Makatea v The King
[2024] NZCA 215
•5 June 2024 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA517/2023 [2024] NZCA 215 |
| BETWEEN | JINO OLIVER MAKATEA |
| AND | THE KING |
| Hearing: | 13 May 2024 |
Court: | Mallon, Lang and Moore JJ |
Counsel: | G H Vear for Appellant |
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 routinely arise when undertaking this analysis: first, why the proposed appeal was filed out of time; and secondly, whether it has merit.[5] We accept that Mr Makatea has consistently wished to appeal against conviction but the filing of the notice of appeal was delayed because of initial advice from assigned counsel that no grounds of appeal could be identified. The appeal was filed promptly after Mr Makatea filed a second application for legal aid and new counsel was assigned. We therefore grant leave for an extension of time within which to appeal.
The offending
[4]R v Knight [1998] 1 NZLR 583 (CA) at 587–589; and R v Lee [2006] 3 NZLR 42 (CA) at [96]–[99] and [106].
[5]R v Slavich [2008] NZCA 116 at [14]; and Smith v R [2020] NZCA 221 at [3].
The charges on which the jury found Mr Makatea guilty related to sexual offending that occurred in 2015. The complainant was 13 years of age at this time.
The first charge related to an incident that occurred on 20 July 2015. On that date Mr Makatea’s partner at the time left home to attend a funeral in another town. She was to be away from home for a week.
The complainant said that on the evening Mr Makatea’s partner left the address, Mr Makatea showed her pornography using an electronic device. The pornography in question showed a man engaged in sexual activity with his daughter. After viewing the pornographic material with the complainant Mr Makatea left the address to buy condoms. When he returned to the address, he had sexual intercourse with the complainant on the floor. This incident resulted in the jury finding Mr Makatea guilty on charges of sexual violation by rape and intentionally exposing a young person to indecent material.
On a subsequent occasion later the same year, the complainant said that Mr Makatea forced her to perform oral sex on him in her bedroom. On another occasion, she said she went to her bedroom wearing only a towel after having a shower. Mr Makatea entered her bedroom and performed oral sex on her. These incidents led to the jury finding Mr Makatea guilty on charges of sexual violation by unlawful sexual connection.
The appeal
The appeal is governed by s 232(2) of the Criminal Procedure Act 2011. This requires the Court to allow an appeal against conviction if it is satisfied that, having regard to the evidence, the jury’s verdict was unreasonable.[6] Alternatively, the Court must allow the appeal if a miscarriage of justice has occurred for any reason.[7] A miscarriage of justice in this context includes any error, irregularity or occurrence in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected.[8]
[6]Criminal Procedure Act, s 232(2)(a).
[7]Section 232(2)(c).
[8]Section 232(4).
Ms Vear contends on Mr Makatea’s behalf that a miscarriage of justice has occurred in the present case because the trial Judge failed to direct the jury as to how they should treat evidence given by the complainant, Mr Makatea’s former partner, and Mr Makatea. This related to the fact that Mr Makatea had been sexually abused by his brother when he was younger. Ms Vear says this created a risk that the jury would engage in improper reasoning. She contends that the jury may have erroneously reasoned that, because Mr Makatea had been sexually abused in the past by his brother, this made it more likely that he would engage in similar activity himself.
Ms Vear submits that this risk required the Judge to direct the jury that the fact that a person has been sexually abused in the past does not mean that they are more likely to sexually abuse others in the future. In particular, she contends the Judge should have directed the jury that, if they accepted the complainant’s evidence that the admission was made, it related only to touching the complainant. The fact that Mr Makatea said he had touched her because he was touched by his brother did not make it more likely that he had raped the complainant.
The evidence at trial
A few months after the offending occurred, the complainant told Mr Makatea’s partner that Mr Makatea had touched her breasts. She did not disclose the full extent of the offending.
Mr Makatea’s partner subsequently confronted Mr Makatea about touching the complainant on an occasion when she, Mr Makatea and the complainant went to a beach to eat takeaway food they had purchased. Both the complainant and Mr Makatea’s partner said that Mr Makatea was crying during the confrontation and that he apologised to his partner.
The Crown played the complainant’s videotaped evidential interview to the jury as part of her evidence-in-chief. During the interview the complainant described how, when they got back to the car, Mr Makatea said he had been touched himself and this was why he had touched her. The transcript of this part of the interview reads as follows:
… But the first time, like when [Mr Makatea’s partner] did go talk to him, I sat at the table, eating McDonald’s, and then they went down to the rocks and then they to-, and then she told me to come down. Because like she had a little private talk with him first, but I don’t know what they talked about. And then that’s when he was blaming my boyfriend. “I dunno no, it’s her boyfriend’s fault.” But then dad finally admitted it to her, saying that he did touch me because I didn’t tell her what actually happened, I just told her that he touched me in the wrong way. And then I was crying and he wanted me to hug him, but I didn’t want, I didn’t even wanna go sit next to him, but she said it’s alright because she was there. So because she was there I knew, I knew I would be safe cos she was around. And he was crying. And then we went in the car and then he said that he was touched, yet he said that he was touched so he did it to me. Or some, some, something like that. We were sitting in the car. And I was still eating my sundae. And then we drove back home. And yeah.
Mr Makatea’s trial counsel cross-examined the complainant about the conversation that allegedly occurred in the vehicle as follows:
Q.Do you remember [Mr Makatea] saying anything in the car about the touching or anything like that?
A.To be honest I’m unsure if him and [his partner] – it’s a bit – I’m not sure if the situation happened in that moment or if it happened with someone else, but what I can remember is that he was telling [his partner] that he was touched by his brother. This was in the car before we left the beach.
Q.I was going to give you a hand there. In your DVD that we watched before you came into court, in that DVD you told the lady that [Mr Makatea] had told you in the car he was touched, and that’s why he touched you.
A.Yes. Right now I’m not sure if it was said to me or to [Mr Makatea’s partner], but we were both in the car, so I assume it was just said to us.
Q. [Mr Makatea] would say that the conversation never happened.
A. It did.
Mr Makatea’s former partner also gave evidence for the Crown. She described the conversation that happened in the car in the following way:
Q.Now [the complainant] when she gave evidence earlier she described a conversation with Mr Makatea had had in the car on the way to the – when you went to the beach and in that conversation Mr Makatea talked about his brother, [A], touching him. Do you recall that?
A. Yeah, I do.
Q. What – can you describe that conversation for us?
A.I asked him why he would do that, why he did it to his own daughter. Again, he cried and said that’s what happened to him when he was growing up. I just says: “Well who did this to you?” and then that’s when he popped out with the name. His brother did it to him.
At the time of his arrest Mr Makatea underwent a videotaped police interview and this was also played as part of the Crown case. During the interview, Mr Makatea accepted that his partner had confronted him at the beach. He said the confrontation was initially about him watching pornography with his daughter. However, he accepted that his partner had also asked him whether he had touched his daughter. He denied doing so. He also denied that he had become tearful or apologised to either the complainant or his partner when they were at the beach. However, he said that he subsequently apologised to his partner for the fact that he had allowed the complainant to view pornographic material with him.
Mr Makatea gave evidence at trial, generally in accordance with his explanation to the police in the videotaped interview. However, he accepted when giving evidence that he had become tearful and apologised to his partner during the incident that occurred at the beach. He said he had been caught off guard when his partner raised the issue at the beach. He said he had been having an affair at that time and thought his partner was going to raise that issue. When Mr Makatea was cross‑examined, the following exchange occurred:
Q.Now [your partner] also talks about a conversation you had in the car on the way back where you talked about your brother touching you and [the complainant] also talked about that?
A.Yeah, I’m not going to lie. When I was 13 my brother had admitted that he touched me. The saddest thing about it is that I don’t remember any of it. I just wish that he didn’t tell me ‘cos now and me are conflicted.
Q.And she said you then apologised for touching [the complainant] and you said it’s because you had been touched yourself?
A. Sorry.
Q.[The complainant] says that you then apologised for touching her and said the reason was because you had been touched also?
A. No.
Q. You’re saying you didn’t apologise?
A.I did, I did apologise, but I wasn’t the greatest father to her. I wasn’t there for her like – when I started having affairs and stuff like that. I did apologise for being a bad father.
Q. And was that at the beach as well?
A.No, that was the reason why I apologised to her, but I didn’t say those words. I just said sorry.
Q.In your interview you said that [your partner] asked you if you had touched [the complainant] and that you apologised for it. Did that happen at the beach?
A. I never apologised. I mean I never touched her, sorry.
Q. Did you apologise for it?
A. For?
Q. For touching her in response to [your partner’s] question?
A.I didn’t apologise for not touching her. I was apologising to her for not really being there for her.
As can be seen from this passage, Mr Makatea did not directly answer the prosecutor’s question as to whether he had said in the vehicle that he touched the complainant because he had been touched himself. Counsel for the Crown did not pursue that issue further in cross-examination. However, she referred to the issue in the following passage of her closing address:
What about the conversation in the car? Both [the complainant] and [Mr Makatea’s former partner] said that he disclosed that he was touched by a relative and he said that in the car. [The complainant] said that this was shortly before he then said that’s why he’d done it to her and when the defendant gave evidence today he accepted that that conversation had happened, despite it being put to [the complainant] that it didn’t. And you may remember in his evidence in answer to the questions: “Well what did you do over the few days when [your former partner] was away?” In his interview with Detective Payne he said oh he worked and then he said: “I must have been on a dayshift because I don’t think I would’ve left [the complainant] there by herself during the nights”. What was his evidence today about that? It’s that he wasn’t at home with [the complainant] because he was visiting other women. What did he say about the pornography? Well in his interview he was asked a clear question: “What sort of porn did you watch?” And he said: “All sorts, bi, sex, gay, trans, mother, daughter, daughter, father, incest, all of that stuff.” And what did he say to you today in court, he said no he didn’t watch father, daughter porn, he clicked on it and when he saw the title he exited it.
So I suggest to you that all this evidence he’s given to you is to minimise what has happened. He’s accepted certain parts of the evidence of what [the complainant] has described, however, his account is slightly different and I suggest that when you’re comparing his account against that of [the complainant] and the other witnesses, it does not accord with the surrounding evidence. I suggest that the inconsistencies in his evidence all add up and you can’t rely on this when trying to reconcile the varying accounts that he’s provided.
Counsel for Mr Makatea did not refer to the conversation that occurred in the vehicle in his closing address and the Judge made no reference to it in his summing up.
Analysis
Ms Vear correctly points out that evidence to the effect that a defendant has been a victim of sexual abuse would ordinarily be irrelevant and inadmissible in a trial where the defendant is facing allegations of sexual abuse. In the present case, however, the evidence about that issue formed an integral part of a statement allegedly made by Mr Makatea that the Crown relied on as an admission of guilt. Ms Vear accepts that the Crown was entitled to lead the evidence as part of the alleged admission.
Ms Vear contends, however, that the Judge needed to give the jury a direction to mitigate the risk that the evidence may cause them to engage in improper reasoning. As we have already noted, Ms Vear submits there was a risk the jury would improperly conclude that, if Mr Makatea had been sexually abused himself, it was more likely that he would subsequently engage in similar sexual activity with others. She says the Judge needed to direct the jury that the fact that a person has been sexually abused does not make that person more likely to sexually abuse others.
It is now common for juries to be provided with information to counter the risk that they may engage in reasoning of this type. This may take the form of counterintuitive evidence given by persons with expertise in the subject, admissions tendered under s 9 of the Evidence Act 2006 or directions by the trial judge. Section 126A(1) of the Evidence Act, which was not in force at the time the trial took place in the present case, now requires the Judge to provide the jury with directions to address any relevant misconceptions relating to sexual cases.[9]
[9]Section 126A of the Evidence Act 2006 came into force on 21 December 2022 by virtue of s 21 of the Sexual Violence Legislation Act 2021.
In the present case, however, we are satisfied such a direction was not necessary. In closing to the jury, the Crown made the point that the complainant and Mr Makatea’s partner were consistent about what Mr Makatea had said in the vehicle at the beach whereas Mr Makatea had given multiple conflicting accounts about this.[10] The Crown did not seek to rely on the evidence to suggest that it meant Mr Makatea was more likely to commit a sexual offence because he had been abused himself. Given that counsel for Mr Makatea did not refer to the evidence at all in his closing it was not necessary for the Judge to do so. Any reference to the evidence during the summing up risked giving it more prominence than was necessary.
[10]We note that Ms Vear submits the Crown erred in its summary of the evidence but read in context we do not see any issue with this.
The situation in the present case was therefore quite different from that in R v M and KN v R, the cases relied upon by Ms Vear.[11] In R v M, counsel for the Crown had raised with the defendant in cross-examination the possibility of a link between sexual abuse perpetrated against the defendant and the acts giving rise to the charges before the jury. In KN v R, the Crown had similarly given a possible link prominence in its closing address.
[11]R v M [2008] NZCA 112; and KN v R [2014] NZCA 233.
There is in any event no risk that a miscarriage of justice has occurred. The jury’s verdicts indicate that they undertook a careful assessment of the evidence relating to each charge. The jury found Mr Makatea guilty of the charge of rape on 20 July 2015 but could not reach a verdict on the representative charge of rape. We do not consider there is any risk that the jury used the evidence that Mr Makatea was sexually abused himself as a basis for reaching guilty verdicts.
Result
The application for an extension of time is granted.
The appeal is dismissed.
Solicitors:
Public Defence Service, Tauranga for Appellant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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