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 rooms and similar matters. 

[8]       The appellant was then cross-examined by the prosecution.  He confirmed the relationship he had with the complainant’s mother, and that he had lived on and off with the complainant’s mother, the complainant and her brother over the relevant period.  The prosecutor also challenged on the accuracy of his recollection of specific details, on the basis that the events in question had occurred more than 18 months ago. 

Discussion

Summing up unfair

[9]       Mr Nabney suggested that the Judge’s summing up was unfair, and that the Judge seriously undermined the defence case and defence counsel’s closing address.  He said further that the Judge introduced material in his summing up on which no evidence had been led by the Crown.

[10]     In support of those propositions, he pointed to the Judge’s comments at paragraphs 73 and 77 of the summing up where the Judge said:

[73]     … So she knows why she is there to be interviewed, she says it is about being touched by the accused in the vagina and then she spells out, effectively, these other incidents about being kissed, the incident with Brook, the fact that it has happened when her brothers have been in the room, all of these matters seem to come tumbling out and then in a pepper pot sort of way, she talks about part of one incident and part of another incident throughout the interview.

[77]     No doubt you have all had that situation where an 11, 12 or 13 year old has told you what happened at school or what happened in the movie that they have just watched.  Is it an account where it is orderly, these are the facts relating to incident 1, these are now the facts relating to incident 2 and so on, or is it pepper potted as the story falls out, sometimes focus on one incident, sometimes on the other. …

[11]     With reference to those two passages in particular, Mr Nabney’s proposition was that the effect of the summing up was to undermine the main thrust of the defence closing as to the reliability of the complainant.  Specifically, not just that the incidents as described by the complainant had – as Mr Nabney accepted was the case, been described “in a pepper pot sort of way”, but more to the point that her evidence as to those incidents was inconsistent.

[12]     We do not accept those propositions.

[13]     In our view in the first passage referred to, the Judge reinforces Mr Nabney’s submissions.  The Judge acknowledges that the evidence came “tumbling out” in a “pepper pot sort of way”.  In his summing up, the Judge went on to note that the jury therefore had to look at the totality of the evidential video.  He acknowledged that the discrepancies that existed “will obviously raise issues as to the weight you can place on the complainant’s evidence”.  The Judge then, quite properly in our view, noted that in assessing the credibility of the complainant, the jury had to take account of her “maturity, her age, her circumstances, what she said, how she said it, whether it is internally consistent, whether it is externally consistent”.  The Judge concluded:

You have to decide those matters yourself based on your experience of life.  It is a matter entirely for you.  But it does illustrate, as I have said, that the video interview in particular needs to be read carefully, the evidence of what has been said analysed and of course that needs to be then compared with and if necessary contrasted with what is said in her evidence in Court particularly the close cross-examination of her by Mr Nabney on the events which she has alleged.

[14]     We therefore conclude that the Judge was not undermining Mr Nabney’s case, but rather putting it fairly to the jury.  The Judge did not invite the jury, as Mr Nabney suggested, to ignore any internal inconsistencies. Rather he fairly and properly put to the jury their task of assessing the credibility and reliability of the complainant’s evidence.  Nor did the Judge improperly introduce material on which there had been no evidence.  Rather, in referring to the way in which a young person might give evidence, we think the Judge was making obvious and common-sense observations to help the jury in their task.

[15]     In our view, the Judge’s summing up cannot be criticised.  Rather, we think the Judge very fairly and clearly put the case to the jury in his summing up.  Moreover, he reminded the jury of the very issue Mr Nabney was concerned about, namely inconsistencies in the complainant’s evidence, not once but on several occasions. 

Unfair cross-examination

[16]     Mr Nabney’s submission was that the prosecution, in cross-examining the appellant, did not sufficiently put to him what aspects of the complainant’s evidence he said she was lying about. 

[17]     In terms of the prosecution putting the complainant’s evidence to the appellant, the following exchange occurred at the end of his cross-examination:

Now you've heard [X’s] evidence so effectively you're saying she’s lying?  Yes.

And you knew [X] obviously throughout that whole period that you were seeing her mother?  Yes.

