Rameka v The Queen
[2019] NZCA 105
•11 April 2019 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA285/2018 [2019] NZCA 105 |
| BETWEEN | BRENDALEE VIVIANE RAMEKA |
| AND | THE QUEEN |
| Hearing: | 28 November 2018 |
Court: | Williams, Peters and Gendall JJ |
Counsel: | W T Nabney for Appellant |
Judgment: | 11 April 2019 at 11.00 am |
JUDGMENT OF THE COURT
A The application for an extension of time to file the notice of appeal is granted.
BThe application to adduce fresh evidence is declined.
CThe appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Peters J)
The appellant, Brendalee Rameka, appeals against her conviction on one charge each of kidnapping and of injuring with intent to injure, following a jury trial before Judge Cooper in the District Court at Rotorua in early 2018.[1]
[1]R v Rameka [2018] NZDC 6993. The appellant abandoned her appeal against sentence.
The appeal is brought on the ground that a miscarriage of justice has occurred as a result of two errors the Judge is said to have made and which, together or individually, create a real risk that the outcome of the trial was affected.[2]
[2]Criminal Procedure Act 2011, ss 232(2)(c) and 232(4)(a).
First, the Judge is said to have erred in allowing the Crown to adduce propensity evidence relating to offending by the appellant in 2013.
Secondly, the Judge is said to have erred in allowing the Crown to adduce hearsay evidence, being a signed statement that Ms Maria Draper made to the police on 21 February 2017 (“statement”), some three weeks after the offending on 30 January 2017. The Crown summonsed Ms Draper to give evidence at trial but she did not appear as required and the police were unable to locate her. In her absence, the Crown sought, and was granted, leave to read the statement to the jury, on the ground that the circumstances relating to the statement provided reasonable assurance that it was reliable and Ms Draper was unavailable as a witness because she could not with reasonable diligence be found.[3] The appellant contends that leave should not have been granted.
[3]Evidence Act 2006, ss 16(2) and 18.
The appellant also seeks leave to adduce fresh evidence on appeal, that being from the appellant, her brother, Simon Rameka (“Simon”), and from Ms Draper, in which she recants the statement referred to above. As appears below, we decline to admit any of this evidence. The appellant’s affidavit is not cogent, Simon’s affidavit is neither fresh nor cogent, and Ms Draper’s is not credible.[4]
Background
[4]R v Bain [2004] 1 NZLR 638, (2003) 20 CRNZ 637 (CA) at [22]–[26]; and Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
The appellant and her daughter, Metallicah Rameka (“Metallicah”), were each charged with kidnapping, injuring with intent to injure, and assault. In addition, the appellant was charged with assault with a weapon, alleged to be scissors, and Metallicah with theft. Each was convicted of kidnapping and injuring with intent to injure. All charges were alleged to have been committed against Ms Trina, or Treena, McMahon.
Ms McMahon was Simon’s partner at the time, and is Ms Draper’s aunt.
Ms Draper was previously in a relationship with Charles Rameka (“Charles”), who is Simon and the appellant’s brother, and they have four children together.
At trial, the Crown case was that the appellant and Metallicah detained Ms McMahon in a shed and assaulted her by kicking and punching her, and pulling her hair. The Crown also alleged that the appellant held scissors to Ms McMahon’s throat, this being the basis of the assault with a weapon charge.
These events occurred at the address of the appellant’s niece, Florence Rameka (“Florence”). Florence was not present at the time but Ms Draper was present throughout.[5] Florence and Richard Loffley, her partner, arrived home to find Ms McMahon in their shed, observed some of what occurred, and brought the fighting to an end.
Evidence
[5]Ms Draper’s denial before us that she was present is not credible.
The Crown called evidence from Ms McMahon, Florence, Mr Loffley and various police officers, including Constables Whiteman and Transom who went to the address following a telephone call from a third party. They arrived at the scene at about 10.30 pm and observed that Ms McMahon was “crying, sobbing” and “incredibly upset”, that it was too dark to see her face, that she was “cuddled up on the back seat” and “did not look that happy”. Neither Constable observed any obvious injury. In response to their questions, the Constables were told that Ms McMahon was drunk. Another officer, Detective Collins, gave evidence that he located blood splatter in the shed and that it smelt of urine, which was consistent with other evidence given in the trial.
In addition to this evidence, the jury had an agreed statement of facts which included the propensity evidence now in dispute, booklets of text messages from Florence and Ms Draper’s cell phones, and Ms Draper’s statement.
The gist of Ms Draper’s statement, which she now seeks to recant, was that she had gone to Florence’s address at the appellant’s request. On arrival, she became nervous and wished to take Ms McMahon away, but the appellant and Metallicah would not let her do so. Once in the shed, the appellant and Metallicah accused Ms McMahon of lying regarding a drug deal. Ms Draper went outside and spoke to Simon who said he would be there in a couple of hours. On Ms Draper’s return to the shed, Ms McMahon had a bleeding nose, was sobbing and in a foetal position. Ms Draper sent a text to Florence urging her to come home straight away. She also asked her daughter to telephone Florence and tell her to come home straight away as “something bad was happening in her shed”.
Ms Draper then observed the appellant pulling Ms McMahon by her hair and “saying crazy shit like take a good look outside bitch because that’s the last time you’re gonna see daylight”. Alarmed by this, Ms Draper sent a text to her daughter saying “if mummy goes missing tell Dad that [the appellant] did it and I’m with [Ms McMahon]”. Ms Draper also observed Metallicah kick Ms McMahon in the mouth whilst the appellant was holding Ms McMahon by her hair. Ms Draper stated that Ms McMahon was “begging” her to get Ms McMahon out of there. Florence and Mr Loffley then arrived home, intervened and Florence emerged from the shed “pretty much carrying [Ms McMahon] out”.
Ms Draper’s contemporaneous text messages, which were before the jury, are consistent with her statement. These texts include “… im scared for aunty trina”; texts to Florence asking her to come home and saying that she needed Florence and “Fuk sht hapning n ur shed”. Ms Draper also sent texts to her daughter saying “II go hme I thnk wen trinas out of here safe”, and “Yea alive they wer talkn bout killng her”.
Neither the appellant nor Metallicah gave or called evidence at trial. However, at sentencing the Judge referred to a letter in which, inter alia, the appellant acknowledged committing the offending, stated that she took full responsibility for her actions, wished to apologise to Ms McMahon and regretted that the matter had “got out of control”.
At the hearing of the appeal, the appellant’s evidence was that a fellow prisoner had written the letter for her, it was not true, and that she had not committed the offending but rather was seeking to divert responsibility from Metallicah.
Grounds of appeal
First ground of appeal – propensity evidence
The propensity evidence in dispute concerned offending that the appellant and Simon committed in 2013, and for which the appellant was convicted of kidnapping, threatening to kill or do grievous bodily harm, and injuring with intent to injure (“2013 incident”).[6] In a decision in July 2017, Judge Cooper determined that the evidence was admissible propensity evidence against the appellant.[7]
[6]R v Rameka [2014] NZHC 2662.
[7]R v Rameka [2017] NZDC 12284.
The agreed statement in which the propensity evidence was adduced recorded the facts of the 2013 incident as follows. The appellant and the female victim had travelled to Rotorua to visit Simon. After they arrived, the appellant and Simon accused the victim of stealing money from them. Simon put a pillow case over the victim’s head who was then forced to sit on the floor and detained for the next 16 hours. During that time, Simon and the appellant assaulted the victim physically, with the appellant kicking, punching and hitting her with a blunt instrument. Simon threatened to cut off the victim’s fingers with a pair of secateurs and the appellant threatened to cut out her tongue and eyes.
The Judge included more detail in his decision allowing the evidence to be adduced. Apparently what sparked the offending was Simon becoming angry when he learnt the victim’s family had connections to the Mongrel Mob. The Judge also stated that the appellant had kicked the victim in the mouth and head.
In his decision the Judge recorded that all issues were then in dispute as regards the appellant’s involvement in the index offending.[8]
[8]At [9].
In analysing the probative value of the 2013 incident, the Judge accepted that Simon had instigated that detention and what subsequently occurred.
However, the Judge also noted that it was the appellant who had taken the victim to Simon’s house, that it was she (or so the Judge said) who told Simon that the victim had stolen his money, and that she was a full participant in the detention and the subsequent assault.[9] The Judge said both Simon and the appellant shared a desire to exact retribution for the alleged stolen money and connection to the Mongrel Mob.[10]
[9]At [12].
[10]At [13].
Likewise, the Judge said the index offending was borne from a wish to exact retribution, was said to involve two assailants, a detention of the complainant, and the appellant punching and kicking the complainant.[11] The Judge also noted that both incidents involved the use of scissors or similar weapon.
[11]At [14].
The Judge considered the commonalities showed a propensity by the appellant to behave in a particular way when seeking retribution.[12] He was not persuaded that the probative value of the evidence was diminished because Simon had been the instigator in 2013 incident, given the appellant’s subsequent full participation.[13]
Submissions
[12]At [17].
[13]At [18].
On appeal, Mr Nabney submitted that the Judge overstated the probative value of the evidence. The 2013 incident was a single event occurring four years before the index offending and, although both incidents had in common the aspects the Judge identified — prolonged detention, physical assault and threats to kill in retribution for a perceived wrong — Mr Nabney reiterated the submission that Mr Balme, trial counsel, made to the Judge as to Simon’s “leading role” in the 2013 incident. Mr Nabney sought to contrast this with the appellant’s alleged lead role in the index offending, the fact that the offending was sparked by a drug deal gone wrong, the appellant had punched Ms McMahon all over her body and not just her head and mouth, and she was said to have told Ms McMahon that the latter was going “for a long sleep” and “in the boot and to the farm”.
