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High Court of New Zealand Decisions |
Last Updated: 17 August 2023
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NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR
IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL
PROCEDURE
ACT 2011. SEE
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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
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CRI-2022-463-99
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BETWEEN
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DEAN WHAKATAU
Appellant
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AND
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NEW ZEALAND POLICE
Respondent
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Hearing:
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27 February 2023 with additional submissions on 8 and 13 March
2023
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Appearances:
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N Tahana for the Appellant
M R L Davie for the Respondent
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Judgment:
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28 March 2023
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JUDGMENT OF PALMER J
Kāhui Legal, Rotorua
Crown Law Office, Wellington
WHAKATAU v NEW ZEALAND POLICE [2023] NZHC 650 [28 March 2023]
What happened?
[1] Leading up to October 2019, Mr Dean Whakatau, aged 41, became friends with the complainant, aged 15, on Facebook. They exchanged messages for a month. They were not related by blood, though the complainant’s half-sisters are also his half- sisters. Mr Whakatau and the complainant planned to, and did, meet at a family gathering in Rotorua on 1 October 2019. Her sisters said they flirted.
[2] In the early hours of the next morning, they went to another house on Cyprus Place. The complainant stayed there until Mr Whakatau dropped her off at 4 pm, near where the family gathering took place. The complainant said they had sex and oral sex at the Cyprus Place address and described a corroborated abnormality of Mr Whakatau’s penis. She also said he gave her “crack” and cannabis. After she left, Mr Whakatau and the complainant continued messaging, including him telling her not to tell anyone and to delete the messages.
[3] On 4 October 2019, the complainant got into an argument with one of her half-sisters about the messages. Mr Whakatau picked her up in the early hours of 5 October 2019. She said he pushed a shotgun into her stomach and there was more oral sex in the backseat of his car at the Waikite sportsground. When the Police found them, he had no pants on and the complainant was hiding nearby. There was a cutdown shotgun and ammunition in the car. The complainant told her mother they had had consensual sexual intercourse, though she denied that to the Police.
[4] The Police seized Mr Whakatau’s phone and asked him to provide the passcode. He refused. Mr Whakatau said he had been manipulated by the complainant and he denied they had had sexual intercourse.
[5] Mr Whakatau pleaded guilty to four charges: failing to comply with reporting obligations; unlawful possession of a firearm and ammunition; and breach of parole
conditions. On 21 January 2021, Mr Whakatau was tried in the District Court at Rotorua, before Judge G C Hollister-Jones, on another nine charges, of:1
(a) meeting a young person following grooming, between 1 September 2019 and 1 October 2019;2
(b) four offences of sexual connection with a young person, oral sex and sexual intercourse, between 2 and 5 October 2019;3
(c) supplying cannabis to a person under the age of 18, on 2 October 2019;4
(d) supplying methamphetamine, on 2 October 2019;5
(e) presenting a firearm at a person, on 5 October 2019;6 and
(f) failing to carry out obligations in relation to a computer search, on 5 October 2019.7
[6] In August 2019, Mr Whakatau had finished serving a sentence for a representative charge of unlawful sexual connection with, and abduction of, another 15-year-old girl and was placed on the Child Sex Offender Register. That conviction was propensity evidence in his trial.
[7] Mr Whakatau was to represent himself at trial. On 25 November 2020, the Court appointed Mr Brian Foote as standby counsel, to act in the best interests of Mr Whakatau. Mr Foote played an active role in the trial, cross-examining all witnesses and leading Mr Whakatau’s evidence. The Judge convicted Mr Whakatau of all the charges except supplying methamphetamine and presenting a firearm. On 11 February 2021, Mr Whakatau was sentenced to seven years’ imprisonment.8 In his sentencing
