Rimene v The Queen
[2012] NZCA 306
•13 July 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA151/2012 [2012] NZCA 306 |
| BETWEEN WAYNE RIMENE |
| AND THE QUEEN |
| Hearing: 3 July 2012 |
| Court: Wild, Heath and Keane JJ |
| Counsel: J C Hannam for Appellant |
| Judgment: 13 July 2012 at 12 noon |
JUDGMENT OF THE COURT
The appeal, which is against conviction only, is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
Introduction
Mr Rimene was charged with robbing a Mr McIntyre at New Plymouth in December 2010. He was convicted following a trial before Judge Roberts sitting alone in the District Court at New Plymouth in November 2011.
Mr Rimene appeals his conviction on the ground that the verdict at his trial was unreasonable in terms of s 385(1)(a) of the Crimes Act 1961. He submits that there was abundant defence evidence that ought to have raised a reasonable doubt in the Judge’s mind.
Crown case
Mr McIntyre went to Mr Rimene’s home to fix a pump. He went there in his Holden utility. While he was there Mr Rimene and his female partner borrowed Mr McIntyre’s vehicle, returning with a powerful man wearing a Nomad gang patch.
Mr McIntyre was then confronted in the house by Mr Rimene, the Nomad and several others. Mr Rimene showed Mr McIntyre a letter accusing Mr Rimene of being a nark. While Mr McIntyre was reading this letter, Mr Rimene grabbed him by the collar, held a balled fist aggressively to Mr McIntyre’s face, and suggested that Mr McIntyre was responsible for this letter. He then asked Mr McIntyre “how are you intending to fix this?”, and suggested that it would be a good start for Mr McIntyre to hand over his Holden utility as a ‘koha’.
Later, after smoking ‘P’ with Mr Rimene, the Nomad and several others, Mr McIntyre left in a Mitsubishi car made available to him by Mr Rimene. He promptly disowned the Mitsubishi and later made a complaint to the police.
Defence evidence
Mr Rimene gave evidence. He denied robbing Mr McIntyre of his Holden utility. He denied grabbing Mr McIntyre by the collar, denied holding a balled fist to Mr McIntyre, and denied any reference to the “narking” letter. He said there was no Nomad present and no ‘P’ smoking session in the bedroom.
Mr Rimene’s explanation was that he had done a deal with Mr McIntyre, exchanging a Mitsubishi car and a camper van for Mr McIntyre’s Holden utility, with a cash difference.
Mr Rimene called four witnesses, including his partner. They all gave evidence generally supporting Mr Rimene’s account.
Reasons for verdict
Judge Roberts gave his reasons for finding Mr Rimene guilty in an oral judgment delivered at the end of the hearing.[1]
[1] R v Rimene DC New Plymouth CRI-2011-043-441, 24 November 2011.
The Judge dealt first with the defence evidence. He rejected it in no uncertain terms. Four reasons for this rejection stand out. First, the Judge pointed out that the deal had been of no benefit to Mr McIntyre. He had parted with his Holden utility, which he had purchased for $7,200 and considered was still worth approximately that amount, and got nothing in return. Although he had left the Rimene home driving the Mitsubishi (which he mistakenly described in evidence as a Mazda), he had “effectively distanced himself from that vehicle”,[2] by parking it and leaving it.
[2] At [23].
The second and related point arises from one of the many text messages the Judge found Mr Rimene had sent. This text was sent on the evening of 17 December (two days after the robbery) and read:[3]
Haven’t seen him today cunt. Looking at trading da ute and da camper for $$ at Superior Cars.
The Judge pointed out that that text was inconsistent with the deal Mr Rimene contended he had done: if his camper van had gone to Mr McIntyre by way of exchange he could not trade it at Superior Cars.
[3] At [24].
Thirdly, the Judge found that the lack of any paperwork – “not a shred”[4] – was inconsistent with a deal involving the exchange of three vehicles and the payment of a cash difference.
[4] At [25].
Fourthly, the Judge found Mr Rimene’s account “simply unbelievable”, commenting that it did not have “even … a scintilla of truth about it”.[5] He was equally dismissive of the four witnesses Mr Rimene had called to support his account of what had happened. The Judge stated:[6]
… I am not left in any doubt at all the story is just that, a recital concocted to provide an answer to the charge but an answer devoid itself of any credibility at all. …
[5] At [27].
[6] At [34].
The Judge then returned to consider the Crown case. He made four points about it. The first was that the letter that was shown to Mr McIntyre actually existed (it was produced as exhibit 3 at the trial). The Judge found the existence and content of the letter supported Mr McIntyre’s evidence that he had been confronted with the letter immediately before Mr Rimene grabbed him by the collar and threatened him.
Secondly, the Judge referred to some of the other texts he found Mr Rimene had sent, particularly two sent on 16 December (the day following the robbery):[7]
… got a new car last night … .
Finally got me a ute … .
The Judge held that those texts provided:[8]
… the clearest indication, amongst a swathe of deceit and outright lies, as to the true circumstances leading to Mr McIntyre parting with possession of his utility.
[7] At [40].
[8] At [40].
Thirdly, the Judge found Mr McIntyre to be a credible witness. He had been candid both that his payment for mending the pump was to be ‘P’, and that he had smoked ‘P’ in the bedroom of the Rimene house following the robbery. The Judge also observed that Mr McIntyre “did not enjoy his Court experience”.[9]
[9] At [42].
Fourthly, and again bolstering Mr McIntyre’s credibility, a photograph produced in evidence of the Nomad, Mr Raymond Haeta, accorded accurately with Mr McIntyre’s description of him. Mr Rimene and each of his four witnesses had denied that Mr Haeta had been there. The Judge found that each of them had “pulled up short”, because they “knew what the consequences of acknowledging the presence of this tattooed fellow would be and the impact it would otherwise have on Mr Rimene’s defence”.[10]
[10] At [49].
The Judge concluded:
[48] I thus turn to consider the ingredients. I am in no doubt at all the ingredients are made out. Mr Rimene employed direct violence. He employed that by taking hold of Mr McIntyre by his shirt, balling his fist. I am satisfied that thereafter, too, he made the demand for the utility and took the utility. That utility was taken in the face of overt violence and the threat of violence in the presence of those others present.
…
[50] I conclude this by saying I am in no doubt at all that on 15 December Mr Rimene robbed the complainant, robbed him of his utility, he knowing at the time he had no entitlement thereto and no deal at all had been struck. I am satisfied the charge is established. Mr Rimene will be convicted.
Our approach and assessment
An appeal under s 385(1)(a) calls for a qualitative analysis of the evidence. It is not a second trial. Those principles, well established by the decision of the Supreme Court in Owen,[11] and by this Court’s judgments in Munro[12] and Tamati,[13] apply equally where, as here, the trial is before a Judge alone.[14]
[11] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13].
[12] R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.
[13] Tamati v R [2010] NZCA 49 at [48].
[14] R v Connell [1985] 2 NZLR 233 (CA).
What Mr Rimene urged on us was that there was abundant defence evidence that ought to have raised a reasonable doubt in the Judge’s mind. However, the Judge dismissed all of that evidence as not credible. He was very much alive to the fact that there were five defence witnesses, but effectively only one prosecution witness – Mr McIntyre. The Judge said this:[15]
It did appear to me, though, that part of the delusional defence might focus on the fact that if there were sufficient people or witnesses parroting essentially the same recital then somehow that recital would assume an aura of credibility when placed alongside the solitary recital of the complainant. That is certainly not the case here. Inconsistencies abound.
[15] At [14].
The Judge heard and saw the witnesses. We have neither heard nor seen them, and are in no position to disagree with the Judge’s robust credibility findings.
Important here are the objective indicators that Mr McIntyre’s account was truthful, and that of Mr Rimene and the other defence witnesses untruthful. We refer to the existence of the letter Mr McIntyre says Mr Rimene confronted him with, the fact that there was a Nomad matching Mr McIntyre’s description, the undisputed facts that Mr McIntyre parted with his Holden utility and was given the Mitsubishi which he promptly parked and left, and the text messages sent by Mr Rimene, particularly the one we have set out in [11].
We cannot see any basis for disturbing the Judge’s findings of credibility and of fact, the result of which was that the elements of the charge were established to the requisite standard.
Result
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent