R v Utatao [2018] NZHC 802 (26 April 2018)

Last Updated: 26 April 2022

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-2501 [2018] NZHC 802

THE QUEEN

v

SAMUEL MCCARTHY UTATAO

Hearing:	26 April 2018
Appearances:	K Lummis and D Houghton for Crown B Meyer for Defendant
Judgment:	26 April 2018

JUDGMENT OF LANG J

[as to pre-trial admissibility issues]

This judgment was delivered by me on 26 April 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date...............

R v UTATAO [2018] NZHC 802 [26 April 2018]

• [1] Mr Utatao is to stand trial in this Court on 28 May 2018 on 16 charges. These include five charges of assault with a weapon, two charges of assault with intent to injure, three charges of threatening to kill or do grievous bodily harm, one charge of unlawful sexual connection and two charges of rape. The charges relate to two complainants, one of whom (AM) was in a relationship with Mr Utatao at the time of the alleged offending.

• [2] This will be Mr Utatao’s second trial on these charges. His first trial commenced in October 2017, but was aborted after counsel then acting for Mr Utatao withdrew on the sixth day of the trial.

• [3] The Crown now seeks orders under s 101 of the Criminal Procedure Act 2011 (the Act) in relation to the admissibility of the following evidence:

(a) A letter tendered by Mr Utatao to the Court at a callover on 7 September 2016.

(b) Evidence, and in particular photographs, of previous injuries allegedly inflicted on AM by Mr Utatao.

The letter presented by Mr Utatao to the Court on 7 September 2016

• [4] Mr Utatao attended a criminal callover conducted by me on 7 September 2016. When his case was called his then counsel, Mr Hoskin, obtained leave of the Court to withdraw. Before withdrawing, Mr Hoskin advised me that Mr Utatao wanted to provide me with a letter. A letter dated 6 September 2016 was then handed to me by the Registrar. This was in the following terms:

Your honour,

My name is Samuel Utatao. I am appearing before you today for a callover/trial review. I have instructed my lawyer, that I do not wish for this case to drag on, & I am willing to make a plea for the threatening charges. I don’t want to drag this on, or have the victim, [AM] dragged through the courts your honour. I have respect for her and for the courts, and I don’t want to waste the courts time or money.

I will plead to the threatening charges, but I will not plead to something I didn’t do (the rape charges). The victim in all of this is my partner, & she has

contacted me through a third party, I have not made any contact with her. She has stated your honour, that she loves & misses me, and that she is trying to get the charges dropped, I also have phone txt proof of these statements your honour. I am not an arrogant or concieted [sic] person, & I will take ownership of my actions. Thank you for your time.

• [5] At the conclusion of the hearing counsel then appearing for the Crown, Mr Johnstone, asked whether he could have a copy of the letter Mr Utatao had handed to me. I agreed in the following terms:

THE COURT:

Yes, I don’t see why the Crown shouldn’t have a copy it’s an indication of what he wishes to happen. I’m not sure it’s going to advance matters further.

• [6] Mr Johnstone duly obtained a copy of the letter from the Registrar. He subsequently passed it on to the officer in charge of the case with the request that he speak to AM to ascertain whether she had been in contact with Mr Utatao regarding the matters referred to in the letter. The Crown wishes to produce the letter at the re- trial as evidence against Mr Utatao on the charges of threatening to kill or do grievous bodily harm.

• [7] This is the second occasion on which the Crown has attempted to have the letter produced as evidence. Counsel for the Crown applied to Peters J, the trial Judge at the first trial, for leave to produce the letter as an exhibit. At that stage, however, Peters J did not know how the Crown had come into possession of the letter. She was also concerned it might contain material Mr Utatao had sought to tender to the Court on a confidential basis. In addition, she observed that the authorship of the letter would need to be established. For those reasons Peters J was not prepared to permit the Crown to produce the letter as an exhibit at the first trial.

• [8] Matters have now moved on because the circumstances in which the Crown came into possession of the note have been clarified. It is clear from the transcript of the hearing on 7 September 2016 that the Crown obtained the note with the permission of the Court. It is also clear that Mr Utatao wrote the letter, and did not object when the Crown sought to obtain a copy of it.
• [9] Prior to the hearing Mr Meyer confirmed Mr Utatao no longer objected to the production of the letter at trial so long as the whole of it went in as an exhibit. The Crown has confirmed that this will occur.

• [10] I am satisfied in any event that the letter is admissible as a statement of the defendant under s 27 of the Evidence Act 2006. It is clearly relevant to the charges of threatening to kill or cause AM grievous bodily harm because it is arguably an admission of guilt in relation to those charges. The Crown did not obtain the letter improperly or unfairly in terms of s 30 of the Act, and it was not tendered to the Court subject to any conditions of confidentiality or privilege. Furthermore, it will not have an unfairly prejudicial effect on Mr Utatao.

• [11] I therefore rule the letter to be admissible at the second trial.

Evidence of previous injuries

• [12] The offending against AM is alleged to have occurred on the afternoon and evening of 6 March 2016. The Crown seeks to adduce evidence from AM regarding injuries inflicted on her by Mr Utatao several weeks earlier. AM told the police about these on 7 March 2016, and also provided the police with copies of photographs of her injuries that she had stored on her cellphone.

• [13] The Crown proposes to adduce the evidence through both AM and the police officer who obtained copies of the photographs on 7 March 2016. The Crown seeks to adduce the evidence as background or narrative evidence regarding the nature of the relationship between AM and Mr Utatao prior to the alleged offending. It also contends the evidence is admissible on the basis that the jury will be entitled to invoke propensity reasoning when assessing the case against Mr Utatao.

Background or narrative evidence?

• [14] In this context the Crown relies on the following observations of the Court of Appeal in Perkins v R:¹

¹ Perkins v R [2011] NZCA 665 at [20]-[21].

Although it will fall within the definition of propensity evidence the relevance of evidence of other misconduct by the defendant to the victim will not normally depend on ideas of coincidence. Its relevance as bearing on the background or the nature of the relationships between those involved will usually be sufficiently obvious as to not require particular explanation. The rationale for its admission rests on it establishing hostility on the part of the defendant to the victim and the violence of its expression. It is not always necessary to direct the jury in relation to such evidence. The risk of unfair prejudice associated with such evidence is likely to be less than with orthodox similar fact evidence ...

(footnote omitted)

• [15] On Mr Utatao’s behalf Mr Meyer opposes the evidence being admitted. He contends the evidence will have an unfairly prejudicial effect on Mr Utatao, particularly given the fact that he denies inflicting the injuries and has never been charged with doing so. He argues the origin of the photographs is unknown, and it is also not possible to determine when they were taken. He contends the lack of any nexus between Mr Utatao and the injuries creates unfair prejudice for him.

• [16] The answer to this submission lies in the fact that AM would give evidence about the incident that led to Mr Utatao inflicting on her the injuries depicted in the photographs. Although AM cannot give a precise date for that incident she can apparently say it occurred within a few weeks prior to 6 March 2018. If AM gives that evidence it will provide an obvious nexus between Mr Utatao and the injuries.

• [17] I consider the evidence falls within the category of evidence described by the Court of Appeal in Perkins. It would be artificial for the jury to be required to consider AM’s allegations about the alleged offending on 6 March 2016 without knowing the history of her relationship with Mr Utatao. Incidents of violence that occurred within the course of the relationship will be of particular relevance to that background or narrative.

• [18] In particular, the evidence may assist the jury to understand why AM complied with Mr Utatao’s demands over several hours on 6 March 2018 and then later visited a liquor store with him before taking a bus home. It may also explain why she did not report the offending to the police until the following day.
• [19] The Court may not admit evidence if it will have an unfairly prejudicial effect on the proceeding.² In considering that issue the Court is required to take into account the right of the defendant to offer an effective defence.³ I do not consider these principles will be infringed if the evidence is admitted. It will form a relatively minor part of the overall narrative of background events, and the jury will readily understand its relevance. The evidence also relates to violence at a significantly lower level than that which the Crown alleges occurred on 6 March 2016. Any unfair prejudice to Mr Utatao can be met by careful directions regarding the use to which the jury may put the evidence.

• [20] The evidence is therefore admissible as part of the background or narrative leading up to the incidents giving rise to the charges.

Propensity evidence?

• [21] The evidence falls within the definition of propensity evidence contained in s 40(1)(a) of the Evidence Act 2006 (the Act) because it tends to show Mr Utatao acts in a violent manner towards AM when he becomes angry with her. As a result, it will only be admissible if it has probative value in relation to an issue in dispute that outweighs any unfairly prejudicial effect it might have for Mr Utatao.⁴ When assessing the probative value of the evidence the Court must therefore first identify the issue in dispute to which the propensity evidence is said to relate.⁵ In doing so the Court may consider, to the extent they are relevant, the factors set out in s 43(3) of the Act.

• [22] The issue in dispute in relation to the charges involving AM will be whether the incident she described actually occurred. AM contends she visited Mr Utatao’s apartment on the afternoon of 6 March 2016 and he became angry because he believed she was seeing another man. Over the next five hours he threatened and assaulted her before proceeding to rape her and require her to perform oral sex on him. Mr Utatao denies that any of these acts occurred.

² Evidence Act 2006, s 8(1)

³ Evidence Act 2006, s8(2).

⁴ Evidence Act, s 43(1).

⁵ Evidence Act, s 43(2).

• [23] If permitted to do so, AM will describe the earlier incident and will also produce copies of the photographs stored on her cellphone showing her with a black eye. The Crown says the evidence demonstrates that AM suffered violence at the hands of Mr Utatao after he became angry with her on another occasion just weeks before the alleged offending with which he is now charged. It involved violence of a type not dissimilar to that which Mr Utatao inflicted on her on 6 March 2016. For that reason the Crown relies on concepts of linkage and coincidence to submit that the jury may find it is no coincidence AM now complains of violence being inflicted on her on that date.

• [24] Mr Meyer opposes the evidence being admitted for the reasons set out above.

• [25] I accept that, at a high level of generality, the conduct said to amount to propensity evidence may demonstrate Mr Utatao has a tendency to resort to violence when he becomes angry at AM. Beyond that, however, it is difficult at this stage to assess the probative value of the evidence. The details of what AM can say about the earlier incident are currently quite vague, so it is impossible to meaningfully assess the extent to which the violence on the earlier occasion has similarities with that associated with the alleged conduct on which the present charges are based. Any determination as to whether the evidence is admissible as propensity evidence should therefore be made at trial after AM has given evidence.

• [26] As matters currently stand it is also difficult at this stage to see the value of the evidence to the Crown case over and beyond its status as background or narrative evidence.

Conclusion

• [27] The evidence of the earlier incident, including the photographs, is admissible as background or narrative evidence but not at this stage as propensity evidence. The Crown can renew its application for the evidence also to be admissible as propensity evidence at the close of its case.

• [28] To ensure the jury does not give undue weight to the evidence I direct that the photographs are not to form part of the booklet of photographs the Crown will no

doubt distribute to the jury at the beginning of the trial. They can be produced as a separate exhibit once AM has confirmed she took the photographs and they depict the injuries she suffered in the earlier incident.

Lang J

Solicitors:

Crown Solicitor, Auckland