1 R v Whakatau [2021] NZDC 693.
2 Crimes Act 1961, ss 131B(1)(a)(i) & 131B(1)(b).
3 Section 134(1).
4 Misuse of Drugs Act 1975, s 6(1)(d).
5 Sections 6(1)(c) and 6(2).
6 Arms Act 1983, s 51A(1)(a).
7 Search and Surveillance Act 2012, s 178.
8 R v Whakatau [2021] NZDC 2508 at [50].
remarks, the Judge said that Mr Foote had developed a good relationship with Mr Whakatau.9
[8] Mr Whakatau applies to appeal out of time on the ground of counsel error and an inadequate police investigation causing a miscarriage of justice. Mr Whakatau explains that the delay, of some 16 months, is due to difficulties in obtaining a legal aid lawyer, inquiries with other lawyers, confusion regarding the correct appeal court, and counsel’s case load and personal circumstances. The Crown abides the application for leave to appeal out of time. Because the Crown is not prejudiced, I consider it is in the interests of justice to hear the appeal. I grant the application to appeal out of time.
[9] Mr Whakatau appeals his convictions of the charges on which he was found guilty at trial. I heard evidence from Mr Whakatau and Mr Foote. Mr Whakatau and the Crown both had the opportunity to file written submissions after the hearing.
[10] Under s 232(2) of the Criminal Procedure Act 2011 (the CPA), I must allow the appeal against conviction if satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or there has been a miscarriage of justice for any reason. A miscarriage of justice means any error, irregularity or occurrence in the trial that has created a real risk its outcome was affected or resulted in an unfair trial. Case law clarifies that:
(a) A “real risk” that the outcome was affected exists when there is a reasonable possibility a more favourable verdict might have been delivered if nothing went wrong.10
(b) It is for the appellant to show an error has been made and the appellate court must take into account any advantages a trial judge may have
9 At [28].
10 R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730 (SC) at [110].
had.11 That means an appellate court will exercise “customary caution” to a challenge to credibility findings based on contested oral evidence.12
(c) If the appellate court comes to a different view of the evidence, the trial judge must necessarily have erred and the appeal must be allowed.
Did counsel error cause a miscarriage of justice?
[11] The primary set of grounds for appeal focus on counsel error. In Sungsuwan v R, the Supreme Court held that the key issue in trial counsel competence appeals is, first, whether there was counsel error and if so, second, whether there is a real risk that it affected the outcome by rendering the verdict unsafe.13 If the answers to both questions are “yes”, that should be sufficient to establish a miscarriage of justice.14 Failure to follow specific instructions on fundamental decisions will generally be a miscarriage of justice, including in relation to a plea, electing to give evidence, or advancing a defence based on a defendant’s evidence.15 But a counsel’s tactical decision, reasonable in the context of a trial, will not usually sustain an appeal even if it possibly impacted the outcome of the trial.16
[12] Ms Tahana (as she then was), for Mr Whakatau, submits that Mr Foote failed to discharge his duties as standby counsel competently in three ways which resulted in an unfair trial and a miscarriage of justice. I treat them in turn.
[13] First, Ms Tahana’s primary submission is that Mr Foote made a fundamental error relating to the complainant’s previous false sexual allegation against her sister’s partner. The error is said to have been two-fold. Mr Foote failed to follow instructions to apply under s 44 of the Evidence Act 2006 to question the complainant or adduce
11 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
13 R v Sungsuwan, above n 10, at [70].
14 R v Scurrah CA159/06, 12 September 2006 at [17].
15 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].
16 R v Sungsuwan, above n 10, at [66].
evidence on the false allegation. And Mr Foote failed to make submissions regarding the admissibility of the false allegation and the complainant’s credibility.
[14] Mr Davie, for the Crown, submits that trial counsel has substantial latitude to determine the approach to cross-examination, and it is not a matter in which client instructions have to be followed. Where a complainant denies making a false allegation, case law does not contemplate further cross-examination.17 It is unlikely further cross-examination would have improved Mr Whakatau’s position and it would have put extra stress on the complainant.
