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R v Ngataua [2023] CKHC 20; CR 489 of 2020 (22 March 2023)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA

(CRIMINAL DIVISION) CRN 489/20,
479/21, 1194/22,
143/23, 144/23, 146/23


R


v


IORAMA NGATAUA


Trial: 21-22 March 2023


Appearances: J Crawford and M Pittman for the Crown

I Ngataua representing himself


Verdicts and reasons: 22 March 2023


VERDICTS AND REASONS OF TOOGOOD, J

[09:04:38]


[1] Iorama Ngataua is charged with:
[2] Mr Ngataua pleaded not guilty to the charges and elected trial by judge sitting alone. He advised the Chief Justice, and confirmed to me, that he did not wish to be represented or assisted by a lawyer. Prior to the trial, I gave Mr Ngataua written information about the trial procedures and other matters related to the conduct of a criminal trial before a judge alone to inform him in his preparation for the trial.
[3] That information included the advice that the Crown carried the burden of proving its case – that is, each element of each charge – beyond reasonable doubt. I told Mr Ngataua that he was entitled to give evidence himself or call witnesses but that he was not obliged to do so. I said that, if he did not do so, that fact was not allowed to be the subject of any comment. I said that if Mr Ngataua did give or call evidence the evidence given may be used against him.[5]
[4] On 21 March 2023, Mr Ngataua heard the Crown’s opening address. He told me he did not wish to make an opening address himself. The Court then heard the evidence from the Crown witnesses, some of whom Mr Ngataua cross-examined, but not all. At the conclusion of the Crown’s case, I asked Mr Ngataua whether he wished to give or call evidence;[6] he said he did not.
[5] I then granted leave to the Crown to make a closing address on matters of fact and law, so that Mr Ngataua would have an opportunity to hear and understand the basis for the Crown’s case against him on each of the charges, related to the evidence that had been given.[7]
[6] After Ms Crawford addressed the Court, I granted Mr Ngataua leave to make a closing address on matters of fact and law, if he wished to do so.[8] He told me he did not wish to do that.

The charges for determination

[7] The charges I am required to decide, sitting as a judge alone, are as follows:
Charge 1
Wilful damage
Section 321(4)(b), Crimes Act 1969
That IORAMA NGATAUA, on 14 September 2020, at Panama, without lawful justification or excuse, and without claim of right, damaged property, namely a Toyota Auris motor vehicle registration #10885, where the value of the damage exceeded fifty dollars.
Charge 2
Threatening act
Section 331(a), Crimes Act 1969
That IORAMA NGATAUA, on 14 September 2020, at Panama, with intent to intimidate, did damage the dwelling house of Brian Morgan.
Charge 3
Assault on a female
Section 214(b), Crimes Act 1969
That IORAMA NGATAUA, on 26 September 2021, at Arorangi, being a male, did assault a female, namely Keeana Kapi.
Charge 4
Wilful damage
Section 21(4)(b), Crimes Act 1969
That IORAMA NGATAUA, on 5 September 2022, at Arorangi, without lawful justification or excuse, and without claim of right, damaged property, namely a Toyota Auris motor vehicle registration #10885, where the value of the damage exceeded fifty dollars.
Charge 5
Contempt of court
Sections 36(a) and 37, Crimes Act 1969
That IORAMA NGATAUA, on 5 September 2022, at Arorangi, having been ordered by the High Court not to contact or interfere with witnesses or complainants relating to the matters before the Court, did disobey such order, thereby committing contempt.
Charge 6
Contempt of court
Sections 36(a) and 37, Crimes Act 1969
That IORAMA NGATAUA, on 17 December 2022, at Arorangi, having been ordered by the High Court not to consume alcohol, did disobey such order, thereby committing contempt.

[8] At the conclusion of the hearing yesterday, I reserved my decision on the verdicts to be entered in respect of each charge and adjourned the sitting of the Court until 9:00 am today, 22 March 2023.

The approach to setting out the reasons for the verdicts

[9] The interests of justice require me to give reasons for the verdicts. They must include a statement of the elements of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of my essential reasons for finding as I have.
[10] My reasons should be enough to show that I have considered the main issues raised at the trial and to make clear in simple terms why I have found the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. There has been no challenge to the credibility of any Crown witness.

The structure of these reasons

[11] In these reasons, I set out first the rules of law and practice I am required to take into account as the judge of the facts. I then set out a summary of the legal principles applying to each of the charges and discuss the elements of each offence. Next, I set out my findings on general matters and I then analyse the evidence relevant to the elements of the charges and give my reasoning and conclusions on each charge.

Relevant rules of law and practice

[12] These are the rules of law and practice I applied in making my findings and reaching my verdicts.

Burden and standard of proof

[13] The Crown carried the burden throughout of proving each element of each charge beyond reasonable doubt before I could bring in a verdict of guilty. The starting point was the presumption that the defendant is innocent of any charge until the contrary is proved beyond reasonable doubt. Proof beyond reasonable doubt is a very high standard of proof, which the Crown could meet only if I am sure that the defendant was guilty of any charge. It is not enough for the Crown to persuade me that the defendant was probably guilty or even that he was very likely guilty of any charge he faced. It is virtually impossible to prove everything to an absolute certainty when dealing with a reconstruction of past events and the Crown did not have to do so. The Crown was not required to prove beyond reasonable doubt every fact on which it relied in support of its case on any charge. A reasonable doubt requiring me to enter a verdict of not guilty on any charge is an honest and reasonable uncertainty left in my mind about the guilt of the defendant on that charge, after I had given careful and impartial consideration to all of the relevant evidence.
[14] Mr Ngataua did not give or call evidence at the trial. He was not obliged to do so and the fact that he did not give or call evidence did not add to the Crown’s case against him.

The nature of the evidence

[15] The Crown’s case turned primarily on the evidence of the eyewitnesses who gave direct evidence of the offending alleged in Charges 1, 2, 3 and 4. The Crown also relied upon certain admissions said to have been made by Mr Ngataua during an interview by Senior Constable Teveka Taru on 26 September 2020 at the Police Station in Avarua. The interview was recorded in a written statement which Mr Ngataua initialled and signed. It was produced as an exhibit. I also had regard to the other exhibits produced by the Crown: a booklet of relevant photographs and a copy of a bail bond dated 7 July 2022, which Mr Ngataua had signed, containing the terms on which he was granted bail pending his trial.
[16] I have considered all of the evidence that has been placed before me in this case.

Separate verdicts

[17] Although six charges have been heard together, it was necessary for me to consider and decide each charge separately. That was an important point to bear in mind in this case because the allegations, apart from those on the contempt charges, arose out of a domestic relationship between Mr Ngataua and his former partner, Demi Smith, who is the mother of two of his children. Ms Smith was the complainant and a Crown witness regarding the wilful damage charges, and a witness called in relation to the threatening act and assault charges. It was necessary to avoid assuming that simply because I had come to a certain view as to the proof of the Crown’s case in respect of one of the charges, the same conclusion should necessarily follow in respect of any one or more of the others.

The law applying to each type of charge

[18] I set out now the elements of each of the charges which the Crown was required to prove beyond reasonable doubt, plus applicable principles of law.

Wilful damage – s 32(4)(b), Crimes Act 1969

[19] For Mr Ngataua to be found guilty of wilful damage as alleged in Charges 1 and 4, the Crown is required to prove beyond reasonable doubt that:
[20] I accept that Mr Ngataua is not required to prove that he had any lawful justification or excuse, or claim of right.

Threatening act – s 331(a), Crimes Act

[21] For Mr Ngataua to be found guilty of Charge 2, that is, of committing a threatening act, the Crown is required to prove beyond reasonable doubt that:
[22] I consider that “intimidate” means to frighten someone or cause them to be fearful.

Inferences

[23] In determining whether the Crown has proved that Mr Ngataua intended to intimidate any person at the time he allegedly damaged Brian Morgan’s dwelling house, I am invited by the Crown to draw inferences as to Mr Ngataua’s state of mind. In determining the facts, it was for me to decide whether I was prepared to draw the inferences which the Crown invited. The inferences which I drew were conclusions flowing logically from the facts that I accepted were reliably established; I did not guess or speculate.

Assault on a female – s 214(b), Crimes Act 1969

[24] For Mr Ngataua to be found guilty of committing an assault on a female as alleged in Charge 3, the Crown is required to prove beyond reasonable doubt that:
[25] For the purposes of the charge, “assault” means the act of intentionally applying force to the person of another, directly or indirectly.[9] The genders of Mr Ngataua and Keeana Kapi are not disputed.

Contempt of court – ss 36(a) and 37 of the Judicature Act 1980-81

[26] For Mr Ngataua to be found guilty of contempt of court as alleged in Charge 5, the Crown is required to prove beyond reasonable doubt that:
[27] For Mr Ngataua to be found guilty of contempt of court as alleged in Charge 6, the Crown is required to prove beyond reasonable doubt that:

Findings of general facts relevant to the charges

The credibility and reliability of the eyewitnesses

[28] There was no challenge to the credibility or reliability of any of the eyewitnesses. Despite the background to this case of domestic disharmony, none of the witnesses demonstrated any animosity towards Mr Ngataua. They gave their evidence in a calm and dispassionate manner despite obviously being upset by the events they were required to relive. Demi Smith struck me as being an honest witness, acknowledging fault on her part where appropriate. Her father, Brian Morgan, was obviously very upset by the incident he described which involved conduct by Mr Ngataua that threatened not only his home and other property but also the wellbeing of his grandson and other family members. Keeana Kapi, Mr Ngataua’s stepdaughter, was similarly emotional about having to recall an incident that she plainly found traumatic. But it appeared to me she was honestly recalling what she could about the incident in which she and her mother say she was assaulted. The apparent discrepancy between her description of being struck on the right cheek and the evidence of Nurse Emmanuela, who examined her at the hospital, of redness to the left forehead only indicated that there was no attempt by Keeana to contrive or embellish her evidence. Her honest recollection of a brief, traumatic incident included allegations of being struck on the face by Mr Ngataua’s hand. Her inability to recall whether it was an open hand or a punch indicated honesty. That evidence was corroborated by her mother’s evidence which was similarly restrained. She also was firm on the fact that Mr Ngataua had struck Keeana, but she did not attempt to embellish her evidence. She was some distance away from the events as she observed them but she was not challenged as to her ability to see what was going on.
[29] The other witnesses to the incident on 5 September 2022 at Margaret Apaipo’s home were similarly restrained; they confined their evidence to essential facts without overreaching. Their recollections were not challenged in cross-examination by Mr Ngataua.

Matters proved beyond reasonable doubt

[30] Mr Ngataua did not make any formal admissions, but the background to the alleged offending was not disputed and, indeed, most of what was alleged by the Crown’s witnesses on central issues was not challenged in cross-examination. Key elements of Charges 1, 2 and 4 were admitted by Mr Ngataua in the written statement to the Police. I found the following facts to be proved; unless otherwise indicated, I was satisfied of those facts beyond reasonable doubt. This summary of the proved facts draws in part upon the succinct opening remarks of Ms Crawford, who was lead counsel for the Crown, which – now that I have heard the evidence – I accept as accurate.
[31] The charges relate to alleged violent offending against Mr Ngataua’s former partner, Demi Smith, and her family, and associated breaches of bail conditions that had been imposed on Mr Ngataua. Demi and the defendant were together for some 13 years. They have two children together: Brian, aged five years, and Autumn, a two-year-old. Demi also has a child from a previous relationship: Keeana Kapi, who is currently 16 years old.
[32] The first incident took place on 14 September 2020. Mr Ngataua and Demi arrived at Demi’s parents place after work. Their son Brian had been looked after by Mr Morgan during the day and there was to be a handover. Mr Ngataua became angry with Demi after observing a wet patch on the back of her shorts. I infer from the evidence about allegations of past infidelity by Demi that Mr Ngataua was jealously suspicious of her. She explained to him that the wet patch was the result of her having washed mats as part of her duties in her father’s business; Mr Ngataua was not placated. He became irrational and began yelling loudly at Demi. He called her a “fat slut” and made other abusive comments.
[33] Demi ran down the driveway away from her parents’ house. By this time, her father, Mr Morgan, had left the property to go the supermarket. Demi phoned him and he returned immediately. Demi also returned to the property with a neighbour, Brendon Napa, who lived some 300 metres distant. Mr Ngataua smashed the right rear window of Demi’s Toyota Auris vehicle. Seizing a nearby petrol canister, he began pouring petrol through the open driver’s window of the car and then turned his attention to Mr Morgan’s van which, by this time, had returned and was parked nearby. He poured petrol through the van and then moved over to the house. Mr Ngataua threw the petrol canister into the living area, where it struck a wall. More petrol spilled inside the house. Mr Ngataua then began looking in the Toyota for a lighter or matches, saying he was going to burn the house down.
[34] Mr Ngataua described the incident in his written police statement in these terms:

“ ... On Monday I went to finish my job from Sunday at Demi’s house in Panama. From there I went back to Tupapa. It was the same day in the afternoon she came to pick me up in Tupapa and took me to Panama. From there we were doing some stuffs and Demi’s father left to go and do a job. I don’t know, hey but Demi went to bend down, I saw the back of her pants and they were wet patch. I just snapped and lost it. I just smashed the car window, then I started pouring petrol everywhere, then I threw the petrol bottle in the house. I just remember saying I’ve had enough of this shit. But I’m really very disappointed because I’ve been redounded from my work and I spent all my money on materials for their house. I did not touch Demi, she had already taken off onto the road. Then Brendon Napa came to calm me down, he grabbed me on the shoulder and walked me around to calm me down. He was just calming me down, telling me there’s more to life than getting myself into a lot of trouble. After we were talking I jumped on the Mat Man’s bike and drove off.

  1. Why did you get angry about your partner’s pants being wet?
  2. She’s fucking around with me.
  3. What do you mean she’s fucking around with you?
  4. Cheating on me by going around with other guy.”
[35] It is clear to me that Mr Morgan was particularly upset by these events and that he genuinely feared serious damage to his house and a risk of harm to the family members, including his grandson Brian, if Mr Ngataua found some means of ignition.
[36] The next incident took place on 26 September 2021. There had been tension between Mr Ngataua and Demi Smith and they took the young children and Keeana to Wigmore’s for breakfast. Afterwards, Keeana drove the family members towards their home. There was still tension between Demi, who was seated in the passenger seat, and Mr Ngataua who was sitting in the back with Brian and Autumn. Although Keeana could not recall Autumn being present in the car, I find it highly probable that she was there also. Demi asked Keeana to stop the car so she could get out, because of the arguing that was taking place. Keeana refused and Demi then pulled on the handbrake. The car stopped. Demi got out and ran down the road.
[37] Mr Ngataua got even angrier, yelling at Keeana to get out of the car. Eventually she ran around the front of the car towards the beach but Mr Ngataua caught up with her and struck her across the face. The blow was seen by Demi from some distance away. I am satisfied beyond reasonable doubt that Keeana was struck. I am not sure which part of the face was contacted but that makes no difference to the finding of the charge. Mr Ngataua drove off in the car with Brian and Autumn inside.
[38] Despite these incidents, the relationship between Demi and Mr Ngataua continued. Almost a year later, on 7 July 2022, Mr Ngataua’s bail conditions for his remand on the charges resulting from what had occurred in September 2020 and September 2021 were amalgamated and amended. A bail bond was issued and signed by Mr Ngataua. The relevant conditions of the bond were:

2. Not to purchase or consume alcohol

...

4. Not to contact or interfere with witnesses or complainants relating to the matters before the court.

[39] On 5 September 2022, Demi was visiting a friend, Margaret Apaipo. By then she had separated from Mr Ngataua who was living on a boat supplied by his employer. Mr Ngataua arrived at Margaret Apaipo’s house on a motorbike. He was stumbling and appeared to Margaret to be intoxicated. He got angry, again because he was apparently jealous, shouting abuse and calling Demi a slut. Demi ran away. Ms Apaipo and a neighbour, Ms Ngarueiti, saw and heard him smash the window of Demi’s Toyota Auris. The Police were called but Mr Ngataua had already left on his bike before they arrived.
[40] On 17 December 2022 Constable Maruariki located and arrested Mr Ngataua on another matter. He said he smelled the strong odour of alcohol on Mr Ngataua’s breath at time of the arrest. The constable was not challenged on that evidence.

Findings and conclusions on the particular alleged offending

[41] I turn now to give my findings and conclusions on the alleged offending to which the Mr Ngataua has pleaded not guilty. In coming to these views, I have taken into account the general findings that I have discussed, including my views as to the credibility of the witnesses so far as that is relevant.

Charge 1

[42] On Charge 1, wilful damage, I find that Mr Ngataua damaged property, namely Demi Smith’s Toyota Auris motor vehicle, and that the value of the damage exceeded $50. Ms Smith’s evidence was that the repairs cost somewhere between $500-600. I am also satisfied beyond reasonable doubt that, at the time he caused the damage, Mr Ngataua did not have any lawful justification or excuse for his actions nor any claim of right; that is, an honest belief in his right to do what he was doing. I find Mr Ngataua guilty of Charge 1.

Charge 2

[43] On Charge 2, threatening act, I am satisfied beyond reasonable doubt that on 14 September 2020 at Panama, Mr Ngataua damaged the dwelling house of Brian Morgan by throwing a petrol canister into the house where it smashed against the wall and spilled petrol on furniture and the floor of the house. I am also satisfied beyond reasonable doubt that, at the time he caused that damage, Mr Ngataua intended to intimidate some person; that is, that he meant or intended to frighten or cause Mr Morgan and others who were present to be fearful of damage to the house and the risk of injury if he was able to light a fire. And I am satisfied that Mr Morgan was fearful of either of those events occurring. I find Mr Ngataua guilty of Charge 2.

Charge 3

[44] On Charge 3, assaulting Keeana on 26 September 2021, I am satisfied beyond reasonable doubt that on 26 September 2021 at Arorangi, Mr Ngataua assaulted Keeana Kapi by hitting her across the face. It does not matter for present purposes whether that was with his open hand or a punch, but for sentencing purposes I would assume that he used his open hand. No witness said that he punched Keeana. As I said earlier, it is not disputed that Mr Ngataua is a male and Keeana is a female. I find Mr Ngataua guilty of Charge 3.

Charge 4

[45] On Charge 4, wilful damage of the Toyota vehicle on 5 September 2022, I am satisfied beyond reasonable doubt that Mr Ngataua damaged the vehicle by breaking the window and that the value of the damage exceeded $50. I make that finding on the basis of Demi’s evidence that the cost of repairs was about the same as the earlier cost in 2020. I am also satisfied for the same reasons that Mr Ngataua did not have any lawful justification or excuse or claim of right. I find Mr Ngataua guilty of Charge 4 of wilful damage in September 2022.

Charge 5

[46] On the charge of contempt of court as alleged in Charge 5, I am satisfied beyond reasonable doubt that, on 5 September 2022, Mr Ngataua was ordered by the High Court not to contact or interfere with witnesses or complainants relating to the matters before the Court. They were a charge of assault on a female, a charge of wilful damage, and a joint burglary charge which has not been before the Court in this trial. I am also satisfied that Mr Ngataua knew of the conditions of his bail; that Demi Smith was a witness or a complainant relating to one or more of the matters before the Court, namely the assault and the wilful damage charges; and that Mr Ngataua disobeyed the order knowingly in that he contacted or interfered with Demi Smith by verbally abusing her. I find Mr Ngataua guilty of Charge 5.

Charge 6

[47] On Charge 6, the charge of being guilty of contempt of court by having consumed alcohol, I am satisfied beyond reasonable doubt, for the reasons I have given, that the High Court ordered Mr Ngataua not to consume alcohol as a condition of his bail. I also draw an inference and I am satisfied beyond reasonable doubt from the evidence of the police officer who arrested Mr Ngataua, that he disobeyed the order in that he consumed alcohol. It was not necessary for the Crown to prove in relation to that charge that Mr Ngataua was intoxicated but I accept as proof beyond reasonable doubt the police officer’s evidence that he smelled alcohol on Mr Ngataua’s breath. Police officers encounter intoxicated people all the time and that officer would have had sufficient experience to know what alcohol smelled like. I find Mr Ngataua guilty of Charge 6.

Conclusion

[48] Mr Ngataua, you are convicted on all charges on which I have found you guilty and I remand you in custody to appear on Wednesday, 12 April 2023 at 11 am for sentence. I also remand you to appear on that date and at that time on the other charges to which you pleaded guilty last week. They are a charge in CR 2070/22 of threatening to kill; CR 2069/22 of assault with intent to injure; and a charge of contempt of court, CR 145/23, relating to the breach of the bail, also on 17 December 2022 in interfering with witnesses or complainants.
[49] I call for a probation report and for victim impact statements from or on behalf of Demi Smith, Keeana Kapi and Brian Morgan.
[50] Mr Ngataua, you have been in custody (I am told by the registry) for 93 days and you will be in custody for a period until you are sentenced. Those periods in custody will be taken into account when I impose the sentences upon you on 12 April 2023. You will have an opportunity on that date to make any submissions you wish to make about the appropriate sentences.
[51] I thank counsel for their assistance. You may stand down Mr Ngataua.

________________________
C H Toogood, J


[1] Crimes Act 1969, s 321(4)(b).
[2] Section 331(a).
[3] Section 214(b).
[4] Judicature Act 1980-81, s 36(a) and 37.
[5] Criminal Procedure Act, s 71.
[6] Section 72.
[7] Sections 74(2) and 74(3).
[8] Sections 74(2) and 74(3).
[9] Crimes Act 1969, s 2(1).

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