The Queen v Whareaitu

[2006] NZCA 337

IN THE COURT OF APPEAL OF NEW ZEALAND

CA508/05

THE QUEEN

v

WAARENA TE PATARA WHAREAITU

Hearing:21 November 2006

Court:Glazebrook, John Hansen and Harrison JJ

Counsel:K S Holden for Appellant

E M Thomas for Crown

Judgment:6 December 2006 at 4pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]        Waarena Whareaitu appeals against his conviction following trial before a Judge and jury in the District Court at Whangarei on three charges of arson committed at Kaikohe in February and March 2003.

[2]        The written synopsis filed by Ms Holden for Mr Whareaitu advanced two grounds in support of the appeal: first, that the verdicts were unreasonable or could not be supported by the evidence and, second, that the trial Judge’s directions on similar fact evidence were inadequate and resulted in a miscarriage of justice.  These arguments were refined in oral submissions, as we shall later explain.

Background

[3]        The Crown charged Mr Whareaitu with four counts of arson: s 296 Crimes Act 1961.  The first was of wilfully setting fire to a rubbish bin in Lindvart Park, Kaikohe on 9 February 2003.  The second and third were of wilfully setting fire to a rubbish bin in Rawiri Park, Kaikohe on 23 February 2003 and 1 March 2003.  The fourth was of wilfully setting fire to a tree in Hone Heke Park, Kaikohe on 2 March 2003.  The jury acquitted him on the first charge but convicted on the other three.

[4]        Mr Whareaitu was officially admitted to membership of the Kaikohe Fire Brigade on 3 February 2003.  The Crown’s case against him was circumstantial.  It relied upon what is broadly termed similar fact evidence; that is, of a discernible pattern or underlying unity of events common to all fires which, when considered together, proved that it was Mr Whareaitu who lit them.

[5]        Mr Whareaitu applied for an order severing trials.  His application was dismissed by Judge Michael Lance QC on 12 May 2005.  His decision provides a comprehensive summary of the Crown case and of his reasoning which merit repetition as follows:

[13]     In this case the focus is on the admissibility of similar fact evidence.  Admissibility arises from the features of the occurrences on different occasions which give sufficient probative force outweighing the obvious prejudice that flows. … In my view it is important to focus on the purpose of the similar fact evidence in terms of the real issue in the case and then balance the relative probative and prejudicial weight which is one of degree.

[14]     In this case the purpose the Crown seek to introduce the evidence is to identify [Mr Whareaitu] as the perpetrator of all the fires on the basis of the surrounding similarities of presence: conduct: methodology; opportunity and other factors…

[16]     In the course of argument Ms Holden submitted Holtz [R v Holtz (2002) 20 CRNZ 14) is authority for the proposition that before similar fact evidence can be admitted in these circumstances there must be proof in at least one instance [Mr Whareaitu] was responsible for the offence.  With respect to her I disagree.  Perhaps she was mislead by the headnote but a full reading of paragraph 36 of the judgment (quoted below) refers to the concept of a ‘… series of previous incidents …’ which I think dispels her submission.  In any event the circumstances were different in that the Crown relied on evidence relating to earlier convictions.

[17]     [The Judge then recited para 36 of Holtz].

…

[19]     In terms of admissibility as similar fact evidence I find there are a number of features of commonality in the geographical location of the fires (parks in Kaikohe): the location of the fires themselves (rubbish bins): the methodology of lighting them all of which have clear features of similarity.  In addition there is the evidence [Mr Whareaitu] ‘called in’ each of the fires: was obviously present: did not inform his colleagues that he had done so: all of which in my view fit the words of McGrath J in delivering the decision in Holtz:

… There must be something that points to both incidents having been the responsibility of the same person…  Striking similarity in the two incidents may be one of them…  Instead of one, there may be a series of previous incidents, each separately having little distinctiveness but when taken together compel the exclusion of coincidence.

And so in my view, it is here, that it is quite beyond coincidence in the circumstances.  I find the evidence probative in assisting to identify a single perpetrator to the extent it outweighs any illegitimate prejudice.  Furthermore applying other principles relating to severance all incidents were within a short timeframe of one month and geographically within a confined area.  Accordingly I rule the evidence in respect of counts 1 to 3 inclusive is admissible as similar fact evidence in respect of each count and I refuse severance of any of the counts one from the other.  The result is counts 1 to 3 inclusive will be heard together.

[20]     The issue now is, having ruled count 5 must stand alone and be the subject of a separate trial: counts 1 to 3 inclusive are to be heard together in one trial: whether count 4 should stand alone and be heard as a separate trial or joined with counts 1 to 3.

[21]     Again applying the principles of admissibility as similar fact evidence the circumstances of the tree fire has clear links to the rubbish bins fires in terms of location (a park in Kaikohe): timing being one day after the last of the rubbish bin fires: evidence they were all deliberately lit: evidence of [Mr Whareaitu’s] presence and calling in of the fire and, as I see it, the only distinctiveness lies in the fact this fire was in a tree whereas the others were in rubbish bins and viewing the totality of the circumstances that, in my view, is not particularly significant.  I find, again applying the words of McGrath J, there are a series of incidences having little distinctiveness and when coupled defy logic of explanation as a coincidence.  I find the probative value outweighs the prejudicial effect. I rule the evidence relating to count 4 is admissible as similar fact evidence in respect of counts 1 to 3 inclusive and applying the principles of severance, again in terms of locality and timing, do not provide grounds to grant severance. I rule the evidence relating to count4 is admissible at the trial of counts 1 to 3 inclusive. I refuse the application for severance thus counts 1 to 4 are to be heard together.

[6]        Later, shortly before trial, Mr Whareaitu applied for an order discharging him on all four counts.  Judge Lance dismissed that application also on 29 August 2005.

Decision

(1)      Unreasonable Verdicts

[7]        First, in her written synopsis Ms Holden submitted briefly and without development that the verdict was unreasonable or could not be supported by the evidence: s 385(1) Crimes Act 1961.  Her premise was that, if each charge was considered separately, a reasonable jury must have entertained a reasonable doubt about Mr Whareaitu’s identity as the person who lit each fire.  By this we assume Ms Holden was referring to the evidence which was discretely relevant and limited to a particular charge.

[8]        With respect, this argument was not available to Mr Whareaitu following Judge Lance’s first decision on severance.  He had expressly ruled that the evidence on each of the four counts was admissible on the others.  His decision was not appealed.

[9]        In oral argument Ms Holden raised a variation on this ground.  She submitted that the jury’s acquittal of Mr Whareaitu on count 1 was inconsistent with the proper use of similar fact evidence.  Effectively she was arguing that this verdict showed a misuse or misunderstanding of the purpose of such evidence. 

[10]     We disagree.  An appellant alleging unreasonableness on the ground of inconsistent verdicts must discharge a heavy burden.  He must establish that the only explanation for the inconsistency is the jury’s confusion or adoption of the wrong approach.  It is insufficient to point to a prima facie inconsistency.  The appellant must go further and establish there is no rational or logical explanation for it: R v A CA301/05 11 April 2006 at [75] ‑ [76].

[11]     Ms Holden’s argument does not approach this threshold.  The jury acquittal of Mr Whareaitu on count 1 does not prima facie suggest an inconsistency.  We agree with Mr Thomas that, to the contrary, the verdict shows the jury did not automatically or indiscriminately proceed from consideration of similar fact evidence to a conviction.  We are not satisfied that there is an apparent inconsistency of verdicts.

