply an immature youngwoman's attempt to explain away a period of her life, activities that she wasinvolved in, that she's ashamed about, and trying to forget? Does thatcompletely destroy her credibility in relation to this aggravated robbery?Well that's a matter for you.[24] By these remarks the Judge was emphasising that the case turned on whetheror not the jury accepted Ms Summersby's evidence and in [34] was indicating thatthe jury might consider Ms Summersby's exaggerations destroyed her credibility.Ms Ewing, for the Crown, submitted that the passage complained of was "defencefriendly" and we agree.[25] For these reasons, there is no merit in the appeal against conviction.Appeal against sentence[26] The Judge sentenced Mr Bartram and Mr Kennedy on consecutive days,starting with Mr Bartram.4 The Judge adopted a starting point of seven years'imprisonment for each. He uplifted Mr Bartram's starting point by six months to takeaccount of his prior criminal history, giving an end sentence of seven years, sixmonths' imprisonment.[27] In his written submissions, Mr Allan submitted that Mr Bartram's sentence wasmanifestly excessive as the starting point was too high. Mr Allan also submitted thata "parity" issue arises having regard to the Judge's sentencing of Mr Kennedy.[28] At the hearing before us, Mr Allan accepted that the Judge's starting point ofseven years was within range, as it was, so we say no more about this point.5[29] Nor is there anything in the submission as to an unjustifiable lack of parity.At the time he was sentenced, Mr Kennedy was already serving a term ofimprisonment for a similar aggravated robbery committed just a few days before hisoffending with Mr Bartram. This robbery was of premises in Dinsdale, Hamilton.[30] The Judge sentenced Mr Kennedy as if he were sentencing for both the indexoffending and the Dinsdale offending. A seven year starting point for each (the Judgesentencing on the Dinsdale offending had adopted the same starting point) meant a4 R v Bartram, above n 1; and R v Kennedy [2018] NZDC 18745.5 R v Mako [2000] 2 NZLR 170 (CA) at [54].combined starting point of 14 years' imprisonment.6 After reducing this to 10 yearsfor totality, and giving various discounts, the Judge arrived at an end sentence for bothoffences of eight years, one months' imprisonment. The final sentence on the Dinsdaleoffending was five years, three months' imprisonment and so the Judge imposed anadditional cumulative period of imprisonment to achieve that overall term.[31] In short, Mr Kennedy did not end up with a lesser end sentence for twoaggravated robberies than Mr Bartram for one. In any event, it is apparent fromthe sentencing notes that Mr Kennedy was younger than Mr Bartram, in his early 20sas opposed to Mr Bartram in his 30s. The Judge thought that Mr Bartram hadinfluenced Mr Kennedy, so it would not have been surprising if Mr Kennedy hadreceived a lesser sentence.[32] Mr Allan also submitted that the Judge's sentencing of Mr Bartram may havebeen harsher than warranted because he was influenced by a factual error apparent inhis sentencing notes for Mr Kennedy. In sentencing Mr Kennedy, the Judge stated thathe had a "distinct recollection" of the jury "openly laughing" at Mr Bartram when hegave evidence at trial that the rifle belonged to Ms Summersby because they thoughtthat ridiculous. This plainly was an error because Mr Bartram did not give evidenceat trial. Regardless, there is nothing remarkable about Mr Bartram's sentencing.The end sentence was within range and that is all that matters.Result[33] The appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent6 R v Kennedy [2017] NZDC 12443.