R v Soutar - [2009] NZCA 227

IN THE COURT OF APPEAL OF NEW ZEALAND
CA704/2008
[2009] NZCA 227
THE QUEEN
v
EDMOND TRACEY RONALD SOUTAR
Hearing:28 May 2009

Court:Hammond, Ronald Young and Clifford JJ
Counsel:W T Nabney for Appellant

T Epati and K Laurenson for Crown

Judgment:2 June 2009 at 3 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
REASONS OF THE COURT
(Given by Clifford J)
Introduction
[1]       Mr Soutar, the appellant, was convicted by a jury in the District Court at Tauranga on two charges of indecent assault, and one of doing an indecent act, on a female complainant aged 11 and 12 years old at the time of the offending. Mr Soutar now appeals those convictions. He does so on the basis that the Judge’s summing up was unfair. He says further that the prosecution failed, as it was required to by s 92 of the Evidence Act 2006, to cross-examine him properly.
[2]       Mr Soutar had also originally appealed against his sentence. Although Mr Nabney did not formally discontinue that appeal prior to the hearing, at the hearing he indicated that he would not be pursuing that matter. We therefore formally dismiss Mr Soutar’s appeal against his sentence.
Background
[3]       This was a short trial. The complainant gave evidence-in-chief by way of a video record of an evidential interview. During that interview she described, in a manner that was neither systematic nor well organised, the events that she said had occurred between the appellant and her. The gist of her evidence was that on many occasions, whilst the appellant was in a relationship with her mother and living on and off at the two family homes during that period, he had entered her bedroom and, whilst she was in bed, had touched her vagina under the bedclothes. Sometimes he touched her through her undergarments, and on other occasions he had direct contact with her body.
[4]       She gave evidence of one particular occasion where the appellant asked her whether she wanted to learn how to kiss, and had then forcefully kissed her putting his tongue inside her mouth. She also gave evidence of another specific event on her 12^th birthday. On that day she was sleeping on a mattress in the lounge and the appellant arrived home. He had then lain down behind her as she lay on the mattress, reached around her, placed his hands down her pants and touched her vagina with his hand.
[5]       The complainant’s mother gave evidence by her brief, by consent, being read to the Court. She confirmed that she and the appellant had lived together in a relationship at the relevant time, at the homes where the complainant lived with her. She was not cross-examined.
[6]       Finally, the appellant gave evidence. His evidence was relatively brief.
[7]       In his evidence-in-chief he denied each of the complainant’s allegations. Furthermore, his evidence challenged certain details of the complainant’s evidence, such as the particulars of the sleeping arrangements, the layout of certain…

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 R v Soutar

Details

AGLC: R v Soutar [2009] NZCA 227
Case: [2009] NZCA 227
Decision Date: 2 June 2009

CaseChat Overview and Summary

The case of R v Soutar involved an appeal by Edmond Tracey Ronald Soutar against his convictions for indecent assault and doing an indecent act on a female complainant. The appeal was heard by the Court of Appeal of New Zealand, with Hammond, Ronald Young, and Clifford JJ presiding. The primary grounds for appeal were the alleged unfairness of the summing up by the trial judge and the prosecution's alleged failure to cross-examine Soutar properly under s 92 of the Evidence Act 2006.

The court found that the summing up by the judge did not unfairly undermine the defence case. The judge had acknowledged the inconsistencies in the complainant's evidence and highlighted the need for the jury to assess the credibility of her evidence based on various factors, including her maturity and the circumstances of the case. The court concluded that the judge had fairly presented the case to the jury, reminding them of the inconsistencies in the complainant's testimony rather than encouraging them to ignore them.

The court also dismissed Soutar's claim that the prosecution failed to cross-examine him properly. The court noted that the prosecution had challenged Soutar on significant matters relevant to the case, including his denial of the allegations and specific details of the complainant's evidence. The court observed that the prosecutor's approach, while unusual, was not unfair or in breach of her duty under s 92. The court held that the prosecutor was not required to repeat the complainant's version of events in detail during cross-examination.

For these reasons, the Court of Appeal dismissed Soutar's appeal against both his conviction and sentence. The original convictions and sentence were upheld.

Orders