R v Kopua - [2022] NZHC 474

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2021-085-1646

[2022] NZHC 474

THE QUEEN

v

MERETIANA JACQUELINE KOPUA

Hearing: 14 March 2022 via VMR

Appearances:

S Bishop and A F Oliver for Crown I Hard for Defendant

Ruling:

15 March 2022

JUDGMENT OF CULL J

[Propensity and mode of evidence applications]

[1] There are two pre-trial applications filed by the Crown. The first is a mode of evidence application, seeking that three Crown witnesses give their evidence by way of closed circuit television (CCTV) at a venue outside the Courtroom. Second, the Crown seeks to admit as propensity evidence at trial, the evidence of Ms Kopua’s previous convictions for unlawful possession of firearms and explosives.

Alternative mode of evidence

[2] The Crown applies for three of its witnesses to give evidence in an alternative way under s 103 of the Evidence Act 2006 (the Act). The application is brought on the grounds of witness fear of intimidation.1 The witnesses say that their

1 Evidence Act 2006, s 103(3)(d).

R v KOPUA [2022] NZHC 474 [15 March 2022]

understanding is that the shooting was gang related, with both the complainant and Ms Kopua being gang members or affiliates. They say they would feel anxious and intimidated if they had to give evidence while looking at Ms Kopua. The applications are not opposed.

[3] Taking into account the mandatory considerations in s 103(4) of the Act, I am satisfied that the witnesses giving evidence by way of CCTV would not impede the fairness of the trial. As the Judge presiding over Ms Kopua’s Judge-alone trial, I am aware there is no presumption that evidence is to be given in the ordinary way, and if the grounds for an alternative evidence direction exist, both ordinary and alternative modes of giving evidence are on the table.2 I am satisfied no prejudice will arise if the witnesses provide their evidence in the alternative mode proposed.

[4]The Crown’s application is granted accordingly.

Propensity evidence

The 2021 offending

[5] Ms Kopua faces trial on the following charges, arising out of events in July 2021. Those charges are:

(a)causing grievous bodily harm with intent to cause grievous bodily harm;3

(b)as an alternative charge, causing grievous bodily harm with reckless disregard for the safety of others;4 and
(c)unlawful possession of a firearm.5

[6] Ms Kopua has elected a Judge alone trial, set to commence before me on 27 June 2022.

2      See R v O(CA433/2012) [2012] NZCA 475 at [37].
3      Crimes Act 1961, s 188(1); maximum penalty 14 years’ imprisonment.
4      Section 188(2); maximum penalty seven years’ imprisonment.
5      Arms Act 1983, s 51(1)(b); maximum penalty three years’ imprisonment or a fine of $4,000.

[7] The Crown alleges that on 25 July 2021, an argument broke out between Ms Kopua and the complainant. Ms Kopua arrived at the party, the purpose being allegedly to confront another party attendee about a debt owed. The complainant became involved in the…

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 Kopua

Details

AGLC: R v Kopua [2022] NZHC 474
Case: [2022] NZHC 474
Decision Date: 15 March 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the defendant Meretiana Jacqueline Kopua faced charges related to an incident in July 2021, including causing grievous bodily harm with intent, causing grievous bodily harm with reckless disregard for the safety of others, and unlawful possession of a firearm. The Crown sought to admit evidence of the defendant's previous convictions for unlawful possession of firearms and explosives from June 2018 as propensity evidence, and to allow three witnesses to give their evidence via closed-circuit television due to fear of intimidation. The defendant opposed both applications. The court had to decide whether the proposed evidence met the criteria for propensity evidence under the Evidence Act 2006 and whether the alternative mode of evidence would prejudice the fairness of the trial.

The court considered the definition of propensity evidence and found that the 2018 convictions did not demonstrate a tendency on the part of the defendant to act in a particular way or have a particular state of mind. The court noted that the 2018 charges did not involve any discharge of firearms or a propensity to injure others, and the defendant was jointly in possession with another person. The court held that the previous convictions did not show a "pattern" of acting in a particular way and that the circumstances were distinctly different from the current charges. The court also found that the probative value of the evidence was low and that the unfair prejudicial effect outweighed the minimal relevance of the evidence. The court declined the Crown's application to adduce propensity evidence.

The court granted the Crown's application for witnesses to give evidence by way of an alternative mode, finding that it would not impede the fairness of the trial. The court held that there was no presumption that evidence is to be given in the ordinary way and that both ordinary and alternative modes of giving evidence are on the table if the grounds for an alternative evidence direction exist. The court was satisfied that no prejudice would arise if the witnesses provided their evidence in the alternative mode proposed.

The court granted the Crown's application for witnesses to give evidence by way of an alternative mode, and declined the Crown's application to adduce propensity evidence.

Orders