RAMEKA v R [2019] NZCA 105

RAMEKA v R [2019] NZCA 105 [11 April 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA285/2018[2019] NZCA 105BETWEEN BRENDALEE VIVIANE RAMEKAAppellantAND THE QUEENRespondentHearing: 28 November 2018Court: Williams, Peters and Gendall JJCounsel: W T Nabney for AppellantJ E L Carruthers for RespondentJudgment: 11 April 2019 at 11.00 amJUDGMENT OF THE COURTA The application for an extension of time to file the notice of appeal isgranted.B The application to adduce fresh evidence is declined.C The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, Brendalee Rameka, appeals against her conviction on onecharge each of kidnapping and of injuring with intent to injure, following a jury trialbefore Judge Cooper in the District Court at Rotorua in early 2018.11 R v Rameka [2018] NZDC 6993. The appellant abandoned her appeal against sentence.[2] The appeal is brought on the ground that a miscarriage of justice has occurredas a result of two errors the Judge is said to have made and which, together orindividually, create a real risk that the outcome of the trial was affected.2[3] First, the Judge is said to have erred in allowing the Crown to adducepropensity evidence relating to offending by the appellant in 2013.[4] Secondly, the Judge is said to have erred in allowing the Crown to adducehearsay evidence, being a signed statement that Ms Maria Draper made to the policeon 21 February 2017 ("statement"), some three weeks after the offending on30 January 2017. The Crown summonsed Ms Draper to give evidence at trial but shedid not appear as required and the police were unable to locate her. In her absence,the Crown sought, and was granted, leave to read the statement to the jury, on theground that the circumstances relating to the statement provided reasonable assurancethat it was reliable and Ms Draper was unavailable as a witness because she could notwith reasonable diligence be found.3 The appellant contends that leave should nothave been granted.[5] The appellant also seeks leave to adduce fresh evidence on appeal, that beingfrom the appellant, her brother, Simon Rameka ("Simon"), and from Ms Draper, inwhich she recants the statement referred to above. As appears below, we decline toadmit any of this evidence. The appellant's affidavit is not cogent, Simon's affidavitis neither fresh nor cogent, and Ms Draper's is not credible.4Background[6] The appellant and her daughter, Metallicah Rameka ("Metallicah"), were eachcharged with kidnapping, injuring with intent to injure, and assault. In addition,the appellant was charged with assault with a weapon, alleged to be scissors, andMetallicah with theft. Each was convicted of kidnapping and injuring with intent to2 Criminal Procedure Act 2011, ss 232(2)(c) and 232(4)(a).3 Evidence Act 2006, ss 16(2) and 18.4 R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) at [22]–[26]; and Lundy v R [2013]UKPC 28, [2014] 2 NZLR 273 at [120].injure. All charges were alleged to have been committed against Ms Trina, or Treena,McMahon.[7] Ms McMahon was Simon's partner at the time, and is Ms Draper's aunt.[8] Ms Draper was previously in a relationship with Charles Rameka ("Charles"),who is Simon and the appellant's brother, and they have four children together.[9] At trial, the Crown case was that the appellant and Metallicah detainedMs McMahon in a shed and assaulted her by kicking and punching her, and pullingher hair. The Crown also alleged that the appellant held scissors to Ms McMahon'sthroat, this being the basis of the assault with a weapon charge.[10] These events occurred at the address of the appellant's niece, Florence Rameka("Florence"). Florence was not present at the time but Ms Draper was presentthroughout.5 Florence and Richard Loffley, her partner, arrived home to findMs McMahon in their shed, observed some of what occurred, and brought the fightingto an end.Evidence[11] The Crown called evidence from Ms McMahon, Florence, Mr Loffley andvarious police officers, including Constables Whiteman and Transom who went to theaddress following a telephone call from a third party. They arrived at the scene atabout 10.30 pm and observed that Ms McMahon was "crying, sobbing" and"incredibly upset", that it was too dark to see her face, that she was "cuddled up onthe back seat" and "did not look that happy". Neither Constable observed any obviousinjury. In response to their questions, the Constables were told that Ms McMahon wasdrunk. Another officer, Detective Collins, gave evidence that he located blood splatterin the shed and that it smelt of urine, which was consistent with other evidence givenin the trial.5 Ms Draper's denial before us that she was present is not credible.