Mr Nabney also submitted that only Simon threatened the victim with the use of scissors or secateurs in the 2013 incident. We have reservations about the accuracy of this latter submission. Quite aside from what the Judge said on this issue, the agreed statement says that the appellant threatened to cut out the victim’s tongue and eyes. This would require an implement of some type.
Crown counsel submitted to us that the Judge’s assessment of the probative value of the evidence was correct. He also submitted that it needed to be borne in mind that the appellant had been sentenced to two years and three months’ imprisonment for the offending which undermined the appellant’s submission of a four-year period between the two incidents.
The critical issue under s 43 of the Evidence Act 2006 is whether the probative value of the evidence outweighs the risk of an unfairly prejudicial effect. We are satisfied that the Judge was correct to hold that the similarities were such that the propensity evidence was of strong probative value. Kidnapping and assault may not be unusual in and of themselves but the similarities between the two events in this particular case are striking.
Unfairly prejudicial effect
The Judge was satisfied that the probative value of the evidence outweighed the risk of any unfairly prejudicial effect on the appellant. He considered that directions to the jury would put the evidence in its proper and fair context and he also said that only the “essential features” of the 2013 incident should be put before the jury, and by an agreed statement, as occurred.[14]
[14]At [22].
Mr Nabney submitted that the Judge’s conclusion on this aspect was also incorrect, again because Simon was the lead offender in the 2013 incident. We have already rejected this submission. In any event, it is clear that the appellant participated fully in the 2013 incident. Any submission otherwise is wholly unrealistic when one considers the detention was for 16 hours.
Accordingly, we are satisfied that the probative value of the evidence outweighed the risk of any unfair prejudice to the appellant.
Lastly on this topic, the verdicts show that the jury was discriminating in the evidence it accepted. We say this because the jury acquitted the appellant on the assault with a weapon charge, even though Ms McMahon’s evidence as to the appellant’s use of the scissors is consistent with the propensity evidence.
We dismiss this first ground of appeal accordingly.
Second ground of appeal – admission of Ms Draper’s statement
Mr Nabney submitted that there was insufficient evidence that Ms Draper was unavailable as a witness, and could not with reasonable diligence be found, and that the circumstances did not give reasonable assurance as to the reliability of her statement.[15] If either of these submissions succeeds, the Judge erred in allowing her statement to be read to the jury; and it would be necessary to consider the possible effect of the statement on the outcome of the trial.
Unavailability
[15]Evidence Act 2006, ss 16 and 18.
Mr Nabney submits that the police would have located Ms Draper at home on the last day of trial, had they made enquiries there and that, if they had done so, she would have come to Court to give the evidence now contained in the affidavit she has sworn in support of the appeal, recanting her statement. We record that Ms Draper does not say in her affidavit that she was home that morning, so there is no evidential basis for that assertion.
In mid-January 2018, Ms Draper was served with a summons to attend the trial. Ms Draper expressed an unwillingness to attend and a fear of retaliation, about which we say more later on. Ms Draper did not attend the trial and a warrant was issued for her arrest.
The police took steps to locate Ms Draper during the trial, which commenced on 30 January 2018 and concluded shortly after 5 pm on 1 February 2018. By late afternoon on 31 January 2018, the police knew that Ms Draper had gone to Wellington the previous weekend for her father’s funeral, held on 30 January 2018. Also on 31 January 2018, Ms Draper’s daughter (living in Rotorua) told the police that Ms Draper had been at the daughter’s home earlier that afternoon, but was no longer present. The daughter said she did not know Ms Draper’s whereabouts but thought Ms Draper might have gone to Taranaki.
Throughout, Ms Draper was not responding to text messages or telephone calls from the police.
The Judge and counsel spoke at approximately 4.22pm on 31 January 2018. Mr Balme suggested it would be prudent for the police to check Ms Draper’s home address the following morning, and the Judge asked Crown counsel to ensure the police made enquiries of bus companies.
The Crown presented further information to the Judge in chambers the following morning. We do not have the statements provided to the Judge but it is clear that one of them reported on enquiries made of the bus companies. We also infer that the police had checked at Ms Draper’s home, because in the discussion with the Judge Mr Balme accepted that the police had now made diligent enquiries and that Ms Draper could not be located.
We consider the police were reasonably diligent in attempting to locate Ms Draper. It appears to us that the police made every enquiry that could reasonably be expected. By 1 February 2018 it was clear that Ms Draper was, in the Judge’s words, “making a pretty concerted effort to make herself scarce” and in her evidence before us, Ms Draper made it plain that she had no intention whatsoever of attending at Court.
