Pepene v The Queen - [2011] NZCA 497

IN THE COURT OF APPEAL OF NEW ZEALAND

CA8/2011
[2011] NZCA 497

BETWEEN CLEM WILLIAM JAMES PEPENE
Appellant

AND THE QUEEN
Respondent

Hearing: 25 August 2011

Court: Randerson, Harrison and Wild JJ

Counsel: M L Wotherspoon for the Appellant
S B Edwards and S de Silva for the Respondent

Judgment: 29 September 2011 at 11.30 am

JUDGMENT OF THE COURT

The appeal, which is against conviction, is dismissed.

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REASONS OF THE COURT
(Given by Wild J)

Introduction

Mr Pepene appeals against his conviction for murdering Mr Paul Chong. He contends that French J’s evidentiary trial rulings Nos 5 and 6 resulted in a miscarriage of justice.[1]
[1]R v Pepene HC Auckland CRI-2009-044-7883, 19 October 2010 (Ruling No 5); R v Pepene HC Auckland CRI-2009-044-7883, 26 October 2010 (Ruling No 6)..
In Ruling No 5 the Judge admitted a hearsay statement from a Mr Wimutu. In Ruling No 6, the Judge permitted the Crown to adduce further evidence after the defence had closed its case. The further evidence was about telephone calls made by the appellant from prison shortly before and during his trial.
The issue on appeal is whether justice has miscarried in relation to either ruling, or to both taken together.

Background

Mr Will Junior Dillon arranged to sell half a gram of methamphetamine to a friend, Mr Greg Elliot. Mr Pepene accompanied Mr Dillon to make the sale on 11 May 2009. When the pair arrived at the appointed place, they found it was Mr Chong and not Mr Elliot who was to buy the methamphetamine.
The three men went to Mr Chong’s nearby workshop. There, Mr Chong handed over the $300 price Mr Dillon had agreed with Mr Elliot. Mr Dillon told Mr Chong he wanted more money and refused to hand over the methamphetamine. An argument escalated into violence. Mr Pepene stabbed Mr Chong three times with a kitchen knife before threatening him with a sledgehammer. One of the stabs was fatal. The knife is important. Mr Pepene’s evidence was that he picked it up from Mr Chong’s kitchen table, while the Crown case was that Mr Pepene had got it from the kitchen of Mr Dillon’s house and taken it with him to Mr Chong’s house.
Later on the afternoon of 11 May 2009, Mr Dillon and Mr Pepene were at the home of Mr Pepene’s partner, Ms Amy Greaves. Ms Greaves is the sister of Mr Dillon’s partner, Ms Carmen Rongonui, who was also there. At Mr Pepene’s request, Ms Rongonui contacted her half-brother, Mr Zane Wimutu, and asked him to come over. When Mr Wimutu arrived, Mr Dillon and Mr Pepene told him what had happened at Mr Chong’s house.
Two days later, on 13 March 2009, the police visited Mr Wimutu in the course of their investigation into Mr Chong’s death. Somewhat to the surprise of the police, Mr Wimutu told the police of the involvement of Mr Pepene and Mr Dillon. Mr Wimutu agreed to go to the police…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Pepene v The Queen

Details

AGLC: Pepene v The Queen [2011] NZCA 497
Case: [2011] NZCA 497
Decision Date: 29 September 2011

CaseChat Overview and Summary

The case of Pepene v The Queen involved a criminal proceeding where the Crown sought to introduce further evidence after the defence had closed its case. The defendant, Pepene, was on trial for a serious offence, and the Crown's application was to present conversations between Pepene and a witness, Ms Greaves. The Crown argued that these conversations were critical to demonstrating the unreliability of the defence witnesses, and to showing Pepene's consciousness of guilt. The judge, French J, had to decide whether the Crown's application to introduce this further evidence should be granted under section 98 of the relevant Act.

The primary legal issue for the court was whether the conversations between Pepene and Ms Greaves met the criteria under section 98(3)(c) and (d) for the admission of further evidence. This required the court to consider whether the conversations were not available or admissible before the prosecution's case was closed, or if for any other reason, the interests of justice required the evidence to be admitted. The defence argued that the conversations were not sinister and did not add anything to the case, especially concerning the central issue of Pepene's intent.

French J concluded that the conversations went beyond mere exhortations to tell the truth and were probative of the veracity of both Pepene and his witnesses. The Judge found that there were "exceptional circumstances" that justified admitting the conversations under section 98(3)(c) and (d). Although some parts of the conversations were ambiguous, others were compelling and relevant to the trial's outcome. The Judge was satisfied that the evidence was important enough to justify admitting it despite the potential prolongation of the trial. The interests of justice required that the jury hear this evidence.

The final orders of the court were that permission was granted for the Crown to introduce the conversations between Pepene and Ms Greaves as evidence. This decision allowed the Crown to present its case more fully and for the jury to consider all relevant evidence in determining Pepene's guilt or innocence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

After the defence closed its case the Crown sought permission pursuant to s 98 of the Act to put these conversations in evidence. Section 98 provides:98 Further evidence after closure of case(1)In any proceeding, a party may not offer further evidence after closing that party’s case, except with the permission of the Judge.…(3)In a criminal proceeding, the Judge may grant permission to the prosecution under subsection (1) if –…(c)the further evidence was not available or admissible before the prosecution’s case was closed; or(d)for any other reason the interests of justice require the further evidence to be admitted.… French J granted permission indicating that her reasons would follow which they did, on 26 October. The Judge recorded that the Crown wanted the jury to hear the conversations because they provided the “ultimate corroboration” that the defence witnesses’ version of events was a fabrication. In particular, the Crown contended that the conversations bore on the reliability of Mr Wimutu’s statement and the lack of credibility of Mr Pepene and Ms Rongonui, as well as demonstrating consciousness of guilt on Mr Pepene’s part. The Judge’s Ruling No 6 sets out the grounds on which Mr Wotherspoon opposed the Crown’s application. He contended the conversations were not sinister. They showed nothing more than Mr Pepene encouraging his witnesses to come up to brief and tell the truth. They added nothing to the case, in particular because they were irrelevant to the critical issue of whether Mr Pepene had murderous intent. While they may possibly go to Ms Rongonui’s credibility, they dealt only with peripheral matters and not the key question of from where Mr Pepene had obtained the knife. French J started by reminding herself that the s 98 power is to be exercised very sparingly, and in a way that strikes the balance of justice for the Crown and the defence alike. It was not disputed that the conversations were in fact between Mr Pepene and Ms Greaves. The Judge considered they went well beyond an accused exhorting his witnesses to come up to brief and tell the truth. Ms Greaves had confirmed that some of the messages had been relayed to Ms Rongonui, and that was supported by the nature of the evidence Ms Rongonui had given. The Judge considered there was enough to constitute “exceptional circumstances” justifying admitting the conversations under s 98(3)(c) and (d). Although some of what Mr Pepene had said was ambiguous, some parts were compelling, going directly to the veracity of both Mr Pepene and his witnesses, and were capable of being probative of guilt. There was no question of the Crown deliberately holding the evidence back, and nor did the evidence take the defence by surprise. The Crown had consistently contended that the story advanced by the three defence witnesses was a concoction. The Judge accepted that admitting this further evidence would prolong the trial, particularly as Mr Pepene indicated that he intended to call evidence in “rebuttal of the rebuttal”. But the Judge was satisfied that the evidence was sufficiently important that it could not be said “needlessly” to prolong the trial.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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