IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CRI-2021-485-937
[2024] NZHC 455	

BETWEEN	WAYNE RIMENE
Appellant	
AND	THE KING
Respondent	

Hearing:	20 February 2024	
Appearances:	K J Basire for Appellant
S Carter and M E Page for Respondent	
Judgment:	5 March 2024	

JUDGMENT OF CHURCHMAN J

Introduction

[1]	On 7 February 2023, following a judge alone trial  in  the  Wellington  District Court, Judge Sainsbury found the appellant, Wayne Rimene, guilty1 of two charges of indecent assault, four charges of unlawful sexual connection, and two charges of sexual violation by rape. On 15 June 2023, Mr Rimene was sentenced to seven years imprisonment.

[2]	The appellant now appeals his conviction. In particular, he submits that the Judge’s conduct during the trial and the content of his reasons judgment demonstrate an appearance of unfairness and a lack of neutrality that resulted in a miscarriage of justice.

1 R v Rimene [2022] NZDC 8202.

RIMENE v R [2024] NZHC 455 [5 March 2024]

Background to the offending

[3]	Mr Rimene and the complainant (K) shared friends and acquaintances due to both being involved in criminal offending around possession and supply of methamphetamine. At the time of the offending, K was on bail for charges of selling methamphetamine and was subject to curfew checks by police.

[4]	On the evening of 16 September 2021, K was at home with her friend M. M contacted Mr Rimene, who suggested they consume methamphetamine together. Due to this communication, Mr Rimene arrived at K’s address in the early hours of 17 September 2021. Mr Rimene met M outside, and then left. Sometime after he left, M and K consumed methamphetamine together.

[5]	At 3.35am, Mr Rimene messaged M suggesting they work on her car. At
4.22 am, M messaged back requesting a ride from K’s address. At some point later, N, a relative of M, arrived and gave M a lift from the address.

[6]	Close to 6.00 am, Mr Rimene arrived at K’s property to pick up M. He unsuccessfully tried to call her at 5.58 am. Since the gate and door to the property are unlocked to allow police to undertake bail checks, he entered the property sometime before 6.05 am.

[7]	Mr Rimene found K in the lounge. Mr Rimene reportedly makes sexualised comments and tries to rub himself against K and kiss her. Around this time, K was texting her former partner, C, who was on EM Bail. At 6.56 am, K asked C to send his father, I, to the address. C contacted his father at 7.02 am, who replies around 7.20 am and agrees to go after C says he will otherwise call the police.

[8]	At some point, K left the lounge to go to her bedroom. Mr Rimene reportedly followed her into the room, took her phone and pushed her onto the bed. The sexual offending then took place.

[9]	Around 8.00 am, they heard knocking which reportedly was from I, and K is said to have pushed Mr Rimene off and ran to the bathroom and locked herself in there.

She then put on clothes, and went outside to meet I and asked him to get Mr Rimene to leave. Eventually Mr Rimene and I left the property.

[10]	K later called a friend and got E to come to the house. K’s landlord, D, also arrived around 8.45 am to pick K up to take her to C’s place in Greytown. K then confided in E and D that she had been raped. D advised her to call police, tell C or get medical help. They then travelled to C’s address and K told C what happened, and she is later taken back to D’s home address. They go back to K’s home to collect her belongings. A, D’s partner, then called the medical centre, who advised her to call the police. A called 111 and made a rape complaint on behalf of K, with K also talking to police.

[11]	Mr Rimene was arrested in the early evening of 17 September 2021, and made a police statement that same day, which was recorded electronically, denying the sex was not consensual, and claiming she wanted to have sex with him in return for methamphetamine.

District Court decision

[12]	In his judgment, the Judge found that defence witness N had lied to the court.2 N had given an  alternative account  of a series  of events  where K had  sex  with  Mr Rimene to distract him whilst N and M searched through Mr Rimene’s car to steal drugs and money.3 The Judge found that since this conflicted with the evidence of both the defendant and K, and was contrary to M’s own police statement, he was giving false evidence.4 He stated that although there may be a police investigation into M’s evidence, and it could be considered circumstantial evidence of Mr Rimene’s guilt, he would take a conservative approach and simply put this version of events to one side and focus on the accepted evidence.5

[13]	The Judge found that the defence’s case was “replete” with misconceptions relating to sexual cases.6 He stated much of their case was based on establishing that

2	At [83]-[86].
3	At [83].
4	At [84].
5	At [85]-[87].
6	At [94].

K was not an “idealised victim” by pointing to facts such as her not immediately calling police, her methamphetamine use, her apparent lack of upset and the fact she contacted Mr Rimene after events took place.

[14]	The Judge also rejected a line of questioning of K by the defence concerning the proposition that she regularly traded sex for methamphetamine, finding there was no evidential foundation for this, and thus it was inadmissible veracity evidence.7

[15]	In his assessment of the evidence, the Judge found the deletion of a text message to Mr Rimene by K before giving her phone to the police and the conflicting evidence from K and S around who sent a message asking for methamphetamine from Mr Rimene did not mean her evidence lacked credibility. He came to a similar conclusion regarding the fact K contacted her sometime boyfriend C and no one else, and asked him to send his father I over to get Mr Rimene to leave. The Judge found that deleting the message made sense in that K was concerned it could undermine her complaint, and that in contacting C and getting I to come over she was acting as well as she could in the circumstances and had legitimate concerns about C breaching his bail conditions.

[16]	In terms of the evidence  given  by  Toyah  Russell,  he  found  it  showed  Mr Rimene was at a low point in his life and was acting strange, but did not progress the case of either side to any significant level.

[17]	Additionally, the Judge found C’s evidence supported the prosecution’s case in confirming their relationship. The details around K’s past drug dealings and dishonesty were not substantially helpful in determining whether she consented to sexual activity with the defendant and whether Mr Rimene believed she consented.

[18]	The Judge found Bailey Smyth gave truthful evidence around her relationship with Mr Rimene as a 25 year old, however it did not add anything to the determination of the key issues, as he  had already found attraction between a 25 year  old and a   50 year old was not necessarily strange.

7	At [103].

[19]	Overall, the Judge held the text message traffic between K and C corroborated K’s account of Mr Rimene arriving uninvited and unannounced to her home and then offending against her. He found her dealing and use of methamphetamine and deleting of text messages before providing her phone to police were insufficient to displace the credibility of her account of events. Her deleting the messages was unwise but understandable in the circumstances, and the veracity evidence of her prior dishonesty around methamphetamine dealing was not substantially helpful to be admissible as evidence.

[20]	The Judge rejected the defence arguments that the fact K did not call police, did not tell C what was happening during the time that the offending was under way, and did not call anyone other than C, meant her account was unreliable. He similarly rejected the contention that she did not display sufficient trauma, as these attacks on her credibility were based on “rape myths” that no longer have a role in such criminal trials.

[21]	The Judge also rejected the defence’s arguments that K made false allegations to cover up having consensual sex with Mr Rimene, whether that was simply for fun, to get methamphetamine from Mr Rimene, to provide a diversion while others stole from Mr Rimene, because Mr Rimene sexual performance was poor, or to make a false ACC claim. He found these contentions lacked an evidential foundation.

[22]	He finally held that Mr Rimene knew K did not consent, but due to the fact he was acting impulsively under the influence of methamphetamine, he had sex with her anyway. Consequently, he was guilty of the charges.

Appellant’s submissions

[23]	Counsel for the appellant, Ms Basire, submits that the trial transcript and reasons judgment considered  as  a  whole  provide  strong  evidence  that  the District Court Judge departed from his duty of impartiality. In particular, she argues that:

(a)	The Judge expressed the view it would be strange for a young woman in a relationship to have sex with an older man in his 50s, and that it

was more likely that the appellant would be able to get witnesses to trial than Police. Viewed in context, this gave the appearance of a reversal of the onus of proof.

(b)	The Judge’s interruptions of cross-examination of K, including answering for her, taking over questioning, and allegedly berating trial counsel would have led K and a reasonable observer to conclude that the Judge believed her account over the appellant’s account.

(c)	The Judge read written statements while hearing oral evidence from witnesses.

(d)	The questioning of defence witness N by the Judge, including accusations that he was lying, showed predetermination and bias through indicating disbelief in a witness.

(e)	The reasons judgment went beyond findings of reliability, including findings that:

(i)	N’s evidence was patently false, had the clarity of a fever dream, and that the matter should be criminally investigated.

(ii)	I was “treading a fine line between assisting the appellant and perjury,” which the appellant alleges was an extraordinary comment without evidential basis.

(iii)	The defence case was replete with misconceptions and rape myths that should have no place in a criminal trial, and that the appellant had made a grave mistake in thinking the victim would not be believed.

[24]	Ms Basire’s submission is supported by an affidavit from Mr Robinson, who was trial counsel for Mr Rimene. In this affidavit he affirms that the defence decided to call Mr Rimene’s then girlfriend Ms Bailey Smyth as a witness following the Judge’s comments that it was a strange proposition for a young woman in her 20’s to

want to have sex with a man in his 50’s. He also discusses both himself and Crown counsel Ms Hislop seeing the Judge turning pages whilst oral evidence was being given by a witness, and that he did not raise this issue with the Judge, as he wanted to avoid causing further annoyance. Lastly, Mr Robinson states that the Judge displayed frustrated body language during the trial and particularly during Mr Robinson’s cross examination of K, and that this combined with the Judge’s interventions meant he felt constrained in his cross examination and pulled back from certain lines of questioning.

[25]	Ms Basire submits that the judicial conduct discussed above gives rise to an impression of a lack of neutrality, and so amounts to an error, irregularity or occurrence that has caused an unfair trial, as provided for in s 232(4)(b) of the Criminal Procedure Act 2011.

Respondent’s submissions

[26]	Counsel for the respondent submits that, read in context, none of the Judge’s comments, interjections, conduct and findings come close to showing predetermination, which is a very high threshold. They contend that:

(a)	The Judge made accurate observations about the parties’ positions and engaged in the trial to focus the evidence, correct unclear and repetitive questioning, clarify matters, and keep the trial progressing. None of the interjections or comments suggested prejudice to the appellant, merely disapproval of the defence counsel’s questioning style.

(b)	Mr Robinson (defence counsel)’s affidavit does not articulate anything that he would have done differently due to the Judge’s perceived behaviour towards him, and so there was no prejudicial effect. Ten interruptions over a four day trial is not excessive.

(c)	Suggestions the Judge was reading formal statements during trial is speculation which cannot be confirmed, and the appellant Counsel has failed to establish any impact this had on the outcome or reliance on evidence that was not covered in the trial.

(d)	There were no errors in assessing the evidence that could have affected the outcome or created an unfair trial. Instead, the Judge engaged thoroughly with the evidence and noted which parts of evidence supported each account. Any alleged errors were inconsequential and tangential to the basis on which the Judge accepted K’s account.

[27]	Consequently, Counsel argue that no miscarriage of justice has occurred and the assertions of predetermination and partiality against the Judge are baseless, and so the appeal ought to be dismissed.

Approach to Appeal

[28]	The Court must allow an appeal against a decision in a judge-alone trial if it is satisfied that the judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason.8

[29]	A “miscarriage of justice” is any error, irregularity or occurrence in or in relation to or affected the trial that (a) has created a real risk that the outcome of the trial was affected; or (b) has resulted in an unfair trial or a trial that was a nullity.9 A miscarriage of justice is “more than an inconsequential or immaterial mistake or irregularity”.10 The errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate court must condemn the trial as unfair and quash the decision.11

[30]	For it to be found that there was a real risk that the outcome of a trial was affected by a miscarriage of justice, there must have been a reasonable possibility another verdict would have been reached if the miscarriage of justice had not occurred.12

8	Criminal Procedure Act 2011, s 232(2)(b)-(c).
9	Section 232(4).
10	Matenga v R [2009] NZSC 18 at [30].
11	R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
12	Haunui v R [2020] NZSC 153 at [67].

[31]	For a trial to be found to be unfair, there must have been a departure from good practice that was so gross, persistent, prejudicial or irremediable that an appellate court would have no choice but to condemn a trial as unfair and quash the conviction as unsafe.13

[32]	In an appeal from a judge-alone trial, the appellate court must form its own independent judgment on the merits of the appeal  following  the  approach  in Austin, Nichols.14 If an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed.15 However, the appellant bears the onus of persuading the appellate court to reach a different conclusion, and in discharging that onus must identify the respects in which the judgment under appeal is said to be in error.16 Additionally, in determining whether the judgment was wrong, the appellate court “must take into account any advantages a trial judge may have had.”17 Some caution must therefore be adopted before departing from factual findings. Ultimately the appellant must persuade the appeal court that the trial judge erred.

[33]	One kind of miscarriage of justice is bias and partiality. In Saxmere Co Ltd v Wool Board Disestablishment Co Ltd,18 the Supreme Court affirmed the principles set out in Muir v Commissioner of Inland Revenue,19 namely that a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decided.

[34]	A type of bias is predetermination. For predetermination to be found, there must not merely be an impression of bias, but evidence that the Judge’s mind was not open to persuasion and that they simply went through the motions in coming to their

13	Condon v R [2006] NZSC 62, [2007] 1 NZLR 300, (2006) 22 CRNZ 755 at [77].
14	Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575, citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
15	At [38].
16	At [38].
17	At [38].
18	Saxmere Company Ltd v Wool Board Disestablishment Company Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at [3].
19	Muir v Commissioner of Inland Revenue [2007] 3 NZLR 495, 92007) 18 PRNZ 630 (CA) at [62].

decision.20 The fact that the Judge may take a great deal of persuasion to change from a position expressed earlier does not necessarily mean they are predisposed.21

Analysis

[35]	I now will address each of the alleged incidences of impartiality.

Age difference comments

[36]	In his judgment, the Judge makes clear that, in contrast to the contentions of Ms Basire, he did not dismiss the possibility of a 25-year-old woman being attracted to and wanting to have sex with a man in his 50’s. Instead, his findings that defence counsel’s propositions were strange, concerned a holistic view of the circumstances. The Judge considered that it was strange for K, as a young woman in a relationship with C who did not personally know Mr Rimene, to want to invite him into her home to have sex. This therefore does not present any evidence of unconscious bias by the Judge, and certainly does not demonstrate a reversal of the onus of proof.

Interjections and interruptions

[37]	Ms Basire, in her submissions, referred to the Canadian case R v Chambers, where the Ontario Court of Appeal held that frequent interjections and derision of the appellant and their counsel by the trial judge gave rise to an appearance of unfairness that resulted in a miscarriage of justice.22 However, the conduct of the judge in this case was nowhere near that in Chambers. The Judge appropriately intervened to prevent repetitive questioning of K during cross examination. Where the Judge took over questioning of witnesses, it was done for the purpose of clarifying points that the Judge sought to understand following vague and unclear lines of questioning from the defence counsel, or to correct mischaracterisations of earlier evidence. When the Judge directed that a short break be taken when K became upset during cross examination, appropriate language was used that effectively meant the same as what Ms Basire argues should have been said.

20	G v Psychologists Board HC Wellington CIV-2007-485-2558, 8 December 2009 at [72].
21	At [72].
22	R v Chambers 2019 ONCA 736.

[38]	Although it is clear from the transcript and the recordings of the hearing that the Judge was at times frustrated with the defence counsel, almost all of his interactions with counsel and witnesses involved a calm and measured tone. He did not demonstrate any predetermination, nor partiality towards the prosecution. This is partly evidenced by criticism of prosecution counsel for failing to use tools available to them. In contrast, the Judge in Chambers repeatedly criticised defence counsel and their strategy and dismissed certain oral evidence as “fanciful” and a “freakish notion.” Chambers is distinguishable due to the difference in facts.

Accusation of lying put to N

[39]	In regard to the Judge’s engagement with N while he was giving witness evidence, although it can be problematic to have a witness accused of lying, in context, this did not amount to predetermination or partiality. Ms Basire has pointed to the Canadian case of R v Bennett as an example of where a miscarriage of justice was found as a result of a judge accusing a witness of lying. However in that case, the Judge went further than warning the witness that the they considered the witness to be lying, and informed the witness of the crime of perjury, and proceeded to ask them 50 questions, before then advising the Crown that an investigation should be launched into the evidence of that witness. In contrast, here the Judge had good reason to believe the witness was not being truthful as his evidence was not consistent with anyone else’s account, and although he did appear to have become annoyed by N’s testimony, in his judgment the Judge did not draw any inferences from this against the credibility of Mr Rimene’s case, and instead simply put it to one side. The defence was also able to still conduct re-examination, unlike in Bennett.

Allegations of reading written statements

[40]	There is nothing inappropriate of itself in a trial Judge having read whatever witness statements may be on the file. In this case it is speculative as to what the Judge may have been reading during the course of the trial. Although Ms Basire submits that discussion in the judgment of Mr Rimene’s strange behaviour shows that the Judge referred to Ms Toyah Russell’s written statement rather than her oral evidence, such an inference can also be drawn from Ms Russell’s oral evidence where she described Mr Rimene as “a bit all over the show.” Ms Basire has failed to establish

anything contained in the written statements that was not given in evidence, and consequently has been unable to prove that, if consideration of written statements at the expense of the oral evidence did in fact occur, it affected the outcome of the trial.

Reasons judgment

[41]	The reasons judgment contains a careful analysis of all the evidence. It is comprehensive, running to some 226 paragraphs. Credibility findings are clearly important. The Judge had the significant advantage of observing all the witnesses give their evidence. Ms Basire is effectively inviting this Court to come to different findings as to credibility. That is always going to be a challenging task particularly when there is an evidential basis for the Judge’s conclusions.

[42]	I do not need to go through all the factual/credibility findings challenged by the appellant but will address two that the appellant laid particular emphasis on.

[43]	There was an obvious evidential basis for the finding that M lied and thus his evidence should not be given any weight. His evidence conflicted with all other evidence that had been given. Although Ms Basire contends there was still an opportunity for M, K and N to plan to search Mr Rimene’s car for money and drugs, this conflicts with Mr Rimene’s statement that neither M nor N were there when he arrived at dawn, around 6.00 am. On questioning from the Judge, N had changed his evidence. The Judge could also have inferred these contradictory statements were at the direction of Mr Rimene, but decided not to, showing he was at pains to ensure he was giving Mr Rimene’s case fair consideration. Consequently, in putting this version of events to one side did not demonstrate prejudice against Mr Rimene’s case or predetermination.

[44]	In terms of the Judge purportedly dismissing S’s evidence around who sent a text message to ask for a methamphetamine “sesh,” it is an exaggeration to say this showed the Judge was ignoring evidence that reflected badly on K. The lengthy consideration of the issue by the Judge showed he considered it important, and he fairly determined that due to lack of supporting evidence it should be put aside.

[45]	I accept the respondent’s submission that all of the factual findings made by the Judge can be supported by the evidence he heard.

[46]	There is no basis for the suggestion that the Judge reversed the onus of proof. At [69]–[74] and [79]–[84] of the reserved judgment the Judge correctly sets out the law on onus of proof. He clearly then applies those legal principles.

[47]	There can also be no criticism of the Judge for his treatment of ‘rape myths’. The Judge sets out at [91]–[94] of the reserved judgment the case law and statutory basis addressing the misconceptions about how a rape victim should act. At [94] he concluded that much of the defence case had been directed toward establishing that K was not an “idealised” victim and therefore she must not be telling the truth. In the context of the way the defence had been run, there was nothing inappropriate in the Judge’s comments about how the defence case had been run or about rape myths.

[48]	Ms Basire placed some emphasis on the tone of voice used by the Judge and, subsequent to the hearing, on 4 March 2024, the Court was provided with some audio files. As noted above, those files confirm that, at times, the Judge sounded irritated in some of his comments relating to such things as the asking of complex questions that contained multiple concepts or repetitive questioning. It is understandable that the Judge became frustrated and intervened to try and ensure that the questioning of the witnesses proceeded in a proper fashion. That does not indicate predetermination or bias. It is also important to remember that the Judge was not sitting with a jury who might have been affected by a display of irritability by the Judge. The claimed behaviour falls a long way short of amounting to a miscarriage of justice.

Conclusion

[49]	There is no basis upon which a reasonable observer might conclude that the Judge might not have had an impartial mind. The Judge’s reserved decision carefully addresses all the issues in an even-handed way. There is no basis for a claim of lack of impartiality. There is no miscarriage of justice.

Outcome

[50]	The appeal is dismissed.

Churchman J

Solicitors:
Crown Solicitor, Wellington for Respondent
Solicitors: