Bartram v The Queen - [2019] NZCA 305

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA530/2018
[2019] NZCA 305

BETWEEN	KEITH BARTRAM Appellant
AND	THE QUEEN Respondent

Hearing:	21 May 2019
Court:	Kós P, Peters and Mander JJ
Counsel:	D J Allan for Appellant A J Ewing for Respondent
Judgment:	11 July 2019 at 3.00 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.

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REASONS OF THE COURT

(Given by Peters J)

The appellant, Mr Bartram, was convicted of one charge of aggravated robbery following a jury trial before Judge Spear in the District Court in Hamilton in August 2018. The Judge later sentenced Mr Bartram to seven years, six months’ imprisonment.[1]
[1]R v Bartram [2018] NZDC 18481.
Mr Bartram appeals against conviction on the grounds that errors by the Judge in relation to a prosecution witness, Ms Corey Summersby, gave rise to a miscarriage of justice. Ms Summersby was Mr Bartram’s partner at the time of the aggravated robbery.
Mr Bartram appeals against sentence on the ground that it is manifestly excessive.

Background

The Crown case was that Mr Bartram was a party to the aggravated robbery of a bar in Hamilton in March 2017. The Crown alleged that Mr Bartram drove Mr 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 Kennedy gave them. On Mr Kennedy’s return to the vehicle, Mr Bartram sped away, driving all 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 provided the rifle that Mr Kennedy presented and was the get-away driver.
The case went to trial against Mr Bartram only, Mr Kennedy having pleaded guilty.
The Crown case relied principally on Ms Summersby’s evidence and evidence derived from a cellphone.
Ms Summersby had been in a relationship with Mr Bartram for several weeks at the time of the robbery, and was 20 or 21 years of age at the relevant time. Mr Bartram was aged 31.
Ms Summersby’s evidence was that the rifle used in the robbery was Mr Bartram’s, that Mr Bartram had been the get-away driver, and that the cellphone was Mr Bartram’s or at least was the cellphone he used. The cellphone was important because polling data showed that it had travelled from Auckland to Hamilton and back on the day of the robbery. Accordingly, the cellphone placed MrBartram in Hamilton at 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 what Ms Summersby identified as Mr Bartram’s tattooed arm holding the gun.
The defence did not call evidence at trial. However, its case was that the Crown could not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bartram v The Queen

Details

AGLC: Bartram v The Queen [2019] NZCA 305
Case: [2019] NZCA 305
Decision Date: 11 July 2019 at 3.00 pm

CaseChat Overview and Summary

Keith Bartram appealed against his conviction and sentence for aggravated robbery, arguing that errors by the trial Judge gave rise to a miscarriage of justice and that his sentence was manifestly excessive. The Crown alleged that Mr Bartram drove his accomplice to a bar in Hamilton in March 2017, where the accomplice committed the robbery while armed with a sawn-off rifle provided by Mr Bartram. Ms Corey Summersby, Mr Bartram's partner at the time, gave evidence implicating him in the offence. The Court of Appeal dismissed the appeal against conviction, finding that the Judge's summing up emphasised the critical nature of Ms Summersby's credibility and did not err in failing to intervene when defence counsel chose not to object to parts of her evidence. The Court also dismissed the appeal against sentence, finding that the Judge's starting point of seven years was within range and that Mr Bartram's sentence was not manifestly excessive.

The Court held that the Judge was required to consider giving a direction to the jury as to Ms Summersby's motive to lie, but found that nothing turned on the point as the jury could not have been in any doubt that the key issue was whether they believed Ms Summersby. The Court found that the Judge's summing up was not overly sympathetic to Ms Summersby, but rather emphasised that the case turned on whether or not the jury accepted her evidence. The Court found that the Judge's sentencing of Mr Bartram was not unjustifiable, and that the end sentence was within range. The Court also found that there was no merit in the submission that the Judge's sentencing of Mr Bartram may have been harsher than warranted because he was influenced by a factual error apparent in his sentencing notes for Mr Kennedy.

Orders