The Queen v Pinder - [2009] NZCA 108

NOTE: ANY PUBLICATION OF A REPORT OF THESE PROCEEDINGS MUST COMPLY WITH S 139 OF THE CARE OF CHILDREN ACT 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA642/2008
[2009] NZCA 108
THE QUEEN
v
LIONEL MALCOLM PINDER
Hearing:30 March 2009

Court:Robertson, Gendall and Keane JJ
Counsel:C M Ruane for Appellant

T M Gresson and J M Jelas for Crown

Judgment:1 April 2009 at 4.30 pm

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.
____________________________________________________________________
REASONS OF THE COURT
(Given by Robertson J)
Introduction
[1]       Mr Pinder was charged with unlawful sexual connection by digital penetration and, in the alternative, doing an indecent act on a child. Following a trial in the Timaru District Court before Judge Philip Moran, he was convicted of doing an indecent act, but acquitted of sexual violation.
[2]       Mr Pinder appealed against both conviction and sentence, but abandoned the appeal against sentence.
Background
[3]       The complainant in this case (“TPB”) was five years old at the time of the offending.
[4]       In June 2007, TPB, her mother (“HJB”) and her mother’s partner spent the weekend at Mr Pinder’s house. On the Sunday morning when TPB and other children were watching television, Mr Pinder called TPB into his bedroom, shutting the door behind them. When HJB went into the bedroom looking for her daughter, she saw her sitting on Mr Pinder’s bed with no pants on. Mr Pinder appeared to be about to leave the room.
[5]       HJB immediately inspected TPB’s genitalia. She made a complaint to police and had her daughter examined by a DSAC doctor. Two days later, TPB was interviewed by a specialist evidential interviewer. The interview was video-recorded and admitted at trial as TPB’s evidence in chief. The video interview constituted a substantial part of the Crown’s evidence at the trial, but TPB was also cross-examined and re-examined. There was evidence from some other witnesses.
[6]       The complainant was not particularly forthcoming in the evidential interview. Eventually, however, she disclosed that she and the appellant had been on the bed together. She confirmed that there was “something that she didn’t want to talk about”. She then agreed that the appellant had touched her genital area with his finger. Relevantly, she also said that Mr Pinder “took them off” in response to the question “was there anything that happened to your fairy pyjamas?”. When the interviewing police officer followed up on this question, asking “So Lionel took your fairy pyjamas off?”, TPB responded “yeah”.
[7]       The final questions asked of the complainant in cross-examination were:
Q.Now I want to go back to the bedroom, I’m sorry I’m jumping around a wee bit. Do you remember when you were in the bedroom with Lionel?
A.Yes
Q.When you were in the bedroom with Lionel he was busy with the telly trying to get that to go?
A.Yes
Q.He didn’t come over to the bed and touch you did he?
A.No

[8] In re-examination, in answer to Crown counsel, she said:
Q.Do you remember in…

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 The Queen v Pinder

Details

AGLC: The Queen v Pinder [2009] NZCA 108
Case: [2009] NZCA 108
Decision Date: 1 April 2009

CaseChat Overview and Summary

Lionel Malcolm Pinder was convicted by the Timaru District Court of doing an indecent act on a child, but acquitted of sexual violation. The complainant, a five-year-old child, testified that Mr Pinder had touched her genital area with his finger, but her testimony contained inconsistencies. The court had to determine whether the inconsistencies in the complainant's testimony were sufficient to render her evidence unreliable and whether the trial judge's directions to the jury adequately addressed the issue of the complainant's credibility.

The Court of Appeal found that the trial judge had appropriately directed the jury to consider the inconsistencies in the complainant's evidence and that the jury was not required to accept her evidence unreservedly. The Court noted that the complainant's testimony, while not entirely consistent, was supported by other evidence, including the testimony of other witnesses and DNA evidence. The Court concluded that the jury could reasonably have been satisfied beyond reasonable doubt of Mr Pinder's guilt based on the totality of the evidence presented.

The Court of Appeal dismissed Mr Pinder's appeal against his conviction, finding that the verdict was not unreasonable and could be supported having regard to the evidence. The Court emphasised that reasonable minds may disagree on matters of fact, and an appellate court ought not to substitute its assessment of the evidence for that of the jury.

The final orders of the Court of Appeal were that the appeal against conviction was dismissed, and Mr Pinder's conviction for doing an indecent act on a child was upheld.

Orders