R v Kawhe
[2022] NZHC 1698
•15 July 2022
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-085-2048
[2022] NZHC 1698
THE QUEEN v
WILLIAM KAWHE
Hearing: 15 July 2022 Counsel:
G Burston and M Heslip for Crown P Mitchell for Defendant
Oral Judgment:
15 July 2022
ORAL JUDGMENT OF CHURCHMAN J
[propensity application]
Introduction
[1] The Crown has applied under s 43 of the Evidence Act 2006 for leave to adduce propensity evidence at the defendant’s trial for robbery. This application is opposed.
Facts
[2] The alleged offence occurred on 24 September 2021 when the defendant and an associate were together on Leeds Street, Te Aro, Wellington. After the complainant had reversed his vehicle into a parking space on Leeds Street, the defendant accused the complainant of having struck him with his vehicle and challenged him to a fight.
R v KAWHE (PROPENSITY APPLICATION) [2022] NZHC 1698 [15 July 2022]
[3] The defendant’s associate told the complainant that things would go really badly for him if he did not hand his keys over straight away.
[4] When the complainant tried to get away, the defendant and associate pressed their chests against him threateningly so that he could not get past. They continued to demand the vehicle’s keys telling the defendant “we’ll [f-] you up if you don’t give us the keys”. As a result of the threats of violence, the complainant held out his car keys and the associate stole them from him.
[5] The associate approached the complainant’s vehicle and used the key remote to unlock and then to lock the vehicle’s doors. The defendant and associate walked away. They were found nearby by the Police.
The proposed propensity evidence
[6] The proposed propensity evidence is information relating to the defendant’s previous offending. These offences include:
(a)behaving threateningly;
(b)injuring with intent to injure;
(c)assault with intent to injure;
(d)common assault and possession of an offensive weapon;
(e)assault with a blunt instrument;
(f)robbery by assault on two occasions; and
(g)demanding with intent to steal.
Relevant law
[7] The admissibility of propensity evidence is governed by ss 40-43 of the Evidence Act 2006 (the Act).
[8] The leading case is the Supreme Court decision in Mahomed v R.1 The Court is required to:
(a)identify the propensity that the evidence establishes and is relevant to the issues in dispute;
(b)consider the probative value of the propensity evidence to the issues in dispute taking into account the matters that are identified in s 43(3);2 and
(c)consider whether the value of that propensity evidence whether the value of that propensity evidence is outweighed by the risk of any unfairly prejudicial effect on the defendant, and that is done by taking into account the facts as identified in s 43(4).3
[9] The Court is not required to mechanically identify points of similarity and dissimilarity between the proposed propensity evidence and the facts of the alleged offending, but to determine whether the propensity evidence is genuinely and logically relevant to the issues in dispute.4
1 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.
2 These matters are:
·the frequency with which the Acts, omissions, events, or circumstances that are the subject of the evidence have occurred;
·the connection and time between the Acts, omissions, events, or circumstances that are the subject of the evidence and the Acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried;
·the extent of similarity between the Acts, omissions, events, or circumstances that are the subject of the evidence and the Acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried;
·the number of persons making allegations against the defendant that are same as, or are similar to, the subject of the offence for which the defendant is being tried;
·whether the allegations described may be the result of collusion or suggestibility;
·the extent to which the Acts, omissions, events, or circumstances that are the subject of the evidence and the Acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.
3 These factors are:
·whether the evidence is likely to unfairly predispose the fact-finder against the defendant; and
·whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other Acts or omissions.
4 Rhodes v R [2012] NZCA 269 at [31]; Batchelor v R [2012] NZCA 106.
[10] There is no dispute between counsel as to the relevant legal principles. There is a dispute as to factual matters and the inferences that can be drawn from them.
Crown’s position
[11] The Crown asserts that there is a pattern in the defendant’s offending. The pattern is said to be that he approaches a stranger on the streets of central Wellington at night or in the early morning and makes attempts to, or actually robs them. His actions are often accompanied by threats of, or actual violence.
