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 the video you were talking to TC you told us how Lionel had touched you?

A.Yes

Q.Was that the truth or not?

A.That was the truth.

Q.Where did he touch you?

A.Umm on the bottom.

Q.What did he touch you with?

A.His finger.

Q.And where did that happen TPB?

A.Umm last year.

Q.Where were you when it happened TPB?

A.       In the bedroom.

[9]       Also in cross-examination, it was put to the complainant that her pants had fallen down while she was jumping up and down on the bed in Mr Pinder’s bedroom, and that she had not been wearing any underpants underneath her pyjamas because she had wet the bed the night before.  TPB agreed to both propositions.

[10]     In re-examination, the complainant was asked how her pants came off, to which she responded, “they fell off … by jumping on the bed”.

[11]     In addition to TPB’s evidence, the Crown called evidence from six witnesses.  They were:

(a)TPB’s mother, HJB.  HJB opened the bedroom door and saw her daughter sitting on the bed with no pants on.  She said that she heard Mr Pinder say to TPB “what are you doing putting your knickers on?”

(b)A 12 year old boy staying at the address at the time of the offending.  He saw TPB go into the bedroom with Mr Pinder and saw the door shut.  He was conscious that TPB and Mr Pinder were in the bedroom for an appreciable length of time.  He and Mr Pinder’s son listened at the door and could hear TPB giggling.

(c)TPB’s mother’s partner.  He spoke to Mr Pinder on the day of the offending.  Mr Pinder told him that he had been found by the mother in a compromising position when he was getting changed in his room and TPB was on the bed with no pants on.

(d)Dr Robyn Cary, a DSAC accredited doctor.  She had examined TPB after the offending and described redness on the complainant’s genitalia.  In cross-examination she said that the redness may have been caused by TPB wetting herself.

(e)An ESR scientist, Ms Rosalyn Rough.  She said that DNA profiling conducted on swabs taken from TPB “provides support” for the proposition that male DNA detected on the swabs originated from Mr Pinder or a male relative.

(f)Another ESR scientist, Ms Heidi Baker, analysed the swab samples.  In her affidavit she said that Mr Pinder could not be excluded as a potential source of the trace additional DNA that was detected.  She said that the detected DNA was 44 times more likely to have originated from Mr Pinder than another male selected randomly from the New Zealand population.

Judge Moran’s summing up

[12]     Judge Moran commenced his summing up by telling the jury that:

[3]       … it is that aspect of credibility that is central to this case when you are talking about wee TPB, can you rely on her.

[13]     The Judge went on to say in respect of the complainant’s evidence:

[25]     The Crown’s case depends substantially on TPB’s evidence and you have to decide is this little girl a reliable witness?  Can we safely rely on her evidence?  You need to think carefully about whether you accept her evidence of sexual abuse, and if so, what weight you give to it ... to a very substantial extent, especially in relation to count one, the Crown’s case depends upon the reliability of her evidence …  Very young children typically say very little about what has happened to them without help to focus on the events in question.  You might think that was evident in the interview with [the complainant].  That a lot of effort went in by the interviewer to actually focus her on the events in question.  A lot also depends on how a child is questioned.  Very young children are susceptible to suggestion, to give you the answer they think you want to hear.  I recommend you scan the transcript carefully to see if the interviewer might have put the idea of abuse in [her] mind … please be careful when you are considering her evidence.  When considering her cross examination […] nearly all of [this] was closed questions, questions that suggested the answer and you might think [TPB] gave the appearance of eating out of his hand – she would say yes to anything.  Of course, however the questions came to be asked one conflict does remain doesn’t it – she said to the interviewer that Lionel took her pyjamas off but she told you in cross-examination and re-examination that they fell down while jumping on the bed.

[14]     Judge Moran suggested to the jury that it look beyond the complainant’s evidence to the supporting evidence given by the other witnesses.  He noted that the Crown case was based on multiple pieces of circumstantial evidence, and that the defence case was the complainant’s evidence was fundamentally unreliable.

The appeal

[15]     Mr Ruane submits that the two different answers given by TPB, the first in the interview and the second in both cross-examination and re-examination, mean that her evidence is so self-contradictory that no properly directed jury could reasonably have convicted Mr Pinder in reliance on it.

[16]     Mr Ruane submits that Judge Moran did not refer directly in his summing up to the way the complainant shifted ground on the question of how her pyjama pants came off and nor to her acceptance in cross-examination that Mr Pinder did not in fact touch her.  He complains that the Judge ought to have directed the jury on TPB’s unreliability, rather than referring to it only as a defence submission.

