ERUETI v R [2019] NZCA 50

ERUETI v R [2019] NZCA 50 [13 March 2019]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA698/2018[2019] NZCA 50BETWEEN HARLEY DAVIDSON ERUETIAppellantAND THE QUEENRespondentHearing: 14 February 2019Court: Miller, Simon France and Peters JJCounsel: REV Slade for AppellantHDL Steele for RespondentJudgment: 13 March 2019 at 10.00 amJUDGMENT OF THE COURTA The application for an extension of time for leave to appeal is granted.B The application for leave to appeal is granted.C The appeal is dismissed.D Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet or otherpublicly available database until final distribution of trial. Publication in lawreport or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Peters J)[1] The appellant, Mr Erueti, is for trial with a Mr Kahui before a jury in theDistrict Court on 18 March 2019. He seeks leave to appeal against two pre-trialrulings of Judge C Ryan.1[2] The rulings appealed are, first, the Judge's refusal to sever what are referred toas the "June" charges from the "July" charges. The second is the Judge's decision toallow the Crown to adduce as propensity evidence at trial separate offending to whichMr Erueti has pleaded guilty and which he committed on or about 16 July 2017(Diamond Galleria offending).[3] Mr Erueti's application for leave to appeal was lodged four days out of time.2We grant the necessary additional time, there being no objection, and also the leavesought. The Crown's only objection to leave is on the merits and a successful appealwill have a significant effect on the forthcoming trial.Background[4] Mr Erueti is alleged to be a member of "W$H" or "We Straight Aych". Thegang's alleged modus operandi is to steal one or more vehicles, drive to a servicestation or other retail outlet, rob the station or outlet – using the vehicle itself to smashan entry if necessary – take cash and cigarettes or whatever else comes to hand, andthen drive away and abandon the vehicle. Some of the offending with which Mr Eruetiis charged fits this pattern.[5] To put the rulings and submissions in context, it is necessary to set out someof the detail relating to the June and July charges and also the Diamond Galleriaoffending.1 R v Erueti DC Auckland CRI-2017-004-11845, 12 October 2018 [Minute of Ryan DCJ].2 Criminal Procedure Act 2011, s 220(2).June charges[6] Mr Erueti is said to have stolen a Honda Odyssey parked in Mt Wellington,after 11.30 am on 8 June 2017.[7] The vehicle was used in connection with an aggravated robbery of a servicestation at 6.00 am on 9 June 2017, this robbery being perpetrated by a single offenderarmed with a screwdriver and wearing a "hoodie" and a mask. The offender tookcigarettes and cash. Mr Erueti's DNA was on the steering wheel and gearstick,evidencing that in all likelihood he drove the vehicle at some point.July charges[8] First, Mr Erueti is charged with the unlawful taking of two Honda motorvehicles, one a Torneo and one an Odyssey, and two aggravated robberies at aZ service station in Pakuranga on 13 and 14 July 2017. The vehicles were stolen after1.30 pm on the 13th. The robberies were committed at 5.00 am on the 14th. Sevenoffenders got out of the two vehicles on arrival at the service station, then smashedtheir way into the service station and took the shop tills. Several of the offenders alsorobbed the driver of a car parked on the forecourt. The Odyssey was subsequentlylocated nearby. Mr Erueti's DNA was found on the steering wheel of the Odyssey andon a glove in the vehicle, and on a sock and hat found in the Torneo.[9] Secondly, Mr Erueti is alleged to have taken a third Honda Odyssey between1.00 pm, 14 July 2017 and 6.00 am, 15 July 2017 when the vehicle was used inconnection with the aggravated robbery of a Z service station in Remuera. Twooffenders exited the vehicle on arrival at the service station, one of whom had a"vice grip" and another a screwdriver, whilst a third initially remained in the car andthen went inside. The offenders took trays of cigarettes, drove away and abandonedthe vehicle in a nearby street. Mr Erueti's DNA was found on a glove in the vehicle.[10] We refer to this first and second group of charges as the "July service stationoffending".[11] Thirdly, at about 7.00 pm on 17 July 2017, Mr Erueti and another defendantare alleged to have robbed a woman of her handbag and car keys in Point Chevalier,and to have driven away in her vehicle.[12] Fourthly, there is alleged offending on 18 July 2017. This consists of anaggravated burglary of Royal Oak Mall (Royal Oak Mall offending). The summaryof facts states that three vehicles were used in this offending, at least two of whichwere stolen, although there is no DNA evidence linking Mr Erueti to any of them andhe is not charged with any offending in relation to the vehicles.[13] The burglary itself took place at about 3.00 am, and is said to have beencommitted by Mr Erueti, Mr Kahui, another identified associate and "multipleunknown offenders". At least two of the three vehicles used had been stolen. Onevehicle was driven through the (boarded up – see below) doors of the mall, and anotherwould have been but for the fact that it got stuck in a set of bollards. The first vehicleis said to have been followed into the mall by "further multiple offenders" who by thenwere on foot. At least three passengers in the vehicle were armed with hammers and/orother weapons. Once inside the mall, the car collided with a pillar outside theDiamond Galleria shop, as well as hitting a terrified security guard.Diamond Galleria offending[14] The Diamond Galleria offending comprises the unlawful taking of two motorvehicles, a Toyota and a Mazda, between 10.00 pm on 15 July 2017 and 5.30 am on16 July 2017. These vehicles went in convoy to the Royal Oak Mall, were driventhrough the doors of the mall (the lead vehicle driven by Mr Erueti), then through themall itself, and then into the doors of Diamond Galleria. Mr Erueti and "unknownassociates" then went into the shop, removed a security camera, put items of jewelleryin the vehicles, and then drove the vehicles out of the mall. Mr Erueti has pleadedguilty to the charges of burglary and unlawful taking of a motor vehicle arising fromthis incident.Decision under appeal[15] The Judge recorded her decision in a minute of 12 October 2018.3[16] The Judge declined to sever the June and July charges. The Judge was satisfiedthat there was specific and cogent similarity in terms of the type and nature of offences,the period of time over which they are alleged to have been committed, the frequencyof the offending, and the fact that Mr Erueti's DNA links him to each motor vehiclethat is the subject of an "unlawful taking" charge.[17] As we have said, the other ruling was to allow the Crown to adduce theDiamond Galleria offending as propensity evidence.[18] The Crown's position is that evidence on the June charges and the July servicestation offending is cross-admissible and also that the Crown proposes to offer theDiamond Galleria offending as propensity evidence only on the Royal Oak Malloffending.Grounds of appealSeverance[19] Counsel for Mr Erueti's principal submission in support of severance was thatthe June and July charges are unrelated in time or circumstance and that the probativevalue of evidence on one to the other is insufficient to outweigh the prejudicial effectof hearing the charges together.4[20] It is not in dispute that the evidence on each set of charges making up the Julyservice station offending is cross-admissible on the other. We consider there is alsosufficient similarity between the facts of the alleged June and July offending to renderthe evidence cross-admissible. We do not consider the five-week lapse in time, or thefact that the robbery in June was perpetrated by a single offender, to be sufficientlymaterial to warrant severance.3 Reasons were to follow, but did not: Minute of Ryan DCJ, above n 1.4 Evidence Act 2006, ss 7–8.[21] Counsel for Mr Erueti also submitted that the Crown case on the June chargesis particularly weak and would be bolstered, unfairly, by trying all charges together.He submitted that the jury would be likely to place disproportionate weight on theevidence on the July charges when determining their verdicts on the June charges, andthis would be unfairly prejudicial.[22] We do not accept this submission. Propensity evidence is as much evidence asDNA or any other evidence. It is for the jury to determine whether any of the chargesare proved to the requisite standard. Propensity evidence is not unfairly prejudicialsimply because it is unlikely the Crown would be able to prove its case in its absence.It follows that we dismiss this ground of appeal.Diamond Galleria offending[23] Counsel for Mr Erueti acknowledged that the Diamond Galleria offendingmeets the definition of propensity evidence as to the Royal Oak Mall offending.5 Thetwo events have several significant features in common. Stolen cars, driven throughthe doors of the mall and beyond, and then driven away. We are not persuaded theJudge erred in her decision on this evidence or, again, that its probative value isoutweighed by its unfairly prejudicial effect.6 It follows that we dismiss Mr Erueti'sappeal on this ground also.[24] That said, it was common ground between counsel that the only evidence saidto implicate Mr Erueti in the Royal Oak Mall offending is its similarity to theDiamond Galleria offending and the other evidence of the spate of alleged offending.This raises a separate question, namely whether the Crown's evidence on theRoyal Oak Mall offending is sufficient overall. Counsel for Mr Erueti's stance is thatit is not because multiple offenders were involved in both, and there is nothing toimplicate Mr Erueti in the Royal Oak Mall offending beyond that to which we havejust referred.5 Evidence Act, s 40(1).6 Evidence Act, s 43.[25] There is a good deal of merit in this argument, but it was not before us. It will,of course, be open to counsel for Mr Erueti to make an application pursuant tos 147 of the Criminal Procedure Act 2011 to the trial Judge, which that Judge will beable to determine in light of the entirety of the evidence the Crown proposes to adduceat trial.Result[26] The application for an extension of time for leave to appeal is granted.[27] The application for leave to appeal is granted.[28] The appeal is dismissed.[29] In order to protect the appellant's fair trial rights, we make an order prohibitingpublication of the judgment and any part of the proceeding (including the result) innews media or on the internet or other publicly available database until finaldisposition of trial. Publication in a law report or law digest is permitted.Solicitors:Crown Solicitor, Auckland for Respondent