So you’d accept that this isn’t a case that [X] doesn’t know who you are?  She knows who I am.

[18]     The appellant was not re-examined by Mr Nabney.

[19]     Mr Nabney identified the following particular issues to which he said the prosecutor should have referred:

a)The occupants of the house;

b)The layout of the house in general;

c)The layout of the complainant’s bedroom; and

d)The sleeping arrangements.

[20]     He pointed to the relatively brief cross-examination that the Crown had undertaken.  In particular, he noted that the Crown had not put the complainant’s allegations to the appellant in detail and therefore had not given the appellant the opportunity to reply to the detail of those allegations.

[21]     In doing so, Mr Nabney’s submission was that the Crown had failed in their prosecutorial duty to properly challenge the appellant’s evidence.

[22]     The general duty to cross-examine is now reflected in s 92 of the Evidence Act, which provides as follows:

92     Cross-examination duties

(1)In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.

(2)If a party fails to comply with this section, the Judge may—

(a)   grant permission for the witness to be recalled and questioned about the contradictory evidence; or

(b)   admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or

(c)   exclude the contradictory evidence; or

(d)   make any other order that the Judge considers just.

[23]     That section has its origin in common law principles notably recorded in the House of Lords decision of Browne v Dunn (1893) 6 R 67. Those principles have been discussed more recently in a number of cases in New Zealand, namely Police v Maine HC WN M208/86 28 August 1986 and the decisions of this Court in R v Accused CA273/91 20 December 1991 and Gutierrez v R [1997] 1 NZLR 192. 

[24]     Here, the contest between the prosecution and the defendant was clear: was the complainant’s evidence sufficient to establish the appellant’s guilt beyond reasonable doubt?  In terms of that proposition, the appellant himself gave evidence, in which he denied the allegations, and challenged specific details of the complainant’s evidence. 

[25]     In that situation, what is the extent of the duty reflected in s 92? 

[26]     In our view, the answer to that question can be found in a consideration of the general purpose of the duty that is imposed and, more specifically, in comments on the extent of that duty in cases, such as this, where an accused gives evidence to counter allegations against him.

[27]     The general purpose of the duty reflected in s 92 was commented on by this Court in R v Dewar [2008] NZCA 344 as being one of fairness. It relates to the challenge and confrontation of opposing witnesses under the adversarial system. It is not, however, absolute. Nor does it need to be slavishly followed where the witness is perfectly well aware if his or her evidence is not accepted on a particular point.

[28]     More specifically, and in the context of this case, the implication of that duty can be seen from the following comments in Gutierrez on R v Accused:

It was argued [in R v Accused] that the appellant ought to have been given the opportunity of answering the allegation, and the jury the opportunity of hearing him answer it, in the adversarial context of cross-examination and not simply in what could be called the more bland context of evidence-in-chief: if the appellant had been cross-examined on both charges the appellant would have had his overall credibility properly tested.  The Court said at p 8:

We cannot accept this submission.  The principle to which Haslam J referred [that failure to cross-examine will amount to an acceptance of the witness’s testimony], if it be that, cannot logically apply to an accused whose evidence, consistently with earlier statements, is an outright denial of the offence.  The very fact that he is on trial is sufficient demonstration that his denial is not accepted.  Furthermore, we do not accept that it is any part of the prosecutor’s duty to afford the accused further opportunity to establish his credibility.  That is for him to do, in giving his evidence-in-chief.  The prosecutor’s approach was unusual and not to be encouraged as a general practice, but it was a cleverly calculated cross-examination which cannot be said to have been unfair.

[29]     We think those remarks apply equally to this case.  We think it is clear, by reference to that authority, that the appellant’s cross-examination by the prosecutor was neither unfair nor in breach of her duty.  Rather, to require the prosecutor to put again the complainant’s version of events would have involved a needless repetition of evidence.

[30]     We therefore do not consider that the appellant’s cross-examination by the prosecution was unfair or in breach of the duty under s 92.

[31]     For those reasons, the appellant’s appeal against conviction is also dismissed.

Solicitors:
Crown Law Office, Wellington