R v Te Pania
[2007] NZCA 429
•4 October 2007
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON 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
CA317/07 [2007] NZCA 429
THE QUEEN
v
SHANNON TE PANIA
Hearing: 18 September 2007
Court: Ellen France, John Hansen and Wild JJ Counsel: N J Sainsbury and P H Mitchell for Appellant
A Markham for Crown
Judgment: 4 October 2007 at 3 pm
JUDGMENT OF THE COURT
AThe application for leave to appeal is declined and the appeal is dismissed.
BOrder prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on Internet or other
R V TE PANIA CA CA317/07 4 October 2007
publicly accessible database until final disposition of trial. Publication in
Law Report or Law Digest permitted.
REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1] The appellant is to be tried on an indictment charging ten counts in the week beginning 29 October 2007. He seeks leave to appeal against a pre-trial ruling of Judge Radford delivered on 31 May 2007 refusing severance: DC WN CRI-2006-085-3282 31 May 2007.
Background
[2] The appellant faces ten counts, namely count one assault with a weapon (a knife); count two intentional damage (involving a knife); count three threatening to cause grievous bodily harm; count four threatening to kill; count five kidnapping; count six being armed with an offensive weapon (a knife), assaulting with intent to rob; count seven kidnapping; count eight being warmed with an offensive weapon (a knife), assaulting with intent to rob; count nine wounding with intent to cause grievous bodily harm; and count ten having in his possession an offensive weapon, namely, a knife in circumstances that prima facie showed an intention to use it to commit an offence involving fear or violence.
[3] The charges arise out of a series of incidents occurring over a period of an hour, possibly less, on the evening of 20 May 2006. The appellant was aged
17 years at the time. The allegations as at depositions are summarised by the
District Court Judge as follows:
[4] ... In summary, they allege that the [appellant] and two companions travelled from Johnsonville to Wellington on the afternoon of 20 May 2006. Prior to leaving Johnsonville one of the [appellant’s] companions had in his possession a knife, which either during the journey or in Wellington, came
into possession of the [appellant]. The [appellant] and his companions were drinking during the trip.
[5] The offending started when a shop manager, having been alerted to the behaviour of either the [appellant] or his male companion, saw the [appellant] attack a passing utility causing damage to the fabric cover on the tray. The attack was confirmed by the driver of the utility and a passenger.
[6] Following this, the [appellant] got into an argument with a number of young people and in essence confined them, physically, threatened them with a knife and demanded items from them, preventing them from leaving the scene.
[7] The [appellant] then, a short distance away, is alleged to have stabbed a man who was simply walking in the street, the stabbing occurring to the man’s back.
Grounds of appeal
[4] The appellant says severance should have been ordered so that there are three trials:
(a) One involving counts one and two, relating to the offending summarised by the Judge in [5] of his decision, just quoted;
(b) A second involving counts three to eight, relating to the offending summarised in [6] quoted above; and
(c) A third in relation to counts nine and ten – the offending described in
[7] above.
[5] The appellant’s submissions can be summarised as follows. First, that the Judge was wrong in not accepting that the incidents are separate, that they differ in terms of the nature of the offending, and have discrete end points. There is a particular contrast, Mr Sainsbury maintains, between the earlier incidents which have an element of “swagger and bullying” and the stabbing in count nine. Second, the appellant argues this is not a case where separate trials would necessitate a repetition of evidence. Mr Sainsbury says that much of the common evidence can be led in a non-controversial way. It follows, he argues, that the Judge gave undue weight to the concern witnesses would be giving evidence in more than one trial.
[6] Finally, the appellant submits that insufficient weight has been given to the illegitimate prejudice that will flow to the appellant from a single trial. There are two aspects to this. The first is that Mr Sainsbury argues a jury may reason that because the appellant was “causing trouble” that night he must be the person who stabbed the victim in count nine. The second aspect is related and it is that the three groups of charges raise different issues for the defence. Identity is likely to be an issue for counts one, two, nine and 10 but in counts three to eight the likely focus is on the extent of the appellant’s behaviour. In terms of the latter charges, he only disputes the extent of what happened.
Discussion
[7] Section 340(1) of the Crimes Act 1961 allows any number of counts to be joined in the one indictment. This is subject to the discretion in s 340(3) to sever counts “[i]f the Court thinks it conducive to the ends of justice to do so”. In R v W [1995] 1 NZLR 548 at 555 this Court said:
The general principle is that counts arising from incidents unrelated in time or circumstance are not to be tried together unless evidence as to one is relevant to another, to an extent that its probative value outweighs its prejudicial effect. That may be so in a variety of circumstances, of which similarity of the facts is one.
…
[W]here as here the allegations are interwoven or interconnected the desirability of presenting the case on a realistic rather than an artificial basis will usually point against severance.
[8] We agree with the Crown that there is no error in the approach taken by the District Court Judge and indeed see no realistic basis on which severance could have been ordered in this case.
[9] Taking the appellant’s first criticism, we consider the District Court Judge was correct when he said the evidence disclosed a course of conduct. Judge Radford put it this way:
[14] In my view the evidence does disclose a continuous series of events and it would be artificial to say, as does [the appellant], that each event is separate or discrete. It is true that the events occurred sequentially, in that
one followed the other, but there are a number of similarities in the detail of what happened which demonstrate that the actions, if proved, show a single course of conduct. It is not correct either, in my view, to say that there is entirely separate evidence available to the Crown in relation to each group of counts and that the only linking factor is the [appellant].
[10] As Judge Radford emphasised, these events occurred over an hour or less, all involved attacks on strangers and the use of a knife figures prominently. It is simply artificial to break down what occurred in the way contended for the appellant and so to place part only of the narrative of events before the jury.
[11] Judge Radford took the view that evidence of the appellant’s course of conduct would be admissible as similar fact evidence (the hearing pre-dated the coming into force of the Evidence Act 2006). Mr Sainsbury accordingly dealt in his submissions with s 43 of the Evidence Act relating to propensity evidence. However, we consider the evidence is relevant as part of the narrative and there is no need to resort to matters of propensity.
[12] In terms of the second ground of complaint relating to the approach to duplication of effort, even with agreement as to non-controversial evidence there would undoubtedly be some unnecessary doubling up.
[13] Finally, as to the prejudicial effect we are not satisfied the Judge has erred in the approach to the balance. In our view there is no illegitimate prejudice and, if there are different defences, they should be considered by the trier of fact in light of the sequence of events.
Result
[14] Because the appeal is unmeritorious we decline leave to appeal with the consequence that the appeal is dismissed. We make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on Internet or other publicly accessible database until final disposition of trial. Publication in Law Report or Law Digest permitted.
Solicitors:
Crown Law Office, Wellington
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