R v Mete [2016] NZDC 14896 (8 August 2016)

Last Updated: 6 December 2016

EDITORIAL NOTE: NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT MANUKAU

CRI-2016-092-000061 [2016] NZDC 14896

THE QUEEN

Prosecutor

v

MICHAEL METE

_Defendant(s)

Hearing:	27 July 2016
Appearances:	L Radich for the Crown R Treloar for the defendant
Judgment:	8 August 2016

_{RESERVED DECISION OF JUDGE M WHAREPOURI}

_{(Application regarding Propensity Evidence)}

Introduction

[1] Michael Mete faces two charges of breaching a Protection Order. He has pleaded not guilty to these charges and is for a standby trial on 17 October 2016.

[2] The Crown seeks a pre-trial order admitting evidence of Mr Mete's previous convictions for similar offending at his upcoming trial. The evidence to be admitted is said to be propensity evidence.

[3] The defence opposes the application upon the basis that the past conduct by the defendant does not amount to propensity, but even if wrong on this point, the

prejudicial effect of this evidence outweighs its probative value so that the propensity evidence should be excluded.

[4] To prove its case the prosecution must establish that:

(a) The defendant was at the material time subject to a protection order protecting the complainant;

(b) The defendant knew of the existence of the order, and

(c) The defendant intentionally breached the order.

[5] The issue at trial is likely to be whether the defendant had the requisite criminal intent, and/or the absence of any reasonable excuse.

The alleged offending

[6] The defendant and the complainant Eva Manson were in a domestic relationship for approximately 10 years before they separated sometime in about

2012. While separated they have children together and thus come into contact with each other from time to time for the sake of their children.

[7] The complainant obtained a final protection order in September 2009 against the defendant in favour of herself and two of her children.

[8] On 3 January 2016, the defendant visited the complainant's home uninvited and in the company of an associate. The complainant asked the defendant several times to leave the address. He ignored her pleas. While at the address the defendant recognised a vehicle that was parked in the driveway of the complainant's property. He then asked the complainant questions about who the vehicle belonged to and where the occupants were.

[9] Instead of leaving as requested, the defendant hopped into the vehicle and started playing with the car stereo system. The complainant again requested the

defendant to leave and stated that he was not welcome at the property. Further, that if he did not leave the property she would call the Police.

[10] The complainant then tried to remove him from the vehicle but when the defendant’s associate joined them by the car, the complainant decided to return to the house fearing that things might escalate. The defendant then got out of the vehicle and went to the back door of the house, banging on the same and yelling out the complainant's name. The complainant stayed inside the house fearing for her safety. The defendant lingered at the address for a short time before then giving up and leaving.

[11] A short time later the defendant sent the complainant a series of text messages. The text messages conveyed an intention on the defendant's part to carry out physical violence on a person connected to the vehicle which had earlier been parked in the complainant's driveway.

[12] A sample (and the most relevant) of the text messages are set out below:

03/01/2016 – 16:57 That passenger call him to come bak. That was disrespectful coming to my family house. Remy already knows bitch but tell them come back, your dad is algud but the passenger he’s a joke but I want a one on one, im waiting.

03/01/2016 – 16:58 One on one.

03/01/2016 – 17:04 You crossed the line. Tell them come back I’m ready.

03/01/2016 – 17:05 Don’t talk shit. I wana fight with that wanabe tough cunt.

[13] A “one-on-one” is common parlance for a fight.

[14] As a result of the defendant's visit to the complainant's address on 3 January

2016, and his subsequent text messaging, he was spoken to by Police, charged and is now for trial.

The defendant's past conduct

[15] The defendant has two previous convictions for breaching a protection order. They are for offending from 2013 and involve the same complainant Eva Manson.

[16] The defendant pleaded guilty to this past offending and was dealt with by way of an agreed summary of facts.

[17] The salient features of the agreed caption summary have it that on 1 August

2013, the defendant was at his home when the complainant paid a visit to the address together with her children. The reason for the complainant’s visit on this occasion was so that her children could farewell one of their aunts who was staying at the defendant's address at the time. The complainant and the defendant then got into an argument about the complainant having marks on her neck. At one point during the argument, the defendant grabbed the complainant forcefully by her jacket collar so that he could better examine her neck. He then began accusing her of cheating on him. The defendant was then reprimanded by other family members at the address and he relented.

[18] After the complainant left the address, the defendant sent her a series of text messages. Some of the relevant text messages are:

21:05 And what tell her next time I'll shoot that Maori bitch and her wannabe family.

21:12 Stink minj.

21:18 You're a trouble maker that all you ever do.

21:18 You're an evil bitch.

21:20 ho, did you become friends with them.

[19] The text messages themselves are sometimes difficult to decipher because of how they are presented, but taken as a whole, they are abusive towards the complainant and also threaten physical violence towards a third person connected to the complainant.

Relevant Statutory Provisions

[20] Propensity evidence is defined under s 40 of the Evidence Act 2006. Propensity evidence is evidence that "tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved".

[21] Section 43 allows the prosecution to offer propensity evidence about a defendant in a criminal proceeding provided that the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant. Thus, the notations of relevance, probativeness and prejudicial effect are key concepts that are in engaged by s 43.

[22] The relevant provisions of the Evidence Act should be both the starting point and the focus, as the majority of the Supreme Court made clear in Mahomed.1 In relation to the use of the word ‘particular’ in the definition of propensity evidence, and its relationship to admissibility, the majority said:

[3]...It is necessary, therefore, that the propensity have some specificity about it. That specificity, in order to be probative, must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried.

[23] Section 43(2) requires the Judge to take into account the nature of the issue in dispute when determining the admissibility of propensity evidence against a defendant. As the Court of Appeal noted in Freeman v R:2

[21] In deciding whether to admit propensity evidence, the Judge should identify as precisely as possible the issue in dispute in the case to which the propensity evidence is adduced. Sometimes this will be very general, for instance whether the complainant’s account is credible or even just whether the defendant is guilty. Where the relevant issue is very broad there is often greater judicial reluctance to admit evidence of similar offending (particularly where there is only one such other incident) than where the issue in dispute can be defined more narrowly. The other side of the coin to this is that propensity evidence which reveals no more than a propensity to commit offences of the kind alleged, despite having some probative value, will often be inadmissible given the inevitable associated prejudice. This is particularly so where the characteristics of the offending in question are unremarkable.

[24] Section 43(3) helpfully sets out a number of factors the Court may have regard to when properly assessing the probative value of the proposed propensity evidence. The factors contained in s 43(3) of the Act (which are not exhaustive) are:

(a) the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:

(b) the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

1 _{[2011] NZSC 52.}

2 [2010] NZCA 230.

(c) the extent of the similarity between the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(d) the number of persons making allegations against the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:

(e) whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:

(f) the extent to which the acts, omissions, events, or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried are unusual.

[25] The proposed propensity evidence in part is the fact of the defendant’s past convictions. It is intended to adduce evidence of the convictions pursuant to s49 of the Act. That section provides as follows:

49 Conviction as evidence in criminal proceedings

(1) Evidence of the fact that a person has been convicted of an offence is, if not excluded by any other provision of this Act, admissible in a criminal proceeding and proof that the person has been convicted of that offence is conclusive proof that the person committed the offence.

[26] Even if the evidence is found to be relevant and probative, however, it is important for the Court to engage in an assessment of the likely prejudicial effect of the propensity evidence considering "whether the evidence is likely to unfairly predisposed the fact finder against the defendant" and "whether fact finder will tend to give disproportionate weigh in reaching a verdict to evidence of other acts or omissions".

The issues in dispute

[27] Ms Treloar for the defence submitted that, at trial, in regards to the defendant's text messages the issues are likely to be whether they in fact amount to intimidation or harassment. And further, whether the defendant intended them to be intimidating or harassing in nature.

[28] As to the charge of remaining on the complainant's property without her express consent, the issue is likely to be whether he had permission to be at the address in the first place, and second whether he remained at the address as a matter of fact and law.

[29] The fact that the proposed propensity evidence relates only to two past breaches is not determinative. While a greater frequency of past offending can make the case for the admission of propensity evidence stronger, it is established that as few as one previous instance can in law demonstrate a propensity. As stated in R v Hanson:3

There is no minimum number of events necessary to demonstrate such a propensity [to commit offences of the kind charged]. The fewer the number of convictions the weaker is likely to be the evidence of propensity. A single previous conviction for an offence of the same description or category will often not show propensity. But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged.

[30] The Crown submits that the defendant’s 2013 convictions reveal a state of mind whereby he is prepared to wantonly disregard Court orders and act contrary to the terms of any Protection Order in place. However, this will always follow when confronted with a breach of a Protection Order. The enquiry here must be more narrowly construed if it is to yield something more telling.

[31] The more specific state of mind alleged here must be that the defendant knew that he should not have visited the complainant at her address or, depending on the precise terms of the protection order, that he knew he should have immediately left her address when the complainant asked him to do so. Furthermore, the defendant knew that his text messages to the complainant later in time were threatening in nature and that he intended them to be so.

Analysis

[32] The defendant has twice before been convicted of breaching a protection order that protects the complainant. While not a long list of habitual transgressions, neither could his two past breaches be described as infrequent.

[33] The defence made as much as was able to from the fact that the events were separated by three years. In her submission, Ms Treloar submitted that the passage of time meant that whatever probative force could be gained from the 2013

_{offending, it was sufficiently attenuated come 2016. I cannot agree with that}

3 [2005] EWCA Crim 825; [2005] 1 WLR 3169 as cited in R v Taea [2007] NZCA 472.

submission. While the passage of time can have the effect which the defence points out, it seems to me that events of 2013 are not so old that they should be considered matters of antiquity. In my view, the events from 2013 are still sufficiently connected in time to the alleged offending to have probative value.

[34] Moreover the fact that the proven offending from 2013 involves the same complainant here is telling.

[35] The defence sought to make something of the fact that in 2013 the complainant and defendant were still in a relationship whereas in 2016 that relationship was all but over. While that might be true, it is not a material difference that undermines the fact that it is the manner of interaction between the defendant and complainant which is important, rather than their relationship status however defined.

[36] But it is the extent of the other similarities (or stark dissimilarities) between the proven offending and the alleged offending which is also significant.

[37] In terms of the proposed propensity evidence, the complainant visited the defendant at his property, whereas, in the alleged offending, the defendant is said to have called in on the complainant at her address. Further, in 2013 there was a physical assault between the two which was a prior event to him being found at the complainant’s home the next day. In terms of the alleged offending in 2016, there was no physical interaction between the defendant and complainant and, even according to the caption summary, the defendant did ultimately comply with the complainant’s wishes to leave her address albeit in an untimely fashion. These are very important differences between the two sets of occurrences.

[38] Where the Crown’s application has greater traction, however, relates to the text messaging between the defendant and complainant that resulted in the second

2013 conviction for breaching a protection order.

[39] In 2013 the defendant engaged the complainant in a series of text messages that were intimidatory by being abusive towards her and also threatening physical

violence against those she knew or who she was connected to in some way. The defendant admitted as much by his guilty plea.

[40] The most relevant 2016 text which shows the threat of violence is the one where the defendant says that “next time [he will] shoot that Maori bitch”. It is not clear who the defendant is referring to but it is a threat of violence and the inference is that the complainant, as recipient of the text message, knows who the defendant is referring to. Therefore, in terms of the alleged offending, it is similarly the case that the defendant sent the complainant text messages making threats of physical violence against a third person closely connected to the complainant.

[41] The defence submitted that Mr Mete’s motivation was different on the two occasions. It was put that in 2013 the defendant may have been acting out of jealously, but in 2016, he was most certainly not. Rather he had independent reasons to be angry at the subject of his threats of violence. I do not consider the differences (if any) as to his motivation between text messaging in 2013 and that in 2016 to be particularly important. What is more important is his preparedness to send text messages to the complainant which threatened violence. While that violence seems to be aimed at third parties, it seems equally apparent that they are part in parcel of abuse directed at the complainant because of her connection to the third parties. Further, the fact that the defendant intended the threats in 2013 to have been intimidatory seems to strike at the very heart of the issues in the upcoming trial as to charge one in the Crown charge notice.

[42] It follows that the defendant would have known what his 2016 text messages would have amounted to and how they would be regarded. It is therefore open to the prosecution to allege that by similar design the defendant would have intended his

2016 text messaging to have been regarded in much the same way as his 2013 text messaging.

The matter of prejudice

[43] Even if I were to find that the face-to-face dealing between the defendant and complainant at one or other’s property 2013 to be sufficiently similar to the

circumstances behind the charged offending, which I do not, the prejudice of any jury learning that the defendant had a conviction for breaching a protection order that involved physical violence between the two would be, in my view, unfairly prejudicial. That is the prejudicial effect to the defendant would outweigh the probative value of the evidence, and very likely to the extent that any jury would be unfairly predisposed against the defendant.

[44] Accordingly, I order that the Crown’s application is granted in part. More particularly, the fact of the defendant’s 2013 conviction for breaching a protection order in favour of the complainant by his text messaging only can and should be admitted into evidence.

[45] I leave it to the prosecution to negotiate with the defence how this evidence should be put before the jury in the most neutral way possible. That may include a s

9 admission coupled with a copy of the relevant text messages themselves or alternatively production of the caption summary from 2013 editing out the separate conviction for breaching a protection order unrelated to the text messaging.

[46] In the end it seems to me that any illegitimate prejudice resulting from the jury learning of the defendant’s earlier conviction in time for similar offending can be appropriately off-set by a strongly worded direction as to how they might use the propensity evidence.

M Wharepouri

District Court Judge