R v Ratima
[2016] NZHC 2722
•14 November 2016
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
CRI-2016-019-002881 [2016] NZHC 2722
BETWEEN THE QUEEN
Applicant
AND
KINGI RATIMA Defendant
Hearing: 10 November 2016 Appearances:
S F Gilbert for Applicant
A-M Beveridge for DefendantJudgment:
14 November 2016
JUDGMENT OF COURTNEY J
This judgment was delivered by Justice Courtney on 14 November 2016 at 3.00 pm
pursuant to R 11.5 of the High Court Rules
Registrar / Deputy Registrar
Date………………………..
THE QUEEN v RATIMA [2016] NZHC 2722 [14 November 2016]
Introduction
[1] At about 5 am on 15 May 2016 Kingi Ratima approached the complainant on Victoria Street in central Hamilton and asked for money. When the complainant walked away Mr Ratima struck him from behind and threw him to the ground. He punched him repeatedly in the head before stomping on his head twice. Mr Ratima then searched the complainant’s pockets, took a mobile phone and charging cable and ran from the scene. He was located shortly afterwards, a block away and still in possession of the complainant’s phone and charger.
[2] As a result of this incident, which was captured on CCTV, Mr Ratima faces one charge of robbery, with alternative charges of injuring with intent to cause grievous bodily harm and theft. The only issue on the robbery charge is whether
Mr Ratima intended to permanently deprive the complainant of his property. The Crown wishes to adduce Mr Ratima’s previous convictions for robbery as propensity evidence.
Proposed propensity evidence
[3] Mr Ratima has two previous convictions for robbery. The first occurred in central Hamilton on 14 May 2014. At about 8 pm Mr Ratima approached a man who was sitting in a parked car. He demanded that the victim hand over his car. The victim refused and told Mr Ratima that he was going to call the police. Mr Ratima then demanded the victim’s phone. When he refused that demand Mr Ratima reached into
the car, dragged the victim out onto the road, got into the driver’s seat and drove away.
[4] The second robbery also occurred in central Hamilton. At 5.30 pm on
25 November 2014 Mr Ratima approached a man who was sitting on a park bench and asked for money. When the victim said he had no money Mr Ratima attempted to snatch his phone. The victim held onto his phone. Mr Ratima then punched the victim in the chest causing him to fall backwards onto the bench. Mr Ratima demanded that the victim either give him money or get some from an ATM machine. The victim
handed over 10 Singaporean dollars. Mr Ratima responded by again demanding money and threatened to kill the victim. The victim finally handed over NZ$10 and Mr Ratima left.
[5] Mr Ratima was sentenced on 15 June 2015 to a term of one year and four months’ imprisonment in respect of the two robberies. He was released on parole on
20 April 2016 a few weeks before the offending with which he is currently charged.
Section 43 of the Evidence Act 2006
[6] Evidence that “tends to show a person’s propensity to act in a particular way or have a particular state of mind”1 may be adduced as evidence against a defendant in a criminal proceeding “only if the evidence has a probative value that outweighs the risk that [it] may have an unfairly prejudicial effect”.2 Section s 43(2) of the Evidence Act 2006 sets out a framework for making this assessment.
[7] The Court must consider the nature of the issue in dispute.3 Once that is identified s 43(3) sets out factors the Court may take into account. Relevantly, they include: the frequency with which the acts, omissions, events, or circumstances that are the subject of the evidence occurred; the connection in time and the similarity between the acts, omissions, events, or circumstances that are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried; and the extent to which the acts, omissions, events, or circumstances that 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. These considerations are neither exclusive nor mandatory, but it will generally be appropriate to take each into account to the extent that it is relevant.4
[8] Finally, s 43(4) provides that in assessing unfair prejudice the Court must consider (among any other matters):
1 Evidence Act 2006, s 40.
2 Evidence Act 2006, s 43.
3 Evidence Act 2006, s 43; Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [7].
4 Mahomed v R, above n 3, at [6].
(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.
[9] To be probative, propensity evidence must have sufficient elements of specificity. In Mahomed v R the Supreme Court said that:5
[3] The rationale for the admission of propensity evidence rests largely, as William Young J [in a separate judgment given on behalf of McGrath J and himself] says, on the concepts of linkage and coincidence. The greater the linkage or coincidence provided by the propensity evidence, the greater the probative value that evidence is likely to have. It is important to note, however, that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. It is necessary, therefore, that the propensity evidence have some specificity about it. 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.
[10] The importance of specificity and the issue in dispute was similarly emphasised by the Court of Appeal’s observation in Freeman v R that:6
… Where the relevant issue is very broad there is often greater judicial reluctance to admit evidence of similar offending (particularly where there is only one incident), than where the issue in dispute can be defined more narrowly. The other side of the coin to this is that propensity evidence which reveals no more than a propensity to commit offences of the kind alleged, despite having some probative value, will often be inadmissible given the inevitable associated prejudice. This is particularly so where the characteristics of the offending in question are unremarkable.
Application
[11] The Crown submits that the proposed propensity evidence tends to show that Mr Ratima has a predisposition to act in a particular way; that is to approach persons unknown to him in central Hamilton and demand money and/or property, and when those demands are not complied with, respond with violence in order to obtain for himself the items that are the subject of his demands. Critically, however, it is
Mr Ratima’s state of mind in the previous robberies that is the focus of the Crown’s
5 Mahomed v R, above n 3.
6 Freeman v R [2010] NZCA 230 at [21].
application. Inherent in the previous offences is the intention to permanently deprive the victims of their property.
[12] Given the similarities between the propensity evidence and current offending the Crown submits it would be an implausible coincidence that Mr Ratima had approached the complainant and committed violence against him for any purpose other than to obtain for himself either money or property.
[13] I accept the Crown submissions in relation to specific similarities. First, there are two instances of previous offending and they occurred within the space of about six months during 2014. Although 18 months elapsed before the current offending Mr Ratima was serving a sentence of imprisonment in respect of those earlier robberies for nearly all of that period. The assault on the complainant then occurred within a month of his release.
[14] I also find that there are distinct similarities between the previous offences and the current alleged offending. All occurred in central Hamilton and involved approaches to men who were by themselves. In each case there was a demand for the victim’s phone. In one of the earlier offences and the present offence, money was demanded. In each case refusal to comply elicited a violent response.
[15] Ms Beveridge, for Mr Ratima, acknowledges these similarities but submits that they are merely features inherent in the charge and therefore lack any element of unusualness. I do not accept that submission. This offence can range from grabbing something from the victim’s hand to threatening violence in order to obtain property to serious violence of the kind inflicted by Mr Ratima. The nature of the offending, its location and its targeting of lone male victims, all combine to produce a degree of specific unusualness. I note, too, that not only was the response violent, it was risky. Mr Ratima was prepared to persevere in order to get what he wanted; he was prepared to spend the time pulling the first victim out of the car and insisting that the second victim go the ATM machine and rummaging through the third victim’s pockets while he lay unconscious to find both the phone and the cable.
[16] Ms Beveridge also submitted that the propensity evidence was unnecessary because the whole incident was captured on CCTV. But, as I have said, the propensity evidence is directed towards Mr Ratima’s state of mind. That, self-evidently, cannot be discerned from the CCTV footage. I accept Ms Gilbert’s submission that the coincidence of Mr Ratima having an intention to permanently deprive his victims of their property on the two previous occasions but not the third would be an implausible coincidence and the jury state of mind on the two previous occasions.
[17] For these reasons, I consider that the proposed propensity evidence has strong probative value.
[18] Ms Beveridge argued, however, that the evidence of Mr Ratima’s convictions would be unfairly prejudicial because they would simply reinforce the idea that
Mr Ratima has a bad character. Admitting previous convictions carries a particular risk of unfair prejudice in that it may result in impermissible jury reasoning whereby previous guilt is used as a springboard to another finding of guilty. A jury may, in such cases, fail to observe the correct use of the evidence and the balance of the Crown and defence cases.
[19] All probative evidence is, inevitably, prejudicial to the defendant. But if the risk of impermissible reasoning by the jury can be managed by a careful jury direction from the trial judge on the relevance and proper use of the evidence the risk of unfair prejudice can be overcome.7 In my view any risk of unfair prejudice in this case can be overcome by an appropriate direction on the use to which the evidence may be put.
[20] I have also considered whether the jury might give the evidence disproportionate weight, particularly in light of Ms Beveridge’s submission that it is not relevant to the grievous bodily harm issue. There will, however, be other evidence before the jury which will provide it much greater assistance in considering the extent and level of the violence. The CCTV footage and eye-witness account are both likely to assist the jury in giving this appropriate and careful consideration. Given that, I do not consider a properly directed jury would rely on the propensity evidence in an
undue and impermissible way.
7 Mahomed v R, above n 3, at [95].
Conclusion
[21] In my view the probative value of the propensity evidence outweighs the risk of it having an unfairly prejudicial effect. The application for leave to adduce the
convictions is granted.
P Courtney J
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