R v Roberts

[2018] NZHC 1875

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF THE TRIAL OF

GEORGE DAVID HENRY SMITH.
PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2016-076-001086

[2018] NZHC 1875

THE QUEEN

v

KIM PATRICIA ROBERTS

Hearing:

26 July 2018

Appearances:

A R McRae for the Crown

T W Fournier for the Defendant

Date:

26 July 2018

SENTENCING REMARKS OF NATION J

Witness refusing to take the oath or give evidence in the trial of George David Henry Smith.

[1]    Kim Roberts has been summonsed to give evidence at the trial of George Smith on the charge of kidnapping. I am satisfied, from the evidence I have heard in this trial already from other witnesses and also from reading a statement which Kim Roberts made to the Police very shortly after the kidnapping was alleged to have occurred, that she is a witness who would be able to provide relevant evidence to the Court on an issue that is important in this trial.

R v ROBERTS [2018] NZHC 1875 [26 July 2018]

[2]    There was an earlier trial at which Ms Roberts refused to give evidence and she was held in custody for much of a day as a result of refusing to be sworn at that time.

[3]    She has been brought before the Court on a summons and then on the issuing of a warrant but has indicated in this trial that she is not willing to take the oath and not willing to give evidence.

[4]    This morning, before the trial started, I spoke to her personally in an endeavour to show her just how important it is to the administration of justice and the whole fair trial process that people in a position to give evidence do so when they are summonsed to do so. She listened to that, she responded to what I had to say but indicated that she was determined not to go into the witness box. She was essentially stood down in custody and brought back before the Court at 11.45 am. I arranged for her to be able to receive advice from counsel, Mr Fournier, and I am grateful that he has been available.

[5]    Ms Roberts is now back before me with the benefit of counsel appearing for her. She has indicated, she is firm, that she is not going into the witness box. She has provided me with documents largely provided to the Court last year but with some update in March 2018 which indicates that she does have psychological issues herself as a result of matters that occurred in the past and that she suffers from post traumatic stress disorder. Those providing the reports have indicated how difficult it would be for her to give evidence and the potential for her to suffer an intensification of her mental health problems as a result of the ordeal of her giving evidence.

[6]    Despite all that and recognising that, it is clear to me that Ms Roberts nevertheless has been able to listen to my questions, has been able to respond to them quite coherently and, in my view, would be able to give evidence. I have to say that I do not accept that the matters she has referred to provide a just excuse for her not giving evidence.

[7]    My real preference would have been for her to show the courage and the responsibility that any member of the community has to demonstrate when they are

required and summonsed to take part in some way in a trial as important as this. It is unfortunate that Ms Roberts still will not do that and I am faced with the fact that she is refusing to go into the witness box. That is the situation.

[8]    The administration of justice is serious. It is important to everyone. It is important that the Crown and a defendant have a fair trial. Ms Robert’s attitude is making that more difficult. That is something I want to record and recognise. I consider she is refusing to go into the witness box and take the oath without reasonable excuse so I am in the position of having to consider what sentence is imposed for that.

[9]    Under the Criminal Procedure Act 2011, I can impose a sentence of up to seven days. I am conscious of the fact, as I understand it, that Ms Roberts was in custody last night on the warrant. I am conscious of the particular problems that she has that make it a particular ordeal for her to give evidence. Despite those matters, I do need to mark how serious it is, from the community’s point of view, that a witness not answer a summons when they should do so.

[10]   Taking into account the matters I have just referred to, in one sense, the sentence can be considered to be merciful.

[11]   Ms Roberts, I am going to sentence you to imprisonment for one day for failing to answer the summons. If, on leaving the Court, you are willing to change your mind, just tell the prison officer and you can be brought back, but you would have to do that before the luncheon adjournment at 1.00 pm.

[12]That is my sentence.

[13]   I also make an order suppressing my sentencing remarks until the conclusion of this trial.

Solicitors:

Gresson Dorman & Co., Timaru

T W Fournier, Barrister, Christchurch.