The Queen v Rajamani [2009] NZCA 225 (2 June 2009)

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The Queen v Rajamani [2009] NZCA 225 (2 June 2009)

Last Updated: 10 June 2009

IN THE COURT OF APPEAL OF NEW ZEALAND

CA510/2008

[2009] NZCA 225

THE QUEEN

v

LAXMAN RAJAMANI

Hearing: 1 April 2009

Court: Glazebrook, Hammond and Chambers JJ

Counsel: P E Dacre for Appellant
D La Hood for Crown

Judgment: 2 June 2009 at 10.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

A murder appeal

[1] On 13 January 2005, Laxman Rajamani, the appellant, killed his wife, Chitra Ramakrishnan. He slit her throat. While the trial judge, Potter J, left to the jury the issue as to whether Mr Rajamani had a murderous intent, the only plausible defence was in fact provocation. That issue was also left to the jury, who rejected it. The jury found Mr Rajamani guilty of murder.
[2] Mr Rajamani now appeals against his conviction.

Issues on the appeal

[3] Mr Dacre, for Mr Rajamani, raised two issues on the appeal. The first, which was advanced at Mr Rajamani’s insistence, was that the judge had failed to sum up properly on the defence of provocation. It was said that the judge’s direction suggested that the loss of the power of self control was akin to automatism. It was also said that the direction was contrary to the Supreme Court’s decision in R v Timoti [2006] 1 NZLR 323. While Mr Dacre said everything that could possibly be said in support of Mr Rajamani’s complaint, it is quite clear this complaint has no merit at all. Potter J gave the jury a very helpful question trail, which had been discussed with and approved by counsel before her summing-up. The question trail, and the oral comments made in further explanation of it, were entirely correct. This issue requires no further consideration.
[4] The second issue concerns the admissibility of certain statements allegedly made by Ms Ramakrishnan before her death. These statements had been the subject of an application under s 344A of the Crimes Act 1961 prior to trial. Heath J had ruled the evidence admissible: HC AK CRI 2005-004-1002 30 May 2008. Potter J ran the trial on the basis that Heath J’s decision was correct. Mr Dacre does not criticise her for that. In effect, this appeal is an appeal against Heath J’s decision. The issue is: was he correct to rule that the evidence of what Ms Ramakrishnan had said prior to her death was admissible? Mr Dacre submitted these statements should have been ruled inadmissible on the grounds that:

• (a) They were irrelevant; or
• (b) Even if relevant, their probative value was outweighed by the risk that the evidence would have an unfairly prejudicial effect on the proceeding.

Was evidence as to what Ms Ramakrishnan had said prior to death admissible?

