R v Pihere [2018] NZDC 19172 (13 September 2018)

Last Updated: 19 June 2020

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT MANUKAU I TE KŌTI-Ā-ROHE KI MANUKAU

CRI-2017-055-002468

[2018] NZDC 19172

THE QUEEN

v

[TURI PIHERE]

Hearing:	22 August 2018
Appearances:	Ms Pridgeon for Crown Ms Te Whata for the Defendant
Judgment:	13 September 2018

RESERVED DECISION OF JUDGE S PATEL

[1] [The complainant] alleges the defendant acted in a violent and threatening manner towards her. One occasion was when they were in a relationship. The others following the end of their relationship.

[2] The defendant faces thirteen charges based on those allegations. He has applied for three of the charges to be heard apart from the others by way of an application for severance.1

[3] The allegations are:

1 The defence application was for charges two and three to be heard separately. During submissions, the application expanded to include charge four.

(a) Charge 1 – Injuring with intent to injure

• (i) Between [date deleted] 2015 and [date deleted] 2016, when the defendant and [the complainant] were in a relationship, the defendant punched her in the face when they were at the defendant’s [relative]’s home.
  

(b) Charge 2 – Injuring with intent to injure

• (i) On 2 September 2017, there was an argument between the defendant and the complainant at the complainant’s house. The defendant kicked the complainant causing her to fall on the ground. He then spat on her face and kicked her to the body and legs. The complainant received bruising to her arm and face.
  

(c) Charge 3 – Threatening Act

• (i) On 30 October 2017, at about 9pm the defendant arrived at the complainant’s home. He was angry, he asked the complainant why she would not let him move back in with her. He said he would move back in regardless of her wishes. The defendant then went through the contents of the complainant’s phone. The defendant made accusations of the complainant being in a relationship with another person. He left the address. He returned shortly after, threatening that he was going to set fire to the house and that the complainant should “watch her back” and that “he would get someone else to do it”. At 11.10pm the defendant sent the complainant a text message stating “Don’t think for a second I won’t do what I said I will do”. The next day the defendant sent a text message: “you have one last chance, either you agree to me that I come back and live at the house I helped build or you and I will never have the house, understand, it’s your choice and the fate of the house is now in your hands before it comes back to mine (sic)”.

Charge 4 – Attempting to pervert the course of justice

(ii) Between 3 and 17 November 2017, the defendant sent numerous text messages to the complainant for her to contact the police to withdraw the charges he was facing in relation to the above alleged incidents.

(d) Charges 5 and 6 – Assault with a weapon and intimidation

• (i) It is alleged that these incidents took place between 24 and 25 November 2017. On 24 November 2017, at about 11pm the complainant returned home from work and found the defendant’s car in the driveway. She sent a text message to him: “get away from the house or I am calling the cops”. The complainant asked the defendant to return the house key he had in his possession and that she would call the police if he did not return it. An argument occurred over the key. The defendant started to drive away from the address pretending to throw the house key out of the window. The complainant told the defendant to find the key otherwise she would call the police. The defendant got out of his car and dropped the key near his feet. The complainant bent down to pick up the key. As she stood back up, the defendant was standing over her with a hammer in his hand. He held the hammer close to the side of the complainant’s head and said, “I want to knock the fuck out of you”. The defendant then apologised and suggested he and the complainant go inside. The defendant then threatened the complainant saying, “if you call the cops, I will get gang members to come after you”. The complainant did not call the police as she was scared the defendant would carry out his threats.
  

(e) Charge 7 – Theft

• (i) On [date deleted] 2017, at about 7am the complainant was at a gym. She placed her house keys in a cubby hole. During her workout, the defendant walked in and removed a house key from the complainant’s keyring. At 9.32am, the complainant sent a text message to the defendant accusing him of taking the key, which he denied. The complainant threatened to have CCTV footage of the defendant’s movements while he was at the gym checked. The defendant then admitted he had taken the key and claimed he would return it.
  

(f) Charges 8 to 13 – Aggravated burglary, kidnapping, injuring with intent to injure, assault with a weapon and threatening to kill

• (i) On 3 December 2017, at about 2.50am the complainant arrived home. She walked inside and locked all doors and windows. Later when she was in bed, she heard banging and crashing. The defendant was in the doorway of her bedroom, he was wearing a cap on his head and bandana covering his nose and mouth. He was holding a machete. He got on top of the complainant and straddled her, pinning her arms to her side. He placed both his hands around her neck for approximately five seconds. She was unable to breath and began to lose consciousness.
  
• (ii) The defendant strangled the complainant two more times. The second time, he held a machete to the side of the complainant’s neck. The complainant suffered redness and pressure marks around her neck and shoulder area as a result.
  
• (iii) The defendant took the complainant’s cell phone, asked her to unlock it but she refused.
  
• (iv) The defendant said, “I have something for you, don’t move or else I will knock you out”. The defendant walked outside the sliding door and returned with a bouquet of flowers and a card,

which he handed to the complainant. He then locked the door and closed the blinds to the bedroom. The defendant waved a machete in front of the complainant. He again tried to make the complainant unlock her cell phone. He said if she did not unlock her phone, he would “do what I have to do” and picked up a dressing gown rope while he said this. The complainant unlocked her phone and the defendant spent several minutes looking through it. He questioned the complainant as to whether she was in a new relationship and asked if she was sleeping with a male. The complainant denied a new relationship but the defendant called her a liar. After the defendant had finished looking at the cell phone, he picked up a dining chair and threw it at the complainant, hitting her on the leg.

(v) At about 5am, the complainant told the defendant she was tired and walked into her bedroom. She asked him to get into bed with her and go to sleep. The defendant asked to see the complainant’s cell phone again, but she hid it under her bed. The defendant stated several times that he was going to kill the male she was dating.

(vi) The defendant eventually calmed down and removed his jumper. The complainant saw that he had a hammer, a small axe and a kitchen knife tucked into a weight belt, around his waist. The defendant removed the belt and placed it next to the complainant’s side of the bed.

(vii) At about 6.30am the complainant managed to persuade the defendant to let her check on her mother, who lives [nearby]. Once out of the defendant’s sight, the complainant ran to her mother’s property and called the police. The defendant left prior to the police arriving.

(viii) When the complainant returned to her address after attending the police station, she found a note on her bedside table written by the defendant. The note read “I am so sorry for everything [nickname deleted]. I know you called the cops and I let you. Just to let you know, I love you so so much [nickname deleted] and I never wanted this 2 happen”.

Procedural Background

[4] On 21 March 2018 joinder of all charges was granted by Judge Hikaka pursuant to s 138(2) of the Criminal Procedure Act 2011.2 A joint memorandum has been filed by the parties agreeing to a fresh application for severance instead of an appeal of the joinder order. I consider the application ought to proceed.

The Principles of Severance

[5] Section 138(4) of the Criminal Procedure Act 2011 provides the power for the Court to hear charges separately. A Court may grant severance if it thinks it is in the interests of justice to do so. The legal principles are well known.3

[6] It is accepted by the defendant that the practicalities of the criminal process favour the charges being heard together; severance would require the complainant giving evidence at two trials and this would necessarily have an impact on her.4

The Defence Arguments on Severance

[7] Charges two to four are sought to be severed. There are three grounds upon which the application is brought:

• (a) The charges are separated by time and circumstance from the other charges and the evidence in support of those charges is not admissible on the other charges.
  

2 Police v [Pihere] [2018] NZDC 5639.

3 R v Churchis [2014] NZCA 281.

4 No issue was taken by the defence to matters in a Victim Impact statement of [the complainant] dated 15 January 2018.

(b) The defendant would give evidence on charges two and three. He would not give evidence in respect of the other charges. If all charges were heard together he would effectively be compelled to give evidence on all charges, abrogating his right to silence.5

(c) The evidence relating to the charges sought to be severed would be unfairly prejudicial to the defendant in that it would tend to predispose the jury against the defendant and cause disproportionate weight to be given to that evidence.

Are the Charges Sought to be Severed unrelated in Time and Circumstance to the Other Charges?

[8] The defence position is that charges two to four are discrete sets of offending unrelated in time and circumstance. Those charges are from September and October 2017. The other charges are from November and December 2017, except for charge one which predates the rest from [date deleted] 2015 to [date deleted] 2016.

[9] Time is but one circumstance and as there has been no application to sever charges one, five to seven, and eight to thirteen, it must be the defence’s position that those charges are related in circumstance. That being so, I consider the defence argument for severance of charges two to four is significantly weakened. I see no logical distinction to be drawn separating charges two to four from the other charges. Except for charge one, all other charges, including charges two to four, allege domestic violence within a relatively short space of time. In that respect, I consider all charges are related in circumstance. I consider that hearing the charges together would allow the jury to have a complete picture of the events that developed during and after the parties’ relationship ended.

Is the Evidence on Charges Two to Four Admissible on the other Charges?

[10] The defence position is that the evidence relating to charges two to four is not admissible for the other charges on either an orthodox propensity basis, or a relationship or narrative propensity basis.

5 New Zealand Bill of Rights Act 1990, s 25(d).

[11] As discussed, none of the other charges are to be severed so it must follow that the evidence on those charges is accepted as relevant and admissible on the others. Again, this further weakens the defence argument. If evidence of discrete offending is relevant and admissible on the other charges, it is also relevant and admissible in respect of charges two to four.

[12] Nevertheless, I will set out the steps for deciding whether the evidence relating to charge two to four is admissible on a propensity basis.

Orthodox Propensity

[13] I consider that the evidence across all charges, including charges two to four is propensity evidence under s 43 of the Evidence Act 2006. It tends to show that the defendant acts in a violent and threatening way towards the complainant.

[14] This propensity evidence is relevant to the assessment of issues at trial.

Trial Issues

[15] The defendant made a pre-trial statement in respect of charges two and three. On charge two, he denied the complainant’s version of events and stated the complainant was the aggressor and he acted to defend himself. The issue at trial will be self-defence. What happened during the incident, and whether the defendant’s claim of self-defence can be negated will be in issue.

[16] In relation to charge three the defendant denied making a threat to burn down the house.6 He said that the complainant might not be able to keep the house as the Council might seize it. What was said by the defendant and his intention in saying it will be the issue.

[17] Charge four involves numerous text messages sent by the defendant to the complainant. The trial issue would appear to be what the defendant intended by those.7

6 The defendant did admit he had previously said he would burn the complainant’s house, however without the intention of doing so.

7 At the pre-trial hearing counsel for the defendant was not specific on the defence to be run.

[18] All elements of the other charges are at issue, including identity and whether the defendant carried out the acts with the necessary intent.

[19] Resolution of the trial issues will involve an assessment of the complainant’s credibility on all charges, other than charge four.

[20] The question becomes whether the propensity evidence is probative of the trial issues.

Probative Weight of the Evidence to the Trial Issues

[21] Except for charge four, charges two and three are alike in the following ways:

• (a) They allege violent and threatening behaviour by the defendant towards the complainant.
  
• (b) The allegations of violence are of a similar level of seriousness.
  
• (c) Some of the violence charges involve the alleged use of weapons; charge five and the incident on 3 December 2017 involve the common element of a hammer. Charge eleven involves a machete.
  
• (d) Most of the offending is said to have occurred at the complainant’s house.8
  
• (e) Charge four and the events of 3 December 2017 involve uninvited attendances by the defendant to the complainant’s house where he makes threats and later apologises for his actions.
  

[22] I consider when viewed overall the evidence in respect of all charges reflects a pattern of escalating erratic behaviour by the defendant towards the complainant within a short space of time.

8 There are points of similarity between other charges that are not the subject of a severance application.

[23] The other charges, except for charge one, are all within a three-month period. It would seem the defendant acts in this manner frequently.

[24] Taking the similarities and pattern of offending into account, there is considerable linkage between the sets of charges which is probative to the trial issues.9 That is, other than charge one, the charges arise out of the deterioration of the relationship between the parties over a brief time frame.

[25] In terms of the concept of coincidence, given that identity is in issue on some of the charges, the evidence on charges two to four is probative of whether it is likely a person other than the defendant would behave in a similar way within a short space of time towards the complainant. The evidence is also probative of whether the defendant acted in self-defence, his intention and the credibility of the complainant.

[26] I find that the evidence for charges two to four is of high probative value to the issues at trial in respect of the other charges.

Prejudice

[27] Admission of the evidence will be prejudicial towards the defendant. However, it is unfair prejudice that the Court must guard against. I consider that careful directions would alleviate any potential unfair prejudice including the jury giving disproportionate weight to the evidence. Such directions would require the jury to be directed to be sure of certain offences before they could legitimately use the evidence on a propensity reasoning basis.

[28] The jury would have been directed in the same regard in respect of the other discrete offending which was not subject to an application for severance. I do not consider it is a situation where addition of charges two to four will tip the balance of prejudice in favour of severance.

[29] Should the jury not be satisfied on a particular charge, I consider that the evidence in respect of that charge could still be admissible as evidence of the

9 Whether the alleged acts occurred, the intention of the defendant and the credibility of the complainant.

background and factual narrative. The jury could refer to the evidence in respect of that charge in assessing the credibility of the complainant on the other charges.10

[30] Accordingly, I find the probative value of the evidence outweighs any unfair prejudicial effect on the defendant. I consider the evidence on charges two to four to be admissible on the remainder of the charges.

Relationship/Narrative Propensity Evidence

[31] Given my finding above I need not consider whether the evidence would be admissible on this basis. I refer to my comments above at [29] if the jury were not satisfied of guilt on a particular charge.

The Defendant Giving Evidence on Charges Two to Four and not on other Charges

[32] The defence relied on the case of R v M.11 In that case the defendant faced eight charges of assault on children and a charge of murder of a three-month old baby. The Court allowed severance of the murder charge and the assault charges. One of the factors favouring severance was that it was likely the defendant would have given evidence on the assault charges and not on the murder charge. The Court considered that Herrick v R could be distinguished in that unlike in R v M, it was very unlikely the defendant would give evidence on the murder charge.12 The Court also distinguished R v Daleszak in that the Court could sever the murder charge from the assault charges in a meaningful fashion.13 The Court went on to say:

[30] Here, where both the propensity and narrative dimensions are weak, prejudice associated with having to give evidence where otherwise the right to silence would be maintained is more likely to be considered unfair than in a case where those dimensions are strong.

10 R v R [2018] NZCA 165 at [14] – [20].

11 R v M [2017] NZCA 72.

12 Herrick v R [2012] NZCA 202.

13 R v Daleszak CA246/05, 25 October 2005.

Is it Likely the Defendant would not give evidence on charges other than Charges two to four?

[33] The defendant did not make a statement in relation to the charges that are not sought to be severed. In relation to the charge of theft of the house key he has admitted by text message to the complainant that he took the key. He also left an apology note at the address following the incident on 3 December 2017. It is difficult to see how the defendant could maintain his silence if the complainant were to come up to brief. I consider that as in Herrick v R the prejudice the defendant claims is more apparent than real, and distinguish R v M because the propensity and narrative dimensions of the proposed evidence are strong.

[34] If my assessment as to whether the defendant is unlikely to give evidence is incorrect, I note that the right to remain silent is “a relevant but not a decisive consideration”.14 The case of M v R can be distinguished from the present case in that the propensity evidence in this case is highly probative of the trial issues.

Unfair Prejudice

[35] I have considered this argument on my discussion relating to propensity evidence.

Should the Charges be Severed?

[36] I do not consider that it is in the interests of justice for charges two to four to be heard separately from the remaining charges. The application for severance is declined.

Judge S Patel

District Court Judge

Date of authentication: 14/09/2018

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.

14 Herrick v R, above n 10, at [16].