Rimene v The the King
[2022] NZHC 3377
•13 December 2022
IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY
I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE
CRI 2022-435-2
CRI 2022-435-3
[2022] NZHC 3377
BETWEEN KODY MICHAEL THOMAS RIMENE
Appellant
AND
THE KING
Respondent
Hearing: 22 November 2022 Counsel:
K F Preston and I M I Aitchison for Appellant L R van der Lem for Respondent
Judgment:
13 December 2022
JUDGMENT OF MALLON J
Introduction
[1] Mr Rimene was convicted of burglary1 in a judge-alone trial in the Masterton District Court.2 He was sentenced to two years and eight months’ imprisonment. He appeals against his conviction. An appeal against his sentence has been abandoned.
[2] Mr Rimene contends that the District Court Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. He says that the Judge placed:
(a)undue weight on the fact that he was seen on a security camera outside the burgled property around the time of the offending;
1 Crimes Act 1961, s 231(1)(a) (maximum penalty of 10 years’ imprisonment; offence category 3).
2 New Zealand Police v Rimene [2021] NZDC 25060 (per Judge Harrop).
RIMENE v R [2022] NZHC 3377 [13 December 2022]
(b)undue weight on the fact his palm print that was located at the burglar’s point of entry (the kitchen window); and
(c)little or no weight on the Facebook Messenger messages purporting to show a conversation the complainant had with a third party where she admitted to falsely accusing the appellant as the offender.
The evidence
[3] Most of the evidence at the District Court defended hearing was adduced by agreement.3 The only evidence given viva voce and subject to cross examination was that of the complainant.
Complainant’s evidence
[4] In December 2020, the complainant was living at an address in Masterton with her daughter and a male friend, Makere. Chaynne Courtney, a friend, was also staying for a few days. On the evening of 14 December 2020, Mr Rimene was visiting. The complainant had known Mr Rimene all her life. He was a friend and her children’s uncle. He arrived at about 11 pm. They went into her daughter’s bedroom to show him a scooter. They also went into the kitchen. He left some time between 2 and 3 am.
[5] At around 4 to 5 am, the complainant, Makere and Ms Courtney went for a drive to Greytown. The complainant was the driver and took her vehicle. She said they went on the drive because Ms Courtney wanted to be dropped off in Greytown but when they got there she changed their mind. The three of them then went to the complainant’s sister’s place in Carterton. They returned at about 7.30 am to 8 am and no later than 9 am. It was daylight.
[6] The first thing the complainant noticed was that Ms Courtney’s truck was gone from the front lawn. She also saw that the kitchen window, on the back left corner of the house, was wide open and the ladder was against the house by that window. When she went around the back, she saw that the back door was wide open. She had locked
3 Evidence Act 2006, s 9
the house before they went on the drive. The ladder had been left by the shed. When she went inside, the whole house was a mess. Her wardrobe was open, cupboards and drawers were pulled out and things were everywhere. She noticed that her TV and her daughter’s PS4 were missing. Everything she had bought for Christmas for her children was gone, as well as her son’s guitar, Bluetooth speakers, phones and other items.
[7] She was “gobsmacked”. She called the police. She also checked a security camera that Makere had set up the previous evening. The camera was on her bedroom window facing out the front. On the camera, were the following images:
(a)At 5.38 am: a photograph of the vehicle she recognised as the one Mr Rimene had arrived in when visiting the previous evening. She described it as a “green bombie”. She remembered that it had a missing hubcap on the front passenger side. The vehicle was on the street pointing in the direction of the right hand side of the image. Ms Courtney’s vehicle, parked on the front lawn, was also in the image.
(b)At 5.44 am: a photograph of a man, who she recognised as Mr Rimene, standing outside her house and looking in through her bedroom window. Ms Courtney’s vehicle, parked on the front lawn, was also in the image.
(c)At 6.51 am: a photograph of the same vehicle, again on the road, but this time pointing in the direction of the left hand side of the image. Ms Courtney’s vehicle, still parked on the front lawn, was also in the image.
[8] Later that day, after the police had carried out their investigation in response to the complainant’s call, at about 1 or 2 pm Mr Rimene came to the complainant’s house. He arrived in the green bombie car with the missing hubcap. They talked about the burglary and he “acted like he didn’t know nothing”. Later, some of the stolen property “just turned up” at her house – “a couple of kids dropped off” her son’s guitar, the Bluetooth speaker and some Kathmandu jackets. She did not know them.
[9] In cross-examination it was put to her that when Mr Rimene visited that afternoon he told her he had come back to her house in the early hours of the morning to collect his jacket that he had left behind. The complainant was definite that he had not said this. She rejected the suggestion that Mr Rimene was looking through her window to knock to wake her up, pointing out that her car was not at the property. She rejected the suggestion that Mr Rimene had mentioned seeing someone at the house that morning. She accepted that she did not know why Mr Rimene would burgle her house.
[10] Facebook Messenger messages were also put to the complainant. They showed messages between her account and another person, referred to as Jayden. The messages appeared to be about delivering and paying for drugs. The exchange went on to apparently discuss the burglary. Jayden asked if the complainant was going to be a witness against Mr Rimene even though she had told Jayden that it was “delainey” and not Mr Rimene. The complainant replied that she only said Mr Rimene did it because he had sold her a car for her daughter and then reported it stolen. Jayden asked if she would change her mind if he got something for her. The complainant replied that when he was found guilty she would get all her stuff replaced and there was “f**k all taken but they don’t know that”. Jayden then asked what if he got her some “gear”. The complainant replied that it would have to be “at least a half o” and if he could ger her “a half” she would not turn up at court.
[11] Before these Facebook messages were put to the complainant she accepted that she was using methamphetamine in December 2020, accepted she knew a person called Jayden, but denied having a conversation about the burglary with him and denied buying a car from Mr Rimene for her daughter and being upset about that. When the Facebook messages were shown to her, she said they were “amazing”, it was “definitely not” her having the conversation, the language was not how she talked, she had no idea how the messages on her account had happened but she was positive it was not her and she did not know what the conservation was. In re-examination she said that she left her phone around so there were a few people who might have access to it. She also said she did not have insurance to pay for any of the items that were stolen.
Ms Courtney’s statement
[12] Ms Courtney’s evidence was that she had been out with the complainant and when they got back she noticed the kitchen window was wide open and her car was missing. She had left the car locked. They keys were in her handbag which was in her bedroom. Her car was loaded with personal items, including a Prada bag worth
$2,500, Christmas presents, a box of brass and silverware and over $800 in car parts. The house was trashed. Lots of items had been taken.
[13] Ms Courtney woke up on the morning of 17 December 2022 to see that the car had been returned. It was on the front lawn, unlocked and with the keys inside. Both plates were missing as were all the items that had been inside the car. There was some damage to the rear bumper and the car mags had been painted black (they had been silver).
[14] Ms Courtney’s suspicion was that a person who had assaulted her in the previous week was involved in the burglary and theft of her car. This person apparently blamed Ms Courtney for the person’s partner going to prison.
Fingerprint evidence
[15] Stephen Forster, a Scene of Crime Officer, attended the address at 11 am on 15 December 2020. The complainant took him to some windows on the western side of the house where the offender(s) was/were believed to have gained entry.
[16] Photographs of the kitchen window were produced at the hearing. They showed a double-sided window, with a latch down the middle on the right hand side (looking from the inside). There were two “fanlight” windows above the main window. It was thought that the offender(s) had pulled open the left hand side fanlight window, and leant through that window and reached down to unhinge the latch to gain entry through the right hand side window (referred to as the Point of Entry).
[17] Fingerprint impressions were taken on the “inside of the fixed window below the fanlight window” (Lifts 1 and 1A); from the “side frame of the fanlight window on the right hand side near the catch” (Lift 2); from the “window corner frame inside
edge right hand side” (Lift 3) and from the “inner window sill, on the left hand side at the Point of Entry” (P1, a palm print).
[18] These lifts were examined by John Turner, a Senior Fingerprint Officer. Lifts 1, 2 and 3 were unsuitable for identification purposes. P1 and 1A were compared with a palm print and fingerprint from Mr Rimene. Mr Turner concluded that P1 matched Mr Rimene’s palm print but 1A was the fingerprint of another person.
Association with green car
[19] On the afternoon of 15 December 2020, Constable Daniel Chu observed Mr Rimene to be in the vicinity of a green vehicle registration AEL306, which had a missing hub cap.
Mr Rimene’s arrest
[20] Mr Rimene was arrested on 14 January 2021. The arresting officer, Detective Rebecca Wasson, said that when Mr Rimene was advised that he was coming in, Mr Rimene said “Yep. I was coming in.” After being given his rights, he said to the officer that he thought it was sorted and asked if the complainant had sorted it. He said they were friends and he had seen her and bought her children Christmas presents.
[21] The officer took Mr Rimene to the police station and commenced interviewing him. Mr Rimene told the officer that: he did not commit the burglary; he was at the complainant’s house the night before; he returned to her house that morning to retrieve a sweatshirt and saw the person doing the burglary; this was why he was able to help the complainant get some of her property back; the complainant had been at his place and he gave the children Christmas presents and money and it was all sorted; and his fingerprints would be all through her house.
District Court decision
[22]The Judge discussed the evidence, noting or finding that:
(a)An inference might be drawn from the photographs that there were one or more trips by the vehicle shown in them, with stolen property in it.4
(b)It was not disputed that it was Mr Rimene looking through the complainant’s window at 5.44 am.5
(c)The kitchen window was the point of entry – it was apparent that entry could be gained using the ladder to open the fan light and then to open the bigger winder and climb through that window.6
(d)It was not challenged that the palm print located on the windowsill was Mr Rimene’s.7
(e)There was opportunity for Mr Rimene’s palm print to have been left there under innocent circumstances because Mr Rimene visited the property on several occasions and had been there the previous evening for several hours.8
(f)The palm print was in a “very unusual place, behind net curtains, and it is not the sort of place where a palm print might innocently be left”.9 It was, however, “exactly where a palm print is likely to be left by a burglar climbing through a window and putting a hand down for support.”10
(g)Although Mr Rimene had no obligation to explain why his palm print may have been there, “there ha[d] been no suggestion made as to how it may innocently have been there.”11
4 New Zealand Police v Rimene, above n 2, at [14].
5 At [15].
6 At [16].
7 At [15].
8 At [28].
9 At [29].
10 At [29].
11 At [29].
(h)The complainant had got some items back but nothing had been returned by Mr Rimene.12
(i)The complainant was adamant that Mr Rimene did not tell her that he had been looking through her window to collect his jacket and that Mr Rimene did not say he had seen someone else committing the burglary.13
(j)The green car seen by Constable Chu in the afternoon on 15 December 2020 was the same car the complainant had seen Mr Rimene in.14
[23] The Judge discussed that it was a circumstantial case. He concluded that Mr Rimene’s undoubted presence at the property at 5.44 am and Mr Rimene’s palm print in the particular place it was found were sufficient to prove that he was one of those who entered the property in the early hours of 15 December 2020.15 Mr Rimene would have known what was available to be stolen from having been at the property a few hours earlier. Added to this, it was an unlikely coincidence that the car associated with Mr Rimene just happened to be the car seen in the photographs outside the property at around the time of the burglary. In combination, the Judge considered the charge was proven beyond reasonable doubt.16
[24] Additionally, there was “modest” support for his conclusion in what Mr Rimene told Detective Wasson when he was arrested. He appeared to know about the burglary in saying that he thought it had been “sorted”. He gave the impression of knowing who the burglars were and being able to do something about it. He claimed he had been able to get some property back although the complainant denied that Mr Rimene had done so.17
[25]As for the Facebook messages, the Judge said:
12 At 18].
13 At [20].
14 At [21]–[22].
15 At [26]–[27].
16 At [31]–[33].
17 At [38]–[39].
[34] For completeness I mention that the success of the prosecution case does not depend on the credibility or reliability of [the complainant]. It turns on the combination of [Mr Rimene’s] undoubted presence at the property at the critical time and [his] palm print in the place where it was found.
[35] Accordingly, her failure to confront you about being the burglar and her credibility in relation to the Facebook messages is not of direct relevance in my view. I accept that if she did send and receive these messages that would give rise to some suspicion about whether someone else may be involved, but that does not mean you were not, and that she might have had some good reason to implicate you or to be pleased that you were charged. But she did not complain that you were the offender, rather it was your palm print in that particular place, the security camera image of you at the scene at the relevant time and the presence of the green car which strongly links you to the offending.
[36] I record her adamant denials about sending or receiving those messages. She appeared to be genuinely shocked when she was shown them and she was indignant that she had never received or sent any of those messages.
[37]In short the presence of those messages does not affect my conclusion.
[26] The Judge added, as a postscript to his judgment, that he had read Swainbank v R and this had influenced his approach to the fingerprint evidence.18
Appeal
[27] Mr Rimene accepts that his presence at the property in the morning as shown in the security camera image was relevant but says it was of limited assistance. This is because there was an innocent explanation for his presence. Mr Rimene told Detective Wasson when he was arrested that he had returned to the property in the morning to retrieve a sweatshirt. I accept that it was relevant to take into account that Mr Rimene had provided an explanation for his presence. However, it was also relevant that he had not told the complainant this when she told him about the burglary. According to what he said to Detective Wasson, he had seen the burglar when he had returned to retrieve a sweatshirt. If that was true, it is odd that he would not have told his long-time friend, the complainant of that when she told him about the burglary.
[28] Mr Rimene submits that a second person, or more, must have been at the property at the relevant time. That is because, if Mr Rimene arrived and departed in
18 Swainbank v R [2021] NZCA 93 at [42]–[44].
the vehicle seen in the security camera images, someone else must have driven Ms Courtney’s car away from the property. I accept it is likely that there must have been someone other than Mr Rimene at the property at the relevant time for this reason. It does not, however, exclude Mr Rimene as one of the burglars.
[29] Mr Rimene says the Judge was wrong to say that only the palm print was “able to be clearly identified as belonging to someone who was not an occupant” and that was Mr Rimene.19 The evidence was that Lift 1A, located on the fixed window below the fan light, belonged to another person. The evidence does not say that the occupants were fingerprinted. It is therefore possible that Lift 1A belonged to one of the occupants. Having said that, it is also reasonably possible the fingerprint belonged to a person who was involved in the burglary, especially as it was located near the point of entry. And, as just noted, it is likely that there were at least two burglars. Therefore, the reasonably likely possibility of another burglar, does not exclude Mr Rimene as one of the burglars.
[30] Mr Rimene submits the Judge was wrong to find that the palm print was in a “very unusual” place behind the curtains. The ledge is at the bottom of the window in the kitchen which is a communal area. It is said that the photographs show that the ledge is beneath the curtains and not behind them, even assuming that the curtains were closed over the window at the time the palm print was left.
[31] In my view, it is somewhat unclear exactly where on the ledge the palm print was left, other than that it appears to have been at the outside edge of the ledge. The photographs do not identify the place along the ledge that it was found, and no evidence was given of its direction. It was described as being located “on the top of the dining room windowsill” and the “inner sill left side POE [Point of Entry]”. The curtains over the window are lightweight, net curtains for shade or privacy. They appear to skirt the top of the ledge. As they are quite flimsy, and do not sit firmly along the front edge of the ledge, I agree that it is possibly not “very unusual” for a palm print to be on the ledge if someone was in the kitchen.
19 New Zealand Police v Rimene, above n 2, at [15].
[32] I therefore accept that there was a possible innocent explanation for the palm print, namely that Mr Rimene had put his palm there when he was in the kitchen visiting the previous evening. Having said that, I also accept that the palm print is consistent with a burglar entering through the window and placing their palm on the sill for balance. Without more specific evidence of location and direction, it is not possible to say whether it was “exactly” where a burglar coming through the window would place their hand for balance. This also limits the strength of the conclusion that it must have been left by the burglar.
[33] Mr Rimene submits that modest weight should have been put on the Facebook Messenger communications. He says that the complainant accepted that they appeared to originate from her account, accepted she knew someone called Jayden, and accepted that she may have had a Facebook communication with him. He also says that the content and language of the communications raised issues about her credibility.
[34] It is true that the communications appeared to come from the complainant’s account. It is also true that she accepted she knew Jayden and may have communicated with him. However, she accepted this in cross-examination before she was shown the communications about the burglary set out above. She certainly did not accept, when shown the communications, that she was the person communicating with Jayden (if that is who the other party was) in those messages.
[35] Moreover, when she was asked in cross-examination whether she had bought a car from Mr Rimene for her daughter and had gotten upset about that, she said she had not and she did not know what defence counsel was asking about. No evidence corroborating a car purchase was adduced by the defence. The complainant’s acceptance that she was using methamphetamine at the time provides only weak corroboration at best of that aspect of the communication.
[36] Importantly, the Judge’s assessment was that the complainant was adamant in her denial of having sent or received the messages and appeared genuinely shocked and indignant at the suggestion that she had sent or received them. It is not incredible that someone else was able to access her account to send the communications. Her evidence that she was uninsured for the stolen property was not challenged. If, as she
said, she was uninsured, then she would be unlikely to have said that she would get all her things replaced when Mr Rimene was found guilty. Additionally, the language used in the communications was rather coarse, and the complainant was not challenged on her evidence that she did not speak like that. Finally, it is not clear how the complainant would know who the burglars were and, if she did know, why she would not have told the police. The supposed motive about the car is weak. It does not sit with the evidence that the complainant and Mr Rimene were long-time friends and she had shown him the scooter, which was a Christmas present, and he had bought Christmas presents for her children.
[37] All of this makes it plausible that the complainant did not send the messages and someone else did. If that was the case, then those messages did not raise issues about her credibility. Although the Judge did not make an express finding on whether the complainant had sent the messages, his assessment of her reaction suggests he would have found that she had not sent them, had he considered it necessary to determine the matter.
[38] I therefore disagree that modest weight should have been placed on the messages as pointing away from Mr Rimene being the burglar. If anything, it raises questions about Mr Rimene if someone, on his behalf, accessed the complainant’s phone to create fake messages to try to get him off the burglary charge. The other point is that it is not clear how the complainant would know who the burglars were and whether it was all irrelevant speculation even if, as the defence claimed, the messages were from her.
[39] The question is whether the circumstantial evidence assessed overall establishes Mr Rimene’s guilt beyond reasonable doubt. The relevant circumstantial strands are as follows:
(a)Mr Rimene’s presence at the scene is strong evidence of his involvement. If he was there to collect a jacket or sweatshirt and had seen the burglar, it is implausible that he would not have told the complainant, his long-time friend, of that when she told him about the burglary a few hours later. It is also not explained why it was so urgent
for Mr Rimene to get his clothing back that he thought it necessary to peer through the complainant’s bedroom window in the early hours of the morning and to be outside her house at 5.38/5.44am and also at
6.51 am.
(b)His palm print near the point of entry provides moderately strong corroborating evidence even though an innocent explanation was also possible. That possible innocent explanation is weakened by the absence of any direct evidence that Mr Rimene had in fact touched the windowsill when he was in the kitchen the previous night.
(c)His reaction to the arresting officer also provides moderate corroborating evidence. He was aware the officer was there about the burglary and offered, for the first time, the relatively implausible explanation (see (a) above) for having been at the property at the relevant time.
(d)Mr Rimene was aware that Ms Courtney was staying at the property at the relevant time. According to Ms Courtney she had a lot of property in her vehicle. That property was all taken and her vehicle was returned. That property may well have provided the motive for the burglary and explain why Mr Rimene might have involved himself in a burglary that also involved his long-time friend.
[40] Overall, I consider these strands of circumstantial evidence prove Mr Rimene’s involvement in the burglary beyond reasonable doubt. The case is distinguishable from Swainbank v R where, arguably, the innocent explanation for the thumbprint was more speculative and remote than here. However, in that case, the thumbprint was the only evidence directly linking the defendant to the burglary. In this case, there was the important evidence of Mr Rimene’s presence at the property at the relevant time (either throughout the period between 5.38 and 6.51 am or at least having attended the property twice (at 5.38 to 5.44 am and again at 6.51 am)) and the other matters I have discussed.
Result
[41]The appeal against conviction is dismissed.
Mallon J
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