Bartram v R [2019] NZCA 305 (11 July 2019)

Last Updated: 26 July 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA530/2018 [2019] NZCA 305

	BETWEEN	KEITH BARTRAM Appellant
	AND	THE QUEEN Respondent

Hearing:	21 May 2019
Court:	Kós P, Peters and Mander JJ
Counsel:	D J Allan for Appellant A J Ewing for Respondent
Judgment:	11 July 2019 at 3.00 pm

JUDGMENT OF THE COURT

The appeals against conviction and sentence are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Peters J)

[1] The appellant, Mr Bartram, was convicted of one charge of aggravated robbery following a jury trial before Judge Spear in the District Court in Hamilton in August 2018. The Judge later sentenced Mr Bartram to seven years, six months’ imprisonment.^[1]
[2] Mr Bartram appeals against conviction on the grounds that errors by the Judge in relation to a prosecution witness, Ms Corey Summersby, gave rise to a miscarriage of justice. Ms Summersby was Mr Bartram’s partner at the time of the aggravated robbery.
[3] Mr Bartram appeals against sentence on the ground that it is manifestly excessive.

Background

[4] The Crown case was that Mr Bartram was a party to the aggravated robbery of a bar in Hamilton in March 2017. The Crown alleged that Mr Bartram drove Mr Jayden Kennedy to the bar in Mr Bartram’s vehicle, and that their partners, including Ms Summersby, were in the car also. Mr Kennedy then went into the bar, presented a sawn-off rifle to the staff and the staff put cash in a bag that Mr Kennedy gave them. On Mr Kennedy’s return to the vehicle, Mr Bartram sped away, driving all concerned to Auckland and dividing the cash with Mr Kennedy en route. The Crown case was that Mr Bartram was a party to the offending because he provided the rifle that Mr Kennedy presented and was the get-away driver.
[5] The case went to trial against Mr Bartram only, Mr Kennedy having pleaded guilty.
[6] The Crown case relied principally on Ms Summersby’s evidence and evidence derived from a cellphone.
[7] Ms Summersby had been in a relationship with Mr Bartram for several weeks at the time of the robbery, and was 20 or 21 years of age at the relevant time. Mr Bartram was aged 31.
[8] Ms Summersby’s evidence was that the rifle used in the robbery was Mr Bartram’s, that Mr Bartram had been the get-away driver, and that the cellphone was Mr Bartram’s or at least was the cellphone he used. The cellphone was important because polling data showed that it had travelled from Auckland to Hamilton and back on the day of the robbery. Accordingly, the cellphone placed Mr Bartram in Hamilton at the time of the robbery, if it was in his possession as Ms Summersby said. The cellphone also had photographs on it showing large sums of cash and what Ms Summersby identified as Mr Bartram’s tattooed arm holding the gun.
[9] The defence did not call evidence at trial. However, its case was that the Crown could not prove Mr Bartram was involved in the aggravated robbery, that Ms Summersby was not to be believed and, in fact, such evidence as there was implicated Ms Summersby. The police had stopped Ms Summersby and Mr Bartram in Auckland, two or three weeks after the robbery. Mr Bartram fled when he learned there was a warrant for his arrest. Ms Summersby remained and was found to have the rifle in a bag of her clothes, ammunition for it in her wallet, and possession of the cellphone. She also told the police that she owned the vehicle that Mr Bartram was alleged to have driven on the day of the robbery. In addition, although some text messages on the cellphone appeared to be from or for Mr Bartram, some also appeared to be from or for Ms Summersby.
[10] All of this meant Ms Summersby’s credibility was very much in issue at the trial.

Evidence

[11] Mr Allan submits that parts of Ms Summersby’s evidence-in-chief and reexamination were highly prejudicial to Mr Bartram and inadmissible, and the Judge should have intervened to stop the evidence being given. He also submits that part of her evidence in re-examination should not have been allowed because it comprised leading questions, did not arise from cross-examination, and was prejudicial.
[12] In her evidence, Ms Summersby was at pains to exonerate herself from any wrongdoing or participation in the offending. In the parts of her evidence-in-chief of which Mr Allan complains, Ms Summersby:

• (a) said she had first become involved with Mr Bartram because he said he was “going to take” her 14-year-old sister if Ms Summersby did not go with him willingly; and
• (b) said she resumed contact with Mr Bartram after being apprehended by the police because he said that if she ran away “he would go back to Gisborne and he would kill my parents and ... he would take my little sister and do worse to her than he’d done to me”.

[13] Ms Tustin, defence counsel at trial, did not object to these parts of Ms Summersby’s evidence. In cross-examination, Ms Tustin put to Ms Summersby all the items of evidence that had been in Ms Summersby’s possession when she was apprehended, statements she had made to the police but now recanted, and inconsistencies between her evidence in chief and some of the irrefutable evidence at the trial. In response to some of Ms Tustin’s questions, Ms Summersby repeated her allegations regarding Mr Bartram’s conduct, such as his alleged threats to kill members of her family. She also claimed that Mr Bartram had raped her and that she had received letters from Mr Bartram when he was remanded in custody, these also threatening her and her family.
[14] Rather than object to any of these claims, Ms Tustin put it to Ms Summersby that she was just making things up as she “[went] along”.
[15] We consider it clear that Ms Tustin decided that it was in Mr Bartram’s interests to let Ms Summersby continue uninterrupted, so that the jury could draw its own conclusions — essentially to let Ms Summersby hang herself. This was a reasonable tactic to adopt and we do not consider the Judge erred in failing to intervene when it so obviously was Ms Tustin’s tactic. On the contrary, Ms Tustin might have had grounds to complain if the Judge had stopped Ms Summersby. In addition, Ms Tustin was able to make much of Ms Summersby’s claims in her closing remarks to the jury. For instance, Ms Tustin said to the jury that Ms Summersby was “unreliable”, her evidence implausible, that Ms Summersby had a “vivid imagination” and had “let it run wild”, and that “[w]henever she was pushed too much her backstop was always, ‘Oh he raped me, he had kidnapped me, he was blackmailing me, he had control over me’”. She said to the jury that Ms Summersby had done everything she could to blacken Mr Bartram’s name, that Ms Summersby was lying, that she constantly told different stories — one version to the police, another to the jury, that her evidence was inconsistent with other evidence and so on.
[16] This Court will not revisit a tactical decision of this nature unless it is one no competent lawyer would have made, and if what occurred may have affected the outcome.^[2] Neither apply in this case.
[17] We said above that Mr Allan also complained about Crown counsel’s reexamination of Ms Summersby. These complaints concern Ms Summersby repeating what she had said in crossexamination regarding Mr Bartram’s threats and that he had raped her. Mr Allan also complains that Crown counsel asked several leading questions. There is nothing in these points. The re-examination added nothing to what had already been said.
[18] Mr Allan raised a separate point about Ms Summersby’s evidence regarding the letters she said she had received from Mr Bartram. Crown counsel sought leave from the Judge to question Ms Summersby about one of these letters because it included a statement by Mr Bartram which indicated the cellphone was his. The Judge allowed this and Crown counsel proceeded to put the letter to Ms Summersby.
[19] Mr Allan’s complaint on appeal is that the letter contained no threat of the nature Ms Summersby had referred to in evidence. We do not understand why this should be a ground for complaint. The absence of any threat in the letter meant this was another instance in which Ms Summersby’s allegations were not borne out by reality. Defence counsel drew attention to that in her closing address. It cannot have been lost on the jury, and could only have further undermined Ms Summersby’s credibility.

Direction as to motive to lie and observation as to Ms Summersby’s credibility

[20] Mr Allan takes issue with two aspects of the Judge’s summing up.
[21] First, he submits that the Judge should have, but did not, direct the jury of the need for caution as regards Ms Summersby’s evidence as she had a motive to lie and to give false evidence prejudicial to Mr Bartram.^[3]
[22] Although Ms Tustin did not ask the Judge to give such a warning, we accept that the Judge was required to consider giving such a warning. That said, nothing turns on the point in this case. The jury could not have been in any doubt following counsel’s closing remarks and the Judge’s summing up that the key issue was whether they believed Ms Summersby. Her motive to point the finger at Mr Bartram, and deflect it from herself, was clear.
[23] Mr Allan also complains that [34] of the Judge’s summing up was overly sympathetic to Ms Summersby. We do not accept this submission. The passage needs to be read in the context of the preceding paragraphs, which were as follows:

[31] [Ms Summersby] says that the cellphone is the defendant’s. She says that the firearm belongs to the defendant. That’s challenged by the defence, and the defence challenges her credibility and asks you to take particular notice that the only evidence that the defendant was present in Hamilton on the 18^th of March 2017 is from [Ms Summersby]. Furthermore, that she was found on the 5^th of April with the firearm and the cellphone, not the defendant, and that you cannot dismiss the possibility that [Ms Summersby] is attempting to remove herself from the frame for the aggravated robbery by attributing responsibility for the possession of the firearm to the defendant, from whom she was totally estranged at the time she spoke to the police.

[32] The Crown in this respect points to the text from the cellphone that suggests that Keith, which of course is the defendant’s first name, used the cellphone on the 20^th of March, just two days later, but I suggest to you that the likelihood is that this cellphone, if you accept that the defendant used it on the 20^th of March, “Hey it’s Keith here,” this was a phone used by both of them over the period and that whether it’s entirely hers or entirely his is not the point so much. The value of this evidence is that it points to this cellphone coming down from Auckland to Hamilton at the relevant period of time and then heading back to Auckland and so who had it depends upon [Ms Summersby’s] evidence.

[33] The defence ask you to accept that [Ms Summersby’s] knowledge of the circumstances surrounding the aggravated robbery, the connection with the gun, the timing, the general area in Hamilton, asks you to accept that this is because she was involved and she is trying to distance herself from this by blaming the defendant - and that is a matter for you. The credibility of [Ms Summersby] is critical to this case.

[34] Can I just make one comment on the statement made by her in the course of her evidence that she was with the defendant because he had effectively kidnapped her and raped her and had made threats to do harm to her family. You may think that those comments on her part were a bit of an overstatement, that is a matter for you, but you might think that. Does that destroy her credibility in all respects, or was this simply an immature young woman’s attempt to explain away a period of her life, activities that she was involved in, that she’s ashamed about, and trying to forget? Does that completely destroy her credibility in relation to this aggravated robbery? Well that’s a matter for you.

[24] By these remarks the Judge was emphasising that the case turned on whether or not the jury accepted Ms Summersby’s evidence and in [34] was indicating that the jury might consider Ms Summersby’s exaggerations destroyed her credibility. Ms Ewing, for the Crown, submitted that the passage complained of was “defence friendly” and we agree.
[25] For these reasons, there is no merit in the appeal against conviction.

Appeal against sentence

[26] The Judge sentenced Mr Bartram and Mr Kennedy on consecutive days, starting with Mr Bartram.^[4] The Judge adopted a starting point of seven years’ imprisonment for each. He uplifted Mr Bartram’s starting point by six months to take account of his prior criminal history, giving an end sentence of seven years, six months’ imprisonment.
[27] In his written submissions, Mr Allan submitted that Mr Bartram’s sentence was manifestly excessive as the starting point was too high. Mr Allan also submitted that a “parity” issue arises having regard to the Judge’s sentencing of Mr Kennedy.
[28] At the hearing before us, Mr Allan accepted that the Judge’s starting point of seven years was within range, as it was, so we say no more about this point.^[5]
[29] Nor is there anything in the submission as to an unjustifiable lack of parity. At the time he was sentenced, Mr Kennedy was already serving a term of imprisonment for a similar aggravated robbery committed just a few days before his offending with Mr Bartram. This robbery was of premises in Dinsdale, Hamilton.
[30] The Judge sentenced Mr Kennedy as if he were sentencing for both the index offending and the Dinsdale offending. A seven year starting point for each (the Judge sentencing on the Dinsdale offending had adopted the same starting point) meant a combined starting point of 14 years’ imprisonment.^[6] After reducing this to 10 years for totality, and giving various discounts, the Judge arrived at an end sentence for both offences of eight years, one months’ imprisonment. The final sentence on the Dinsdale offending was five years, three months’ imprisonment and so the Judge imposed an additional cumulative period of imprisonment to achieve that overall term.
[31] In short, Mr Kennedy did not end up with a lesser end sentence for two aggravated robberies than Mr Bartram for one. In any event, it is apparent from the sentencing notes that Mr Kennedy was younger than Mr Bartram, in his early 20s as opposed to Mr Bartram in his 30s. The Judge thought that Mr Bartram had influenced Mr Kennedy, so it would not have been surprising if Mr Kennedy had received a lesser sentence.
[32] Mr Allan also submitted that the Judge’s sentencing of Mr Bartram may have been harsher than warranted because he was influenced by a factual error apparent in his sentencing notes for Mr Kennedy. In sentencing Mr Kennedy, the Judge stated that he had a “distinct recollection” of the jury “openly laughing” at Mr Bartram when he gave evidence at trial that the rifle belonged to Ms Summersby because they thought that ridiculous. This plainly was an error because Mr Bartram did not give evidence at trial. Regardless, there is nothing remarkable about Mr Bartram’s sentencing. The end sentence was within range and that is all that matters.

Result

[33] The appeals against conviction and sentence are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Bartram [2018] NZDC 18481.

^[2] Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [77].

^[3] Evidence Act 2006, s 122(2)(c).

^[4] R v Bartram, above n 1; and R v Kennedy [2018] NZDC 18745.

^[5] R v Mako [2000] NZCA 407; [2000] 2 NZLR 170 (CA) at [54].

^[6] R v Kennedy [2017] NZDC 12443.