[15] Mr Foote did put a question to the complainant about the complaint. Mr Whakatau and Mr Foote differ as to whether the complainant denied making a false allegation and whether Mr Whakatau instructed Mr Foote to pursue the false allegation further:
(a) In his evidence on appeal, Mr Whakatau refers to the transcript saying the complainant’s response was “inaudible” and that he asked Mr Foote to cross-examine her further but ultimately agreed with Mr Foote that the matter should be left where it was.18 He also said he could not hear what the complainant said.19
(b) In his evidence on appeal, Mr Foote says that her answer was “no”, Mr Whakatau did not ask him to pursue the matter further other than with the complainant’s sister, and Mr Whakatau appeared satisfied with the cross-examination.20 He said that after each witness’s testimony, he asked Mr Whakatau if there was anything else and if there was, he would ask it.21
(c) In his affidavit of 1 November 2022, Mr Whakatau said the complainant confirmed she had lied about the prior allegation and
17 Best v R [2016] NZSC 122.
18 Notes of Evidence (Appeal) [NOE (Appeal)] at 5/34, 6/3, and 17/27–32.
19 At 17/29.
20 At 30/20.
21 At 30/24–27.
Mr Foote had refused to take the matter further, and that he had agreed with Mr Foote’s view as to whether to take the matter further.22 In cross-examination, Mr Whakatau said he had accepted Mr Foote’s judgement to not pursue the matter further.23
(d) As the Judge recorded in his minute of 16 December 20220, both counsel agreed that the complainant denied lying about being abused by her sister’s partner.24
[16] Given the inconsistencies between Mr Whakatau’s affidavit and testimony, the evidence that the prosecutor and Mr Foote heard the same thing, and Mr Whakatau’s relative lack of credibility against Mr Foote, I prefer Mr Foote’s evidence. Mr Whakatau’s credibility was not assisted by his refusal to agree that he had instructed Mr Foote not to call more evidence when he accepted he had signed a note by Mr Foote confirming exactly that.25
[17] Even if there was an instruction to pursue cross-examination, I would not consider Mr Foote erred in ceasing his questions of the complainant about this issue, whether or not there was a s 44 application. Mr Foote’s evidence is that Mr Whakatau did not give him any details about the false complaint.26 Mr Whakatau’s evidence is that he did not ask.27 So it is unlikely cross-examination would have improved his position. Mr Foote did put questions about this matter to the complainant’s sister.28 As the Judge stated, other evidence supported the complainant’s veracity against Mr Whakatau, such as text messages and the corroboration of the complainant’s description of his penis.
[18] Such a complaint, made five years ago, about an unrelated matter within the family has limited relevance to the veracity of a 15-year-old, as the Judge said. The issue was before the Judge. Further questions of a 15-year-old witness would have
22 Affidavit of Dean Whakatau, 1 November 2022, at [29]–[35].
23 NOE (Appeal) at 18/17–24.
24 R v Whakatau DC Rotorua CRI-2019-063-003247, 16 December 2020 (Minute No 4) at [5].
25 NOE (Appeal) 23/23–25 and 24/1–6.
26 Affidavit of Brian Foote, 15 November 2022, at [38].
27 NOE (Appeal) 8/1–4.
28 Notes of Evidence (Trial) [NOE (Trial)] at 71/21–27.
risked being repetitive or oppressive and could have created a trial within a trial. Any application would have had limited chances of success.
[19] Mr Foote’s conduct was a reasonable tactical decision in the context of the circumstances of this case and it is difficult to see that it affected the outcome of the trial. Counsel has latitude in deciding on cross-examination strategy in the best interests of their client.29 There was no counsel error for this reason and, if there was, there is nothing to suggest additional questions would have made a difference.
[20] Second, Ms Tahana submits Mr Foote did not seek an adjournment of trial to allow time for further preparation and to deal with the late disclosure of CCTV footage and legible copies of the Facebook messages. He did not advise Mr Whakatau of his right to seek an adjournment on this basis.
[21] Mr Davie submits that, to the extent disclosure was delayed, it did not prejudice Mr Whakatau. I agree. Mr Whakatau’s evidence is that he saw the CCTV footage by AVL on 9 December 2020 before trial, though he could not see it properly.30 Mr Foote cross-examined the complainant on the CCTV footage. Mr Whakatau discussed the CCTV footage in his evidence and was familiar with the messages, which he had sent or received. Mr Whakatau’s evidence is that he did not instruct Mr Foote to seek an adjournment.31 The only matter to which Mr Whakatau identified the disclosure making a difference was the Detective’s interaction with the complainant.32 But that matter was ventilated at trial and is dealt with below.
[22] Third, Ms Tahana submits Mr Foote failed to follow instructions to make inquiries with a witness at the Cypress Place house, Mr Davey (Bootsie) Tahuriorangi, to give evidence in support of the defence case. In his affidavit, Mr Whakatau says he
29 S (CA361/2010) v R [2013] NZCA 179 at [61].
30 NOE (Appeal) at 4/25–33 and 16/4–5.
31 NOE (Appeal) 6/7–10.
32 NOE (Appeal) 19/28–20/14
asked Mr Foote to do that.33 Mr Foote denies he did so.34 In his evidence on appeal, Mr Whakatau acknowledges he did not instruct Mr Foote though he did ask him to make inquiries.35
[23] I agree with Mr Davie that it is a matter of speculation as to what Bootsie would have said. On the basis of the evidence before me, I cannot say it was a counsel error or that it would have had an impact on the outcome of the trial.
[24] There was no miscarriage of justice on the basis of counsel error.
Did the Police investigation cause a miscarriage of justice?
[25] Ms Tahana submits that the Police investigation was inadequate:
(a) It failed to carry out forensic analysis on Mr Whakatau’s vehicle which would have supported his defence that no oral sex occurred in his car.
(b) It failed to follow proper protocol for arranging the complainant to be spoken to with a support person or to be medically examined.
(c) There was a conflict of interest in the Detective dealing with the complainant also being Mr Whakatau’s liaison officer for the Child Sex Offender Register. That meant she had intimate knowledge of his prior offending which tainted her interactions with the complainant.
[26] Mr Davie accepts the Police did not apply for a search warrant for Cypress Place, examine the vehicle for DNA, or medically examine the complainant. He submits they could not have done so before the complainant made her formal complaint on 11 October 2019 and the complainant refused to be examined. The Detective who interviewed the complainant was the most qualified officer to do so and
33 Affidavit of Dean Whakatau, above n 22, at [51]–[53].
34 Affidavit of Brian Foote, above n 26, at [44]–[45].
35 NOE (Appeal) at 14/2–5.
the issue of potential contamination was aired at trial. Accordingly, there was no miscarriage of justice.
[27] In Harmer v R, the Court of Appeal stated that there were two relevant considerations to whether police decisions not to pursue evidence can make a trial unfair: whether evidence has been lost because of bad faith; and whether it is probable the lost evidence would have been “of real assistance” to the defence.36
[28] The Police reasons for the omissions complained of are compelling. There is no allegation of bad faith. There is also no clarity about what the evidence would have been if Police omissions had not occurred. It may have been either exonerating or incriminating, or inconclusive. Accordingly, there was no miscarriage of justice on that ground.
[29] Neither do I consider there was a conflict of interest. There might have been a question about whether the Detective’s previous contact with Mr Whakatau “tainted” her interactions with the complainant. But this was squarely put to both the complainant and the Detective by Mr Foote.37 The Detective’s evidence was that she was careful not to influence the complainant and did not do so.38 The complainant’s evidence was that she was the one who brought up details about Mr Whakatau first, not the Detective.39 So the issue was before the Judge in reaching his verdict. I do not consider he erred. There was no miscarriage of justice for this reason.
Result
Palmer J
36 Harmer v R (CA324/02), 26 June 2003 at [91]. This case was applied by the Court of Appeal in
French v Police [2020] NZCA 175 at [17].
38 NOE (Trial) 108/2–5.
39 NOE (Trial) 27/1–23.
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