R v Pihere [2018] NZDC 19172

Published 19 June 2020

Severance — injuring with intent to injure — threatening acts — attempting to pervert the course of justice — assault with a weapon — intimidation — theft — aggravated burglary — kidnapping — injuring with intent to injure — threatening to kill — time and circumstance — admissibility of separate charges — R v R [2018] NZCA 165 — R v M [2017] NZCA 72 — Herrick v R [2012] NZCA 202 — R v Daleszak CA246/05, 25 October 2005 — Criminal Procedure Act 2011, s 138 — Evidence Act 2006, s 43 — New Zealand Bill of Rights Act 1990, s 25(d). The defendant faced thirteen charges for violent and threatening acts against his former partner. This judgment concerns a defence application for three of the charges (charges 2 to 4) be severed and heard apart from the rest. The defendant argued that charges 2 to 4 were separate in time and circumstance from the rest of the charges. Further, he submitted the evidence for these charges was not admissible for the rest of the charges; as he only wanted to give evidence on charges 2 and 3, to hear all of the charges together would force him to give evidence on every charge. It was also said that the evidence for the charges 2 to 4 would be unfairly prejudicial because the jury would tend to give undue weight to that evidence. The Court saw no logic in the defendant's argument that charges 2 to 4 were separate in time and circumstance from the rest of the charges. All the charges except charge 1 alleged domestic violence over a short period of time, so to hear them all together would give the jury a complete picture of the events during and after the relationship. Further, the evidence for charges 2 to 4 was admissible as propensity evidence on all the other charges, as it tended to show that the defendant acted in a violent and threatening way towards the complainant. Apart from charge 1, all of the charges were within a three-month period and reflected a pattern of escalating erratic behaviour by the defendant towards the complainant. The linkages between each sets of charges were probative to the trial issues. Any risk of unfair prejudice to the defendant could be alleviated by proper judicial directions. The Court declined the application for severance. Judgment Date: 13 September 2018.