WHAKATAU v NEW ZEALAND POLICE [2023] NZHC 650

WHAKATAU v NEW ZEALAND POLICE [2023] NZHC 650 [28 March 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITEDBY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2022-463-99[2023] NZHC 650BETWEEN DEAN WHAKATAUAppellantAND NEW ZEALAND POLICERespondentHearing: 27 February 2023 with additional submissions on 8 and 13 March2023Appearances: N Tahana for the AppellantM R L Davie for the RespondentJudgment: 28 March 2023JUDGMENT OF PALMER JSolicitorsKāhui Legal, RotoruaCrown Law Office, WellingtonWhat happened?The offending[1] Leading up to October 2019, Mr Dean Whakatau, aged 41, became friends withthe complainant, aged 15, on Facebook. They exchanged messages for a month. Theywere 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 familygathering 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 CyprusPlace. The complainant stayed there until Mr Whakatau dropped her off at 4 pm, nearwhere the family gathering took place. The complainant said they had sex and oralsex at the Cyprus Place address and described a corroborated abnormality of MrWhakatau's penis. She also said he gave her "crack" and cannabis. After she left, MrWhakatau and the complainant continued messaging, including him telling her not totell anyone and to delete the messages.[3] On 4 October 2019, the complainant got into an argument with one of herhalf-sisters about the messages. Mr Whakatau picked her up in the early hours of5 October 2019. She said he pushed a shotgun into her stomach and there was moreoral sex in the backseat of his car at the Waikite sportsground. When the Police foundthem, he had no pants on and the complainant was hiding nearby. There was a cutdownshotgun and ammunition in the car. The complainant told her mother they had hadconsensual sexual intercourse, though she denied that to the Police.[4] The Police seized Mr Whakatau's phone and asked him to provide thepasscode. He refused. Mr Whakatau said he had been manipulated by the complainantand he denied they had had sexual intercourse.The trial[5] Mr Whakatau pleaded guilty to four charges: failing to comply with reportingobligations; unlawful possession of a firearm and ammunition; and breach of paroleconditions. On 21 January 2021, Mr Whakatau was tried in the District Court atRotorua, before Judge G C Hollister-Jones, on another nine charges, of:1(a) meeting a young person following grooming, between 1 September2019 and 1 October 2019;2(b) four offences of sexual connection with a young person, oral sex andsexual 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, on5 October 2019.7[6] In August 2019, Mr Whakatau had finished serving a sentence for arepresentative charge of unlawful sexual connection with, and abduction of, another15-year-old girl and was placed on the Child Sex Offender Register. That convictionwas propensity evidence in his trial.[7] Mr Whakatau was to represent himself at trial. On 25 November 2020, theCourt appointed Mr Brian Foote as standby counsel, to act in the best interests of MrWhakatau. Mr Foote played an active role in the trial, cross-examining all witnessesand leading Mr Whakatau's evidence. The Judge convicted Mr Whakatau of all thecharges except supplying methamphetamine and presenting a firearm. On 11 February2021, Mr Whakatau was sentenced to seven years' imprisonment.8 In his sentencing1 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 MrWhakatau.9The appeal[8] Mr Whakatau applies to appeal out of time on the ground of counsel error andan inadequate police investigation causing a miscarriage of justice. Mr Whakatauexplains that the delay, of some 16 months, is due to difficulties in obtaining a legalaid lawyer, inquiries with other lawyers, confusion regarding the correct appeal court,and counsel's case load and personal circumstances. The Crown abides the applicationfor leave to appeal out of time. Because the Crown is not prejudiced, I consider it isin the interests of justice to hear the appeal. I grant the application to appeal out oftime.[9] Mr Whakatau appeals his convictions of the charges on which he was foundguilty at trial. I heard evidence from Mr Whakatau and Mr Foote. Mr Whakatau andthe 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 allowthe appeal against conviction if satisfied the Judge erred in his assessment of theevidence to such an extent that a miscarriage of justice has occurred or there has beena 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 wasaffected or resulted in an unfair trial. Case law clarifies that:(a) A "real risk" that the outcome was affected exists when there is areasonable possibility a more favourable verdict might have beendelivered if nothing went wrong.10(b) It is for the appellant to show an error has been made and the appellatecourt must take into account any advantages a trial judge may have9 At [28].10 R v Sungsuwan [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 trialjudge 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. InSungsuwan v R, the Supreme Court held that the key issue in trial counsel competenceappeals is, first, whether there was counsel error and if so, second, whether there is areal risk that it affected the outcome by rendering the verdict unsafe.13 If the answersto both questions are "yes", that should be sufficient to establish a miscarriage ofjustice.14 Failure to follow specific instructions on fundamental decisions willgenerally be a miscarriage of justice, including in relation to a plea, electing to giveevidence, or advancing a defence based on a defendant's evidence.15 But a counsel'stactical decision, reasonable in the context of a trial, will not usually sustain an appealeven if it possibly impacted the outcome of the trial.16[12] Ms Tahana (as she then was), for Mr Whakatau, submits that Mr Foote failedto discharge his duties as standby counsel competently in three ways which resultedin an unfair trial and a miscarriage of justice. I treat them in turn.False allegation[13] First, Ms Tahana's primary submission is that Mr Foote made a fundamentalerror relating to the complainant's previous false sexual allegation against her sister'spartner. The error is said to have been two-fold. Mr Foote failed to follow instructionsto apply under s 44 of the Evidence Act 2006 to question the complainant or adduce11 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].12 At [38]; citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR141.13 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 regardingthe admissibility of the false allegation and the complainant's credibility.[14] Mr Davie, for the Crown, submits that trial counsel has substantial latitude todetermine the approach to cross-examination, and it is not a matter in which clientinstructions have to be followed. Where a complainant denies making a falseallegation, case law does not contemplate further cross-examination.17 It is unlikelyfurther cross-examination would have improved Mr Whakatau's position and it wouldhave put extra stress on the complainant.[15] Mr Foote did put a question to the complainant about the complaint. MrWhakatau and Mr Foote differ as to whether the complainant denied making a falseallegation and whether Mr Whakatau instructed Mr Foote to pursue the false allegationfurther:(a) In his evidence on appeal, Mr Whakatau refers to the transcript sayingthe complainant's response was "inaudible" and that he asked Mr Footeto cross-examine her further but ultimately agreed with Mr Foote thatthe matter should be left where it was.18 He also said he could not hearwhat the complainant said.19(b) In his evidence on appeal, Mr Foote says that her answer was "no", MrWhakatau did not ask him to pursue the matter further other than withthe complainant's sister, and Mr Whakatau appeared satisfied with thecross-examination.20 He said that after each witness's testimony, heasked Mr Whakatau if there was anything else and if there was, hewould ask it.21(c) In his affidavit of 1 November 2022, Mr Whakatau said thecomplainant confirmed she had lied about the prior allegation and17 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 agreedwith Mr Foote's view as to whether to take the matter further.22 Incross-examination, Mr Whakatau said he had accepted Mr Foote'sjudgement to not pursue the matter further.23(d) As the Judge recorded in his minute of 16 December 20220, bothcounsel agreed that the complainant denied lying about being abusedby her sister's partner.24[16] Given the inconsistencies between Mr Whakatau's affidavit and testimony, theevidence that the prosecutor and Mr Foote heard the same thing, and Mr Whakatau'srelative lack of credibility against Mr Foote, I prefer Mr Foote's evidence. MrWhakatau's credibility was not assisted by his refusal to agree that he had instructedMr Foote not to call more evidence when he accepted he had signed a note by MrFoote confirming exactly that.25[17] Even if there was an instruction to pursue cross-examination, I would notconsider 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 Whakataudid not give him any details about the false complaint.26 Mr Whakatau's evidence isthat he did not ask.27 So it is unlikely cross-examination would have improved hisposition. Mr Foote did put questions about this matter to the complainant's sister.28As the Judge stated, other evidence supported the complainant's veracity against MrWhakatau, such as text messages and the corroboration of the complainant'sdescription of his penis.[18] Such a complaint, made five years ago, about an unrelated matter within thefamily has limited relevance to the veracity of a 15-year-old, as the Judge said. Theissue was before the Judge. Further questions of a 15-year-old witness would have22 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. Anyapplication would have had limited chances of success.[19] Mr Foote's conduct was a reasonable tactical decision in the context of thecircumstances of this case and it is difficult to see that it affected the outcome of thetrial. Counsel has latitude in deciding on cross-examination strategy in the bestinterests 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.Adjournment[20] Second, Ms Tahana submits Mr Foote did not seek an adjournment of trial toallow time for further preparation and to deal with the late disclosure of CCTV footageand legible copies of the Facebook messages. He did not advise Mr Whakatau of hisright to seek an adjournment on this basis.[21] Mr Davie submits that, to the extent disclosure was delayed, it did not prejudiceMr Whakatau. I agree. Mr Whakatau's evidence is that he saw the CCTV footage byAVL on 9 December 2020 before trial, though he could not see it properly.30 Mr Footecross-examined the complainant on the CCTV footage. Mr Whakatau discussed theCCTV footage in his evidence and was familiar with the messages, which he had sentor received. Mr Whakatau's evidence is that he did not instruct Mr Foote to seek anadjournment.31 The only matter to which Mr Whakatau identified the disclosuremaking a difference was the Detective's interaction with the complainant.32 But thatmatter was ventilated at trial and is dealt with below.Witness inquiries[22] Third, Ms Tahana submits Mr Foote failed to follow instructions to makeinquiries 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 he29 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) 19/28–20/14asked 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 tomake inquiries.35[23] I agree with Mr Davie that it is a matter of speculation as to what Bootsie wouldhave said. On the basis of the evidence before me, I cannot say it was a counsel erroror 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?Submissions[25] Ms Tahana submits that the Police investigation was inadequate:(a) It failed to carry out forensic analysis on Mr Whakatau's vehicle whichwould have supported his defence that no oral sex occurred in his car.(b) It failed to follow proper protocol for arranging the complainant to bespoken to with a support person or to be medically examined.(c) There was a conflict of interest in the Detective dealing with thecomplainant also being Mr Whakatau's liaison officer for the Child SexOffender Register. That meant she had intimate knowledge of his prioroffending which tainted her interactions with the complainant.[26] Mr Davie accepts the Police did not apply for a search warrant for CypressPlace, examine the vehicle for DNA, or medically examine the complainant. Hesubmits they could not have done so before the complainant made her formalcomplaint on 11 October 2019 and the complainant refused to be examined. TheDetective who interviewed the complainant was the most qualified officer to do so and33 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 nomiscarriage of justice.Was there a miscarriage?[27] In Harmer v R, the Court of Appeal stated that there were two relevantconsiderations to whether police decisions not to pursue evidence can make a trialunfair: whether evidence has been lost because of bad faith; and whether it is probablethe lost evidence would have been "of real assistance" to the defence.36[28] The Police reasons for the omissions complained of are compelling. There isno allegation of bad faith. There is also no clarity about what the evidence would havebeen if Police omissions had not occurred. It may have been either exonerating orincriminating, or inconclusive. Accordingly, there was no miscarriage of justice onthat ground.[29] Neither do I consider there was a conflict of interest. There might have been aquestion about whether the Detective's previous contact with Mr Whakatau "tainted"her interactions with the complainant. But this was squarely put to both thecomplainant and the Detective by Mr Foote.37 The Detective's evidence was that shewas careful not to influence the complainant and did not do so.38 The complainant'sevidence 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 donot consider he erred. There was no miscarriage of justice for this reason.Result[30] The appeal is dismissed.Palmer J36 Harmer v R (CA324/02), 26 June 2003 at [91]. This case was applied by the Court of Appeal inFrench v Police [2020] NZCA 175 at [17].37 NOE (Trial) at 26–28 (cross examination of complainant) and 107–109 (cross examination ofDetective Bishop-Malcom).38 NOE (Trial) 108/2–5.39 NOE (Trial) 27/1–23.