[12]The facts relevant to s 43(3) of the Act are:
(a)there are eight separate instances of similar offending by the defendant between 2009 and 2021;
(b)the gaps in the offending can be largely explained by sentences served by the defendant for the propensity offending or other offending;
(c)the propensity offending is said to be similar to the alleged offending in a number of ways in that it:
(i)almost always involves the attempted or actual taking of an item;
(ii)always takes place at night on a street in central Wellington;
(iii)always involves threatened or actual violence as an aggravating factor;
(iv)almost always involved a complainant not known to the defendant;
(v)sometimes involves intoxication; and
(vi)sometimes involves a co-offender;
(d)there is no indication that the complaint in the present case was known in any way to victims of the propensity offending; and
(e)the features of the repeated offending are unusually consistent and have remained so over 12 years.
[13] The Crown says there is no possibility of collusion as the complainant in the present case was not known to any of the victims in the eight prior cases. As to “unusualness”, the Crown acknowledges that while the particular Acts forming the basis of the application to adduce propensity evidence might not be characterised as unusual, the repeated and consistent offending in this manner over some 12 years is.
[14] As to the prejudicial effect, the Crown says that any prejudice that arises from the strong probative value of the propensity evidence in relation to issues for determination at trial. It is submitted that the presentation of the evidence to the jury can be neutralised by way of an agreed summary of fact, and that any potential prejudice can be ameliorated by judicial directions.
The defence’s position
[15] Mr Mitchell submits that the defendant’s eight previous convictions “show a propensity to target isolated and lone individuals to illicit [sic] money, tobacco, or property of a significant value.” He submits the key distinction in the present case is the low or nominal value of the only item taken, the car keys.
[16] Counsel submits that the propensity cases show nothing more than the defendant attempting to make a living or survive on the street by the use of violence.
[17] It is submitted that the proposed evidence has limited relevance to the issues in dispute in this case. It is said that the present case really “relates to a dispute about a traffic incident”. The lack of “actual violence” or the loss of valuable property are said to distinguish the present case from all of the eight prior cases. It is also submitted that the admission of the evidence would be unduly prejudicial.
Analysis
[18] There is a clear pattern of eight broadly similar offences over some 12 years. The gaps between the offences seem to reflect terms of imprisonment served by the defendant.
[19] The connection in time is that the eight prior offences have occurred regularly and continuously in the 12 years prior to the commission of the alleged offence. There are obvious similarities in relation to the location and time of offending and the modus operandi, as outlined by the Crown in their written submissions and amplified by Mr Burston in his oral submissions.
[20] The number of similar allegations is significant and there is no suggestion of collusion or suggestibility.
[21] The particular factual allegations in themselves are not unusual but the pattern repeated so frequently over so many years is unusual.
[22] The contention of the defendant’s counsel that the pattern of offending simply shows the defendant trying to make a living or survive on the street by means of violence does not assist the defendant. If anything, it supports the implication that what the defendant was involved in on this occasion was indeed a robbery.
[23] It is not entirely clear to me the precise issues which will be in dispute at trial. The Crown contends that the relevance of the proposed propensity evidence is that it “tends to show a pattern of offending that has presented itself multiple times over the years”. It is said that the “…current facts match this pattern exactly.”
[24] It is said that the proposed propensity evidence confirms that the defendant has a strong tendency to act in the manner alleged on this occasion. I accept those submissions.
[25] I also accept that the proposed propensity evidence may have a prejudicial effect. However, it is not any prejudice that is relevant. It is only unfair prejudice.
[26] Defence counsel submits that the prior offending is far more serious and has features of distinguishing characteristics of actual violence and theft of valuable property. It is submitted that the probative value is low when compared to what is said to be the unfair prejudicial effects.
[27] The evidence clearly has probative value in the sense that it is relevant to the proposed offence that the defendant has been charged with. The admission of the evidence would be relevant to the defence assertion that all that was involved was a traffic incident. There are some factual differences between some of the prior eight cases, and the current case, the most significant of which would seem to be the lack of serious violence in the present case. However, there are sufficient similarities with this pattern of prior offending to warrant its admission.
[28] Any unfair prejudice can be appropriately addressed by clear directions by the trial Judge.
Outcome
[29]Accordingly, the application to adduce propensity evidence is granted.
Churchman J
Solicitors:
Crown Solicitor, Wellington for Crown P H Mitchell, Wellington for Defendant
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