Makatea v The King - [2024] NZCA 215

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA517/2023
[2024] NZCA 215

BETWEEN	JINO OLIVER MAKATEA Appellant
AND	THE KING Respondent

Hearing:	13 May 2024
Court:	Mallon, Lang and Moore JJ
Counsel:	G H Vear for Appellant T R Simpson for Respondent
Judgment:	5 June 2024 at 3 pm

JUDGMENT OF THE COURT

AThe application for an extension of time is granted.

B The appeal is dismissed.

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REASONS OF THE COURT

(Given by Lang J)

Mr Makatea was found guilty by a jury in the District Court on four charges of sexual offending against his teenage daughter.[1] These comprised one charge of sexual violation by rape, two charges of sexual violation by unlawful sexual connection and one charge of intentionally exposing a young person to indecent material.
[1]Prior to sentencing Mr Makatea’s name was suppressed by an order made under s 200 of the Criminal Procedure Act 2011 that was put in place because it was thought that publication of Mr Makatea’s name would identify the complainant, undermining her automatic statutory suppression under s 203 of the Criminal Procedure Act. At sentencing, the Judge granted an order sought by the complainant permitting the publication of her name under s 203(4) of the Criminal Procedure Act. As a result, the Judge also allowed the suppression order for Mr Makatea lapse because the order was no longer necessary to protect the complainant’s name. See R v Makatea [2022] NZDC 25682 at [2]–[3].
The jury could not reach agreement in relation to two further charges and the Crown has elected not to proceed to a new trial on those charges. The trial judge, Judge Hobbs, discharged Mr Makatea on another charge during the trial.[2]
[2]R v Makatea [2021] NZDC 19421.
Mr Makatea applies for an extension of time within which to appeal against conviction. He contends there is a real risk a miscarriage of justice may have occurred because the Judge failed to direct the jury as to how they should approach an important aspect of the evidence given at the trial. This related to evidence that Mr Makatea had himself been the victim of sexual abuse by a relative.[3]

Extension of time within which to appeal

[3]Mr Makatea’s notice of appeal also included an appeal against sentence but this part of his appeal was abandoned on 28 November 2023.

Mr Makatea requires leave for an extension of time within which to appeal because he filed his appeal 20 months out of time. He was sentenced on 9 December 2021 but, for a variety of reasons, his appeal was not filed until 6 September 2023. The Crown opposes leave being granted on the basis that Mr Makatea has not provided a full explanation for the delay that has occurred. The Crown also contends that the merits of the appeal are not strong.
The question is whether it is in the interests of justice, taking into account all relevant circumstances, to grant the extension.[4] Two questions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Makatea v The King

Details

AGLC: Makatea v The King [2024] NZCA 215
Case: [2024] NZCA 215
Decision Date: 5 June 2024 at 3 pm

CaseChat Overview and Summary

Jino Oliver Makatea appealed against his convictions on four charges of sexual offending against his teenage daughter. The jury found him guilty of one charge of sexual violation by rape, two charges of sexual violation by unlawful sexual connection, and one charge of intentionally exposing a young person to indecent material. The jury could not reach agreement on two further charges and the Crown elected not to proceed to a new trial on those charges. The trial judge discharged Makatea on another charge during the trial.

Makatea sought an extension of time to appeal against his convictions, arguing that there was a risk of a miscarriage of justice because the trial judge failed to direct the jury on how to approach evidence that Makatea had himself been a victim of sexual abuse by a relative. The Crown opposed the extension of time, arguing that the delay was unexplained and the merits of the appeal were weak.

The Court of Appeal granted the extension of time but dismissed the appeal. The Court held that the evidence about Makatea's sexual abuse was relevant as it formed part of an alleged admission of guilt. However, the Court concluded that the judge did not need to give a direction to the jury to mitigate the risk of improper reasoning because the Crown did not rely on the evidence to suggest that Makatea was more likely to commit a sexual offence because he had been abused himself. The Court found no risk of a miscarriage of justice as the jury's verdicts indicated a careful assessment of the evidence. Therefore, the appeal was dismissed.

The Court granted the application for an extension of time, and the appeal was dismissed.

Orders