R v Rameka
[2015] NZHC 2530
•19 October 2015
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 RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
CRI-2008-083-2794 [2015] NZHC 2530
THE QUEEN
v
RAELEEN MATEWAI NOYLE RAMEKA
Hearing: 9 October 2015 Counsel:
E A Hall for Defendant
L C Rowe for CrownJudgment:
19 October 2015
JUDGMENT OF CLIFFORD J
Introduction
[1] The defendant, Raeleen Rameka, has pleaded not guilty to a charge of manslaughter. Her trial is set down to begin in Whanganui on 11 April 2016. Because of the date of the alleged offending, the Crimes Act 1961 applies. Ms Rameka now applies pursuant to s 322 of that Act for the venue of her trial to be moved from Whanganui because, she says, there is a real risk that she may not receive a fair trial in Whanganui. Ms Rameka considers Wellington would be an
appropriate venue.
R v RAMEKA [2015] NZHC 2530 [19 October 2015]
Background
[2] On 23 September 2008, a Mr Paul Kumeroa was assaulted whilst walking home on a Whanganui street. His assailants were Clark McCallum and Daniel Rippon. Messrs McCallum and Rippon were the occupants of a car driven by a Ms Jamie Ahsin. Ms Rameka was also in that car. The essential facts are that the car Ms Ahsin was driving did a u-turn as it passed Mr Kumeroa. Mr McCallum and Mr Rippon alighted from the car and assaulted Mr Kumeroa. Mr McCallum returned to the vehicle and then went back to where Mr Kumeroa was and struck him with a small axe. The two men got back into the car and the vehicle left the scene.
[3] Mr Kumeroa subsequently died.
[4] Mr Kumeroa was, at the time he was assaulted, wearing a red sweatshirt and was heavily intoxicated. The evidence was that earlier that day the group of four, who were Black Power members and associates, had been provoking violence with and against members of the Mongrel Mob. Red is the colour associated with the Mongrel Mob. Mr Kumeroa’s red sweatshirt was mistakenly taken as showing his Mongrel Mob affiliation. He was attacked accordingly. In fact, Mr Kumeroa had no association with the Mongrel Mob.
[5] At the time, there was a disturbingly high level of violence and tension between the Black Power and Mongrel Mob gangs in Whanganui. It was around that time that the drive-by killing of a young Māori child occurred.
[6] The four were subsequently charged with murder. They stood trial in Whanganui in November and December of 2009. They were each found guilty by the jury on 11 December 2009, and sentenced to life imprisonment on 12 February
2010: Mr McCallum to serve a minimum term of 15 years, Mr Rippon to serve a minimum term of 12 years, and Ms Ahsin and Ms Rameka to serve a minimum term of 10 years and six months.
[7] Ms Ahsin and Ms Rameka appealed their convictions and sentences. The
Court of Appeal dismissed their conviction appeals, but allowed their sentence
appeals.1 In doing so it reduced the minimum period of imprisonment before they could be considered for parole to 10 years. The Supreme Court gave leave for further appeals against conviction and, on 30 October 2014 allowed the appeals, set aside Ms Ahsin and Ms Rameka’s convictions and ordered a retrial.2
[8] The Crown, having considered its position and the terms of the Supreme Court’s judgment, indicated that it would proceed to trial for murder for both defendants but, in the public interest, would accept guilty pleas from either defendant to manslaughter in substitution for their charge of murder. Dobson J provided Ms Ahsin a sentencing indication on the manslaughter charge on 23 July
2015. Ms Rameka entered a not guilty plea to the charge of manslaughter she faced that day.
[9] Ms Ahsin pleaded guilty to the charge of manslaughter on 11 August 2015. She was sentenced by Dobson J that day to three years and nine months’ imprisonment. That sentence was satisfied by time served.
Change of venue application
[10] Ms Rameka bases her application for a change of venue on the prejudicial effect on a Whanganui jury of the publicity this case has attracted from 2008 onwards. For Ms Rameka, Ms Hall provided me with copies of some 40 newspaper, television and e-media (for example Stuff) reports over that seven-year period. The Crown also provided copies of 39 instances of relevant reports. The two samples overlap.
[11] That material falls into four parts: (a) pre-trial publicity;
(b) reporting on the original trial, including the jury’s verdicts and the
subsequent sentencing exercise;
1 Rameka & Ors v R [2011] NZCA 75.
2 Ahsin v R and Rameka v R [2014] NZSC 153.
(c) reporting on the appeal process; and
(d) most recently, reporting on Ms Ahsin’s guilty plea and subsequent
sentencing.
[12] For Ms Rameka, Ms Hall says there is a real risk that Ms Rameka would not receive a fair trial in Whanganui for, essentially, two reasons:
(a) the effect of that reporting to date, which I consider in more detail below; and
(b)the enhanced impact that material is likely to have on a Whanganui jury, given the history of gang violence in that city and the impact, over time, of that history on the attitude of ordinary people to gang members facing charges based on inter-gang violence.
[13] Ms Hall also points to the risk that a local Whanganui jury might take the view that Ms Rameka’s appeal was something of a legal nicety and that, as she had previously been found guilty of murder, so should she now be found guilty of manslaughter.
[14] The Crown opposes this application. Mr Rowe says that there is nothing out of the ordinary in the publicity this matter has received. Much of the publicity occurred quite some time ago, at the time of the trial in November and December
2009, and at sentencing in February 2010. By the time Ms Rameka stands trial again, more than six years will have passed since then. Moreover, whilst feelings in Whanganui were running high at the time of this incident, the position as regards gang violence has improved. The City Council has not moved to re-enact the “gang patch” by-law, which coincidentally I struck down in judicial review proceedings.3
[15] If, however, the Court was minded to move the trial away from Whanganui, Mr Rowe submitted that Palmerston North would be an appropriate venue. That
would be more efficient and practicable from the Crown’s point of view.
3 Schubert v Wanganui District Council [2011] NZAR 233.
Furthermore, all the mattes of potential prejudice that Ms Hall pointed to for Ms Rameka related to matters specific to Whanganui. There was no suggestion that the same matters affected or would affect a Palmerston North jury.
The law
[16] The law here is well-established. I take the following summary from
Ms Hall’s submissions.
The applicable principles were summarised by the Court of Appeal in
McNaughton v R [2012] NZCA 16 at [6]. The principles are as follows:
(a) The initial factual position is that a defendant is to be tried in the court nearest to the place where the crime was committed unless the venue is changed.
(b) In jury trial cases, it is a longstanding tenet that a defendant be tried by jurors drawn from the place in which the offence was committed. That tenet has statutory recognition in s 5(5) of the Juries Act 1981, which refers to the principle that so far as practicable a jury should be drawn from the community in which the alleged offence occurred. See also R v Middleton CA218/00, 26 September 2000 at [31].
(c) Consideration of a change of venue is best applied against s 25(a) of the New Zealand Bill of Rights Act 1990 which gives every defendant “the right to a fair and public hearing by an independent and impartial court”.
(d) It is not particularly helpful to refer to an onus, and wrong to refer to a high threshold. A party applying to change the trial venue needs to persuade the court that there is a real risk that a fair and impartial trial is not possible at the existing location: see also R v Tuckerman CA48/86, 18 April 1986 applied in R v Mayer-Hare [1990] 2 NZLR
561 (CA). The use of the word “real” means that the court must be
persuaded that the risk actually exists, and is not illusory or fanciful.
(e) The court “may” change the trial venue. That requires the exercise of discretion and an evaluative assessment of all relevant considerations in the context of the particular case: see R v Foreman (No 2) [2008] NZCA 55 at [13]. In respect of decisions under s 322, this exercise was described by the High Court in Te Wini v R HC Tauranga CRI-2008-270-361, 3 October 2011 at [5] as requiring the court to:
… undertake an evaluative assessment in which it identifies the risks associated with the trial if it is held at the existing venue, and any means by which those risks may be neutralised or minimised. In the event that it determines that the risks cannot be adequately addressed, the Court is likely to exercise its
discretion to make an order changing the venue of the trial to another centre.
And as the authors on Adams note, at [CPA157.05] “The cumulative effect of a number of factors, none in itself sufficient, may show that a change of venue should be ordered: …
[17] Ms Hall pointed to the statements in R v R that disclosure of the previous conviction has traditionally been regarded as carrying a real risk of prejudice to a pending trial, particularly where the prior conviction is for offending similar to that charged.4 Ms Hall also referred to comments from a contempt case, Wellington Newspapers Ltd, by the then Chief Justice, Eichelbaum CJ:5
a fundamental assumption of the jury trial system is that any previous criminal record of the accused is kept from the jury. Special rules govern situations where it may emerge, such as so-called similar fact evidence, or on cross-examination of the accused where character has been put in issue. Although the courts recognise the conscientious attention juries pay to directions to put aside prejudicial material, the law's attitude in this field is founded on the belief that the jury’s knowledge of previous convictions creates an unacceptable risk of prejudice regardless of the directions that may be given. Particular types of convictions enhance the risk; for example, those for offending similar to that charged, or for dishonesty where credibility is of the essence.
Analysis
[18] As Randerson J acknowledged in R v R, a case where a stay of proceedings was sought because of adverse publicity, the starting point is that an accused is entitled to the minimum standards of criminal procedure affirmed by s 25 of the New Zealand Bill of Rights Act 1990,6 in particular the right to a fair and public hearing by an independent and impartial court and the right to be presumed innocent until proved guilty according to law. The question here for me is whether the
publicity that was associated with the earlier trial and subsequent events means that there is a real risk that a trial before a jury in Whanganui would not accord Ms Rameka those rights.
[19] The first task for me is to consider the nature of the publicity that this case has received.
4 R v R (No 2) HC Auckland CRI-2005-063-1122, 25 May 2006 at [34].
5 Solicitor-General v Wellington Newspapers Ltd [1995] 1 NZLR 45, (1994) 12 CRNZ 394 at
47,397.
6 Above n 4 at [27].
[20] Mr Kumeroa’s murder received considerable publicity, both locally and nationally. As Mr Rowe reminded me, it became known as the “red hoodie” case. There were, I think, three aspects of that publicity in particular that are of potential relevance here. They are:
(a) the general context of heightened concerns in Whanganui regarding gang violence;
(b)the fact that this was, in that context, an extreme outbreak of, (apparently) inter-gang violence; and
(c) the fact that, although he was wearing a red hoodie, Mr Kumeroa was not associated with the Mongrel Mob and was not wearing the colour red to publicise that connection.
[21] Those themes appeared in each of the four “stages” of the publicity the case received I identified at [11].
[22] A very early report, on television news on 25 September 2008, reported TV3 news’ understanding that the attack on Mr Kumeroa “may be related to [the] Jhia Te Tua drive-by shooting”. Mr Kumeroa’s family was reported as having links to the Mongrel Mob, but the police would not say whether the incident was gang-related. Subsequent reporting in September and October recorded the difficulties the police were encountering in their investigation. Emphasis was placed on the unprovoked nature of the violence: the fact that an innocent man had had his life cut short by mindless violence.
[23] The reports of the subsequent arrests in November 2009 were factual and low-key.
[24] Reflecting the “gang violence” theme of all the reporting, a report of an early District Court appearance by the four defendants recorded the Judge observing that a man may have been murdered because he was wearing the wrong coloured clothing, that gang tensions were high in Whanganui because the trial for the men accused of
killing Jhia Te Tua was underway in Wellington and that the Judge was concerned “the killing had been a possible ‘tit for tat’ between rival gangs”. The murder accused were reported as being “coloured up on the night”, and laughing later about the killing. Reference was also made to the fact that Mr Kumeroa had been walking in a Black Power area.
[25] The trial began on Monday 21 November 2009. The Crown’s opening, which was reported on, picked up the themes that had also featured in earlier reports: that is, that Mr Kumeroa was wearing the wrong clothing at the wrong time, and that the accused had, on the day Mr Kumeroa was attacked, been in other confrontations with Mongrel Mob members. The local headline read “Brutal gang killing rooted in gang rivalry”. A similar headline in the Dominion Post read “Accused on mission ‘to get gang rivals’”.
[26] Thereafter, the publicity focused on a number of procedural and practical challenges the trial faced, including a lack of necessary juror numbers, the discharge of one juror and the impact of a power cut. A headline on 27 November in the Whanganui Chronicle read, “Murder trial under way after two false starts”.
[27] When the trial did get underway again, much of the publicity emphasised the fact that Mr Kumeroa was a young father with a partner and a young son. That publicity also reflected the fact that the key issue at the trial was one of identity.
[28] The balance of the publicity up to the end of the trial followed the progress of the case, including the fact that the defendants called no evidence and the defence submission that the evidence against them, particularly as regards their identities, was too weak to form the basis of guilty verdicts. On the day of the verdicts, the local newspaper had a front page photograph of the four defendants standing in the dock as their guilty verdicts were read out. The report recorded the stress the trial had caused for Mr Kumeroa’s mother and his wider family. There is also reference to statements on behalf of the police that “this was not gang warfare. They were a group of people associated with a gang in Whanganui undertaking criminal activity without the knowledge of the hierarchy of that gang”.
[29] The “red hoodie” reference featured in much of this reporting as well.
[30] At the time of sentencing, particular emphasis was placed on Mr Kumeroa’s mother’s victim impact statement that was read by her in Court. The local headline read, “Mum’s pain as killers jailed”. There were also references to Justice Dobson, the trial Judge’s, description of a mindless, premeditated murder, the fact that the defendants had shown no remorse during the trial, and an “utterly cowardly” attack.
[31] The Supreme Court’s decision, granting leave to Ms Ahsin and Ms Rameka to appeal their convictions, was given low-key coverage in September of 2013. There were further references to the Judge’s description of the “completely mindless and violent attack”. Reference was also made to the issue that would be raised on appeal: whether or not the jury had been properly instructed regarding the possibility that Ms Ahsin and Ms Rameka had withdrawn from the common purpose before the fatal attack occurred.
[32] Similar publicity was associated with the release of the Supreme Court decision at the end of October 2014. As reported in Stuff:
The Court said the trial Judge had not properly explained the law relating to people being guilty as ‘parties’ to an offence committed by another person, or explained how it was relevant to what was alleged to have happened when Kumeroa was killed.
[33] The local report referred to there having been evidence that “the woman or women who had called to the men to get back into the car had been indicating that whoever spoke was trying to stop matters going further”. That was the evidential basis for the problems the Court found with the directions to the jury.
[34] The subsequent grant of bail to Ms Ahsin and Ms Rameka attracted low-level, factual reporting.
[35] Most recently, Mrs Kumeroa’s reading of her victim impact statement, when Ms Ahsin pleaded guilty and was sentenced, was reported in some detail. Mrs Kumeroa was reported as having said “To the people who killed my son, Paul,
all I can say to you is that I will hate you forever”. Other reports referred to the following remarks:
“It is impossible to remove the memory of Paul’s little boy lying on Paul’s chest in the hospital and telling his dad to wake up,” his sister Victoria told the court today.
…
“this was the most devastating, heartbreaking experience we have ever been through or that anyone could imagine.
…
“In our minds you are a gutless person. You and your friends killed Paul because he was wearing a red hoodie for God’s sake.”
…
Carolyn Kumeroa had told the judge that when her son died he had just become a father, he had a long-term relationship and a good job. She said she saw the life draining from him in hospital, that he had been killed for no reason. It would never be over for her and she could not come to terms with it, she said. She understood why the charge was changed from murder to manslaughter, but the truth was that if Ahsin had not done a u-turn Paul Kumeroa would still be alive, she said. The circumstances were too cruel, horrible and unbelievable, she said. “May you lie awake at night dreading your judgment day.”
[36] Taken in the round, and bearing in mind the time that has now passed since Mr Kumeroa’s death, and the subsequent 2009/10 trial and sentencing, I do not think that that publicity, taken by itself, can be said to create a real risk of prejudice such as to threaten Ms Rameka’s fair trial rights in Whanganui.
[37] As Mr Rowe fairly noted, much of that publicity was national: little would be gained by moving the trial from Whanganui.
[38] I do not think the tone or content of the publicity was itself especially prejudicial. This was a gang-associated attack. It was a very violent attack, and Mr Kumeroa was an innocent victim. Those facts simply cannot be gainsaid. Putting aside the gang context, and the “red hoodie” element here, the violence inflicted on an innocent victim is, unfortunately, not that rare an occasion today. The possible prejudice of the involvement of Ms Rameka and her co-defendants with Black Power, and the enmity between that gang and Mongrel Mob, do carry with
them the risk of prejudice. But that is a prejudice that juries are instructed to put aside and which their verdicts over time show that they do.
[39] I accept the fact that, at the time of this offending and at the time of the first trial, feelings in Whanganui regarding gang violence were likely to have been running high. I note, in that context, that there was no application at the time for a change in venue. Ms Hall says she cannot understand why such an application was not made, and that I should put no weight on that fact. I cannot comment on the former proposition, but I disagree with the latter. Defence counsel at the first trial were experienced, and predominantly local, Whanganui counsel. I think it is of some significance that there was no application for a change of venue at that time. More importantly, however, I do think those feelings can be seen as having abated over time. The gang patch by-law was struck down in judicial review proceedings. Although the Court indicated that a more focused by-law might well come within the empowering provisions of the relevant legislation, the City Council has not taken steps to promulgate such a by-law. I think a reasonable inference from that fact is that there has been a reduction in gang violence and in related tensions in Whanganui.
[40] The fact that Ms Rameka is being tried again will be known to the jury, and the required directions will be given as to how the jury are to approach their task at her retrial: that is afresh, on the basis of the evidence they hear in Court and without reliance on or influence from the fact of the earlier, quashed, conviction.
[41] Ms Rameka, moreover, now faces the lesser charge of manslaughter. It is not without significance, in my view, that Mrs Kumeroa herself is reported as understanding why that lesser charge has now been laid.
[42] Finally, the issue at Ms Rameka’s retrial is likely to be quite different to that at the first trial. There the question was principally one of identity. At the retrial the focus will, I anticipate, be that aspect of the factual narrative that, the Supreme Court acknowledged, gave rise to the question of whether the Crown can establish beyond reasonable doubt that Ms Rameka had not withdrawn from any joint purpose she may have had when the fatal blows were struck by Mr McCallum.
[43] In these circumstances, and applying the principles summarised in McNaughton, I do not think there is a real risk that a fair and impartial trial is not possible in Whanganui.
[44] I therefore decline Ms Rameka’s application for a change of venue.
Solicitors:
Crown Solicitor, Whanganui
Clifford J
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