Keremete v The the Queen
[2022] NZCA 362
•8 August 2022 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA275/2018 [2022] NZCA 362 |
| BETWEEN | JAMIE DEAN KEREMETE |
| AND | THE QUEEN |
| Hearing: | 12 July 2022 |
Court: | Clifford, Peters and Downs JJ |
Counsel: | S W O Campbell for Appellant |
Judgment: | 8 August 2022 at 10.30 am |
JUDGMENT OF THE COURT
The application for non-party disclosure is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Downs J)
The issue
This judgment addresses an application for non-party disclosure in relation to a pending appeal.
Background
Following a High Court jury trial, Jamie Keremete was convicted of offences for serious violence, including sexual violence, against two former partners, whom we call H and M.[1]
[1]See R v Keremete [2018] NZHC 730. The charges for which Mr Keremete was convicted included sexual violation by unlawful sexual connection (x 2); injuring with intent to injure; male assaults female; threatening to kill; wounding with intent to cause grievous bodily harm; and intentional damage.
Mr Keremete and H were in an “on and off” relationship between 2007 and 2011. Mr Keremete and M were in a relationship from June 2015. For reasons that will become apparent, we also record a third, earlier relationship: from about 2010 until around 2011, Mr Keremete was in a relationship with Melissa Wood.
H and M alleged extensive violence at Mr Keremete’s hands. Given the confined issue before us, it is not necessary to say more beyond that H and M gave similar accounts about Mr Keremete, including that he would injure their genitalia by using a fist inside them. The complainants did not know each other.
Mr Keremete appeals conviction. Several grounds of appeal are advanced, including trial counsel competence. Expressed broadly, Mr Keremete contends trial counsel ought to have done more to impeach the credibility of both complainants.
Ms Wood has sworn affidavits in support of Mr Keremete’s appeal. Their relevance to this judgment concerns a brief report of Oranga Tamariki. On 7 January 2011, someone telephoned Oranga Tamariki with alleged concerns about Ms Wood’s two-year old daughter, whom we call A. The report says:
What are the concerns?
The below information was told to the caller by a reliable source:
[A] is being subjected to her father, family and friends smoking “P” in the home (no further details known).
[A’s] maternal uncle is known to manufacture and sell “P” and [A] often visits his home with her mother and father (no further details were known other than this isn’t the first time that they have heard this).
Marijuana is often smoked in the home [while] [A] is present (no further details known).
[A] is being subjected to people consuming alcohol at her home (no further details).
[A’s] mother pushed [A] in to the corner of the table and she has a scar or mark on the top of her head (no further details known other [than] this is the first time they have heard [A’s] mother physically abusing [A]).
2 days ago [A’s] mother had an argument with people in front of the children (Police involved), swearing – 2 days ago.
On 10 January 2011, two social workers interviewed Ms Wood at her home.[2] She denied A was being mistreated or exposed to harm. Ms Wood said Mr Keremete was still sending her text messages and being “malicious”; she assumed he had telephoned Oranga Tamariki or been behind that call.
[2]Her brother was present. A was home.
Oranga Tamariki promptly closed its file on the bases the caller’s concerns were “unsubstantiated” and that Mr Keremete had made “malicious allegations” against Ms Wood since their separation. The report noted Ms Wood “has a non‑association order against Jamie Keremete”.
Ms Wood says in her affidavits that H harassed her while Mr Keremete and Ms Wood were seeing each other, and that aspects of what she is recorded as having told the social workers are inaccurate, including that she obtained a non-association order against Mr Keremete.
It is now known Mr Keremete was not the caller to Oranga Tamariki; he and Ms Wood believe H was. Mr Keremete seeks non-party disclosure of the unredacted Oranga Tamariki report in support of his appeal. His application is best understood with principle in mind.
Principle
Non-party disclosure may be ordered by a court under s 29(1) of the Criminal Disclosure Act 2008 if the information is relevant and disclosure would be necessary in the public interest. Section 8 of the same Act defines “relevant”:
In this Act, relevant, in relation to information or an exhibit, means information or an exhibit, as the case may be, that tends to support or rebut, or has a material bearing on, the case against the defendant.
Section 335(2)(e) of the Criminal Procedure Act 2011 should also be mentioned. It empowers an appeal court to order the production of any document, exhibit, or other thing connected with the proceeding if the court considers its production necessary.
These provisions were considered by a permanent Court in Bushby v R.[3] In Bushby, there was “some disagreement between counsel as to the statutory framework”.[4] The Court considered s 335(2)(e) of the Criminal Procedure Act did not displace the provisions of the Criminal Disclosure Act, “but rather operates in tandem with them”.[5] The Court also considered because Mr Bushby had been convicted, the low threshold of relevance identified in s 8 of the Criminal Disclosure Act did not apply:[6]
… In post-conviction applications there is a higher relevance threshold, requiring the applicant to lay a “realistic evidentiary foundation”. The information sought must be relevant to a ground of appeal such that it could impugn the safety of the appellant’s convictions.
[3]Bushby v R [2016] NZCA 527.
[4]At [6].
[5]At [6].
[6]At [10] (footnotes omitted).
Bushby was applied by this Court in the recent decision of Kumar v R, and the stringency of the higher relevance threshold was emphasised in declining Mr Kumar’s application for non-party disclosure.[7]
[7]Kumar v R [2019] NZCA 191 at [11].
If the (higher) relevance threshold is crossed, the public interest must also be considered. The Court “must take into account” the considerations in s 29(3) of the Criminal Disclosure Act:
(a)the extent to which the information will assist the defendant to properly defend the charge; and
(b)the probative value of the information; and
(c)the nature and extent of any reasonable expectation of privacy with respect to the information, including any expectation of the person to whom the information relates; and
(d)the effect of the determination on the fairness of the trial or hearing process.
The application
On behalf of Mr Keremete, Mr Campbell contends the call to Oranga Tamariki constitutes a significant false complaint. So, if H made the call or was behind it, Mr Campbell argues it is directly relevant to Mr Keremete’s appeal, for it is yet more evidence reflecting adversely on H’s credibility, about which she should have been cross-examined had trial counsel acted competently. In written submissions filed in support of the appeal, Mr Campbell explains:
The defence proceeded on the basis that while Mr Keremete had arguments with the respective complainants during his relationship with them, would get angry with them at times during the relationships, and would damage objects at times out of frustration in front of the complainants, he did not commit the various violent and sexual offending alleged against them.
The defence theory of the case was essentially that the two complainants had unfortunately built up significant rancour and malice against Mr Keremete during the course of their respective relationships with him — culminating in both complainants engaging in hyperbole and fabrications in their allegations to police.
Mr Campbell contends a temporal link exists between the call and H’s first disclosure of sexual violence in 2011, and Mr Keremete’s right to a fair trial outweighs any contrary interests in the redacted report remaining so.
Analysis
We consider the application on the assumption H was the person who called Oranga Tamariki.[8] We make three points.
[8]For completeness, we have read the unredacted report.
First, the call was not about Mr Keremete, nor any of his children. Indeed, the caller did not say anything about Mr Keremete or his children to Oranga Tamariki. It follows the call, and report, say nothing about H’s credibility in relation to Mr Keremete — the issue to be explored in the conviction appeal.
Second, the call could constitute veracity evidence if it said something about H’s disposition, meaning tendency, to refrain from lying.[9] But, veracity evidence is admissible if, and only if, it is “substantially helpful” in assessing a person’s veracity.[10] This Court has repeatedly held this test is not lightly met.[11] For example, in the recent case of Horton v R, the defendant was convicted of abduction, sexual violation and rape.[12] He argued the trial Judge wrongly precluded him from cross-examining the complainant about her 24 convictions for dishonesty, including two for theft as a servant and one for theft by a person in a special relationship. This Court held the convictions would “not have substantially assisted the jury” in determining the complainant’s veracity.[13]
[9]Evidence Act 2006, s 37(5).
[10]Section 37(1).
[11]See Horton v R [2021] NZCA 82 and the cases cited therein.
[12]Horton v R, above n 11.
[13]At [31].
We return to Mr Keremete’s application, which does not involve any established lie, let alone one marked by a conviction. Oranga Tamariki conducted no material inquiries beyond the single visit to Ms Wood’s home. The file was closed because the allegations were unsubstantiated;[14] not because they were found to have been false. So, even if conceived of as veracity evidence, the call says nothing substantially helpful about H’s veracity. The same is obviously true of the report.
[14]And because it was believed Mr Keremete was behind them.
Third, for these reasons, the unredacted report falls appreciably short of the higher relevance threshold articulated by this Court in Bushby. To borrow other language from that case, the report could not “impugn the safety of the appellant’s convictions”.[15]
[15]Bushby v R, above n 3, at [10].
It is therefore unnecessary to address public interest considerations, including that articulated by Oranga Tamariki concerning the importance of maintaining the anonymity of those who report welfare concerns to it.[16]
Result
[16]This Court has described the area as a potentially “difficult balancing act”; see C (CA203/2017) v R [2018] NZCA 315 at [31].
The application for non-party disclosure is declined.
Solicitors:
Crown Law Office, Wellington for Respondent and Oranga Tamariki