R v Kawhe - [2022] NZHC 1698

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…

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 R v Kawhe

Details

AGLC: R v Kawhe [2022] NZHC 1698
Case: [2022] NZHC 1698
Decision Date: 15 July 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of The Queen versus William Kawhe was heard and decided on 15 July 2022. The defendant, William Kawhe, is facing a charge of robbery, and the Crown has applied under section 43 of the Evidence Act 2006 for leave to adduce propensity evidence at the defendant’s trial, which the defence opposes. The alleged offence occurred on 24 September 2021 when the defendant and an associate accused a complainant of striking the defendant with his vehicle and demanded the vehicle’s keys, leading to a theft after threats of violence.

The legal issues the court had to decide were whether the evidence of the defendant’s previous offending, which included various charges such as threatening behaviour, assault, and robbery, was admissible under the Evidence Act 2006. The court had to consider the probative value of the evidence and whether its prejudicial effect on the defendant outweighed its probative value. The court found that there was a clear pattern of similar offences committed by the defendant over a significant period, and while the evidence might have a prejudicial effect, it was not unfair prejudice. The court accepted that the evidence had probative value, relevant to the defence assertion that the incident was merely a traffic dispute, and granted the Crown’s application to adduce the propensity evidence.

Orders