R v Parata [2016] NZDC 4233 (17 March 2016)

Last Updated: 10 August 2016

IN THE DISTRICT COURT AT WHANGAREI

CRI-2015-088-000010 [2016] NZDC 4233

THE QUEEN

v

_{MICHAEL PARATA}

Hearing:	11 February 2016
Appearances:	C Anderson for the Crown B Meyer for the Defendant Final submissions for Crown received - 25 February 2016
Judgment:	17 March 2016

_{PRE-TRIAL DECISION OF JUDGE K B de RIDDER}

Introduction

[1] The defendant faces charges of rape, sexual violation by unlawful sexual connection, assault with intent to injure, male assaults female, threatening to kill, and breach of a protection order.

[2] The defendant and the complainant are married, but at the time of the alleged offending had been separated for two and a half years.

[3] Just after midnight on 1 January 2015 the complainant’s daughter and partner took her home after having been at a family member’s address celebrating the New Year. After her daughter and partner had left the complainant’s house it is alleged

_{that the defendant forced his way in to the house and over the course of the next few}

R v MICHAEL PARATA [2016] NZDC 4233 [17 March 2016]

hours offended against the complainant as reflected in the charges he faces. The alleged offending started with the defendant accusing the complainant of sleeping with other men, and he continued to make such allegations during the course of seriously assaulting the complainant.

[4] The Crown has applied for an order to adduce propensity evidence, for a direction that the complainant give her evidence in an alternative way, and for an order authorising the taking of a bodily sample. At the hearing of the applications the defendant consented to the application for a suspect compulsion order. The defendant opposes the remaining two applications.

Mode application

[5] The application is for a direction that the evidence in chief of the complainant be given by the playing of an evidential interview previously recorded, and any further evidence by way of closed circuit television.

[6] The complainant was interviewed on 2 January 2015, the day after the alleged offending. The complainant was interviewed by Detective Bradshaw. Detective Bradshaw was called to give evidence in relation to the mode application.

[7] Detective Bradshaw knows the complainant well. She has maintained contact with her since the time of the interview and she has had repeated discussions with the complainant about ways of giving evidence at trial. The complainant has told Detective Bradshaw that she feels very intimidated by the defendant and that if she has to come in to the courtroom to give evidence she would be too intimidated, too scared, and too frightened to even talk.

[8] She pointed out that at the time she was interviewed the incident was very fresh in her mind. Her recollection would not now be as clear as it was on the day of her interview. Detective Bradshaw discussed with her other means of giving evidence such as behind a screen, but the complainant said that under no circumstances does she want to come in to the courtroom.

[9] She expressed what Detective Bradshaw described as “immense fears” due to being intimidated by the defendant for a number of years. The complainant says the defendant has made threats on many occasions that if the complainant was to say anything about what went on in their relationship he would get her back.

[10] The contact that Detective Bradshaw has maintained with the complainant includes meeting her in person. It was apparent to Detective Bradshaw that when they talked about the court process the complainant became flustered and demonstrated heightened anxiety.

[11] The complainant has medical issues associated with previous injuries and heart conditions. She has had various treatments and operations and is under the care of an Auckland Hospital in relation to her heart condition.

[12] She is also undergoing counselling to help her deal with the abuse that she says she has suffered at the defendant’s hands, and Detective Bradshaw has noticed that the complainant has become more confident in herself as time has gone on and the defendant has been remanded in custody.

[13] Detective Bradshaw spoke with the complainant’s counsellor in the week prior to the hearing of these pre-trial applications. The counsellor told her that the complainant had shown a heightened anxiety about the pending pre-trial hearing and trial and that it had “thrown [the complainant] totally off”.

[14] In cross-examination it was suggested that the complainant’s feelings of being flustered and agitated could be related to the court proceedings rather than to the defendant but Detective Bradshaw considered that it was solely related to the defendant. The complainant had expressed more of a concern about seeing the defendant rather than about coming to court.

[15] It was put to Detective Bradshaw that the complainant could give evidence by way of CCTV without the need to see the defendant. Detective Bradshaw disagreed because a head injury suffered by the complainant meant her memory and recollection is not as clear as perhaps it once was. The complainant considers that

her recollection of what happened would not be as clear as it was at the time of the interview.

[16] The Crown relies upon four of the grounds specified in s 103(3) of the Evidence Act 2006 (“the Act”) in support of the application, namely, the trauma suffered by the complainant, the nature of the proceeding, the nature of the evidence the complainant is expected to give, and the relationship of the complainant to the defendant.

[17] The Crown also points to the comments of the Court of Appeal in Tu’uaga v

_R1 _{where at [26] the Court stated:}

...by adopting alternative means of giving evidence the legislation endorsed the Law Commission’s view that these means enable the complainants in cases such as this to give a “full and coherent” account, so improving the quality of the evidence available to the finder of fact.

[18] For the defendant, Mr Meyer accepted that the mode application should be granted but submits that CCTV would alleviate the clear anxiety that the complainant has about seeing the defendant which might impact on the quality of her evidence. He submitted that the interview is only just over a year old and the complainant can refresh her memory from the transcript, and give evidence orally but by way of CCTV. He further submitted that playing of the video interview leads to a disconnect and affects the fair trial rights of the defendant. Giving evidence by way of CCTV would be the same as being interviewed.

Discussion

[19] It is now well established that there is no default position in terms of giving evidence in the ordinary way.

[20] The two critical issues are whether or not any of the grounds specified in s

103(3) of the Act have been made out, and if so, whether a direction is appropriate in light of the mandatory requirements in s 103(4) to ensure the fairness of the

_{proceeding and that there is a fair trial.}

1 [2013] NZCA 81

[21] There is little doubt that the grounds relied upon by the Crown, particularly the trauma suffered, the nature of the evidence and the relationship of the complainant to the defendant are all made out on the evidence of Detective Bradshaw. A further relevant factor is the need to promote the recovery of the complainant as required by s 103(4)(b)(ii) of the Act. That is particularly so in light of the previous convictions of the defendant for a serious assault on the complainant, and the sustained and serious nature of the current allegations. That is responsibly conceded by Mr Meyer.

[22] The issue then is what form the direction should take. In particular, is a direction that the complainant give her evidence orally but by way of CCTV outside of the courtroom sufficient?

[23] An underlying purpose of allowing for evidence to be given in an alternative way is to ensure that the best evidence is put before the jury. That meets the statutory requirement to ensure the fairness of the proceedings. There is clear uncontested evidence that the complainant suffers health issues which impact on her memory. By the time the trial proceeds it will be some 18 months after the incident. The interview was carried out the day after it. Clearly the complainant’s memory at the time of the interview would be considerably fresher and clearer than as at the date of trial. Given the issues the complainant has, in my view, in order to ensure the fairness of the trial and that the best evidence is put before the jury, a direction is appropriate that the complainant’s evidence in chief be given by way of playing of the video interview, and any further evidence by way of CCTV.

[24] This does not affect the fair trial rights of the defendant. The complainant will still be seen by the jury, and she will still be cross examined in front of the jury. Furthermore, the jury will be given a clear direction that the alternative way of giving the complainant’s evidence says nothing about the defendant and the jury are not to draw any adverse inference against him.

Propensity evidence application

[25] On 7 July 2014 the defendant pleaded guilty to two charges of assaulting the same complainant with intent to injure her. He was convicted and sentenced to two years imprisonment. The Crown seeks to adduce as propensity evidence the comments of the sentencing Judge where he set out the factual basis upon which he sentenced the defendant.

[26] The defendant called evidence at the hearing of this application. Mr J Moroney, who was Counsel for the defendant at the time the defendant entered his guilty pleas to the two charges, gave evidence. The defendant was to stand trial commencing 7 July 2014 on several charges including the two charges of assault with intent to injure. The charges included charges of serious sexual offending against the complainant including rape. On the morning the trial was due to commence there was a meeting in the presiding trial judge’s chambers with the Crown prosecutor and Mr Moroney. The Crown proposed a resolution that if the defendant pleaded guilty to the two charges of assault with intent to injure then the Crown would not proceed on the more serious sexual offending charges. As part of the discussion about potential resolution the defendant sought an indication as to the likely penalty he would receive if he pleaded guilty to the two charges of assault with intent to injure. The sentencing Judge gave an indication that he would receive a sentence of no more than two years. As he had been in custody for over a year, a sentence of two years or less of imprisonment would see him released immediately.

[27] Mr Moroney then spoke with the defendant privately and explained to him that if he accepted the proposed resolution convictions would be entered, but he would be guaranteed to “walk out the front door”. Mr Moroney also discussed with the defendant the risks of proceeding to trial on all charges.

[28] The defendant stated to Mr Moroney that he did not assault the complainant but if he could leave custody that day he would accept the proposed resolution. However the defendant was adamant that he was determined to defend all charges including the assault with intent to injure charges and he never wavered from those instructions.

[29] Mr Moroney confirmed that the defendant had not complained about the advice given to him by Mr Moroney in respect of his entering guilty pleas to the two charges.

[30] After receiving advice from Mr Moroney the defendant pleaded guilty to the two charges and was sentenced immediately. In his sentencing decision, the sentencing Judge set out the factual basis on which he sentenced the defendant.

[31] Those facts were that between 2am and 4am on 8 January 2013 the defendant and the complainant were asleep in bed. In the early hours of the morning the defendant woke up and became aggressive towards the complainant accusing her of having an affair. The sentencing Judge described that as a longstanding sore in their relationship with the defendant accusing his wife of having an affair and her denying it. He picked her up by the hair out of the bed and dragged her in to the kitchen. He slapped her on the back of the head and accused her of sleeping with her daughter’s boyfriend. He punched her twice in the face striking her under the left eye and continued to interrogate her about his allegations. He punched her several times in the stomach and in the arms. After several hours he stopped and went back to bed.

[32] A few hours later the following morning when the defendant awoke he again accused the complainant of having an affair. He slapped her across the face with an open hand and again dragged her by her hair from the bed and down the hall. He pushed her head a number of times, at least five, in to the wall. He dragged her by the hair in to the kitchen where she was forced to sit on a chair and he questioned her again about her alleged affair.

[33] At the hearing on 11 February 2016 neither the Crown nor Mr Meyer made oral submissions on the proposed propensity evidence application. Rather both sought to file further written submissions and appropriate timetabling directions were issued. I have received written submissions from the Crown in addition to submissions previously filed, but Mr Meyer has advised the Court that he does not intend to file any written submissions.

[34] The Crown submits that the evidence of the defendant’s two previous convictions for assault with intent to injure on the same complainant and the factual basis on which he was sentenced on those two charges are evidence of the defendant’s propensity to use violence against his wife. The first issue is whether or not the proposed evidence is in fact propensity evidence. That is, evidence that tends to show that the defendant has a “propensity to act in a particular way or have a particular state of mind, being evidence of acts, omissions, events, or circumstances

with which [the defendant] is alleged to have been involved”. In Mahomed v R2 at

_{[3] the Supreme Court stated:}

It is important to note however, that the definition of propensity evidence refers to a tendency to act in a particular way or to have a particular state of mind. 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.

[35] The facts relating to the defendant’s convictions in 2014, and the allegations he now faces clearly meet the definition of propensity evidence. That is they show a tendency on the part of the defendant to accuse his wife of sexual behaviour with other men and seriously assault her over some hours.

[36] Having determined that the evidence is propensity evidence, it is then necessary to determine whether or not the evidence is admissible pursuant to s 43 of the Act. To be admissible the evidence has to have 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. In assessing the probative value it is mandatory to take in to account the nature of the issue in dispute. In this case, it is simply a matter of whether or not the defendant has acted in the way alleged by the complainant. Thus the credibility of the complainant will be in issue.

[37] There is just under two years between the events which led to the defendant’s conviction and the allegations of the current offending. There was a high degree of similarity between the two incidents. On both occasions the defendant becomes

_{angry at what he believes is the complainant’s sexual conduct with other men,}

2 [2011] NZSC 52

refusing to accept her denials, and resorting to serious violence. The probative value of the evidence is strong.

[38] In assessing the complainant’s credibility the jury might well wonder why the defendant would suddenly commit a series of serious assaults on his wife over a number of hours. They will be assisted in their evaluation of the complainant’s credibility if they are aware that he has acted in a similar way before.

[39] It is then necessary to consider the prejudicial effect of the evidence on the defendant, and in particular whether the evidence is likely to unfairly predispose the jury against him, and whether the jury will tend to give disproportionate weight in reaching its verdict.

[40] A difficulty does arise in that the evidence of the two previous convictions is only propensity evidence in relation to the current charges of assault with intent to injure, male assaults female, threatening to kill, and breach of a protection order. It is not propensity evidence in relation to the charges of rape and sexual violation by unlawful sexual connection. There is a risk that the jury might unfairly use the evidence of the previous convictions when assessing the charges of sexual offending. However, the probative value of the evidence of the two previous convictions is very high in relation to the assault charges the defendant now faces and the prejudicial effect in relation to the charges of sexual offending can be met by a clear direction to the jury that in assessing whether or not the jury are satisfied the sexual offending occurred, the evidence in relation to the two previous convictions for assault with intent to injure are to play no part in their consideration. Thus, any risks of unfair predisposition or of the jury giving disproportionate weight to the evidence will be avoided.

[41] The evidence of Mr Moroney as to how the defendant came to enter guilty pleas to the two previous charges was to the effect that the pleas were simply pleas of convenience in order to enable the defendant to be released from custody immediately. Effectively his evidence was to the effect that the defendant denied the offending and was prepared to proceed to trial on those two charges together with the other more serious charges he faced, but notwithstanding that he was prepared to

enter guilty pleas in order to be released. Therefore, by implication, the defendant is saying that the proposed propensity evidence is unreliable.

_{[42] The situation is identical to that which arose in the case of Martinac v R}3_.

[43] In Martinac the Court of Appeal confirmed the District Court finding that to treat guilty pleas entered for convenience and pragmatic reasons as unreliable would

_{turn the justice system on its head.}

[44] The pleas of guilty and the proof of conviction are conclusive proof that the defendant committed those two offences. The evidence of the previous convictions and the factual basis on which the defendant was sentenced are admissible propensity evidence.

Result

[45] The evidence of the defendant’s previous convictions for assault with intent to injure are admissible at his trial.

K B de Ridder

_{District Court Judge}

3 [2015] NZCA 205