THE QUEEN v STEVEN TIWINI RAKURAKU [2002] NZCA 208 (26 August 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca321/01

THE QUEEN

V

STEVEN TIWINI RAKURAKU

Hearing:	1 August 2002
Coram:	Gault P Ellis J Paterson J
Appearances:	G.J. King for Appellant B. Horsley for Crown
Judgment:	26 August 2002

judgment of the court DELIVERED BY ELLIS J.

[1] The appellant appeals against his conviction after trial by jury on two charges.The first being that on or about 6 October 2000 at Cape Runaway with intent to cause grievous bodily harm to Julia Annette Tihema, wounded her.The second being that on or about 28 January 2001 at Mahia with intent to injure, did injure her.

[2] At trial it was not contested that on the days, and at the places in question, the appellant struck the complainant and caused her the injuries claimed by the prosecution.The defence case was that he was acting in self defence and that he had no intent to cause grievous bodily harm or injury.The complainant's evidence was that she and the appellant were living together in a housebus and had parked it at Cape Runaway.On 6 October 2000 they drove in another vehicle to the beach, that the appellant had become jealous and was going to give her a beating.On arrival at the beach he started hitting her with his fists and abusing her.He then got out of the vehicle and got an iron bar from the back and beat her with it.The iron bar's length was described by her outstretched arms.She eventually got back to the bus.Her injuries were not treated for some days until concerned friends took her to a doctor at Te Kaha.He examined her briefly and insisted she be taken to Whakatane Hospital immediately.There the examining doctor found she had multiple injuries over her entire body, grazes, deep bruises, and very deep lacerations which were quite seriously infected.Her body was very swollen.She had blood in her ears, lacerated ear lobes, bruises and abrasions on her head and face.The doctor initially thought she had broken bones.She was suffering from nausea and vomiting and was not passing urine.Her abdomen was bruised, which the doctor said indicated "a lot of hitting".The doctor described the injuries as very serious, and increased in severity by the infection.However, she said on a scale of minor - moderate - serious, the injuries were moderate.As a result of her injuries and the delay in getting treatment she suffered kidney failure, and in addition had to have skin grafts for some of the wounds.She had to be transferred to Waikato Hospital and her recovery took over three months.Her injuries were identified in photographs before the jury.

[3] Notwithstanding this beating, she returned to the appellant.The couple went to Mahia where the appellant had some building work.There the second incident took place after a disagreement in a friend's place and when the complainant threw fish and chips at the appellant.He dragged her to their tent and he punched her and beat her with a tent pole on her damaged leg and kicked her.All this took about twenty minutes and again, photographs of the injuries were before the jury.

[4] The above brief description of the beatings and injuries does not fully recount the trauma suffered by the complainant.Nor does it cover what emerged at trial as a violent domestic relationship.The appellant's response when he gave evidence was in these words:

"When we got to the beach the argument had built to - well to a high level.

and then June attacked me.

With a weapon.

I knew what she was capable of doing.

So, in my defence, I used reasonable force to subdue her.

And, even though I knew that force was exceptional, I never intended, in no way, to commit bodily harm to my partner.

And then, as soon as I realised that I had, I tried as much as I could to comfort her.

To basically look after her."

(and relating to the second incident):

"So then we went down to Mahia.

Because the Police had put in the paper that we were in this specific area and that - well, we both knew that we were going to get caught, eventually.

Now, even though I am a lot stronger than June, she would always initiate or attack me, first.

And then I would naturally defend and then try to calm the situation.

So when we got to Mahia, as you could imagine, there was a lot of pressure on us.

I was wanted.

June was wanted.

And I agree that the last thing we should have done was keep on fighting.

But, as all couples do, it happened.

And then when me and June came back from fishing, when everything was fine, I didn't hit her because she didn't pack the car, unpack the car.

I only defended myself when she attacked me.

Even though I know, and as yous would know, I am a lot stronger than her.

And no way did I intend to commit June harm.

I made a snap decision to defend myself.

And I agree that the force I used was exceptional - and that I truly regret.

Because I still care about June.

Right up to this day.

I had no intention to harm June in any way.

Only to subdue her and then calm the situation down.

And I think that as yous have witnessed, there is a lot more to this story to what June said."

[5] It is plain from the above that the issues of self defence and specific intention were plainly before the jury.It is also plain that the appellant wished the jury to assess what happened against the background of the violent relationship we have referred to.As to the issue of self defence, it is significant to record what passed between the appellant and the Judge at the conclusion of his evidence:

"THE COURT

May I just ask you a couple of questions, Mr Rakuraku.When you had disarmed June at Cape Runaway?...Are you cross-examining me, Your Honour?

No I'm just asking you some questions.Judges are entitled to do that to clarify some issues.When you disarmed June at Cape Runaway and before you hit her with the bar you took off her, what threat did you think you were then under?...Before?

After you'd taken the bar off her, and before you hit her with it, what threat did you think you were then under, from her?...It was a split decision, Your Honour.I believe there was still a threat to my life.

And similarly, when you picked up the bar at Mahia and before you hit her with it, what threat did you then think you were under?...Well I knew June could pick the bar up too, so I believed there was a considerable threat."

[6] The appellant was originally to be tried in the High Court at Gisborne on the more serious charge and in the District Court at Gisborne on the Mahia charge.The prosecution applied to the High Court for the transfer of the Mahia charge to the High Court and the two charges to be tried together. Anderson J granted both applications on 20 July 2001.

[7] The conduct of the trial was unusual.The appellant was originally represented by counsel Mr Sceats, whose services he dispensed with on the grounds that his "manner in my defence of these was horrendous".He then gained the services of Mr Rishworth, but on the eve of trial purported to dispense with his services too claiming a "lack of concerned concentration on (the appellant's) behalf".The appellant elected to conduct his own defence, but retained Mr Rishworth as "legal adviser" and in fact Mr Rishworth took an active part in the defence.The appellant in so deciding did not seek an adjournment.The Judge did not follow the procedure prescribed by s364 of the Crimes Act 1961 for an unrepresented accused, no doubt because he was in fact adequately advised by Mr Rishworth.No point is made of this by the appellant, and it is plain from the transcript that the accused was throughout the trial fully aware of his rights and the correct procedure.In particular he was advised of his right to call evidence as envisaged by s365.He gave evidence himself as we have related already.

[8] The appellant attempted to file his own notice of appeal, but it was rejected as unsigned.When it was lodged again, it was out of time.We have treated it as an application for leave and heard it at the same time as the appeal itself.The appellant set out his grounds of appeal in extensive handwritten form.Mr King has constructed from them the following grounds:

"1. The learned Judge erred in allowing the Crown's pre trial application for an order pursuant to section 28J of the District Courts Act 1947 for the removal of the District Court matter to the High Court and also for orders pursuant to section 340 of the Crimes Act for joinder of the two counts in a single indictment and for amendment to the present High Court indictment to permit that course.

2. That one of the jurors was connected to a Crown witness by marriage and should not have been permitted to remain on the panel.

3. That the verdict of the jury should have been set aside as unsafe as the juror mentioned above may have been influenced against the accused by contact with another person, namely her mother, who during the course of the trial had had conversations with two of the Crown's witnesses.

4. That the appellant did not receive a fair trial in that he had to conduct his own defence, having dismissed his counsel prior to trial.

5. The appellant did not have a fair trial in terms of section 25(a) of the New Zealand Bill of Rights Act 1990 in that; he had to conduct his defence having been assaulted in the prison van on the way to Court, leaving him with visible injuries to his face and hands which would have been obvious to the jury.The same assault was reported in two of the local newspapers and broadcast over the radio as a `fairly heated fight' and `prison van riot' and it is submitted would have been read by at least some of the jurors.It is submitted that these reports and the appellant's subsequent appearance may have influenced the jury against him and thus the appellant's right to a fair hearing by an independent and impartial Court.

6. The appellant's rights in terms of section 25(e) and (f) of the Bill of Rights Act were eroded by the alleged failure of his former counsel to prepare and summons witnesses to give evidence for the defence.The appellant sets out in his handwritten submissions that he had anticipated that two witnesses would be present at Court to give evidence of the complainant's violence against himself on the evening of the Mahia incident thus supporting his self-defence proposition.

7. That evidence of bad character was introduced that should not have been. The appellant was already faced with an abundance of prejudice arising from the joinder of the two trials as well as other matters (including the `prison van riot' incident).The learned Trial Judge allowed the Crown to cross-examine the appellant on his previous convictions.It is submitted that this decision was wrong.In any event it is submitted that well before the appellant was cross-examined a number of examples of bad character evidence had already been placed before the jury in the course of the Crown case; For example in Detective Lewer's evidence, hearsay and evidence of bad character was put before the jury thereby prejudicing the appellant.The trial Judge erred in not ruling the evidence inadmissible despite an objection being raised. This prejudice was further compounded during the course of Detective McGregor's evidence, evidence of bad character was placed before the jury, that is evidence of outstanding warrants in relation to the appellant."

[9] On the basis of the above the appellant claims there has been a miscarriage of justice.The appellant sought a copy of the Judge's summing-up.This became available just before the hearing and was helpful, but nothing new emerged upon which the appellant relied.We now deal with each ground in turn.

Removal and Joinder

Anderson J concluded his Judgment by saying:

"Decision

[9] The accused will plead not guilty to each count and such a general plea in denial puts at large everything the Crown would need to prove the offences. This includes the identity of the person who undoubtedly beat the victim causing the serious injuries for which she was hospitalised.When the police went to arrest the accused following the Mahia incident, they found the tent pole which the complainant says was used on her.The accused's response to the effect that `I won't hit her again' when challenged with having hit her with the bar could properly be taken as an admission that he had hit her with the bar.The injuries following the Cape Runaway incident are consistent with beating with an object capable of causing puncture marks.The Mahia evidence is accordingly probative of the identity of the attacker in the Cape Runaway incident.Both incidents are also indicative of a violent relationship, thereby tending further to indicate that the identity of the Cape Runaway attacker is the accused.

[10] I have no doubt that the evidence in respect of the Mahia count is probative in the ways mentioned in respect of the Cape Runaway allegation.Any prejudice is the prejudice of cogency.The prejudice is not therefore illegitimate.

[11] In circumstances where the evidence relevant to the Mahia count could be introduced by the Crown in the Cape Runaway trial in any event, it is plainly just that both counts be tried together.

[12] Mr Rishworth for the accused sought to draw a distinction between similar fact evidence which is not the subject of a charge and similar fact evidence which is.With respect, the difference is immaterial.What is relevant is the similarity of the evidence and consequential probative significance rather than the incidence of a charge in relation to it."

[10] In the recent case R v Anderson (CA144/01, unreported 1 August 2001) this Court was dealing with the question of severance of counts, but what it said is equally applicable to joinder.At para 10:

"Whilst questions of severance are often bound up with issues involving the use of similar fact evidence, yet it does not follow that severance would be granted only because evidence in relation to one count is not admissible in relation to another account on the basis of similar fact principles. Frequently with multiple accused or counts, it arises that evidence on one count, and firm judicial direction is necessary to remove the risk of improper use.Experience has shown that juries have been well able to distinguish between the counts.However if the risk of prejudice to an accused, through there being multiple counts unrelated in time or circumstance, is substantial, then this will point towards severance.Potential prejudice to an accused may reach an unacceptable level and, if so, the ends of justice will require severance."

[11] In his summing-up the Trial Judge emphasised the importance of considering each of the charges separately (para 18).We are satisfied for the reasons stated by Anderson J that this was an appropriate case for removal and joinder, and that the Jury was properly directed.This ground of appeal is therefore without substance.

Juror connection with Crown witness

[12] During the course of the trial it became apparent that one of the jurors was connected to a Crown witness by marriage, although just what the connection was (if any) was not made clearThis emerged during cross-examination of the witness by the appellant.The Judge heard counsel in chambers and he interviewed the juror in the presence of counsel.His decision is recorded in these words:

"[30] ...It is clear that he must have known well before the trial started that Mrs Wheoki was to be a witness and must have known her maiden name.

[31] The juror did not seek exemption from the jury when her name was called even though the list of witnesses was read to the jury in the normal way and they were invited to raise any matters with the Judge which might affect their impartiality.If Mr Rakuraku was concerned about the possible impartiality of Mrs Waenga he should have challenged her either peremptorily or for cause.

[32] Mrs Waenga has been interviewed in the presence of counsel, including Mr Rishworth and in Mr Rakuraku's presence.She said that `Waenga' was her husband's name, that she was completely unaware of Mrs Wheoki's maiden name until the cross-examination, and said that that piece of evidence did not affect her ability to remain impartial in this case.

[33] In the Court's view there is no basis for discharging Mrs Waenga from the jury and it is only to be hoped that the late raising of this issue will not affect the views of the jury or of Mrs Waenga in particular."

[13] Mr King submitted that the juror should have been discharged under s22 of the Juries Act 1981 on the grounds that she was not impartial, independent or disinterested.Mr King also submitted that the juror should have been discharged because there was an appearance of unfairness as well as actual unfairness.Of course the enquiry was made in Chambers, but the appellant and his legal adviser were present.It is plain from the facts ascertained by the Judge before the appellant and counsel that there is no substance in this criticism of the juror, and this ground of appeal must also be rejected.

Juror Influence

[14] During the trial an elderly woman who had been seated in the public gallery was seen talking to two Crown witnesses: the complainant and the witness said to be related by marriage to the juror referred to above.It transpired she was the mother of that juror.Further, she was staying with the juror as she was on holiday and meeting her for lunch each day.Again the Judge dealt with the matter in chambers and recorded his decision:

"[90] What appears to have been established is that there has been communication between the juror's mother and the complainant and Mrs Wheoki, but that the substance of the communication has not been passed on to the juror.

[91] Mr Rishworth, on behalf of the accused, submitted that there has clearly been a communication between the juror's mother and the two witnesses, and that the mother is staying with the juror.He submitted that the Court should enquire again as to the content of the communication between the juror's mother and the witnesses.

[92] In the Court's view, this matter in terms of the tests of the Juries Act is probably borderline but that it would probably be preferable to discharge Mrs Waenga from the jury in order to overcome the possibility of inappropriate disclosure and the possibility of taint.No inquiry should be made into the other issues raised by Mr Rishworth.The conversation between the juror's mother and the complainant and Mrs Wheoki apparently took place yesterday.The juror has assured the Court that there has been no communication to her of anything that was said in that meeting.The Court is not prepared to draw an inference of tainting of the jury from that.

[93] At this point Mr Rakuraku wanted clarification that the Court was considering discharging the juror.This was confirmed and he then indicated that he did not want taken off the jury the one person whom he felt may well be in his favour and that even though she herself had not talked to the complainant she should be given the opportunity to make her own judgment on the facts.

[94] The Court asked Mr Rakuraku whether he meant that he did not want her taken off the jury, to which Mr Rakuraku replied that she should be allowed to finish what she wanted to say which he thought was probably `I do not believe he is guilty - that is my judgment - and that is obviously why June was talking to her mother.'

[95] The Court advised Mr Rakuraku that this may not necessarily be the conclusion that would be drawn and that it could in fact be an adverse conclusion.After all, the mother and the complainant may only have talked about the weather.

[96] Mr Rakuraku again made comments to the effect that to take the juror off the jury could be prejudicial to his case, that he did not believe she should be discharged because she could be the only person to find him not guilty.He said he `had a right to all twelve decisions', that the Court `should not take away from me the one chance I might have of being found innocent', and it was his wish that the juror be not discharged and that `she should be allowed to stay and pass judgment on me in a fair an impartial way.'

[97] In terms of the Juries Act and the lack of impartiality as matters now currently appear, this is borderline.We have the juror's assurance on two occasions that she is impartial.It is not appropriate to start quizzing her about whatever it would be that the juror wanted to tell the Court.That would be inappropriately involving a Judge, counsel and the accused knowing what is in the juror's mind and, of course, the system is against that.Mr Rishworth agreed that the trial should continue with the 12 jurors.

[98] The juror was again re-called and was reminded of the importance for all members of the jury to keep an open mind right throughout the case and to have access only to information and evidence inside the courtroom.She assured the Court once again that her mother had not passed on any information to her and that she could continue serving on the jury in an impartial manner."

[15] There is no criticism of the Judge's analysis of this difficult situation. He was prepared, it seems, to discharge the juror and proceed with 11 as he was satisfied there was no taint of the balance of the jury.However, he acceded to the accused's request (his legal adviser being present in Chambers) to allow the juror to remain.There can, therefore, be no substance to this ground of appeal either.

Representing himself

[16] We have read the transcript of evidence and the Judge's rulings with this aspect of the case fully in mind.It is clear that the appellant wished to conduct his own case with the assistance of Mr Rishworth.It is plain too that Mr Rishworth participated actively in rulings and giving the appellant advice. The appellant was given opportunity to cross-examine witnesses and call defence evidence, and he took full advantage of this.This is not a case were counsel withdrew and left the accused in the lurch.There is no question but that the right to a fair trial is absolute: New Zealand Bill of Rights Act 1990 s25. Courts will be vigilant to ensure that a person who is convicted has been found guilty at the end of a process which has integrity and the hallmarks of fairness: R v Ru (CA238/01, unreported 4 October 2001), para 28.We are satisfied he was able to test the prosecution evidence fully and to place his defence before the jury.Mr King claimed the accused's evidence in chief was brief compared with the length of the cross-examination.The same could be said of the evidence of the complainant.What is obvious is that the accused plainly and succinctly stated that he was acting in self defence when the complainant attacked him.We have already set out the passages from the transcript at para 4 above.

[17] Further, it was Mr Rishworth who advised the Court that the evidence in chief was concluded.In our view there was no question but that the accused had and was seen to have had a fair trial.This ground of appeal must fail.

The assault in the van

[18] On the morning of trial the appellant was assaulted in the prison van on his way to Court.He suffered injuries which would have been visible to the jury and the assault was reported by the media as a "prison van riot".There is no doubt that jurors may be influenced by media items.The appellant sought an order declaring a mistrial or a polling of the jury.The Judge dealt with the matter in Chambers and said:

"[77] At the commencement of the fourth day of trial 16 August 2001 and when all that remains is for final addresses and summing-up, Mr Rakuraku in the absence of the jury sought an order declaring the trial to be a mistrial and presumably asking for the jury to be discharged.

[78] As an alternative he asks that the jury be polled about their knowledge of the matters to which reference will shortly be made, and that he be permitted to make an explanation to the jury as to the manner in which he suffered injuries which he submits are clearly visible on his person.

[79] By way of explanation, Mr Rakuraku said that from the commencement of the trial he has had fresh wounds on his face and hands which he submits would be clearly visible to the jury seated as they are only a few feet from where he has been conducting his defence.He said that those injuries were received by him as the innocent victim in what he says has been termed by the media as a `Prison van riot'.Mr Rakuraku said that there has been publicity about that matter in `The Dominion' and `The Gisborne Herald' newspapers and, he said, also on radio and television.He takes the view that the jury will form an adverse opinion of him from seeing those injuries and from the publicity which he says has occurred, and that they may reach the conclusion that he is a violent man and accordingly that he may be guilty of the offences of violence with which he is charged.He also takes the view that the Police, and possibly the Crown Prosecutor and the Court, are prejudiced against him.

[80] Those matters are noted but there is certainly insufficient evidence before the Court to justify discharging the jury and bringing this trial to an end at this point on the basis of the incident to which Mr Rakuraku has referred and the publicity which he says it has received.In that regard it is pertinent to note that Mr Barry acknowledged having seen some report of a fracas in the Prison van in both `The Dominion' and `The Gisborne Herald' but said that, to his recollection, there as no mention of any names of the persons who might have been involved.

[81] Polling the jury as to any knowledge they may have of this matter is not in the Court's view a realistic option even if it were considered that the Court has jurisdiction to quiz jurors about any matter, particularly a matter such as that raised by Mr Rakuraku, and it is not considered appropriate to allow Mr Rakuraku to make a statement or give additional evidence as to how he received the injuries which, he says, would be visible to the jury.

[82] In the usual way, the jury has been directed on several occasions at the commencement and throughout the trial to approach the matter with an open mind and not to reach any conclusions until they retire to consider their deliberations.

[83] Because of the matters that emerged during the cross-examination of the complainant it was considered appropriate to advise the jury at the end of the second day of the trial that they should put out of their minds all questions of sympathy for or prejudice against anyone involved in the trial, particularly the complainant and the accused.The jury were also directed in the usual way at the commencement of the trial and subsequently to judge the matters in issue in this proceeding solely in accordance with what they saw and heard within the confines of the courtroom.In the usual way, those directions will be repeated as part of the summing-up and having regard to the matters raised by Mr Rakuraku it seems it would be appropriate to phrase those general direction in a slightly more emphatic way than is customarily done though in a way which will not, hopefully, run the risk of having the contrary effect of actually drawing the jury's attention to matters which may have taken place outside the courtroom.

[84] There is no warrant, in this Court's view, at the present time to contemplate discharging the jury.Mr Rakuraku has the protection of the directions already given and those which will be given in the summing-up.With some additional emphasis in the standard directions, he is in a position no worse than other accused persons, and possibly his position is slightly improved by any such comparison.

[85] The application is formally declined."

[19] In his summing-up the Judge instructed the jury saying:

"But again, if there has been anything that any of you have seen or heard or read about any of the participants in this trial outside this courtroom, you must put those matters completely out of your minds.You come to this case, just to judge the evidence that you have seen and heard.So please, pay particular attention to that."

[20] It is significant that no application was made at the commencement of the trial, but even that aside, we are satisfied that the appropriate way to deal with the case was to direct the jury firmly to put aside any knowledge of things that took place outside the Courtroom.Judges must assess the possible impact of prejudicial material or comment not given in evidence and decide whether or not jurors are unlikely to be able to put the prejudicial material to one side.It was common ground that the appellant and the complainant had a violent relationship.We are satisfied that the Judge properly assessed the situation and his decision to proceed was correct.This ground of appeal must also fail.

Failure to follow instructions

[21] The appellant claims he had intended to call witnesses who would give evidence of the complainant attacking him prior to the Mahia incident and that he had instructed counsel to brief them.The appellant claims he expected them to be present at trial at the opening of the defence case, but they had not been contacted by Mr Rishworth.No affidavit from any witness or Mr Rishworth was tendered in support of these claims and indeed it is hard to see how such evidence of previous assaults would have changed the complexion of the case where it was already abundantly clear that the complainant and the appellant were in a violent relationship.No injustice has been established and this ground of appeal fails.

Evidence of bad character

[22] During the cross-examination of Detective Lewer by the appellant the Detective gave answers that reflected adversely on his character in particular that other family members were extremely fearful for their own safety at the appellant's hands.The Detective had already balked at answering questions which may be prejudicial to the appellant, but the appellant persisted.After the interchange Mr Rishworth objected and the Judge warned the appellant of the dangers in pursuing the line of questions, and the appellant terminated his cross-examination.

[23] Later Detective McGregor gave evidence of warrants outstanding against the appellant as the reason why he went to an address.

[24] When the accused gave evidence the Crown sought leave to cross-examine him on his previous convictions, and leave was granted.In the accused's cross-examination of the complainant he sought to establish her bad and violent character and her lack of credibility.In doing so the complainant had disclosed the accused's own history.He had been warned in the absence of the jury on several occasions of the dangers involved in his line of cross-examination.There had been references to the accused's membership of the Mongrel Mob, his involvement in drugs, theft and other criminal conduct, his criminal convictions, being in prison, and warrants out for his arrest. The Judge referred to R v Anderson [2000] 1NZLR 667 and stated that leave to allow cross-examination as to previous convictions should not be allowed on a "tit for tat" basis and the purpose of such should be limited to testing the accused's credibility, not to establish a propensity to offend.He emphasised the need to balance prejudice against probative value.In our view this was a case where leave could be granted to test the accused's credibility, which was a central issue in the case.The Judge edited the accused's list of convictions and excluded cross-examination on convictions for wilful damage and theft.However on two other charges of assault and possession of a knife he said:

"[72] Leave is also granted to cross-examine on the assault charge in 1995 and the possession of a knife in a public place charge in 1993.Whilst there is some force in Mr Rishworth's submission that those convictions are well into the past and pre-date the relationship with Ms Tihema, in the Court's view they do show that Mr Rakuraku has been convicted of offences involving violence, including the use of a weapon, and since such are matters in issue in this case they, too, are relevant."

[25] After making his ruling in Chambers he addressed the jury in open Court and said:

"[75] Madam Foreman, members of the jury:In criminal trials it is usual to exclude any evidence about the previous convictions of an accused person or other people as well, for that matter.But there are some unusual situations where an accused person who has previous convictions can have those convictions put to him.That situation arises principally when credibility is in issue, particularly, as here, where as you have heard Mr Rakuraku has put matters to Ms Tihema about her background and her convictions and, essentially, attacked her credibility.And he has just said on several occasions that he takes the view that she is lying.

[76] Mr Barry is going to put some matters to Mr Rakuraku about his background and particularly about previous convictions.I want to emphasise to you that this evidence is relevant only as far as your assessment of his credibility is concerned, and obviously you will take all the evidence into account in assessing his credibility as against Ms Tihema's credibility.But what you need to understand is that this evidence is not relevant to - and does not suggest anything as to - the likelihood of Mr Rakuraku having committed these offences.It is relevant only to your assessment of his credibility.You need to bear that in mind and I shall repeat that to you when I sum up the case to you."

[26] In his summing-up he repeated this instruction.

[27] We are concerned that evidence of a previous conviction for assault and possession of a knife may go to propensity rather than credibility.In R v M (CA231/01 unreported 6 March 2002) this Court was faced with a similar situation and referred to this distinction and said at para [12]:

"This distinction, subtle as it may be, and perhaps subject to some qualifications which did not need to be addressed in Anderson, is undoubtedly correct in general terms.It is, for example, supported by Phipson on Evidence (15^th ed, 2000) at paras 18-38, 18-45 and 18-62.The need for the jury to be appropriately directed is also noted by Phipson, and the Judge himself referred to the need for an adequate direction.The law being as indicated, the Judge directed himself wrongly when deciding to allow cross-examination.His focus was at least implicitly on the relevance of the previous conviction to the question of the likelihood of the appellant having committed the offence, rather than to his credibility, to which it certainly could have been regarded as relevant."

[28] In the present case the Judge correctly stated the law and correctly directed the jury.While in other circumstances we would examine the subtleties of the distinction more closely, we have come to the view that in the circumstances of this trial it was open to the Judge to rule as he did on the basis that the assault conviction was relevant to the appellant's claim to strike only in self defence, and in any event the cross-examination on these additional convictions cannot realistically have influenced the verdict.

Decision

[29] We have reviewed the evidence and conduct of the case as a whole in the light of all the criticisms now made by the appellant and we are satisfied that no miscarriage of justice has occurred and the appeal on the merits must be dismissed.As the failure to bring this appeal in time was occasioned by a technicality, soon remedied, and there being no objection from the Crown, leave to appeal is granted and the appeal dismissed.

Solicitors:

Crown Solicitor, Gisborne, for Crown