[12] In addition to this evidence, the jury had an agreed statement of facts whichincluded the propensity evidence now in dispute, booklets of text messages fromFlorence and Ms Draper's cell phones, and Ms Draper's statement.[13] The gist of Ms Draper's statement, which she now seeks to recant, was that shehad gone to Florence's address at the appellant's request. On arrival, she becamenervous and wished to take Ms McMahon away, but the appellant and Metallicahwould not let her do so. Once in the shed, the appellant and Metallicah accusedMs McMahon of lying regarding a drug deal. Ms Draper went outside and spoke toSimon who said he would be there in a couple of hours. On Ms Draper's return to theshed, Ms McMahon had a bleeding nose, was sobbing and in a foetal position.Ms Draper sent a text to Florence urging her to come home straight away. She alsoasked her daughter to telephone Florence and tell her to come home straight away as"something bad was happening in her shed".[14] Ms Draper then observed the appellant pulling Ms McMahon by her hair and"saying crazy shit like take a good look outside bitch because that's the last time you'regonna see daylight". Alarmed by this, Ms Draper sent a text to her daughter saying"if mummy goes missing tell Dad that [the appellant] did it and I'm with[Ms McMahon]". Ms Draper also observed Metallicah kick Ms McMahon in themouth whilst the appellant was holding Ms McMahon by her hair. Ms Draper statedthat Ms McMahon was "begging" her to get Ms McMahon out of there. Florence andMr Loffley then arrived home, intervened and Florence emerged from the shed "prettymuch carrying [Ms McMahon] out".[15] Ms Draper's contemporaneous text messages, which were before the jury, areconsistent with her statement. These texts include " im scared for aunty trina"; textsto Florence asking her to come home and saying that she needed Florence and "Fuksht hapning n ur shed". Ms Draper also sent texts to her daughter saying "II go hme Ithnk wen trinas out of here safe", and "Yea alive they wer talkn bout killng her".[16] Neither the appellant nor Metallicah gave or called evidence at trial. However,at sentencing the Judge referred to a letter in which, inter alia, the appellantacknowledged committing the offending, stated that she took full responsibility forher actions, wished to apologise to Ms McMahon and regretted that the matter had"got out of control".[17] At the hearing of the appeal, the appellant's evidence was that a fellow prisonerhad written the letter for her, it was not true, and that she had not committedthe offending but rather was seeking to divert responsibility from Metallicah.Grounds of appealFirst ground of appeal – propensity evidence[18] The propensity evidence in dispute concerned offending that the appellant andSimon committed in 2013, and for which the appellant was convicted of kidnapping,threatening to kill or do grievous bodily harm, and injuring with intent to injure("2013 incident").6 In a decision in July 2017, Judge Cooper determined thatthe evidence was admissible propensity evidence against the appellant.7[19] The agreed statement in which the propensity evidence was adduced recordedthe facts of the 2013 incident as follows. The appellant and the female victim hadtravelled to Rotorua to visit Simon. After they arrived, the appellant and Simonaccused the victim of stealing money from them. Simon put a pillow case over thevictim's head who was then forced to sit on the floor and detained for the next16 hours. During that time, Simon and the appellant assaulted the victim physically,with the appellant kicking, punching and hitting her with a blunt instrument. Simonthreatened to cut off the victim's fingers with a pair of secateurs and the appellantthreatened to cut out her tongue and eyes.[20] The Judge included more detail in his decision allowing the evidence to beadduced. Apparently what sparked the offending was Simon becoming angry whenhe learnt the victim's family had connections to the Mongrel Mob. The Judge alsostated that the appellant had kicked the victim in the mouth and head.6 R v Rameka [2014] NZHC 2662.7 R v Rameka [2017] NZDC 12284.[21] In his decision the Judge recorded that all issues were then in dispute as regardsthe appellant's involvement in the index offending.8[22] In analysing the probative value of the 2013 incident, the Judge accepted thatSimon had instigated that detention and what subsequently occurred.[23] However, the Judge also noted that it was the appellant who had taken thevictim to Simon's house, that it was she (or so the Judge said) who told Simon thatthe victim had stolen his money, and that she was a full participant in the detentionand the subsequent assault.9 The Judge said both Simon and the appellant shared adesire to exact retribution for the alleged stolen money and connection to theMongrel Mob.10[24] Likewise, the Judge said the index offending was borne from a wish to exactretribution, was said to involve two assailants, a detention of the complainant, andthe appellant punching and kicking the complainant.11 The Judge also noted that bothincidents involved the use of scissors or similar weapon.[25] The Judge considered the commonalities showed a propensity by the appellantto behave in a particular way when seeking retribution.12 He was not persuaded thatthe probative value of the evidence was diminished because Simon had been theinstigator in 2013 incident, given the appellant's subsequent full participation.13Submissions[26] On appeal, Mr Nabney submitted that the Judge overstated the probative valueof the evidence. The 2013 incident was a single event occurring four years before theindex offending and, although both incidents had in common the aspects the Judgeidentified — prolonged detention, physical assault and threats to kill in retribution fora perceived wrong — Mr Nabney reiterated the submission that Mr Balme,8 At [9].9 At [12].10 At [13].11 At [14].12 At [17].13 At [18].trial counsel, made to the Judge as to Simon's "leading role" in the 2013 incident.Mr Nabney sought to contrast this with the appellant's alleged lead role in the indexoffending, the fact that the offending was sparked by a drug deal gone wrong,the appellant had punched Ms McMahon all over her body and not just her head andmouth, and she was said to have told Ms McMahon that the latter was going "for along sleep" and "in the boot and to the farm".[27] Mr Nabney also submitted that only Simon threatened the victim with the useof scissors or secateurs in the 2013 incident. We have reservations about the accuracyof this latter submission. Quite aside from what the Judge said on this issue, the agreedstatement says that the appellant threatened to cut out the victim's tongue and eyes.This would require an implement of some type.[28] Crown counsel submitted to us that the Judge's assessment of the probativevalue of the evidence was correct. He also submitted that it needed to be borne inmind that the appellant had been sentenced to two years and three months'imprisonment for the offending which undermined the appellant's submission of afour-year period between the two incidents.[29] The critical issue under s 43 of the Evidence Act 2006 is whether the probativevalue of the evidence outweighs the risk of an unfairly prejudicial effect. We aresatisfied that the Judge was correct to hold that the similarities were such that thepropensity evidence was of strong probative value. Kidnapping and assault may notbe unusual in and of themselves but the similarities between the two events in thisparticular case are striking.Unfairly prejudicial effect[30] The Judge was satisfied that the probative value of the evidence outweighedthe risk of any unfairly prejudicial effect on the appellant. He considered thatdirections to the jury would put the evidence in its proper and fair context and he alsosaid that only the "essential features" of the 2013 incident should be put before thejury, and by an agreed statement, as occurred.1414 At [22].[31] Mr Nabney submitted that the Judge's conclusion on this aspect was alsoincorrect, again because Simon was the lead offender in the 2013 incident. We havealready rejected this submission. In any event, it is clear that the appellant participatedfully in the 2013 incident. Any submission otherwise is wholly unrealistic when oneconsiders the detention was for 16 hours.[32] Accordingly, we are satisfied that the probative value of the evidenceoutweighed the risk of any unfair prejudice to the appellant.[33] Lastly on this topic, the verdicts show that the jury was discriminating in theevidence it accepted. We say this because the jury acquitted the appellant on theassault with a weapon charge, even though Ms McMahon's evidence as tothe appellant's use of the scissors is consistent with the propensity evidence.[34] We dismiss this first ground of appeal accordingly.Second ground of appeal – admission of Ms Draper's statement[35] Mr Nabney submitted that there was insufficient evidence that Ms Draper wasunavailable as a witness, and could not with reasonable diligence be found, and thatthe circumstances did not give reasonable assurance as to the reliability of herstatement.15 If either of these submissions succeeds, the Judge erred in allowing herstatement to be read to the jury; and it would be necessary to consider the possibleeffect of the statement on the outcome of the trial.Unavailability[36] Mr Nabney submits that the police would have located Ms Draper at home onthe last day of trial, had they made enquiries there and that, if they had done so, shewould have come to Court to give the evidence now contained in the affidavit she hassworn in support of the appeal, recanting her statement. We record that Ms Draperdoes not say in her affidavit that she was home that morning, so there is no evidentialbasis for that assertion.15 Evidence Act 2006, ss 16 and 18.[37] In mid-January 2018, Ms Draper was served with a summons to attend the trial.Ms Draper expressed an unwillingness to attend and a fear of retaliation, about whichwe say more later on. Ms Draper did not attend the trial and a warrant was issued forher arrest.[38] The police took steps to locate Ms Draper during the trial, which commencedon 30 January 2018 and concluded shortly after 5 pm on 1 February 2018. By lateafternoon on 31 January 2018, the police knew that Ms Draper had gone to Wellingtonthe previous weekend for her father's funeral, held on 30 January 2018. Also on31 January 2018, Ms Draper's daughter (living in Rotorua) told the police thatMs Draper had been at the daughter's home earlier that afternoon, but was no longerpresent. The daughter said she did not know Ms Draper's whereabouts but thoughtMs Draper might have gone to Taranaki.[39] Throughout, Ms Draper was not responding to text messages or telephone callsfrom the police.[40] The Judge and counsel spoke at approximately 4.22pm on 31 January 2018.Mr Balme suggested it would be prudent for the police to check Ms Draper's homeaddress the following morning, and the Judge asked Crown counsel to ensurethe police made enquiries of bus companies.[41] The Crown presented further information to the Judge in chambers thefollowing morning. We do not have the statements provided to the Judge but it is clearthat one of them reported on enquiries made of the bus companies. We also infer thatthe police had checked at Ms Draper's home, because in the discussion with the JudgeMr Balme accepted that the police had now made diligent enquiries and thatMs Draper could not be located.[42] We consider the police were reasonably diligent in attempting to locateMs Draper. It appears to us that the police made every enquiry that could reasonablybe expected. By 1 February 2018 it was clear that Ms Draper was, in the Judge'swords, "making a pretty concerted effort to make herself scarce" and in her evidencebefore us, Ms Draper made it plain that she had no intention whatsoever of attendingat Court.Reliability[43] It was also common ground by 1 February 2018 that the circumstances inwhich Ms Draper made her statement gave reasonable assurance that it was reliable.We agree on this point also. The statement was made three weeks after the events inquestion, at a police station. Ms Draper signed the statement confirming its truth andaccuracy and acknowledging that it might be used in court proceedings. In a recentaffidavit, Detective Ngawhika, who took the statement, said that he took it inMs Draper's own words.[44] For these reasons, we are not persuaded the Judge made any error in permittingthe statement to be adduced.Recanting of evidence[45] The appellant does not seek to rely on Ms Draper's recantation of her evidenceas a stand-alone ground of appeal but we shall address the substance of the evidence,given its importance to the appellant.[46] Ms Draper's affidavit evidence is to the effect that she lied in her statement tothe police and that she attributed all blame to the appellant to avoid giving evidenceharmful to Metallicah. Her affidavit evidence is that Metallicah pulledMs McMahon's hair and punched her in the mouth, that Ms McMahon was giving asgood as she got, that the appellant was not taking part, that she did observeMs McMahon with a bleeding nose and sobbing and in a foetal position, that she didnot see the appellant pull Ms McMahon by her hair, and that Metallicah did not kickMs McMahon in the mouth.[47] Ms Draper also says the appellant did not say "take a good look bitch" butrather that Ms McMahon told her to say that to the police. She also says the policetold her what Ms McMahon had said and she just went along with it, thatMs McMahon declined to walk out of the shed even though she was free to do so, andthat her own texts that evening were an exaggeration.[48] Ms Draper maintained all of these matters in cross-examination and, in fact,even denied that she was present inside the shed during the offending.[49] As this Court said in Hamon v R, it is necessary for us to consider whetherMs Draper has recanted because her earlier evidence was untrue, or whether therecantation is untrue.16 We are satisfied as to the latter.[50] First, as Crown counsel submitted, if her affidavit is correct, Ms Draper couldhave given the police a statement to the same effect at the outset, that is thatMs McMahon was not detained and the violence was low level.[51] Secondly, the statement is consistent with Ms Draper's own text messages, theevidence of the other witnesses, and the appellant's letter to the Judge on sentencing.All of these matters point to the affidavit evidence being false.[52] Thirdly, although she denied it, we agree with the Crown that it is more likelythat Ms Draper avoided giving evidence at trial and has now sworn her affidavitbecause she was and is scared of retaliation from the Rameka family, and not out ofconcern that she had lied to the police in her statement. Charles and Simon have linksto Black Power, and Simon and the appellant have proved themselves to be capable ofviolence. The Court permitted Ms McMahon, Florence, and Mr Loffley to giveevidence remotely because they were fearful of retaliation. Detective Ngawhika'saffidavit is to the effect that Ms Draper expressed similar concerns to him on22 January 2018, as a result of which the Crown sought and were granted leave forMs Draper also to give evidence remotely.[53] For these reasons, we are satisfied that the statement read at trial was truthfuland, to the extent it differs, the affidavit is not. The affidavit is not credible and wedecline to admit it.16 Hamon v R [2013] NZCA 540.Other evidenceSimon Rameka[54] Simon arrived at the scene after Florence and Mr Loffley. He gave a statementto the police, which he did not sign, a few days later. He was not called as a witnessat trial, by the Crown or defence.[55] In his affidavit, Simon says that he gave a statement to the police atMs McMahon's urging, that she had told him what to say, and that he declined to signthe statement because it was untrue. He also says that, at some relatively early stage,the police wished him to be a witness, that he declined as he and Ms McMahon wereno longer a couple and that he was present at trial for the first day at least and sawMs McMahon give evidence. He says he did not talk to Mr Balme, appearing for theappellant, because he does not care for him. He did not return to the trial because hesays the police "gave him a look".[56] Clearly Simon's evidence is not fresh, as Mr Nabney acknowledged. Nor is itcogent. Simon was not present during the offending. The point of his affidavit appearsto be that Ms McMahon put words in his mouth, which he repeated to the police, andthis diminishes her credibility. We do not have Simon's unsigned statement but, inany event, we do not consider the evidence could have affected the outcome of thetrial given the extent to which Ms McMahon's account was supported by the otherevidence at trial.The appellant[57] In her affidavit, the appellant refers to the failure to call evidence from Simonand another relative, Rebecca Ransfield, who lives in the property adjacent toFlorence's. As stated, we are not persuaded Simon had anything of consequence tosay. There is no evidence from Ms Ransfield as to what evidence she might give.[58] For these reasons, we do not consider the appellant's affidavit adds anything toher appeal and we decline leave to admit it accordingly.Conclusion[59] We decline to admit all affidavit evidence that the appellant seeks to introduce.[60] None of the grounds of appeal are made out and we dismiss the appealaccordingly.Result[61] The application for an extension of time to file the notice of appeal is granted.[62] The application to adduce fresh evidence is declined.[63] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent