R v TAIKATO [2017] NZHC 3249

R v TAIKATO [2017] NZHC 3249 [19 December 2017]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE HIGH COURT OF NEW ZEALANDTAURANGA REGISTRYI TE KŌTI MATUA O AOTEAROATAURANGA MOANA ROHECRI-2016-070-2727[2017] NZHC 3249THE QUEENvSHAUN MERRO TAIKATOHearing: 19 December 2017(Heard at ROTORUA)Appearances: N Batts for CrownW Nabney for DefendantJudgment: 19 December 2017JUDGMENT OF LANG J[on application to vacate guilty pleas]This judgment was delivered by me on 19 December 2017 at 4.50 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] On 31 July 2017, Mr Taikato pleaded guilty to seven charges in this Court. Themost serious of these are charges of kidnapping or attempting to kidnap three persons.[2] Mr Taikato now seeks leave to vacate his pleas to six of the charges. He doesnot seek to vacate his plea on a charge of unlawfully being in possession of a firearm.Background[3] All of the charges were laid as a result of an incident that occurred early on themorning of 28 May 2016. On that date the three complainants were seated in a motorvehicle in the carpark of a McDonald's restaurant situated on the corner of CameronRoad and 11th Avenue in Tauranga. They say that at about 4.30 am a man wearing ahooded jacket got into the vehicle. The complainants in the front seat of the vehicledid not recognise the person, but the passenger in the back seat, Mr Eli Johnson,recognised him as being a person to whom he had sold a motor vehicle a few monthsearlier. He knew that person as being Shaun Taikato.[4] The complainants then describe a series of events that commenced with theman pulling out a weapon that appeared to be a shortened firearm. He then threatenedthem with the firearm and ordered them to drive the vehicle out of the carpark.[5] A short time after the vehicle began moving, Mr Johnson was able to escapefrom the vehicle when it stopped at a traffic light. The vehicle then continued on itsway with the hooded man in the back seat continuing to threaten the two complainantsin the front seat. He first made them drive to an ATM machine where unsuccessfulattempts were made to withdraw money from the complainants' accounts. He thenforced them to embark on a journey that ended a considerable distance away in aremote rural location near Welcome Bay. At some stage during the journey throughthe city the man fired a shot through the open car window.[6] The man then ordered the complainants to get out of the vehicle and he droveoff in it. The complainants made their way to a nearby address, where they roused theoccupants at approximately 6.20 am. The police were then called to the scene.[7] As part of the investigation, the police showed Mr Johnson a montage ofphotographs and asked him to pick out the person who had got into the vehicle.Mr Johnson immediately identified Mr Taikato as being that person.[8] On 23 June 2016 Mr Taikato was admitted to hospital with a gunshot woundto the chest. He told medical staff and the police he had wounded himself accidentallywith the firearm whilst handling it. The police discovered the weapon Mr Taikato usedto injure himself when they searched his father's address on 12 July 2017. It appearsto be similar to that used by the man who kidnapped the complainants on 28 May2016.[9] The police conducted a videotaped interview of Mr Taikato on 12 July 2016.He denied all knowledge of the incident, and also denied knowing any of thecomplainants. By that stage the police were aware that a fingerprint belonging toMr Taikato had been found on a beer bottle in the vehicle. When the interviewingofficer put this to Mr Taikato, he said he did not know how the fingerprint could havegot there. The police subsequently arrested Mr Taikato and charged him withkidnapping, attempted kidnapping, aggravated robbery, careless use of a firearm andunlawful use of a firearm.The proposed defence[10] Mr Taikato now wishes to defend the charges on the basis that he was not theperson who got into the vehicle and unlawfully detained the three complainants. Heacknowledges he travelled to the McDonald's carpark with a friend, Mr Ben Cranston,in the early hours of 28 May 2016. He also acknowledges he got into thecomplainants' vehicle and spoke to the occupants. Furthermore, he concedes that heknew Mr Johnson through earlier dealings with him. He says he consumed beer whilstin the vehicle and this explains the fingerprint on the beer bottle the police found inthe vehicle. He says, however, that he got out of the vehicle and then left the carparkwith Mr Cranston. He says he went back to his sister's house and went to bed. Hecannot recall whether his sister was up when he arrived home, or whether he spoke toher.[11] Mr Taikato's version of events is supported to some extent by an affidavitsworn by Mr Cranston. He cannot specifically recall going to the McDonald's carparkwith Mr Taikato on 28 May 2016, but he acknowledges having gone to that carparkon several occasions with him. He says he cannot remember any occasion on whichhe left Mr Taikato in the carpark.[12] Mr Taikato also relies on an affidavit sworn by his sister. His sister deposesshe can recall the morning of 28 May 2016 because it was eight days after herdaughter's birthday. She recalls Mr Taikato arriving home on that date at around 4.30to 5 am. If her evidence is correct, Mr Taikato could not have been involved in theincident giving rise to the charges.Relevant principles[13] There is no dispute regarding the principles to be applied in the present context.They are confirmed in authorities such as R v Merrilees and R v Le Page.1 They arealso helpfully summarised in R v Clark, where the Court of Appeal said:2[14] Prior to sentencing leave to vacate a plea of guilty is a matter for thediscretion of the Judge in the exercise of the court's inherent jurisdiction(Adams on Criminal Law, CA356.04). It is a broad discretion. While the mostcommon circumstances which warrant leave are that the accused has not reallypleaded guilty, that there has been some critical mistake, or there is a cleardefence to the charge, these are no more than examples (see R v Le Comte[1952] NZLR 564, R v Turrall [1968] NZLR 312, 313; R v Ripia; Faulkner vCrown Solicitor at Auckland (Auckland High Court, T116/94, 27 July 1995).The underlying object is to avoid a miscarriage of justice, or, perhaps in theprospective context is better viewed from the opposite end, to consider theinterests of justice. Such a test incorporates not only the interests of theaccused but also the interests of victims or witnesses as well (R v Ripia at p4).[14] Where a defendant fully appreciates his or her position and makes an informeddecision to plead guilty, a conviction cannot be impugned.3 Furthermore, a1 R v Merrilees [2009] NZCA 59; R v Le Page [2005] 2 NZLR 845 (CA).2 R v Clark [CA59/02, 27 May 2002.3 R v Merrilees, above n 1, at [33].defendant's subsequent misgivings about pleading guilty does not constitute asufficient basis for concluding a miscarriage of justice has occurred.4[15] Mr Nabney contends a miscarriage of justice will occur in the present caseunless Mr Taikato is permitted to stand trial and have a jury consider his defence basedon alibi.Mr Taikato's discussions with Ms Adams[16] Mr Taikato's current version of events needs to be considered in the context ofdiscussions he held with his former counsel, Ms Rachael Adams, during the periodleading up to and shortly after the entry of the guilty pleas. Mr Taikato has waivedprivilege in respect of his communications with Ms Adams and she has sworn anaffidavit in opposition to his application. Mr Taikato acknowledges Ms Adams hascorrectly recorded the matters he discussed with her.[17] Ms Adams confirms she was assigned by Legal Services to act as Mr Taikato'scounsel in August 2016. She then spoke to Mr Taikato's parents on 13 October 2016.At that stage Mr Taikato was in custody because he had repeatedly breached theconditions of his bail. She then spoke to Mr Taikato briefly after meeting with hisparents. At that stage his focus was being released on bail rather than providing MsAdams with instructions for his defence. Ms Adams asked Mr Taikato if he wantedher to send him a copy of the disclosure material she had received from the police. Heasked her to wait until he had been granted bail before providing him with thatmaterial.[18] Mr Taikato was eventually granted EM bail on 10 November 2016. After someprompting, Mr Taikato met with Ms Adams on 2 June 2017 in the company of hismother. Ms Adams deposes she found Mr Taikato "very hard to engage". When sheasked him to be clear and specific about his defence, he replied "I wasn't there, itwasn't me". When Ms Adams asked Mr Taikato why the complainants would inventsuch a story, he told her they owed him a lot of money and that this was what he hadbeen discussing with them on 28 May 2016.4 At [38].[19] Ms Adams became concerned that Mr Taikato's version of events appeared tocontinually change. She told him she needed some clear and consistent instructions,and that he should come back and see her again once he was prepared to tell her whathis defence was to be.[20] Mr Taikato and his mother saw Ms Adams again on 5 July 2017. As withearlier discussions, Ms Adams made file notes of her discussion with Mr Taikato onthis occasion. Mr Taikato told Ms Adams he had decided to tell her "what it was reallyall about". He then said "It all happened just as they said" with reference to theallegations made by the complainants. Mr Taikato also explained he had "cracked"after the loss of his partner. He said he was under personal financial pressure and thevictims owed him money for a car he had sold to them. He said he was desperate formoney.[21] Ms Adams said Mr Taikato then asked her what would happen if he said thathe was not involved and denied that he was ever there. Ms Adams describes her adviceto him at this point in the following terms:27. My advice to him was that this would not be credible. He would haveto explain his fingerprint. There would have to be some plausibleexplanation as to why the victims would make everything up. Myadvice to him was that he would probably have to give evidence toestablish any previous dealings with the witnesses or motivation ontheir part. I said that I could not support him giving evidence [denyinghe was there] which was contrary to what he had told me hadhappened.28. Mr Taikato then asked what would happen if he said that it was him,but it didn't happen the way that they said. I told him again, underthose circumstances, he would have to give evidence about what hesays did take place.29. I was concerned that both these options raised by Mr Taikato were notconsistent with what he had told me at the beginning of this meeting.30. Mr Taikato then asked if he could just hope they [the complainants]won't turn up. Or what if the victims wouldn't give evidence as intheir statements. I told him that I thought this was unlikely, andexplained that the Police would arrange transport and security for thewitnesses and undoubtedly review their evidence with them prior tothe trial. I also explained that their previous statements could be usedto cross-examine if they told another story now.31. Mr Taikato thought this over for a few minutes. Then he told me thathe wanted to plead guilty.[22] Ms Adams says Mr Taikato telephoned her on 26 July 2017 and confirmed hisintention to plead guilty to the charges. He then appeared in the High Court atHamilton on 31 July 2017 and entered guilty pleas to all charges. He was remandedin custody for sentencing.[23] On 1 August 2017, Mr Taikato telephoned Ms Adams again. He said he waswriting "remorse letters", and asked about the possibility of obtaining bail. He alsoconfirmed that "it was all okay with him".[24] On 18 August 2017, Ms Adams spoke to Mr Taikato by means of an AVL linkto the prison where he was being held on remand. She says Mr Taikato told her thatMr Johnson owed him money for a car. Mr Taikato said that on the night of the allegedoffending he was very intoxicated and desperate, and could not remember much dueto his consumption of alcohol and cannabis. He says that over the next few days othershad told him what he had done that night. He also said he wanted to change his pleasbecause Mr Johnson had told him he wanted to retract his statement to the police. Hetold Ms Adams that another of the complainants was his "mate", and he thought thatif he could change his pleas the complainants would not give evidence against him.He also asked whether he could get bail before sentencing so he could talk to thewitnesses himself and ensure they did not appear in Court.[25] On 29 August 2017, Ms Adams spoke to Mr Taikato again using an AVL link.On this occasion he confirmed his wish to vacate his pleas. He also reiterated hisbelief that the complainants would not be prepared to give evidence against him.Decision[26] The discussions between Mr Taikato and Ms Adams between June and August2017 make it clear that Mr Taikato made his decision to enter guilty pleas on a fullyinformed basis. Furthermore, his statement to the effect that events had happened justas the complainants said was a frank admission to Ms Adams that he was the personwho kidnapped the complainants at gunpoint. It confirms the correctness of MrJohnson's nomination of him as that person.[27] I place no weight on the evidence given by Mr Taikato's sister. She said shedid not suspect her brother was involved in the offending until she saw an article in anewspaper about the kidnapping. She said that by this stage Mr Taikato was on EMbail. This means she cannot have seen the newspaper article until after 10 November2016, some six months after the incident. In addition, she could not say why sheassociated the article with her brother.[28] Furthermore, the only reason Mr Taikato's sister can give for remembering herbrother returning between 4 and 5 am on 28 May 2016 is that it occurred eight daysafter her daughter's birthday. She could not explain why that fact was of any particularsignificance, and she could not remember any other events that occurred around thesame time. She also confirmed there was nothing memorable about her exchangeswith her brother when he came home in the early hours of 28 May. She was not askedto recall matters again until a private investigator approached her in October orNovember 2017 in relation to the present application. Taking these factors intoaccount the assertion by Mr Taikato's sister that she can recall her brother returninghome between 4 and 5 am on 28 May 2016 is wholly unconvincing. I therefore putthat evidence to one side.[29] Mr Cranston's evidence is also of little assistance. He can only say that hedoes not recall any occasion on which he arrived at the McDonald's carpark withMr Taikato and then left without him.[30] I consider Mr Taikato entered his guilty pleas because he accepted he hadcommitted the offences with which he is charged. He acknowledged as much toMs Adams on 5 July 2017. Subsequently, however, he came to believe, for whateverreason, that if he could vacate his pleas the complainants would not give evidenceagainst him. This belief prompted Mr Taikato to tell Ms Adams that he wished tochange his pleas, and it continues to provide the motivation for the present application.It cannot, however, provide valid justification for leave to be granted to vacateappropriately entered guilty pleas.[31] For those reasons, and as will already be apparent, I do not consider anymiscarriage of justice will occur if Mr Taikato is required to maintain his guilty pleas.Result[32] The application to vacate guilty pleas is dismissed.Lang JSolicitors:Crown Solicitor, Tauranga