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 discussion. It is said that a firearm was produced by Ms Kopua and fired at the complainant. The complainant was shot in the lower abdomen.

The 2018 propensity evidence

[8]    The Crown seeks to adduce propensity evidence of four convictions arising from an incident on 16 June 2018. On that day, a search warrant was executed of the home in which Ms Kopua and her partner resided. The police located three pistols under Ms Kopua’s bed. Each was highly modified and could be equipped with silencers. Two were loaded and easily accessed by Ms Kopua. A third was in a small black carry case alongside a loaded magazine. Fourteen rounds of ammunition were also found in Ms Kopua’s possession. She was jointly charged and subsequently convicted, alongside her partner, of three charges of unlawful possession of a pistol and one charge of unlawful possession of explosives on 22 March 2019 and sentenced to one year’s imprisonment.

[9]    The Crown submits that the evidence of Ms Kopua’s previous convictions demonstrates a tendency on the part of her to possess firearms. The Crown says that this is relevant to the question of identity, namely whether it was Ms Kopua who possessed the firearm and whether she was the person that shot the complainant. The Crown submit that the evidence is probative due to the temporal connection, similarities and frequency of the offending. This is submitted to outweigh the risk of any unfair prejudicial effect of the evidence. Ms Kopua opposes the Crown’s application.

Discussion

[10]Propensity evidence is defined in s 40 of the Act:

40 Propensity rule

(1)In this section and sections 41 to 43, propensity evidence—

(a)means evidence that tends to show a person’s propensity to act in

a particular way or to have a particular state of mind, being

evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved…

[11]   Although the threshold for acceptance as propensity evidence is relatively low, it must still tend to show an inclination of the defendant to act in a “particular” way or have a particular state of mind.6 If the requisite tendency can be established, the evidence must then be assessed under s 43 of the Act, which governs the admissibility of the evidence. I bear in mind the guidance from the Court of Appeal in Grigg v R,7 that the provisions in the Act are comprehensive and clear and concise, so that resort to other cases is unlikely to assist. The outcome in each case turns on the weight to be given to the matters set out in ss 43(3) and (4) of the Act. I start therefore with a consideration of the 2018 offending.

[12]   Ms Kopua was charged jointly with her then partner, Mr S Rimene of four charges of unlawful possession of a pistol and explosives. The explosives were located at both the defendants’ home address, under their bed. The unredacted 2018 summary of facts, which was made available during the course of this hearing, reveals that Ms Kopua and the co-defendant, Mr Rimene, were in a de facto relationship and lived together in a home with two other adults and Ms Kopua’s two small children.

[13]   Ms Kopua pleaded guilty to the four unlawful possession charges. At the hearing, Mr Hard confirmed that she was no longer living with Mr Rimene.

[14]   At the outset of the hearing, Ms Bishop for the Crown acknowledged that the proposed propensity offending in 2018 bears no similarity to the grievous bodily harm with intent charge (and the alternative) but was sought in relation to the one charge of unlawful possession of a firearm. The Crown says that, because Ms Kopua has been in unlawful possession of firearms in 2018, it is similar in nature to the current charge of unlawful possession of a firearm.

[15]   Although the charges are similar, being in possession of an unlawful firearm, the 2018 offending did not involve any discharge of the firearms or a propensity to injure others. Further, the charges were laid jointly and Ms Kopua admitted that she

6      See O(CA736/2017) v R [2018] NZCA 434 at [12], citing Leaitua v R [2013] NZCA 365 at [28].

7      Grigg v R [2015] NZCA 27 at [17].

was jointly in possession with her then partner. I am not satisfied that the 2018 charges show a propensity to act in a particular way or to have a particular state of mind, as required under s 40. The firearms were located in a place in which both defendants had knowledge and control over the location of the firearms. Three years later, Ms Kopua is charged with possession together with causing grievous bodily harm with intent. I am not persuaded that the 2018 possession charges assist in proving Ms Kopua’s identity. The fact that she was jointly in possession of unlawful firearms and explosives with another person three years before the current offending, does not logically have any connection with Ms Kopua attending at the 2021 offending. The offending is distinctly different. I reject the Crown’s submission therefore, that the 2018 convictions show a “pattern” of acting in a particular way. The circumstances are distinctly different.

[16]   Accordingly I consider the proposed evidence does not meet the threshold of s 40(1) of the Act and is not propensity evidence.

[17]   Although that finding is determinative of the application, for completeness, I deal with the Crown submission that the evidence of the previous offending has probative value which outweighs any unfair prejudicial effect on Ms Kopua. It is submitted that the previous offending shows a tendency on the part of Ms Kopua to possess firearms and made submissions in relation to the factors in s 43(3) of the Act. I deal with the three factors briefly.

Frequency

[18]   The Crown say that, although the past convictions all arise from the same incident, the number of convictions arising from that incident (involving the possession of three pistols and 14 rounds of ammunition) demonstrate a frequency with which Ms Kopua accesses firearms unlawfully. I do not accept this argument. It cannot be said that offending in this way has occurred often. It has occurred one time. It just happened that there were multiple firearms present at that time. To describe the previous offending as “frequent” would be contrary to the common definition and understanding of the word.

Timing

[19]   The relevant previous convictions occurred three years prior to the current offending. During that period, Ms Kopua also spent six months in custody. I do not accept that there is a recent temporal connection between the 2018 and the 2022 charges, given the length of time to the 2021 offending.

Similarity

[20]   Regarding similarity, as noted, the circumstances surrounding the offending are different. The previous convictions arose following the execution of a search warrant on Ms Kopua’s house. In the current case, it is alleged that Ms Kopua arranged for a firearm to be brought to her, brandished the weapon, and fired it at the complainant. I accept Mr Hard’s submission, that being jointly convicted of unlawful possession of firearms in the past has no relevance to the overt and violent nature of the allegations in the present case and nor do the previous convictions assist with identity. I assess the probative value of the evidence to be low.

[21]   The Courts have generally accepted that the risk of unfair prejudice or improper reasoning is diminished in a judge-alone trial.8 As noted in Liu v R, Judges are well aware of the burden of proof burden and standard of proof and of the need to exercise appropriate caution in the use of propensity evidence.9 However, given the low probative value of the evidence, I consider that the unfair prejudicial effect outweighs the minimal relevance of the evidence to prove or disprove anything of consequence to the determination of the charge.

[22]I decline the Crown’s application accordingly.

Result

[23]   The application for witnesses to give evidence by way of an alternative mode is granted.

8      See, for example, W v R [2019] NZHC 3144 at [45]–[46]; Alofa v Police [2021] NZHC 1119 at [49]; R v Peck [2015] NZHC 22278 at [33]; and Otimi v R [2012] NZCA 216 at [34]–[35].

9      Liu v Police [2017] NZHC 1319 at [22].

[24]The application to adduce propensity evidence is declined.

Cull J

Solicitors:

Crown Solicitor, Wellington Ian Hard, Greytown