Rongo v R [2023] NZCA 626 (7 December 2023)

Last Updated: 11 December 2023

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

CA199/2023 [2023] NZCA 626

	BETWEEN	JOSHUA TE MANA O TE RANGI DANIEL RONGO Appellant
	AND	THE KING Respondent

Hearing:	28 September 2023
Court:	Gilbert, Peters and Hinton JJ
Counsel:	M A Dempster for Appellant K R Guthrie for Respondent
Judgment:	7 December 2023 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Hinton J)

Introduction

• [1] On 7 December 2022 Mr Joshua Rongo was convicted by a jury of one charge each of possession of an offensive weapon, obtaining by deception and receiving.^[1] He was found not guilty of three other charges and six charges were dismissed.^[2] Mr Rongo was sentenced on 30 March 2023 by Judge RLB Spear at the Hamilton District Court to four months community detention and ordered to pay $2,500 in reparation.^[3]
• [2] Mr Rongo appeals his conviction on the basis that the Judge erred by admitting a hearsay statement from the complainant on the receiving charge and by misdirecting the jury in summing up on all three charges. The notice of appeal also refers to an alleged error of the Judge in declining to provide a transcript of the summing up. This was not pursued, and we do not address it.
• [3] The Crown opposes the appeal.

Alleged offending

Possession of an offensive weapon

• [4] The complainant, Mr Gildenhuys, is a mechanic who Mr Rongo had engaged for some work on a vehicle. There was a dispute about non-payment for that work.
• [5] On 22 September 2019, Mr Gildenhuys drove to Mr Rongo’s address to collect the monies owed. On arrival he was confronted with Mr Rongo holding a rifle pointed in his general direction and telling him to “fuck off”. Mr Gildenhuys explained he was there to collect payment and following a discussion between the men Mr Rongo lowered the firearm.
• [6] At trial, Mr Rongo denied that he presented a firearm at Mr Gildenhuys.

Obtaining by deception

• [7] On 16 November 2019, Mr Rongo made arrangements via Facebook to hire a commercial water blasting unit. Mr Rongo provided a false name, address, and phone number. He purported to hire the unit for one day but then asked to extend the hireage for a further day. Later, he informed the owner of the unit that it had been stolen and that he had reported this to police. On 24 April 2020, during a police search of Mr Rongo’s property, the dismantled water blaster unit was located. No report to police had been made.
• [8] Mr Rongo’s evidence at trial was that the unit had been stolen from his premises but that he had located it, abandoned, while hunting sometime later.

Receiving

• [9] On 4 April 2020, a Toyota Hilux vehicle was stolen from Ms Marea Wharekawa’s home and reported stolen to police. It was located at Mr Rongo’s address during the 24 April 2020 police search. The vehicle had been stripped with various parts removed. The Hilux’s turbo engine had been installed in Mr Rongo’s car.
• [10] Mr Rongo’s evidence at trial was that the vehicle had been found abandoned by the side of the road by his niece and nephew, who had delivered it to his address. He said he did not believe the vehicle belonged to anyone — that it was abandoned. Further, he did not turn his mind to whether it was stolen despite the vehicle having a turbo engine of value which was installed in his own vehicle. He also gave evidence of subsequently paying Ms Wharekawa $1,500 for the engine in late December 2020, some seven months after the charge had been laid against him.

Trial

• [11] Two parts of the trial are of importance to the appeal.
• [12] First is the Judge’s decision to admit the hearsay evidence of Ms Wharekawa.^[4] Ms Wharekawa is, as mentioned above, the owner of the vehicle the subject of the receiving charge.
• [13] On 30 November 2022 Judge Spear issued a warrant for Ms Wharekawa’s arrest. She was not located, despite a senior constable visiting her address. The constable was informed Ms Wharekawa was on a road trip somewhere in the lower North Island. The officer-in-charge sent a text message to Ms Wharekawa and received an abusive response with Ms Wharekawa wanting to withdraw her statement. She however agreed to be available by phone on the morning of 1 December but failed to answer the phone when called.
• [14] Judge Spear recorded:

[4] The hearsay statement simply explains that she was the owner of a blue Toyota Hilux Ute ... and that it was stolen from her house ... on the night of 4 April 2019. Furthermore, that she was able to identify the ute in photos provided by Constable Ashton.

• [15] The Judge noted that given Mr Rongo’s explanation would be that the vehicle was found abandoned, it was a “simple jury issue as to whether the Crown has managed to prove beyond reasonable doubt that, when the defendant received the vehicle, he was aware that it had been stolen or otherwise unlawfully obtained”.^[5] Accordingly, the Judge did not consider that the inability to cross-examine Ms Wharekawa would be unfairly prejudicial and he admitted the statement to be read into the record before the jury. The statement as admitted also recorded that the Hilux was valued at $15,000 and had a new engine installed, valued at $8,000.
• [16] The second part of the trial at issue is the Judge’s summing up.
• [17] The Judge began by reminding the jury of the respective roles of judge and jury. He summarised the need to assess the oral evidence by reference to credibility and reliability, determine what happened, then assess whether on those facts the charges had been made out beyond a reasonable doubt. The Judge then stated:

[5] I do not have this role. I do not have the role of determining whether a witness’ evidence should be accepted or not, what that evidence might prove or whether the defendant is guilty or not. That is the role for the jury. If I appear to indicate any view on those matters, matters that are properly in the province [of] the jury, disregard what I am saying or what you think I am saying and follow your own lead. I will certainly do my best to go right down the centre on this, explaining the case for the defence and the case for the Crown, and leave it for you [to] make the decision.

• [18] With regard to the possession of a weapon charge, the Judge began by taking the jury through the question trail. He then addressed the inferences the jury could make if they made particular factual findings, and the evidence relied on by the Crown and defence. We set out below the parts of the summing up relevant to this appeal:

[35] You might well think that if [Mr Rongo pointing a gun at Mr Gildenhuys and telling him to fuck off] is proven to have happened, it most certainly showed an intention to commit an offence involving the threat or fear of violence. Pointing a rifle at somebody is not something that would be taken lightly notwithstanding what Mr Gildenhuys might say. If so, is it possible at the time the defendant pointed the rifle that the defendant did not intend to commit an offence involving bodily injury or the threat or fear of violence? If “yes” find him not guilty, if “no” find him guilty. You might think, however, what on earth would anyone in those circumstances be intending when they have pointed a rifle at somebody and told them to fuck off. So, it comes down to that question on this charge. It comes down simply to the question as to whether the defendant pointed the rifle at Mr Gildenhuys and told him to get off the property.

[36] Now you have heard evidence that there was toing and froing, but eventually they left the property. Mr Gildenhuys stated that he was to follow the defendant into town to an ATM but that the defendant left him behind. You have heard evidence that Mr Gildenhuys caught up with him in Dinsdale or Frankton, I cannot remember which one now, and cut off the muffler and there may have been some physical scuffling that took place at the same time. That is of no interest and concern at all. It is, as the Crown quite rightly put it, something of a red herring. It does not matter how aggressive Mr Gildenhuys may have been when he went out to their property that night, nothing could justify a rifle being pointed at him and being told to get off. So forget about the debt, forget about that, except that it is background to see how this confrontation, as the Crown would have it, took place.

...

[38] The issue of self-defence does not arise in this case. The defence position is simply that Mr Gildenhuys lied about this and in that respect you may say what did he gain by lying about it. Both the defendant and [Ms] Chadwick, his girlfriend, deny the defendant had a rifle that night and the Crown, sorry, the defence would have you accept that the character of Mr Gildenhuys can be seen by the aggressive way in which he conducted himself when he removed the muffler in ... However, as I have said, how can this be relevant to whether the defendant appeared at the door of his cabin that night on 22 September brandishing a rifle and at some point, as the Crown put it, send him off. If you find that that occurred, it is difficult to see how you could avoid finding the defendant guilty.

