Rameka v R [2021] NZCA 614 (19 November 2021)

Last Updated: 23 November 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA302/2021 [2021] NZCA 614

	BETWEEN	TE IWI NGARO RAMEKA Appellant
	AND	THE QUEEN Respondent

Hearing:	1 November 2021
Court:	Kós P, S France and Katz JJ
Counsel:	Appellant in person B D Tantrum and T H Stuart for Respondent
Judgment:	19 November 2021 at 9 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Katz J)

Introduction

• [1] Te Iwi Ngaro Rameka was found guilty by jury of one charge of assault with a weapon. Judge D J McDonald sentenced him to three months’ home detention.^[1]
• [2] Mr Rameka (who is self-represented) appeals his conviction. He says that a miscarriage of justice has resulted from:

(a) the admission of evidence of:

(i) his prior conviction for cultivating cannabis;

(ii) his pre-trial statement to the police that the complainant is a “nark”; and

(iii) “propensity evidence”; and

(b) the Judge’s failure to explain to the jury the difference between a “nark” and a registered informant.

Background

Mr Rameka’s previous cannabis conviction

• [3] Mr Rameka and the complainant both live in the same Northland town. In January 2016, Mr Rameka was charged with cultivating cannabis. He was convicted in 2019. Mr Rameka believes that it was the complainant who told the police about his cannabis crop (an allegation that the complainant strenuously denies). He has harboured an intense dislike for the complainant ever since. When Mr Rameka saw the complainant in public, he would verbally abuse him and call him a nark.

The offending

• [4] On 24 January 2021, the complainant went out fishing. That night, Mr Rameka’s sister was celebrating her birthday at the local marae. The complainant dropped off some fresh fish for the celebrations.
• [5] When Mr Rameka heard about this he became extremely angry. He went to the marae, picked up a pot of fish that was cooking on the stove, put it on a trailer that he was towing behind his car, and drove to the complainant’s home. Once there, he tipped the pot of fish over the fence and onto the complainant’s lawn.
• [6] The complainant came out of his house and the two men argued. Mr Rameka then got a knife out of his car and walked towards the complainant, pointing the knife at him. Mr Rameka told the complainant he would stab him if he ever went to the marae again.

Mr Rameka’s police statement

• [7] Mr Rameka was interviewed by the police later that evening. He admitted tipping the pot of fish onto the complainant’s lawn but denied threatening the complainant with a knife. He explained that he had dumped the fish on the complainant’s lawn because he believed that the complainant had had him arrested for growing cannabis. He repeatedly referred to the complainant as a nark and an informant.

Admissibility ruling at trial

• [8] At trial, Mr Rameka’s then-counsel objected to admission of the reference in Mr Rameka’s police statement to his arrest for growing cannabis. He did not, however, object to admission of Mr Rameka’s repeated references to the complainant being a nark.
• [9] Judge McDonald ruled that the reference to Mr Rameka being arrested for growing cannabis was admissible, for the following reasons:^[2]

[10] ... The question is whether the prejudice advanced here outweighs the probative value. The jury must hear, from both the Crown and defence position, the ill-feeling between the two men; that is, that Mr Rameka considered [the complainant] a nark. ... In my view the jury are entitled to know not only about this alleged narking, but also what it is he is alleged to have told the police. Mr Rameka was upfront about that with the police. In my view the evidence contained in Mr Rameka’s statement should be given. If the defence wish to expand upon that, because currently it was only that he was arrested and not convicted, that is a matter for the defence. ...

The trial

• [10] After the officer-in-charge had read out Mr Rameka’s police statement, the Judge gave a direction to the jury regarding the limited use to which the reference to Mr Rameka being arrested for growing cannabis evidence could be put.
• [11] Mr Rameka subsequently elected to give evidence in his own defence. During his evidence he repeatedly referred to the complainant as a nark. He also stated (once) that the complainant was a registered informant. (We note that there is no evidence that the complainant was a registered informant.) Mr Rameka was not asked any questions about the cannabis offending.
• [12] In summing up, Judge McDonald explained to the jury that they must decide the case dispassionately, taking into account whether they believed each witnesses’ evidence. He stated further that:

[7] I repeat what I said to you yesterday about Mr Rameka being arrested for growing cannabis, it would appear, some five years and one month ago. He considered that [the complainant] narked on him about that, that is told the police that he might be growing cannabis. It would appear, as a result of that, that their friendship ended. That is part of the relevant background, the reason why you might say Mr Rameka now seriously dislikes his former friend, but that is the only relevance. You should not in any way reason that because he was arrested for growing some dope, he must be a bad man and therefore you will convict him for that reason and that reason alone. That would be wrong, it would be unfair to Mr Rameka. We know nothing more than what I have just said about that earlier event.

[8] It would be equally unfair for you to reason: “Well, [the complainant] might be a nark, we do not like narks, so we are not going to believe him for that reason alone.” Again, that would be completely wrong. It would mean anybody who went at any time and spoke to the police or they came and spoke to you and you said: “Yes, I saw this,” you would be a nark and therefore untruthful. It just does not make sense, you might think.

Appeal

• [13] We must allow Mr Rameka’s appeal if we are satisfied that, having regard to the evidence, the jury’s verdict was unreasonable, or a miscarriage of justice has occurred for any reason.^[3] A miscarriage of justice includes any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.^[4]

Did the Judge err by admitting Mr Rameka’s police statement?

• [14] Mr Rameka’s notice of appeal asserts that the Judge erred in admitting the references in Mr Rameka’s police statement to the complainant being a nark, as well as the reference to Mr Rameka being arrested for cannabis offending. A related ground of appeal is that the Judge erred in admitting propensity evidence (which also appears to be a reference to Mr Rameka being arrested for cannabis offending).
• [15] We accept Mr Tantrum’s submission that the “nark” evidence is both relevant and has significant probative value. Mr Rameka’s references to the complainant being a nark were not limited to his police statement, he also referred to the complainant as a nark several times in his evidence in court. The fact that Mr Rameka was hostile to the complainant because he believed that the complainant had “narked” on him was central to the Crown case. Mr Rameka was unequivocal that the complainant had narked on him and that he hated him for doing so. That hatred was longstanding — “five years and one month” according to Mr Rameka. Mr Rameka himself gave his anger about the complainant’s alleged narking as his motive for tipping the pot of fish on the complainant’s lawn, which led to the subsequent confrontation.
• [16] As for the reference to Mr Rameka’s alleged cannabis offending, this was not admitted as propensity evidence. Rather, it was admitted as background or contextual evidence to explain the reasons for Mr Rameka’s hostility towards the complainant. Although the reference to Mr Rameka being arrested for cannabis offending could have been redacted from his statement, this would have left a query in the jury’s mind as to precisely what the complainant had allegedly narked about to provoke such extreme and long-lasting hostility from Mr Rameka. The jury could well have speculated that the narking related to much more serious alleged offending than the cultivation of cannabis.
• [17] The cannabis evidence obviously has some prejudicial effect, as it discloses that on a previous occasion, about five years prior to trial, Mr Rameka was arrested for cultivating cannabis (although there was no evidence before the jury that he was convicted). As we have noted, however, if the cannabis evidence had not been admitted the jury could well have speculated that the complainant had narked about much more serious offending. In our view, the Judge was correct to find that any prejudice associated with the cannabis evidence did not outweigh its probative value, and could not be described as unfair. Any prejudice could be (and was) addressed by the jury direction given by the Judge immediately after the evidence was given, and again in summing up.

Should the Judge have explained to the jury the difference between a nark and a registered informant?

• [18] Mr Rameka submitted that the Judge should have explained to the jury the difference between a nark and a registered informant.
• [19] In his police statement Mr Rameka did not use the phrase “registered informant”. He did, however, use the word “informant” interchangeably with the word “nark”. In his evidence in court, Mr Rameka generally used the word nark, but on one occasion he used the term “registered informant”. He stated that when he first saw the complainant, after tipping the pot of fish on his lawn, that he “proceeded to call him a registered informant, and he was a nark”.
• [20] Mr Rameka was unable to explain why the distinction between a nark and a registered informant was relevant to any issue the jury had to determine. The relevant factor was Mr Rameka’s belief that the complainant was a nark, as that precipitated the events culminating in the assault. There is accordingly nothing in this ground of appeal.

Result

• [21] The appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent

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^[1] R v Rameka [2021] NZDC 9719.

^[2] R v Rameka [2021] NZDC 2338.

^[3] Criminal Procedure Act 2011, s 232(2)(a) and (c).

^[4] Section 232(4).