(2)Similar Fact Direction

[12]     Second, Ms Holden submitted that the trial Judge’s direction to the jury on the use of similar fact evidence was inadequate.  Counsel’s written synopsis identified a number of alleged defects.  But in oral argument she narrowed the challenge to one proposition.  She submitted that the Judge erred in failing to direct the jury to exclude from the rubric of relevant similar facts Mr Whareaitu’s 111 calls made immediately following the fires.  She said that these calls were not part of the res gestae because they occurred after each offence; and that evidence of a discernible pattern or underlying units of events can only be found in the actual offending.  No authority was cited in support of this proposition.

[13]     Ms Holden’s submission is contrary to authority.  In R v Crutchley [1950] NZLR 497 this Court held that evidence which showed a system of offending, without limitation to the circumstances of the crime itself, was admissible. The accused, a truck driver, was charged with theft of 255 gallons of petrol from his employer, an oil company. It was part of the Crown case that after committing the theft the driver completed a false report to the effect that he had returned the fuel to his employer following routine deliveries. The Court upheld the trial Judge’s decision to allow the Crown to call evidence from three fellow employees to the effect that the accused rarely if ever declared that he returned petrol, known as a ‘back haul’. The Court was satisfied that this evidence was indicative of a system of conduct of such a nature as to be admissible in proof of the main act. It was immaterial that the evidence of the accused’s pattern of behaviour relied upon by the Crown related to an act performed after the alleged offence was committed.

[14]     This statement of principle has never since been called into question in New Zealand.  Its breadth was recently affirmed in Holtz at [36] as follows:

We are not persuaded that it is necessary to have different rules governing the admission and use of evidence of past conduct where identity is the issue… There must be something that points to both incidents having been the responsibility of the same person and that the accused was responsible for one of them before the evidence is probative. That something may be provided in many ways. Striking similarity in the two incidents may be one of them. Other evidence linking the incidents and the accused may be available. Instead of one, there may be a series of previous incidents, each separately having little distinctiveness but when taken together compel the exclusion of coincidence. 

[15]     In R v McIntosh (1991) 8 CRNZ 514 (CA) the accused had been indicted on 11 counts of burglary committed over a short period.  There was a common modus operandi.  The Court confirmed the admissibility of evidence of burglaries committed by the accused two years earlier which showed a pattern, among other things, of discarding some of the stolen property nearby after commission of the burglaries.  This conduct was part of the offender’s signature.

[16]     The law in England is the same.  The admissible evidence is of “… the circumstances of [all] offences [where they] are such as to provide sufficient probative support for the conclusion that the defendant committed [all] offences …”: John W [1998] 2 Cr App R 289 at 303 (CA). An example of such a circumstance was given by Lord Salmon in Boardman v DPP [1975] AC 421 at 462:

… On the other hand, if, for example, A had a long series of convictions for burglary and in every case he had left a distinctive written mark or device behind him and he was then charged with burglary in circumstances in which an exactly similar mark or device was found at the site of the burglary he was alleged to have committed, the similarity between the burglary charged and those of which he had previously been convicted would be so uniquely or strikingly similar that evidence of the manner in which he had committed the previous burglaries would, in law, clearly be admissible against him.

[17]     The same point was made later by Lord Mackay in Director of Public Prosecutions v P [1991] 2 AC 447 at 462:

… This relationship [between the evidence of two victims of crimes], from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution, the necessary relationship is by no means confined to such circumstances.  Relationships in time and circumstances other than these may well be important relationships in this connection.  Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary…

[18]     If accepted, Ms Holden’s argument would emasculate the utility of the similar fact rule.  When the purpose of the evidence is to prove identity, there is no principled or logical basis for limiting its scope to the circumstances of the offending.  Evidence of a signature or characteristic, if accepted as sufficiently distinctive by the jury, must always be relevant to the question of whether or not the accused person is the offender.  In some cases it may be determinative.  The ultimate question is whether the particular evidence serves the purpose of linking the accused person to the offence charged.  And, as pointed out in argument, Ms Holden’s proposition would necessarily exclude evidence of acts taken in preparation for commission of a crime, however relevant they may be.

Conclusion

[19]     Accordingly, for these reasons, Mr Whareaitu’s appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington