RAMEKA v R [2021] NZCA 614

RAMEKA v R [2021] NZCA 614 [19 November 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA302/2021[2021] NZCA 614BETWEEN TE IWI NGARO RAMEKAAppellantAND THE QUEENRespondentHearing: 1 November 2021Court: Kós P, S France and Katz JJCounsel: Appellant in personB D Tantrum and T H Stuart for RespondentJudgment: 19 November 2021 at 9 amJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Katz J)Introduction[1] Te Iwi Ngaro Rameka was found guilty by jury of one charge of assault with aweapon. Judge D J McDonald sentenced him to three months' home detention.1[2] Mr Rameka (who is self-represented) appeals his conviction. He says that amiscarriage of justice has resulted from:1 R v Rameka [2021] NZDC 9719.(a) the admission of evidence of:(i) his prior conviction for cultivating cannabis;(ii) his pre-trial statement to the police that the complainant is a"nark"; and(iii) "propensity evidence"; and(b) the Judge's failure to explain to the jury the difference between a "nark"and a registered informant.BackgroundMr Rameka's previous cannabis conviction[3] Mr Rameka and the complainant both live in the same Northland town. InJanuary 2016, Mr Rameka was charged with cultivating cannabis. He was convictedin 2019. Mr Rameka believes that it was the complainant who told the police abouthis cannabis crop (an allegation that the complainant strenuously denies). He hasharboured an intense dislike for the complainant ever since. When Mr Rameka sawthe complainant in public, he would verbally abuse him and call him a nark.The offending[4] On 24 January 2021, the complainant went out fishing. That night,Mr Rameka's sister was celebrating her birthday at the local marae. The complainantdropped off some fresh fish for the celebrations.[5] When Mr Rameka heard about this he became extremely angry. He went tothe marae, picked up a pot of fish that was cooking on the stove, put it on a trailer thathe was towing behind his car, and drove to the complainant's home. Once there, hetipped the pot of fish over the fence and onto the complainant's lawn.[6] The complainant came out of his house and the two men argued. Mr Ramekathen got a knife out of his car and walked towards the complainant, pointing the knifeat him. Mr Rameka told the complainant he would stab him if he ever went to themarae again.Mr Rameka's police statement[7] Mr Rameka was interviewed by the police later that evening. He admittedtipping the pot of fish onto the complainant's lawn but denied threatening thecomplainant with a knife. He explained that he had dumped the fish on thecomplainant's lawn because he believed that the complainant had had him arrested forgrowing cannabis. He repeatedly referred to the complainant as a nark and aninformant.Admissibility ruling at trial[8] At trial, Mr Rameka's then-counsel objected to admission of the reference inMr Rameka's police statement to his arrest for growing cannabis. He did not, however,object to admission of Mr Rameka's repeated references to the complainant being anark.[9] Judge McDonald ruled that the reference to Mr Rameka being arrested forgrowing cannabis was admissible, for the following reasons:2[10] The question is whether the prejudice advanced here outweighs theprobative value. The jury must hear, from both the Crown and defenceposition, the ill-feeling between the two men; that is, that Mr Ramekaconsidered [the complainant] a nark. In my view the jury are entitled toknow not only about this alleged narking, but also what it is he is alleged tohave told the police. Mr Rameka was upfront about that with the police. Inmy view the evidence contained in Mr Rameka's statement should be given.If the defence wish to expand upon that, because currently it was only that hewas arrested and not convicted, that is a matter for the defence. The trial[10] After the officer-in-charge had read out Mr Rameka's police statement, theJudge gave a direction to the jury regarding the limited use to which the reference toMr Rameka being arrested for growing cannabis evidence could be put.2 R v Rameka [2021] NZDC 2338.[11] Mr Rameka subsequently elected to give evidence in his own defence. Duringhis evidence he repeatedly referred to the complainant as a nark. He also stated (once)that the complainant was a registered informant. (We note that there is no evidencethat the complainant was a registered informant.) Mr Rameka was not asked anyquestions about the cannabis offending.[12] In summing up, Judge McDonald explained to the jury that they must decidethe case dispassionately, taking into account whether they believed each witnesses'evidence. He stated further that:[7] I repeat what I said to you yesterday about Mr Rameka being arrestedfor growing cannabis, it would appear, some five years and one month ago.He considered that [the complainant] narked on him about that, that is told thepolice that he might be growing cannabis. It would appear, as a result of that,that their friendship ended. That is part of the relevant background, the reasonwhy you might say Mr Rameka now seriously dislikes his former friend, butthat is the only relevance. You should not in any way reason that because hewas arrested for growing some dope, he must be a bad man and therefore youwill convict him for that reason and that reason alone. That would be wrong,it would be unfair to Mr Rameka. We know nothing more than what I havejust said about that earlier event.[8] It would be equally unfair for you to reason: "Well, [the complainant]might be a nark, we do not like narks, so we are not going to believe him forthat reason alone." Again, that would be completely wrong. It would meananybody who went at any time and spoke to the police or they came and spoketo you and you said: "Yes, I saw this," you would be a nark and thereforeuntruthful. It just does not make sense, you might think.Appeal[13] We must allow Mr Rameka's appeal if we are satisfied that, having regard tothe evidence, the jury's verdict was unreasonable, or a miscarriage of justice hasoccurred for any reason.3 A miscarriage of justice includes any error, irregularity, oroccurrence in or in relation to or affecting the trial that has created a real risk that theoutcome of the trial was affected, or has resulted in an unfair trial or a trial that was anullity.43 Criminal Procedure Act 2011, s 232(2)(a) and (c).4 Section 232(4).Did the Judge err by admitting Mr Rameka's police statement?[14] Mr Rameka's notice of appeal asserts that the Judge erred in admitting thereferences in Mr Rameka's police statement to the complainant being a nark, as wellas the reference to Mr Rameka being arrested for cannabis offending. A related groundof appeal is that the Judge erred in admitting propensity evidence (which also appearsto be a reference to Mr Rameka being arrested for cannabis offending).[15] We accept Mr Tantrum's submission that the "nark" evidence is both relevantand has significant probative value. Mr Rameka's references to the complainant beinga nark were not limited to his police statement, he also referred to the complainant asa nark several times in his evidence in court. The fact that Mr Rameka was hostile tothe complainant because he believed that the complainant had "narked" on him wascentral to the Crown case. Mr Rameka was unequivocal that the complainant hadnarked on him and that he hated him for doing so. That hatred was longstanding —"five years and one month" according to Mr Rameka. Mr Rameka himself gave hisanger about the complainant's alleged narking as his motive for tipping the pot of fishon the complainant's lawn, which led to the subsequent confrontation.[16] As for the reference to Mr Rameka's alleged cannabis offending, this was notadmitted as propensity evidence. Rather, it was admitted as background or contextualevidence to explain the reasons for Mr Rameka's hostility towards the complainant.Although the reference to Mr Rameka being arrested for cannabis offending couldhave been redacted from his statement, this would have left a query in the jury's mindas to precisely what the complainant had allegedly narked about to provoke suchextreme and long-lasting hostility from Mr Rameka. The jury could well havespeculated that the narking related to much more serious alleged offending than thecultivation of cannabis.[17] The cannabis evidence obviously has some prejudicial effect, as it disclosesthat on a previous occasion, about five years prior to trial, Mr Rameka was arrestedfor cultivating cannabis (although there was no evidence before the jury that he wasconvicted). As we have noted, however, if the cannabis evidence had not beenadmitted the jury could well have speculated that the complainant had narked aboutmuch more serious offending. In our view, the Judge was correct to find that anyprejudice associated with the cannabis evidence did not outweigh its probative value,and could not be described as unfair. Any prejudice could be (and was) addressed bythe jury direction given by the Judge immediately after the evidence was given, andagain in summing up.Should the Judge have explained to the jury the difference between a nark and aregistered informant?[18] Mr Rameka submitted that the Judge should have explained to the jury thedifference between a nark and a registered informant.[19] In his police statement Mr Rameka did not use the phrase "registeredinformant". He did, however, use the word "informant" interchangeably with the word"nark". In his evidence in court, Mr Rameka generally used the word nark, but on oneoccasion he used the term "registered informant". He stated that when he first saw thecomplainant, after tipping the pot of fish on his lawn, that he "proceeded to call him aregistered informant, and he was a nark".[20] Mr Rameka was unable to explain why the distinction between a nark and aregistered informant was relevant to any issue the jury had to determine. The relevantfactor was Mr Rameka's belief that the complainant was a nark, as that precipitatedthe events culminating in the assault. There is accordingly nothing in this ground ofappeal.Result[21] The appeal is dismissed.Solicitors:Crown Solicitor, Auckland for Respondent