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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Whareaitu

Details

AGLC: The Queen v Whareaitu [2006] NZCA 337
Case: [2006] NZCA 337
Decision Date: 6 December 2006

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an appeal by Whareaitu against his conviction for three counts of arson. The appellant argued that the verdicts were unreasonable and that the trial Judge's directions on similar fact evidence were inadequate. The Crown's case against Whareaitu was circumstantial and relied on similar fact evidence, suggesting a pattern or unity of events that pointed to Whareaitu as the perpetrator of the arsons. The appeal was dismissed by the Court of Appeal, which found no merit in the arguments presented.

The Court first examined the argument that the verdicts were unreasonable, noting that each charge was considered separately and that the jury acquitted Whareaitu on one charge, indicating they did not automatically convict based on similar fact evidence. The Court held that the jury's acquittal on one charge did not suggest an inconsistency or misunderstanding of the purpose of similar fact evidence. The Court then addressed the adequacy of the trial Judge's directions on similar fact evidence, rejecting the argument that such evidence should be limited to the actual offence and should not include subsequent actions taken by the accused. The Court cited New Zealand and English authority supporting the admissibility of evidence of a system of offending, which includes acts taken after the offence.

In conclusion, the Court found that Whareaitu's appeal against conviction was without merit and dismissed the appeal. The Court upheld the trial Judge's decision to admit similar fact evidence and to deny severance of the charges. The verdicts remained valid, and Whareaitu's conviction stood.

Orders