R v Maru - [2007] NZCA 275

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

JUDGMENT AND REASONS THEREFOR NOT TO BE PUBLISHED IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA72/07 [2007] NZCA 275

THE QUEEN

v

MIKAERA TE AROHA MARU

Hearing: 13 June 2007
Court: Ellen France, Ronald Young and Keane JJ Counsel: J G Rowan QC and R D Waitai for Appellant
M D Downs for Crown

Judgment: 4 July 2007 at 10 am

JUDGMENT OF THE COURT

A Appeal against admissibility of evidence of Ms H, Ms B and Ms M

dismissed.

B Appeal against admissibility of evidence of Ms T is allowed.

R V MARU CA CA72/07 4 July 2007

CThe judgment and reasons therefor not to be published in news media or on the internet or other publicly accessible database until final disposition of trial. Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1] The appellant faces trial on sexual violation by rape and indecent assault charges with respect to the same complainant. This appeal challenges a decision of Judge Clapham to admit, as similar fact, the evidence of four other women. The essence of the appellant’s case is that a consideration of the evidence of the four women and the facts of this case do not reveal “an underlying unity” sufficient for the probative value of the evidence to outweigh the prejudice to the appellant and that admission of the evidence in the circumstances of this case would be unfair and an abuse of process.

Factual background of alleged offending

[2] At the time of these events, 6 October 2005, the appellant was 45 years of age and the complainant 18 years. The complainant had recently arrived in Wanganui and on the evening of 6 October she had been drinking with friends of her father (Johnny Te Awhe and Penny Richards) at their place. Over the course of the late afternoon and early evening several others arrived at the house. After dark the complainant, Ms Richards and two other men, went for a drive to buy more alcohol. They were stopped by the police. The complainant then began to walk back to the house when she was picked up in a car by Mr Johnny Te Awhe and another man to whom she was introduced (the appellant). All three then went to the Police Station and waited for Ms Richards to be released.

[3] While waiting the complainant asked the appellant to take her to the public toilets. He drove her around Wanganui and out to Castlecliff stopping at various houses without going inside. Eventually the appellant went to a money machine and then he and the complainant returned to the Police Station without stopping at any toilet. Initially, the complainant was in the back seat…

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 Maru

Details

AGLC: R v Maru [2007] NZCA 275
Case: [2007] NZCA 275
Decision Date: 4 July 2007

CaseChat Overview and Summary

In this case, the appellant, Mikaera Te Aroha Maru, is appealing against the admissibility of evidence from four other women, Ms H, Ms B, Ms M, and Ms T, who have alleged sexual offences against him. The appeal challenges a decision by Judge Clapham to admit this evidence as similar fact evidence. The appellant argues that there is no underlying unity between his alleged offending and the allegations of the other women, and that admitting this evidence would be unfair and an abuse of process. The court must determine whether the evidence of the four women qualifies as similar fact evidence, and if so, whether there is sufficient illegitimate prejudice to the appellant to warrant excluding it.

The court first considers whether the evidence of the four complainants qualifies as similar fact evidence. It finds that the evidence of Ms H, Ms B, and Ms M does qualify as similar fact evidence due to the underlying pattern of the appellant's alleged conduct. However, the court is not satisfied that the evidence of Ms T should be admitted as similar fact evidence, as the incidents involving Ms T are essentially quite different from the other cases. The court finds that admitting Ms T's evidence would result in unfair prejudice to the appellant, as it would involve a complex set of facts and potentially reveal the appellant's possession of a firearm.

The court then considers whether there is sufficient illegitimate prejudice to the appellant in admitting the evidence of Ms H, Ms B, and Ms M as similar fact evidence. The court acknowledges concerns about the historic nature of the similar fact evidence of Ms H and Ms B, as well as the fact that the appellant has already faced multiple trials with respect to each complainant. However, the court finds that the probative value of the evidence outweighs any illegitimate prejudicial effect, and that the evidence of Ms H, Ms B, and Ms M should therefore be admitted as similar fact evidence.

The appeal is allowed with respect to the evidence of Ms T, as her evidence is not admissible as similar fact. The appeal is dismissed with respect to the evidence of Ms H, Ms B, and Ms M, whose evidence is admissible as similar fact.

Orders