[17]     Ms Jelas, for the Crown, submits that although the complainant gave contradictory evidence as to how her pyjama pants were removed, her acceptance in cross-examination that Mr Pinder did not touch her ought not to be interpreted as a recantation, because the questions put to TPB were complex and her answers may therefore reflect a confusion over the actual question being asked.  She submits that given the leading and compound nature of the questions, it cannot be concluded that the answers she gave were genuine recantations or inconsistencies.  Ms Jelas says that a guilty verdict was open to the jury and that the Judge provided an adequate direction.

R v X [2007] NZCA 500

[18]     Mr Ruane relied heavily on the decision of this Court in R v X.   That case involved a situation similar to that in the present case with the accused having been convicted on a representative count of indecent assault on a four-year old girl.  The sole evidence offered by the Crown was that of the complainant and the trial turned completely on her reliability.  In cross-examination the complainant retracted her original account of multiple indecent assaults, but resumed it in re-examination.  There was no independent evidence.

[19]     On appeal X complained that the trial Judge should have directed the jury to acquit him unless they could be satisfied that, despite her retraction in cross-examination, the complainant was constant in her complaint.  Considering the adequacy of the Judge’s direction, the Court said:

[43]     [The complainant’s shifting ground on her allegations] was the issue on which the Judge had also to focus his directions and to a significant extent he did so. The final issue has, however, to be whether he put to the jury how critical the contradictions in [the complainant’s] evidence were to the reliability of her complaint and to the Crown’s case.

[20]     The Court noted that the Judge had adverted in his direction to the fact that parts of the complainant’s evidence were inconsistent with other parts, but had not brought home to the jury how radically the complainant had shifted ground, or the effect of that on the Crown’s case.  The Court concluded:

[48]     The Judge should, we think, have ended by directing the jury that [the complainant’s] evidence in chief was capable of sustaining the Crown’s case if they believed it.  But that to decide whether they did they needed to be sure that, when re-examined, she had credibly resumed her complaint after having, when cross-examined, abandoned it so apparently completely.  That unless they could be sure that, when cross-examined, she had been merely deflected from her complaint, they should acquit.

Discussion

[21]     The sole evidence on which the Crown rested its case in R v X was that of the complainant.  There was no DNA or medical evidence, and no other witnesses.  Not surprisingly the Court concluded that unless the complainant’s evidence was “transparently secure” the conviction could not be said to be safe.

[22]     In this appeal, TJB’s evidence on its own may have been viewed as an inadequate basis for conviction.  It could have been seen as confused, like that in R v X, and self-contradictory in some aspects as between the interview, cross-examination and re-examination.

[23]     However, in light of the additional evidence brought by the Crown, the need for an unequivocal judicial direction, that for a guilty verdict TJB’s evidence had to be accepted unreservedly, does not exist in the present case.  The other evidence formed additional material which, when taken in concert, could lead a jury to be reasonably satisfied of Mr Pinder’s guilt.  Judge Moran adverted to the inconsistencies in the complainant’s evidence, while leaving to the jury any inference of unreliability that may be drawn from them.

[24]     Under s 385(1)(a) of the Crimes Act 1961, a verdict may be set aside on appeal if it is unreasonable or cannot be supported having regard to the evidence.  The Supreme Court in R v Owen [2008] 2 NZLR 37 said of the standard required by s 385(1) (a) that:

[17] … a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.

[25]     In this case, it cannot be said that having regard to all the evidence the jury could not reasonably have been satisfied that Mr Pinder was guilty of doing an indecent act on TJB.  It might not have been so satisfied, but as the Supreme Court said in Owen, 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.

[26]     It is clear that the jury understood the assessment which they had to undertake.  The more serious count required them to be satisfied beyond reasonable doubt that there had been digital penetration.  On that count they returned a verdict of not guilty.

[27]     We are satisfied that the Crown had provided a sufficient evidential basis to support the essential elements of the count upon which Mr Pinder was convicted.  This was a classic case in which the Crown were put to the proof.  The appellant had exercised his right not to speak to the police or to make any formal statement or to give evidence.  That is no indication of guilt, but it means there was not conflicting factual material which had to be resolved.

[28]     Careful directions were given as to the neutral aspect of the doctor’s evidence and the limitations associated with the DNA analysis.  When the evidence of this small child is assessed alongside what others who were there at the time were able to say, we are satisfied that the verdict is not unreasonable and the appeal must be dismissed.

Solicitors:
Crown Law Office, Wellington