R v Taulealea [2017] NZDC 26096 (16 November 2017)

Last Updated: 3 September 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY SECTION 203 OF THE CRIMINAL PROCEDURE ACT 2011. ORDER PROHIBITING PUBLICATION IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE DISTRICT COURT AT AUCKLAND

CRI-2009-090-002623

[2017] NZDC 26096

THE QUEEN

v

LAMESE TAULEALEA

Date of Ruling:	16 November 2017
Appearances:	O Klaassen for the Crown P Chambers for the Defendant
Judgment:	16 November 2017

ORAL RULING 2 OF JUDGE E M THOMAS: [APPLICATION TO ABORT TRIAL]

1. The application is granted. The trial is aborted.
   
2. Publication of name, address, occupation or identifying particulars of complainant prohibited by section 203 of the Criminal Procedure Act 2011.
   

100. Order prohibiting publication of trial minutes and rulings in news media or on the internet or other publicly available database until final disposition of trial. publication in law report or law digest permitted.
     

R v LAMESE TAULEALEA [2017] NZDC 26096 [16 November 2017]

REASONS

Introduction

[1] Mr Taulealea, we are at a very late stage in your trial. It has occupied a day to this point. The Crown has closed its case and both counsel have addressed the jury. All that remained was for me to sum up and for the jury to retire and consider their verdict.

[2] Overnight the Crown has received information relevant to your time in Australia. While this was an active charge in 2009, you absconded. you resided in Australia it seems until sometime in 2013.

[3] The Crown has received the following advice:

You were charged in 2013 for similar offending in Australia. You admitted that offending. You pleaded guilty and were discharged without conviction.

You face a further three active charges. Two of those relate to broadly similar offending. None of those charges have been resolved. There are active warrants on two of them. On one of them you have not made any formal admission either to the police or in a Courtroom.

On the other however, the information at present is that you admitted the offence when you were interviewed by the police.

[4] Those investigations and cases remain outstanding. You returned to New Zealand soon after you were charged with those offences, but only came to the attention of police in 2017.

[5] You made a voluntary appearance on 15 February 2017 and, given the age of this case, matters have proceeded very quickly since then to trial.

This application

[6] The Crown applies for me to declare a mistrial and to abort the trial. If I were to do that, that would allow the Crown to proceed to a fresh trial and enable it to rely on the evidence of your offending in Australia, recognising that that offending ranges from informally admitted through to not admitted at all at this stage. You oppose the application.

[7] The Crown is the applicant. It has the burden of satisfying me that it would be in the interests of justice to abort the trial.

The issues

[8] These are:

• (a) What are the relevant factors?
  
• (b) Balancing those factors, what is in the interests of justice?
  

What are the relevant factors?

[9] The probative value of the evidence on its face is significant. The Crown already has available to it highly probative propensity evidence. However, that is of a single incident. Obviously, if it is able to adduce evidence of two or three additional similar incidents then that would greatly elevate the probative value of that evidence.

[10] You challenge whether it would be admissible as propensity evidence. You point to potential distinctions in the circumstances. It is too early to say because we do not have the information exactly what the circumstances of that Australian offending is. But on the information that is currently available it appears that at least two of those incidents involved you admitting touching women on their backsides in a similar way that you are alleged to have done here. That a third involves a similar allegation which you have not admitted at this stage. At this stage in the proceedings it would appear that the Crown is on very strong ground in being able to adduce some or all of that evidence as propensity evidence against you.

[11] This case is old. It is now eight years old. I am told it is one of the oldest, if not the oldest, case awaiting disposal by jury trial in New Zealand. There is an enormous public interest, of course, in having this trial resolved, and quickly. However, the delay is due, of course, to you having left the jurisdiction when you were charged in 2009. Matters were only able to be proceeded when you made a voluntary appearance in February 2017. Age is a valid consideration but it makes it more difficult for you to rely on this as a ground to oppose the application when you have been the sole cause of the delay.

[12] It would, of course, be a further delay - and a delay of some time, at least several months - if this matter was to go to another trial. Again, it is not something that you can particularly complain about given that you have been the cause of the delay so far. But it is something that I must take into account as part of the wider public interests in having justice properly and efficiently done.

[13] We are at a very late stage in the trial. The evidence is all in. You have shown your hand in terms of the defence and how you intend to attack the evidence and the allegations against you. On the other hand you did not testify. You did not need to. But it is not a situation where the Crown could be provided with avenues to attack your testimony because of any retrial.

[14] The interests of the victim are significant. She has waited eight years to testify. She now has. We would always be, and I am, very reluctant to have a victim or any witness have to testify for a second time given how difficult that is for people. Given the delay that it will present her as well in having justice finally delivered one way or another. It is important for me to know the likelihood of her response to the Crown’s application.

[15] I am very grateful to our victim’s advisor and to the Crown for the steps that they have taken today to try to contact her. They have been unable to do so. However, they themselves have had some contact with her during the course of the week. Both are confident that she is capable of understanding the situation. Both are confident that she would be prepared to testify again. Both confirm that there was no sign at all of any reticence on her part. That there were no adverse reactions to the process either before, during or after that would indicate that she would either be deeply aggrieved

by any decision to abort the trial or that she would hesitate before going through the process again. That is a reasonably material factor.

[16] The inquiries undertaken at this end were late. This is a significant and fair criticism. It is also a valid factor that I need to consider. It would have been an obvious enquiry to undertake once the Crown was aware that it had New Zealand propensity evidence at its disposal. I would have expected that at that point an instruction would have been given to the police to undertake inquiries of their Australian counterparts to establish whether similar propensity evidence existed in Australia. This is exactly the sort of offending that often is repeated, as has been revealed here.

[17] However, it is not my job here to punish the police or the Crown for how they have gone about this investigation. I am sure that both the police and the Crown will be the first to recognise their failings in this regard. However, I must factor into my assessment today that the trial would have concluded today had the police conducted those inquiries earlier.

[18] It does not appear that you will be facing justice in Australia. The Australian authorities have made no extradition request. We have no information as to why that is. It has been four years since you returned to New Zealand. While those files remain active there is no active or pending extradition request. It is not for us to deliver justice to another jurisdiction. However, had there been an inevitability of these sorts of issues being soon dealt with in Australia regardless of the outcome here, then that may have affected the decision that I reach today.

Balancing the factors, what is in the interests of justice?

[19] There is a high public interest in completing this trial, ensuring the quick and efficient disposal of Court business and bringing finality to you and to [the complainant]. However, there is a greater public interest in ensuring that justice is properly and fairly done. That is particularly so where we might be dealing with a high risk repeat sexual offender. That cannot be done in a fair way to you within this particular trial. we would need a new trial to fairly do that.

[20] I grant the Crown’s application. I do declare a mistrial. The trial is aborted.

E M Thomas District Court Judge