• [19] Turning to the obtaining by deception charge, relating to the water blaster, the Judge first outlined the question trail for the jury. He noted that the key question was whether the jury was sure the water blaster was stolen from Mr Rongo’s possession. The Judge then set out the evidence and the respective cases of both the Crown and defence. This was done briefly — two paragraphs for the Crown, one for the defence.
• [20] On the receiving charge, the Judge again started by going through the question trail. He then addressed the doctrine of recent possession:

[50] ... And [question] (c) “do you accept the evidence that at the time he received it he did not know it was a stolen motor vehicle and he was not reckless as to whether it was stolen or not?” If “yes” you find him not guilty, if “no” this is something that you need to take particular note of, you are entitled to find him guilty on the basis that he was found in possession of recently stolen property and that he does not have a reasonable or satisfactory explanation for being in such possession.

[51] We have a rule of law, as it were, that provides that if you are found in possession of recently stolen property, and whether it is recently stolen property or not is a matter for me, I tell you now that I found as a matter of law that it was recently stolen property, 16 days from the time it was stolen, the motor vehicle. If you are found in possession of recently stolen goods, the law says if you do not have a satisfactory explanation for that, a court is entitled to infer that you knew that it was stolen when you got it or that you were reckless as to whether it was stolen or not. So it, as it were, I think probably appeals as a common sense approach for matters such as this.

• [21] The Judge summarised the respective Crown and defence cases. Again the summary was brief. The Judge noted that there was no dispute that the vehicle found in Mr Rongo’s possession was Ms Wharekawa’s stolen vehicle but that the defence case was that Mr Rongo’s niece and nephew found the vehicle on the side of the road and that Mr Rongo thought the vehicle was abandoned.

Law on appeal

• [22] Mr Rongo appeals his conviction under s 229 of the Criminal Procedure Act 2011. This Court must allow the appeal if it is satisfied that a miscarriage of justice occurred.^[6] Such a finding can be made only if an error or irregularity is such that the trial was unfair or there is a real risk that the outcome of the trial was affected.^[7]
• [23] A real risk the outcome was affected arises if there is a reasonable possibility another verdict would have been reached,^[8] while an assessment of whether a trial is “unfair” requires an assessment of the trial overall.^[9] A verdict will not be set aside merely because there was an error or irregularity. It is only when a departure from good practice is so “gross, or so persistent, or so prejudicial, or so irremediable” that a trial will be condemned as unfair, and a conviction quashed as unsafe.^[10]

Appellant submissions

Hearsay statement

• [24] Ms Dempster highlighted s 25(f) of the New Zealand Bill of Rights Act 1990 which gives everyone charged with an offence “the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution”.
• [25] Ms Dempster submits that the admission of Ms Wharekawa’s statement as hearsay evidence resulted in a miscarriage of justice. In reliance on Edwards v Police she submits that the circumstances of Ms Wharekawa’s statement are such that this Court cannot have reasonable assurance as to its reliability.^[11] In particular, Ms Dempster submits that the reliability of the statement is eroded by Ms Wharekawa suggesting she will withdraw her statement and avoiding giving evidence in court.
• [26] Ms Dempster further submits that the inability to cross-examine Ms Wharekawa diminished Mr Rongo’s ability to offer an effective defence. Mr Rongo was unable to cross-examine Ms Wharekawa on whether her vehicle was stolen or in fact abandoned. This was critical, according to Ms Dempster, as the trial proceeded on the basis that it was undisputed that the vehicle was stolen and it was only Ms Wharekawa who could give evidence as to whether it was stolen or in fact abandoned. Ms Dempster submits that the probative value of the hearsay statement was low and that any such value was outweighed by its prejudicial effect.
• [27] Last, Ms Dempster submits that the Judge should have included a direction to the jury pursuant to s 122 of the Evidence Act 2006, in light of Ms Wharekawa’s threat to withdraw her statement on 30 November 2022.

Summing up

• [28] On the possession of a weapon charge, Ms Dempster referred to paragraphs [35], [36] and [38] of the summing up.^[12] She submits the summing up was unbalanced and did not adequately summarise the evidence given by Ms Chadwick, Mr Rongo’s ex-girlfriend. She also submits that the Judge failed to put forward the defence contention that Mr Rongo was scared of Mr Gildenhuys and that, contrary to the Judge’s direction, the “scuffle” incident, which occurred after the alleged presentation of the weapon, was relevant to this background. She contends that if the jury believe the evidence that the scuffle happened, then that goes towards the reliability and credibility of witnesses, which was something the jury needed to consider. Ms Dempster submits it would also go to showing motive as to why Mr Gildenhuys would want to be portrayed as the victim and not the aggressor.
• [29] As to the charge of obtaining by deception, Ms Dempster submits that the summing up was unbalanced and led the jury to a guilty verdict because the Judge spent twice as much time summarising the Crown’s case as that of the defence. She also submits that Mr Rongo’s evidence that he located the stolen water blaster later when hunting with his father and Ms Chadwick, was not included. She contends that this piece of evidence, which was corroborated by Ms Chadwick, was critical to the defence and should have been included in the summing up.
• [30] In relation to the receiving charge, Ms Dempster submits that in the last sentence of [50] and through [51] of the summing up,^[13] the Judge led “the jury to find that the appellant did not have a reasonable or satisfactory explanation for being in possession of the vehicle”. Additionally, she contends that Mr Rongo’s defence was not fairly summed up as the Judge did not refer to the evidence adduced as to how the vehicle came into Mr Rongo’s possession. Specifically, the summing up did not include the evidence of Mr Rongo’s niece and nephew that it is not unusual for them to see abandoned cars on country roads, that they towed the ute to Mr Rongo’s home and that the vehicle needed work, but had a good engine, so they used the engine for Mr Rongo’s vehicle. Ms Dempster submits this evidence went to Mr Rongo’s mens rea and should have been included in the summing up.
• [31] Additionally, Ms Dempster takes issue with the summing up as the Judge referred to Ms Wharekawa’s “stolen ute”. She submits that this did not reflect the defence’s account that the vehicle was abandoned and that this was unfair.
• [32] In general, Ms Dempster submits that the Judge’s summing up was clearly unbalanced and indicated his view that there should be a finding of guilt. She submits that his several references to the fact it was a matter for the jury do not cure this.^[14]
• [33] Overall, Ms Dempster says that Mr Rongo’s convictions on the three charges should be quashed and an order made that there be no retrial.

Analysis

Hearsay statement

• [34] The admissibility of hearsay evidence is governed by ss 16–18 of the Evidence Act. Hearsay evidence is admissible if it is relevant and satisfies certain conditions. Those conditions are that the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and either the maker of the statement is unavailable as a witness, or the judge considers that undue expense or delay would be caused if the maker of the statement was required to be a witness.^[15]
• [35] Hearsay evidence which meets the threshold test may still be inadmissible if its probative value is outweighed by the risk that admission of the evidence will have an unfairly prejudicial effect on the proceeding.^[16] In making that determination, a judge must take into account the right of the defendant to offer an effective defence.^[17] A judge must also consider the interests of the prosecution.^[18]
• [36] If admitted, the function of weighing up the ultimate reliability of the hearsay evidence passes to the jury.^[19] However, if a judge considers admissible hearsay evidence may nevertheless be unreliable, the judge may, pursuant to s 122 of the Evidence Act, warn the jury of the need for caution in accepting and weighing the evidence.
• [37] It is not in dispute that Ms Wharekawa was unavailable. Ms Dempster also accepted before us that there is no issue with the reliability of the statement at the time it was taken. At issue is whether the circumstances subsequent to the making of the statement and the inability of the defence to cross-examine Ms Wharekawa mean the admission of the statement was unfairly prejudicial and therefore resulted in a miscarriage of justice.
• [38] We do not consider that the admission of Ms Wharekawa’s statement was unfairly prejudicial and, even if it was, it did not result in a miscarriage of justice.
• [39] First, our impression from the trial record is that the question of whether the vehicle was stolen as a matter of fact was not at issue. It appears to have been raised briefly with the Judge with regard to the admissibility of Ms Wharekawa’s statement but is not referred to in either the opening or closing addresses of defence counsel, nor in the Judge’s summing up. The opening addresses took place on the same day as the Judge’s admissibility ruling. Certainly, the key issue for the jury was whether the defendant had the requisite criminal intent to receive the vehicle.
• [40] Second, clearly Ms Wharekawa’s statement was reliable for the purposes of s 18. Section 18 reliability is concerned only with “threshold” as opposed to “ultimate reliability”.^[20] Threshold reliability for the purposes of s 18 “simply means the evidence is reliable enough for the fact finder to consider and draw conclusions as to its weight”.^[21] But we also consider the statement was ultimately reliable. This case is materially different to Edwards where Duffy J considered the circumstances relating to the hearsay statement did not provide reasonable assurance as to its reliability.^[22] Here, the fact that the statement meets the s 18 criteria is not in dispute. Rather, Ms Dempster’s submission is that the circumstances subsequent to the making of the statement give doubt to its ultimate reliability and that therefore the statement should be excluded under s 8. However, as this Court held in Nisha v R, denials or retractions of allegations are not factors that necessarily lead to unfair prejudice.^[23] We are satisfied that no unfair prejudice arose here. Ms Wharekawa’s statement was materially corroborated by other evidence including an initial report to police that the vehicle was stolen and Mr Rongo himself paying Ms Wharekawa $1,500 after the charge was laid, indicating he accepted she retained an ownership interest in the vehicle, the vehicle had real value and was very unlikely to have been abandoned.
• [41] Nor do we consider that the prejudicial effect of the evidence outweighed its probative value. An inability to cross-examine a witness is inherent in all cases involving hearsay evidence.^[24] We accept the Crown’s submission that, at least in this case, it is highly speculative that cross-examination of Ms Wharekawa as to whether the vehicle was stolen or not would have elicited responses favourable to Mr Rongo.^[25] Also, this is not a case where inability to cross-examine Ms Wharekawa prevented Mr Rongo from offering an effective defence. The key issue (and arguably the only issue) advanced for Mr Rongo at trial was whether he possessed the requisite mens rea, and the defence case throughout the entirety of the trial was that Mr Rongo thought the vehicle was abandoned. Cross-examination of Ms Wharekawa was not required for Mr Rongo to pursue that defence. In fact, any cross-examination of Ms Wharekawa would be entirely irrelevant to Mr Rongo’s subjective state of mind.
• [42] We note also that unfair prejudice under s 8 must take into account the interests of the prosecution as well as the defence.^[26] Here Ms Wharekawa’s statement was critical to the Crown case. In that regard, we accept the Crown’s submission that exclusion of the evidence would have had an unfairly prejudicial effect on the proceeding.
• [43] As to the submission that the Judge was required to give a s 122 reliability statement, we disagree. For the reasons set out above, there was no indication that Ms Wharekawa’s statement was unreliable. Rather, she was simply refusing to co‑operate in giving oral evidence.
• [44] This ground of appeal fails.

Summing up

• [45] For the reasons discussed below, we also accept the Crown’s submission that the Judge’s summing up did not result in an unfair trial.
• [46] In relation to the charge of possession of a weapon, we do not consider that the Judge failed to adequately sum up the defence evidence. The Judge stated that both Mr Rongo and Ms Chadwick said that Mr Rongo did not have a firearm. Although the summary was brief, as this Court observed in R v Keremete and Lee v R a trial judge has a wide discretion in the level of detail to include in a summing up.^[27] The Judge was not required to go into detail about the precise evidence of each witness. The summary provided was sufficient. It identified the fundamental facts in issue and summarised the rival contentions. In any event, we note the Crown submission that the manner in which the Judge summed up Ms Chadwick’s evidence in fact avoided undermining the defence case. Ms Chadwick’s and Mr Rongo’s evidence was inconsistent. In this regard, the summing up presented the defence case more favourably than had the Judge provided more detail.
• [47] We accept that evidence as to the nature of the relationship and dynamics between Mr Gildenhuys and Mr Rongo was relevant background to the confrontation. However, such was explicitly stated by the Judge. Any evidence of the scuffle between Mr Gildenhuys and Mr Rongo after the alleged offending is irrelevant or at least immaterial. There was no error in the direction on those matters.
• [48] In relation to the charge of obtaining by deception, the summing up is entirely conventional. As noted above, the Judge was not required to go into meticulous detail about the evidence of each witness. Nor was the Judge required to spend exactly the same amount of time summarising each case. While a summing up must be balanced in its treatment of opposing contentions, the judge need not, and should not, strive for artificial balance between the competing cases if the evidence clearly favours one side or the other.^[28] Further, balance is not assessed by reference to an artificial arithmetical calculation as to how much time is spent on each case.^[29] The summing up was brief but adequately canvassed the Crown and defence cases. It was balanced and appropriate. It did not lead the jury.
• [49] Nor do we consider the Judge erred in relation to the summing up on the receiving charge. Again, the summing up was routine. The Judge did not lead the jury to find that Mr Rongo did not have a satisfactory explanation for his possession of the vehicle. In outlining the doctrine of recent possession, the Judge was merely indicating to the jury the inference they would be entitled to make if they considered there was no such explanation. That was entirely proper.
• [50] The Judge was correct to say that there was no dispute that the vehicle found was the vehicle stolen from Ms Wharekawa. As noted, the defence did not raise this as an issue in closing. The defence case throughout the trial was that Mr Rongo did not know the vehicle was stolen. This theory, as well as the evidence put forward by the defence, was adequately summarised by the Judge. There was no error in the summing up on this charge.

Conclusion

• [51] The appeal is dismissed.

Solicitors:
McKenna King Dempster, Hamilton for Appellant
Crown Solicitor, Hamilton for Respondent

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^[1] Charges three, four and seven respectively.

^[2] Mr Rongo was found not guilty of charges one (obtaining by deception), five (unlawful possession of firearm) and six (unlawful possession of ammunition). Charges two (obtaining by deception) and eight, nine, ten, eleven and twelve (receiving x 5) were discharged by Judge Spear under s 147 of the Criminal Procedure Act 2011 for lack of evidence.

^[3] R v Rongo [2023] NZDC 15764.

^[4] R v Rongo [2022] NZDC 23859.

^[5] At [8].

^[6] Criminal Procedure Act, s 232(2)(c).

^[7] Section 232(4).

^[8] Misa v R [2019] NZSC 134, [2020] 1 NZLR 85 at [48]; and Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67].

^[9] R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].

^[10] At [78] quoting Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].

^[11] Edwards v Police [2018] NZHC 340.

^[12] See above at [18].

^[13] See above at [20].

^[14] Referring to R v Fotu [1995] 3 NZLR 129 (CA).

^[15] Evidence Act 2006, s 18(1).

^[16] Section 8(1)(a).

^[17] Section 8(2).

^[18] Wi v R [2009] NZSC 121, [2010] 2 NZLR 11 at [20].

^[19] TK v R [2012] NZCA 185 at [23].

^[20] Anderson v R [2020] NZCA 106, [2020] 3 NZLR 429 at [78].

^[21] At [78]; Adams v R [2012] NZCA 386 at [25]–[28]; TK v R, above n 19, at [23]; and for an example of where this threshold was not met see Orji v R [2013] NZCA 629 at [51]–[56].

^[22] Edwards v Police, above n 11, at [46].

^[23] Nisha v R [2015] NZCA 178 at [27].

^[24] Adams v R, above n 21, at [28] and [50]–[51]; and Nisha v R, above n 23, at [29].

^[25] A similar position was taken by this Court in K (CA332/2014) v R [2014] NZCA 393 at [32].

^[26] Wi v R, above n 18, at [20].

^[27] R v Keremete CA247/03, 23 October 2003 at [18]–[19]; and Lee v R [2023] NZCA 147 at [28].

^[28] R v Keremete, above n 27, at [18]–[19].

^[29] Lee v R, above n 27, at [28].