Reliability
It was also common ground by 1 February 2018 that the circumstances in which Ms Draper made her statement gave reasonable assurance that it was reliable. We agree on this point also. The statement was made three weeks after the events in question, at a police station. Ms Draper signed the statement confirming its truth and accuracy and acknowledging that it might be used in court proceedings. In a recent affidavit, Detective Ngawhika, who took the statement, said that he took it in Ms Draper’s own words.
For these reasons, we are not persuaded the Judge made any error in permitting the statement to be adduced.
Recanting of evidence
The appellant does not seek to rely on Ms Draper’s recantation of her evidence as a stand-alone ground of appeal but we shall address the substance of the evidence, given its importance to the appellant.
Ms Draper’s affidavit evidence is to the effect that she lied in her statement to the police and that she attributed all blame to the appellant to avoid giving evidence harmful to Metallicah. Her affidavit evidence is that Metallicah pulled Ms McMahon’s hair and punched her in the mouth, that Ms McMahon was giving as good as she got, that the appellant was not taking part, that she did observe Ms McMahon with a bleeding nose and sobbing and in a foetal position, that she did not see the appellant pull Ms McMahon by her hair, and that Metallicah did not kick Ms McMahon in the mouth.
Ms Draper also says the appellant did not say “take a good look bitch” but rather that Ms McMahon told her to say that to the police. She also says the police told her what Ms McMahon had said and she just went along with it, that Ms McMahon declined to walk out of the shed even though she was free to do so, and that her own texts that evening were an exaggeration.
Ms Draper maintained all of these matters in cross-examination and, in fact, even denied that she was present inside the shed during the offending.
As this Court said in Hamon v R, it is necessary for us to consider whether Ms Draper has recanted because her earlier evidence was untrue, or whether the recantation is untrue.[16] We are satisfied as to the latter.
[16]Hamon v R [2013] NZCA 540.
First, as Crown counsel submitted, if her affidavit is correct, Ms Draper could have given the police a statement to the same effect at the outset, that is that Ms McMahon was not detained and the violence was low level.
Secondly, the statement is consistent with Ms Draper’s own text messages, the evidence of the other witnesses, and the appellant’s letter to the Judge on sentencing. All of these matters point to the affidavit evidence being false.
Thirdly, although she denied it, we agree with the Crown that it is more likely that Ms Draper avoided giving evidence at trial and has now sworn her affidavit because she was and is scared of retaliation from the Rameka family, and not out of concern that she had lied to the police in her statement. Charles and Simon have links to Black Power, and Simon and the appellant have proved themselves to be capable of violence. The Court permitted Ms McMahon, Florence, and Mr Loffley to give evidence remotely because they were fearful of retaliation. Detective Ngawhika’s affidavit is to the effect that Ms Draper expressed similar concerns to him on 22 January 2018, as a result of which the Crown sought and were granted leave for Ms Draper also to give evidence remotely.
For these reasons, we are satisfied that the statement read at trial was truthful and, to the extent it differs, the affidavit is not. The affidavit is not credible and we decline to admit it.
Other evidence
Simon Rameka
Simon arrived at the scene after Florence and Mr Loffley. He gave a statement to the police, which he did not sign, a few days later. He was not called as a witness at trial, by the Crown or defence.
In his affidavit, Simon says that he gave a statement to the police at Ms McMahon’s urging, that she had told him what to say, and that he declined to sign the statement because it was untrue. He also says that, at some relatively early stage, the police wished him to be a witness, that he declined as he and Ms McMahon were no longer a couple and that he was present at trial for the first day at least and saw Ms McMahon give evidence. He says he did not talk to Mr Balme, appearing for the appellant, because he does not care for him. He did not return to the trial because he says the police “gave him a look”.
Clearly Simon’s evidence is not fresh, as Mr Nabney acknowledged. Nor is it cogent. Simon was not present during the offending. The point of his affidavit appears to be that Ms McMahon put words in his mouth, which he repeated to the police, and this diminishes her credibility. We do not have Simon’s unsigned statement but, in any event, we do not consider the evidence could have affected the outcome of the trial given the extent to which Ms McMahon’s account was supported by the other evidence at trial.
The appellant
In her affidavit, the appellant refers to the failure to call evidence from Simon and another relative, Rebecca Ransfield, who lives in the property adjacent to Florence’s. As stated, we are not persuaded Simon had anything of consequence to say. There is no evidence from Ms Ransfield as to what evidence she might give.
For these reasons, we do not consider the appellant’s affidavit adds anything to her appeal and we decline leave to admit it accordingly.
Conclusion
We decline to admit all affidavit evidence that the appellant seeks to introduce.
None of the grounds of appeal are made out and we dismiss the appeal accordingly.
Result
The application for an extension of time to file the notice of appeal is granted.
The application to adduce fresh evidence is declined.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent