R v Rimene CA232/96 [1996] NZCA 292 (21 October 1996)

Last Updated: 13 February 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND C.A.232/96}

THE QUEEN

v

_{WAYNE RIMENE}

Coram: McKay J Tompkins J Heron J

Hearing: 21 October 1996

Counsel: M J Parun and K D Bulmer for Appellant

M A O’Donoghue for Crown

_{Judgment: 21 October 1996}

_{JUDGMENT OF THE COURT DELIVERED BY McKAY J}

Mr Rimene appeals against his conviction on three charges arising out of events which took place on 24 September 1995. He was found guilty after trial by jury on one charge of injuring with intent to injure, threatening to kill the victim and his family and threatening to damage the victim’s dwellinghouse with intent to intimidate him. He was sentenced to two years imprisonment on the first charge and to a cumulative sentence of 6 months on each of the other charges, these two being concurrent. At the same time he was sentenced to a further cumulative sentence of 6 months on a charge to which he had pleaded guilty of attempting to pervert the course of justice on an earlier occasion. The appeal is limited to the charges relating to 24 September 1995. There is no appeal against sentence.

The victim said that about midnight on the night in question he heard his car, which had a squeaky wheel, being pushed down the road. He got out of bed, and saw people leaning on the car. He went outside and yelled to ask them what they were doing. They took off. He went back inside and dressed, and then drove his other car round the block and found the group. As he questioned them one made to leave, so he told him to wait till the police arrived and grabbed him by the jacket. The man swung round and tried to hit the victim, but the victim had him in a headlock and although attacked by one of the women in the group managed to throw her to the ground. The group gave an address but did not wait for the police, who were at the house when the victim returned. The police took him to the address that he had been given, and he there identified two persons who were in the group. He was then returned to his home, while the police took his fiancé to the police station to make a statement. He remained in the house with their two children.

Some 20 minutes later he heard people yelling in front of his house. He went out and was attacked by a group of five or six people of both sexes. He was struck with fists, wood and beer bottles, mainly around the head and face. The woman in the group was yelling “Where’s my boy, where’s my boy”, apparently referring to the young man he had previously had in a headlock, but they would not listen to any explanation. He fell to the ground and was kicked in the face, but managed to get up. Eventually one man told them to stop, and himself grabbed the victim. That man then asked what had happened to their son, and said to the victim that he should not have hit the boy. The victim said he had not hit him, but the

man said the boy was all covered in blood and there was blood on the road. The man then made the threat to kill the victim and his family, and to damage his house and possessions. The victim identified the man who had stopped the violence and had made these threats as Mr Rimene, whom he had known him for a long time. He did not see Mr Rimene attacking him and did not recognise any of his attackers.

The first ground of appeal is that the trial Judge in putting the Crown case to the jury misdirected them on the law relating to inferences by directing the jury that it could be inferred that the accused was party to a plan, made with others in a house before going to the complainant’s address, to take out retribution on the complainant despite there being no evidence from which that could be inferred.

The Judge gave a general direction as to inferences in the early part of his summing up, and no criticism is made of that. Indeed, that direction was unduly favourable to the accused if it conveyed, as it appeared to do, that the jury could not draw an inference as to any particular matter unless there was no other possibility: R v Puttick (1985) 1 CRNZ 644 (CA).

The passage complained of came later when the Judge was summarising to the jury the respective cases of the Crown and of the defence. The appellant was jointly charged in respect of the first count with Miss Gray, the mother of the young man referred to earlier. In summarising the Crown case, the Judge said:

“For the Crown, on the first count which the two accused face together, Mrs McIntosh said that Ramari Gray, the mother of Willy Harmon, once Jade Cvetkov had spoken to her at her house with others, came to the conclusion that Willy Harmon had been injured by Mr Corlett and they went around there to exact retribution to this house. It is the Crown case that Miss Gray gave a piece of wood to

Moena Pahi and when they got around there she yelled out and Mr Corlett came outside. There were five or six of them together there according to Mr Corlett, and he was then beaten by four or five whom he could not identify exactly.”

After referring to the Crown’s case against Miss Gray, the Judge then outlined the case against Mr Rimene:

“As to the accused, Mr Rimene, the Crown case is that you may take into account that he lied about where he was that night. He denied that at the time when plainly he was there, as has now been accepted. Once more, it is the Crown case against him that he was a party, at the very least, because she suggests that it is a reasonable inference from the evidence as a whole that he was there at the beginning, probably at the house with Miss Gray; and certainly at the scene from the beginning; and whatever else is said about him, it is clear that he was the one who said when it was all to stop and, once he said it, it stopped.

So the Crown asks you to infer that he was, even if it could be proved that he did nothing, active, somebody who encouraged by his presence. He called the shots as it was put for the Crown, and that is a great deal more active then simply being there, and he could not be relegated to the position of an inadvertent or innocent bystander. But in fact it is the Crown case as it is with Miss Gray that he was a principal offender.”

The Judge went on to summarise the defence case, and there is no complaint that he did not do so adequately and fairly. Counsel submitted that the Judge erred in “directing the jury that the evidence was that the appellant was there at the beginning ‘probably’ at the house with Miss Gray”.

The Judge gave no such direction. He simply told the jury that the Crown was suggesting that this was a reasonable inference from the evidence as a whole. He later put the defence’s answer to the Crown submission. He expressed no view whether such an inference should be drawn or not, this being a matter for the jury. Mr Parun sought to overcome this problem by submitting that the Judge was wrong

to leave that question to the jury. He submitted that there was no sufficient foundation in the evidence to support such an inference.

Evidence was given for the Crown by Miss Cvetkov, a girl of 16 who was one of those found pushing the car and was with the group when the assault took place. After the car pushing incident she lost her companions and so went to Willie Harmon’s place to see if he was there. He was not, but Miss Cvetkov described what had happened to the co-accused Miss Gray. Others were at the house, among whom she identified Mr Rimene. A number of those who were at the house then went to the victim’s house, some with weapons. When asked specifically whether Mr Rimene went with the others to the victim’s address, she said “I think so”.

Thus the evidence places Mr Rimene at the house where the earlier incident was reported to Miss Gray, Willie Harmon not having yet returned home. Willie was in fact at the police station at the time, and totally uninjured. A group from the house decided to go to the victim’s address, with weapons and with obviously unfriendly intent. Willie’s mother, Miss Gray, went with the others. There is Miss Cvetkov’s evidence that she “thought” Mr Rimene went too. When they arrived at the victim’s house, he was set upon and beaten. Mr Rimene then called on them to stop, and they did. Mr Rimene then complained about the victim’s alleged treatment of his boy, referring to Miss Gray’s son. It is an obvious inference that he went with Miss Gray and the others, that he was present during the assault whether or not he participated, and that he had the authority within the group to stop it when he wished. In the absence of any contrary evidence, it cannot possibly be said that such an inference was not open to the jury. Mr Rimene gave no

credible explanation as to his presence at the scene at the stage when he called on the others to stop. Indeed, in his statement to the police he denied having been there at all. The fact that he was not positively identified as having been present before he told the others to stop is not in itself surprising, and is not inconsistent with the inference the jury was asked by the prosecution to draw.

We are satisfied that there was no misdirection on the part of the Judge in leaving that inference and whether it should be drawn or not as a question for the jury.

The second ground of appeal is that the Judge misdirected the jury by directing that it could be inferred the accused “called the shots” because he was the person who said to stop the assault and therefore could not be an innocent bystander, despite there being no evidence of his having been present at all before he stopped the assault. The passages complained of are as follows:

“The Crown says that Miss Gray encouraged the offence or aided it by providing a weapon and, conversely, that Mr Rimene was a party to the offence, and was present regardless of what he did, because he could have brought it all to a halt and he did not. So, the Crown’s case on the issue of parties goes beyond mere presence but that in the end will be a matter for you, and those are inferences which the two accused strongly dispute, as you will recall.

...

As to the accused, Mr Rimene, the Crown case is that you may take into account that he lied about where he was that night. He denied that at the time when plainly he was there, as has now been accepted. Once more, it is the Crown case against him that he was a party, at the very least, because she suggests that it is a reasonable inference from the evidence as a whole that he was there at the beginning, probably at the house with Miss Gray; and certainly at the scene from the beginning; and whatever else is said about him, it

is clear that he was the one who said when it was all to stop and, once he said it, it stopped.”

Once again, the Judge did not direct the jury to draw such an inference. He put it to them as part of the Crown case, and balanced it by a reminder that such inferences were strongly disputed by the accused.

Mr Parun submitted that the accusation made by Mr Rimene to the victim that he had hit the boy because there was blood all over the road “would not make sense” unless Mr Rimene had just arrived at the scene, as otherwise he would have known that the blood on the road was from the victim. As Mr Parun accepted, however, the most that can be said is that the accusation would be consistent with Mr Rimene’s recent arrival. It was open to the jury to prefer a different construction. Mr Parun drew attention to the absence of direct evidence on certain matters, such as any active participation by Mr Rimene in the discussion at the house before the group set out to confront the victim, and as to his active participation during the assault itself. The Crown was able, however, to rely on the inferences which could be drawn from the primary facts proved, and it was open to the jury to draw those inferences.

Counsel attacked the police evidence of Mr Rimene having been found with apparently grazed knuckles, and referred to defence expert evidence that the police photo showed his hand as it normally appeared and that there was an explanation for this in the work in which he was involved. The pathologist said that the state of Mr Rimene’s hand was not proof of punching, but he could not exclude the possibility of punching. On the Crown case, however, this was merely another strand of evidence to be considered by the jury. It was not necessary for the Crown

to show that Mr Rimene had personally struck the victim during the assault. Likewise, the evidence of blood on Mr Rimene’s left shoe, consistent on DNA testing with being from the victim, was not conclusive evidence that Mr Rimene was the one who kicked him on the ground, or that Mr Rimene was there before he called for the assault to stop. It was conceivable that the blood could have dripped on to his foot while he was holding the victim after having stopped the assault by the others. This was merely another strand of evidence for the jury to consider.

None of the grounds of appeal has been made out. There was no material misdirection by the Judge, and the verdict was one which was open to the jury on the evidence and on the inferences that could properly be drawn from the evidence.

The appeal is dismissed.

Solicitors

Crown Solicitor’s Office, Wellington, for Crown