R v Patangata
[2018] NZHC 3298
•14 December 2018
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2018-019-001105
[2018] NZHC 3298
IN THE MATTER OF Crown application under s 101 Criminal Procedure Act 2011 for admissibility of propensity evidence BETWEEN
THE QUEEN
Plaintiff
AND
TENESHIAH PUHINAHINA PATANGATA
Defendant
Hearing: 10 December 2018 Appearances:
L Dunn for Plaintiff
M J Dyhrberg QC for Defendant
Judgment:
14 December 2018
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 14 December 2018 at 11.00 am
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar
Date ………………………..
R v PATANGATA [2018] NZHC 3298 [14 December 2018]
Introduction
[1] The defendant has been charged with murdering her former partner. The Crown case alleges that she stabbed him in the neck during an argument at a party. The issues at trial will be whether it was the defendant who stabbed the deceased and, if so, whether she had the requisite murderous intent.
[2] The Crown has applied to adduce propensity evidence of the defendant’s two previous convictions involving the use of a knife. The defendant opposes the application on two grounds: first, the evidence does not show a tendency to act in a particular way and, secondly, that it has only low to moderate relevance to the issues in dispute and is outweighed by its unfairly prejudicial effect.
Propensity evidence: s 43 of the Evidence Act 2006
[3] Under s 43, the prosecution may offer evidence, known as propensity evidence that “tends to show a person’s propensity to act in a particular way or to have a particular state of mind”.1 Section 43 provides that:
(1) The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.
(2) When assessing the probative value of propensity evidence, the Judge must take into account the nature of the issue in dispute.
(3) When assessing the probative value of propensity evidence, the Judge may consider, among other matters, the following:
(a)the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:
(b)the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
(c)the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:
1 Evidence Act 2006, ss 40(1) and 43.
(d)the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:
(e)whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:
(f)the extent to which the acts, omissions, events, or circumstances which 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.
(4) When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters, —
(a)whether the evidence is likely to unfairly predispose the fact- finder against the defendant; and
(b)whether the fact-finder will tend to give disproportionate weight in reaching a verdict to evidence of other acts or omissions.
[4] The requirement in the definition of propensity evidence that it show a propensity to act in a particular way or to have a particular state of mind means that there must be something specific about the propensity said to be shown by the evidence. The Supreme Court in Mahomed v R said that:2
… That specificity, in order to be probative, must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried.
…
In order to make the necessary assessment the Court must carefully identify how and to what extent the propensity evidence has sufficient particularity to be probative and how and to what extent it risks being unfairly prejudicial. Obviously any evidence that is probative will be prejudicial to the accused but not normally unfairly so. Unfairness is generally found when and to the extent the evidence carries with it a risk that the jury will use it for an improper purpose or in support of an impermissible process of reasoning.
[5] The Court, in considering what constitutes propensity evidence and whether such evidence has sufficient probative value, needs to identify, as precisely as possible, the issue that is in dispute so as to identify whether the evidence is genuinely and logically relevant to those issues.3
2 Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3] and [7].
3 Legge v R [2014] NZCA 224 at [21]; Freeman v R [2010] NZCA 230 at [21]; Rhodes v R [2012] NZCA 269 at [31].
The alleged offending
[6] The defendant and the deceased had been in a relationship for about two years. On New Year’s Eve 2017, they were at a rural address in Taupiri for a combined New Year’s Eve and 40th birthday party. There were about ten other adults at the address and a number of children. The adults were drinking.
[7] In the late afternoon of 1 January 2018, the defendant and the deceased were in the garage of the address. There were two others present as well. All of the other adults and children were inside the house. The defendant and the deceased began arguing. The other two men in the garage could hear the argument but did not see what was happening. Within a short time, there was a scream from the defendant. Those who rushed to the scene found the deceased slumped in the defendant’s arms bleeding from a wound to his neck. A knife was lying nearby. The deceased died shortly afterwards.
[8] No-one saw the fatal blow. Examination of the knife did not produce any forensic evidence. In an interview later that day, the defendant told the Police that during the argument the deceased had simply dropped to the ground. The defendant told the Police that during the argument she was “her usual angry, angry and annoyed”. At a second interview, the defendant referred to a broken broom standing up in the garage, suggesting that that might have caused the deceased’s fatal injury. She also gave further details of the argument between them, saying that she had slapped him first and they had then both hit one another and the deceased had choked for a short period of time.
The propensity offending
Injuring with intent to injure – 10 July 2010.
[9] In July 2010, the defendant was 19 years old. In the early hours of 10 July 2010, she and her then partner had been at a party. Both were intoxicated. They left the party at about 3 am and as they walked down the street they encountered the victim and his friends who had also been at the party. The defendant’s partner began a fight with the victim, including producing a knife and waving it at him. The victim knocked the knife to the ground. The defendant was encouraging the fight. She picked up the discarded knife and waved it in the direction of the fight. The victim hit her on the
head with a Lion Red stubby and then he and the defendant’s partner continued to wrestle on the ground.
[10] The summary of facts, to which the defendant pleaded guilty to injuring with intent to cause grievous bodily harm, recorded what happened next:
The defendant has become enraged by the bottle hitting her head, she saw an opportunity when the victim was on top of [the defendant’s partner].
She has taken the knife and stabbed the victim twice, one in the middle right of his back and the second in the shoulder. The victim’s friends have removed the defendant from the attack by throwing her to the ground.
The defendant has realised what she has done and immediately displayed guilt and remorse for her actions.
…
The defendant was spoken to admitted the facts as outlined and in explanation stated she was angry, not thinking and it was just a reaction to the fight.
[11] Ms Dyhrberg suggested that the defendant’s actions had been in defence of her partner but, given the defendant’s statement as recorded above, this characterisation of the conduct is not tenable.
Threatening to kill – 29 November 2014
[12] On the night of 29 November 2014, the defendant, then aged 23, and a friend went to a party. They were asked to leave by another woman. In response, the defendant struck the other woman with a bottle of rum. The defendant’s friend joined in the attack, striking the victim on her head which knocked her to the floor. The defendant’s friend continued the attack and eventually the defendant herself took a potted plant in a ceramic planter and swung it at the victim’s head, causing the planter to break into pieces upon impact. She then continued to hit and punch the victim. She shouted at the victim “I am going to kill you and end your life”.
[13] The victim tried to walk away but was confronted by the defendant who, by then, was holding a kitchen knife in a reverse grip at shoulder height. She made slashing motions towards the victim with the knife.
[14] Afterwards the defendant said she could not remember being at the party and denied being in a fight.
Application
Is the proposed evidence propensity evidence?
[15] The Crown identified the propensity disclosed by the previous offending as being the defendant’s tendency, when drunk and angry, to use a knife. Ms Dyhrberg argued that the circumstances of the previous offending did not establish a tendency either to behave in a particular way or have a particular state of mind because there was nothing unusual about being drunk and nothing unusual about being angry. A propensity to violence was too general to be useful. Ms Dyhrberg said it was important not to confuse the circumstances in which certain behaviour occurred with a propensity to act in a certain way. Further, she argued that the defendant’s use of a knife in each case arose in very different circumstances to the alleged offending. The alleged offending took place in the context of a domestic argument. In comparison, the 2010 offending was a street fight and the 2014 offending involved a group of women at a party.
[16] I accept that there are differences in the two incidents; in the first the defendant actually inflicted wounds whereas in the second she used the knife to threaten. Also, there is no evidence as to whether the defendant had the knife with her at the time of the second offence or whether she uplifted it from the scene. In my view, however, in both cases a young woman resorted to the use of a knife when she was drunk and angry and had got involved in a fight unnecessarily. In neither case was the use defensive. In both cases it was spontaneous. Notwithstanding the differences I consider the previous offending is sufficiently unusual to discern a tendency for the defendant to use a knife when she is drunk and angry.
The probative value and prejudicial effect of the evidence
[17] The Crown submitted that there was no significant disconnection in time but, rather, the timing of the previous incidents suggests a course of conduct. Ms Dyhrberg argued that, while frequency was a relevant factor, there was nothing startlingly similar such as location or context that would make the frequency of the events relevant. I do not accept this. In the space of four years, a young woman was involved in two incidents in which she used a knife against others. I consider that that is indicative of
a course of conduct and, given the defendant’s denial of having used a knife in the present case, it must be highly relevant to the issues in dispute.
[18] In terms of similarity between the propensity evidence and the alleged offending, Ms Dyhrberg argued that, while there were similarities (a fight, alcohol, a knife, offending at or after a party) there is nothing unusual about those aspects. She also characterised the 2010 incident as defensive but I have already rejected that. There are differences, as I have acknowledged, but in my view the similarities are stronger than the differences. In all three instances, the defendant was involved in a fight at or after a party when she was drunk and angry and when no-one else was armed. In the previous two instances she used a knife. In the present case, she is alleged to have used a knife.
[19] In my view, the propensity evidence has moderate probative value to both issues in dispute. However, Ms Dyhrberg argued that the evidence would be unfairly prejudicial because it would pre-dispose the jury against her with the result that it would give disproportionate weight to it. She considered that the effect could not be adequately managed through judicial direction and that the defendant would, effectively, be denied the right to offer an effective defence.
[20] Of course, it is undeniable that the evidence will result in some prejudice to the defendant. But I do not see that the prejudice will go beyond what is within the normal bounds of what is expected from the use of propensity evidence. The jury will be carefully directed as to the use it is permitted to make of the evidence. The circumstances of the alleged offending are not of a kind that the jury is likely to be overwhelmed by the evidence to the extent they would disregard the trial Judge’s directions.
Result
[21]The application is allowed.
P Courtney J
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