[5] Before we describe the disputed evidence, we need to provide a context.
[6] It was the Crown case that Mr Rajamani, an Indian national of the Hindu faith, had entered into an arranged marriage with Ms Ramakrishnan in India in 2002. Mr Rajamani was at that time living in New Zealand. His wife joined him here in late 2003. There were difficulties throughout the marriage. The Crown contended that, at various times in 2004, Mr Rajamani had threatened his wife. On 13 January 2005, his anger boiled over and he killed her.
[7] Mr Rajamani gave a statement to the police following his notifying the police that he had killed his wife. He told the police that he had been standing on a dining room chair cleaning the top of the refrigerator. His wife was praying nearby. On top of the fridge was a large brick, apparently used to smash up coconuts. Mr Rajamani, while holding the brick, lost his balance and fell towards his wife. In the fall, the brick came in contact with her head.
[8] According to Mr Rajamani, his wife accused him of trying to kill her and she said she was going to call the police. She walked towards the phone. He followed her and then, by grabbing her hair and pulling her backwards, got her to the floor. He then picked up a knife and slit her throat.
[9] It was that account which the Crown believed it had to counter at Mr Rajamani’s first trial, which took place before Venning J and a jury in February 2006. The trial, however, developed along quite different grounds, as Mr Rajamani, who gave evidence, admitted his account to the police shortly after the killing was a pack of lies. His new account was as follows. He said that, the night before the killing, a mutual friend had told him his wife wanted a divorce. The next morning, he and his wife had an argument about the proper Indian way in which to separate. During that argument, he said his wife told him she was leaving him to move in with a Pakistani colleague of hers. Mr Rajamani hated Pakistanis. Mr Rajamani said he became very angry at being told his wife was leaving him for a Pakistani. His wife, on seeing this, threatened to ring the police. Mr Rajamani said he left the house “enraged” at the thought his wife was going to live with a Pakistani man. As he walked down the road from his house, he saw two bricks on the street, which he picked up. He then returned home. He attacked his wife with the bricks, knocking her to the ground. When she crawled into the lounge, he saw a knife on the dining room table. He picked it up and cut her throat. His defence was that he lost his self control when his wife told him of her intention to leave him to live with a Pakistani man.
[10] The Crown countered this new account in a number of ways. Only three matter for present purposes. First, the Crown pointed to the obvious discrepancy between what Mr Rajamani had told the police and what he now said had happened. Secondly, the Crown called evidence from two witnesses, Jennifer Barnes and Roger Long, who said that Ms Ramakrishnan had told them shortly before her death that her husband had threatened to kill her and she needed to find a place to rent urgently. The point of this evidence was to show that Ms Ramakrishnan had, prior to her death, feared for her life and was naturally scared of the man threatening her. This made it less likely, the Crown said, that she would have disclosed to her husband that she was leaving him to go and live with a Pakistani man. By this means, the Crown sought to undermine the basis of the provocation defence. Thirdly, the Crown called evidence from Glen Handley, a work colleague of Mr Rajamani. Mr Handley visited Mr Rajamani in prison following Mr Rajamani’s arrest. During the course of their conversation, Mr Rajamani told Mr Handley that he had found out about his wife’s affair when he had read the Pakistani man’s police statement.
[11] The jury at the first trial, which by the time of verdict had reduced in number to ten, found Mr Rajamani guilty of murder. Mr Rajamani appealed. One of the issues on the appeal before this court was whether Ms Barnes's and Mr Long’s evidence was inadmissible as hearsay. This court held it was admissible: CA140/06 20 December 2006. The evidence could be used, however, to show only the state of mind of Ms Ramakrishnan, not the state of mind of Mr Rajamani: at [79]-[82]. In this regard, Venning J had made an error, in that he had suggested Ms Barnes’s and Mr Long’s evidence was relevant as well to Mr Rajamani’s “state of mind at the relevant times”. But this court did not think this error had given rise to “a real risk of a miscarriage of justice”: at [82]. This court dismissed Mr Rajamani’s appeal.
[12] Mr Rajamani appealed to the Supreme Court. That court allowed his appeal on the ground that the judge should not have continued with only ten jurors in the circumstances: [2008] 1 NZLR 723 at [10]. The Supreme Court ordered a new trial. In view of their finding on the “ten juror” point, the Supreme Court did not need to consider in detail the other grounds on which leave to appeal had been granted. One of those grounds was whether this court had been right in its ruling that Venning J’s error in directing on Ms Barnes’s and Mr Long’s evidence had not led to a miscarriage of justice. On that point the court disagreed with this court in its conclusion that the error had not given rise to a miscarriage of justice: at [21]. The Supreme Court also noted that the retrial would take place under the Evidence Act 2006. They said “nothing about how its terms should be applied to the circumstances of this case”: at [21].
[13] The new trial took place in June 2008. This time the Crown were better prepared to meet Mr Rajamani’s defence. This time they proposed to call not just the two witnesses who had testified at the first trial as to what Ms Ramakrishnan had said to them but another four as well. The additional evidence was being called for the same purpose as the Crown had called Ms Barnes and Mr Long.
[14] Prior to the second trial, Mr Dacre challenged some of this proposed evidence. He did not challenge the admissibility of Ms Barnes’s evidence or Mr Long’s evidence. Nor did he challenge the evidence of Fraser Noble, a leasing consultant who said that Ms Ramakrishnan had, shortly before her death, been looking for an apartment to rent for herself a well as a separate apartment for a work colleague. (The work colleague was the Pakistani man to whom we have previously referred.) But Mr Dacre did challenge the evidence of the other three witnesses. They were Uttara Ramakrishnan, the deceased’s sister, Seema Warrier, a long time friend of the deceased, and Hema Sajan, Ms Warrier’s sister-in-law. Heath J ruled their evidence admissible, but only for the purpose of proving “state of mind on the part of the deceased”: at [42]. He also raised the possibility that the judge may wish to give the jury a reliability warning under s 122 of the Evidence Act. Potter J carefully directed the jury in the way Heath J had suggested. Mr Dacre raises no point about the form of that direction.
[15] With that background, we turn now to discuss Mr Dacre’s grounds for submitting that the evidence was inadmissible. In this regard, it is important to note that Mr Dacre was not taking any point about the hearsay nature of the evidence, a point on which Heath J had expressed a view. The points of challenge were purely relevance and unduly prejudicial effect.

Relevance

[16] Mr Dacre’s first argument under this head was that the evidence in dispute was inadmissible on the ground that it was irrelevant: see Evidence Act, s 7(2). He submitted the three witnesses gave evidence of conversations which had taken place too long before the killing. They could not therefore assist in determining the likelihood of whether Ms Ramakrishnan would have disclosed to her husband during the argument that she was leaving him to go and live with a Pakistani man.
[17] Before discussing this submission, we need to set out what evidence the three witnesses were expected to give. (As it turns out, each came up to brief, so we shall principally use the deposition statements on which Heath J relied.)
[18] First, the deceased’s sister. Heath J, at [17], summarised the evidence she was expected to give in these terms:

[The deceased] called a lot of times to India. In February [the deceased] phoned me and told me that the accused had hit her. She said she had considered leaving him and when she told him he threatened her with a knife. She said he picked it up and pointed it at her and said he would kill her and himself if she did that. She called on my birthday, once during a festive in October, my mother’s birthday (8th November), my parents’ anniversary on 29 May 2004.

[19] When she came to give evidence, she put the first call at “March or April” (rather than February). She was unable to date precisely when the second relevant call had been (during which the deceased had said Mr Rajamani had hit her) other than to say it was in 2004.
[20] Secondly, Ms Warrier. Heath J, at [18], summarised the evidence she was expected to give:

In February 2004 [the deceased] phoned me at home. She told me she wanted to leave the accused and that he had been violent toward her. She said that when she had suggested to the accused that they separate due to their unhappiness he said to her “never in the history of his family had there been a divorce and if you even think of divorcing me I will kill you and then commit suicide”. I could hear the fear in her voice.

[21] Finally, Ms Sajan. Her evidence was of an incident that occurred on 14 August 2004 at the Mount Eden War Memorial Hall. Heath J summarised her expected evidence at [19]:

I had gone to the War Memorial to celebrate Indian independence. I saw [the deceased]. She was smiling and waving at me. I did not recognise her initially but as soon as I walked closer to her I realised who she was. I did not know too many people at the function and ended up sitting next to [the deceased] the entire night. During the night my husband joined us. He enquired of [the deceased] how her husband was and [the deceased] said “forget him”. A couple of minutes later she turned and said to me “he showed me the knife the other day”. I said “what” and she repeated herself and said she had told the accused that she wanted to divorce him and that the accused had gone and got a knife, and held it and said to her “if you divorce me I’ll kill you and then kill myself”.

[22] This evidence is therefore of a similar nature to the evidence of Ms Barnes and Messrs Long and Noble. The only difference is that it refers to conversations and incidents a little earlier in time. That distinction may affect the weight to be accorded this evidence, but it does not destroy its relevance. The evidence fills out the picture of the couple’s relationship in 2004. If accepted, it shows Ms Ramakrishnan had been living under fear of death for a year prior to her death. Indeed, it would seem that, on two occasions, Mr Rajamani had actually threatened his wife with a knife when she had raised the prospect of divorce. This was a man who meant business. One can understand why Ms Ramakrishnan had told Mr Long “she needed somewhere to go urgently and secretly”. Taken together, all this evidence makes it less likely Ms Ramakrishnan would have told her husband on 13 January 2005 that she was leaving him to go and live with a Pakistani man. In that way, all this evidence had relevance and was thus prima facie admissible.

Unfairly prejudicial effect

[23] Mr Dacre’s second argument under this head was that the evidence in dispute should have been excluded on the ground that its probative value was outweighed by the risk it would have an unfairly prejudicial effect on the proceeding: see Evidence Act, s 8(1)(a). Mr Dacre summarised his submissions under this head in two paragraphs:

[43] There is a real risk that the jury could make improper use of this evidence to suggest that the killing was planned and premeditated since early 2004.

[44] The Supreme Court noted the degree of prejudice inherent in the statements led from the real estate agents [Ms Barnes and Mr Long]. It must be substantially more prejudicial in the case of comments made to family members and friends up to a year earlier.

[24] We do not accept there was any risk of the kind set out in Mr Dacre’s paragraph 43. It was no part of the Crown case that the killing had been planned and premeditated since early 2004. That was not the point of the disputed evidence. Further, Potter J had directed that none of the six witnesses’ evidence was to be used for the purpose of working out the state of Mr Rajamani’s mind on 13 January 2005. Mr Dacre does not criticise that direction.
[25] As to Mr Dacre’s paragraph 44, he has quoted the Supreme Court’s decision out of context. Its comment was made in light of Venning J’s error in directing the jury they could take Ms Barnes’s and Mr Long’s evidence into account in determining the state of Mr Rajamani’s mind on 13 January 2005. Potter J did not make that error. The illegitimate prejudice which accordingly arose in the first trial did not arise in the present trial.
[26] We are satisfied that neither Heath J nor Potter J erred in not excluding the evidence under s 8(1)(a).
[27] We accordingly reject this ground of appeal.

Result

[28] Both grounds of appeal having failed, we dismiss the appeal against conviction.

Postscript

[29] We note the following three matters.
[30] First, Heath J expressed certain views as to the “legal principles” underlying hearsay statements under the Evidence Act 2006: at [24]-[41]. These principles were not in issue before us. Accordingly, we express no view on them.
[31] Secondly, neither side sought to argue before us the extent to which the Evidence Act 2006 preserves or removes the common law’s “limited use” rules. That is to say, is it now the case that evidence, once admitted, can be used to prove “anything that is of consequence to the determination of the proceeding” (s 7(3))? For a discussion on this point, see Mahoney and others The Evidence Act 2006: Act and Analysis (2007) at [EV4.20.04], [EV7.03], and [EV12.02]. If Potter J erred in limiting the use to which the six witnesses’ evidence could be put, it was an error in Mr Rajamani’s favour.
[32] Thirdly, Mr Rajamani gave evidence. He referred to the nature of his relationship with his wife. He denied he had ever threatened to kill her. In these circumstances, it may well be that, whatever the answer to the issue raised in [31], the restriction on the use to which the six witnesses’ statements could be put should have been removed. Mr Rajamani after all got the chance to comment on what he had allegedly said to his wife (as recounted by the six witnesses). Whether this change of circumstances rendered Heath J’s ruling too restrictive was not argued before us. It is noteworthy that Heath J had signalled that the restriction on use he had imposed might be reviewed if Mr Rajamani gave evidence: at [43]. As it happens, Potter J did not review that part of the ruling. If that was in error, again it was an error in Mr Rajamani’s favour.

Solicitors:
Crown Law Office, Wellington