R v Taikato
[2017] NZHC 3249
•19 December 2017
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I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2016-070-2727 [2017] NZHC 3249
THE QUEEN v
SHAUN MERRO TAIKATO
Hearing: 19 December 2017 (Heard at ROTORUA) Appearances:
N Batts for Crown
W Nabney for Defendant
Judgment:
19 December 2017
JUDGMENT 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 Registrar Date……………
R v TAIKATO [2017] NZHC 3249 [19 December 2017]
[1] On 31 July 2017, Mr Taikato pleaded guilty to seven charges in this Court. The most 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 does not 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 the morning of 28 May 2016. On that date the three complainants were seated in a motor vehicle in the carpark of a McDonald’s restaurant situated on the corner of Cameron Road and 11th Avenue in Tauranga. They say that at about 4.30 am a man wearing a hooded jacket got into the vehicle. The complainants in the front seat of the vehicle did 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 months earlier. He knew that person as being Shaun Taikato.
[4] The complainants then describe a series of events that commenced with the man pulling out a weapon that appeared to be a shortened firearm. He then threatened them 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 escape from the vehicle when it stopped at a traffic light. The vehicle then continued on its way with the hooded man in the back seat continuing to threaten the two complainants in the front seat. He first made them drive to an ATM machine where unsuccessful attempts were made to withdraw money from the complainants’ accounts. He then forced them to embark on a journey that ended a considerable distance away in a remote rural location near Welcome Bay. At some stage during the journey through the 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 drove off in it. The complainants made their way to a nearby address, where they roused the occupants 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 of photographs 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 wound to the chest. He told medical staff and the police he had wounded himself accidentally with the firearm whilst handling it. The police discovered the weapon Mr Taikato used to injure himself when they searched his father’s address on 12 July 2017. It appears to be similar to that used by the man who kidnapped the complainants on 28 May 2016.
[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 the complainants. By that stage the police were aware that a fingerprint belonging to Mr Taikato had been found on a beer bottle in the vehicle. When the interviewing officer put this to Mr Taikato, he said he did not know how the fingerprint could have got there. The police subsequently arrested Mr Taikato and charged him with kidnapping, attempted kidnapping, aggravated robbery, careless use of a firearm and unlawful use of a firearm.
The proposed defence
[10] Mr Taikato now wishes to defend the charges on the basis that he was not the person who got into the vehicle and unlawfully detained the three complainants. He acknowledges 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 the complainants’ vehicle and spoke to the occupants. Furthermore, he concedes that he knew Mr Johnson through earlier dealings with him. He says he consumed beer whilst in the vehicle and this explains the fingerprint on the beer bottle the police found in the vehicle. He says, however, that he got out of the vehicle and then left the carpark with Mr Cranston. He says he went back to his sister’s house and went to bed. He
cannot recall whether his sister was up when he arrived home, or whether he spoke to her.
[11] Mr Taikato’s version of events is supported to some extent by an affidavit sworn by Mr Cranston. He cannot specifically recall going to the McDonald’s carpark with Mr Taikato on 28 May 2016, but he acknowledges having gone to that carpark on several occasions with him. He says he cannot remember any occasion on which he left Mr Taikato in the carpark.
[12] Mr Taikato also relies on an affidavit sworn by his sister. His sister deposes she can recall the morning of 28 May 2016 because it was eight days after her daughter’s birthday. She recalls Mr Taikato arriving home on that date at around 4.30 to 5 am. If her evidence is correct, Mr Taikato could not have been involved in the incident 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 are also 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 the discretion 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 most common circumstances which warrant leave are that the accused has not really pleaded guilty, that there has been some critical mistake, or there is a clear defence 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 v Crown Solicitor at Auckland (Auckland High Court, T116/94, 27 July 1995). The underlying object is to avoid a miscarriage of justice, or, perhaps in the prospective context is better viewed from the opposite end, to consider the interests of justice. Such a test incorporates not only the interests of the accused 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 informed decision to plead guilty, a conviction cannot be impugned.3 Furthermore, a
1 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 a sufficient basis for concluding a miscarriage of justice has occurred.4
[15] Mr Nabney contends a miscarriage of justice will occur in the present case unless Mr Taikato is permitted to stand trial and have a jury consider his defence based on alibi.
Mr Taikato’s discussions with Ms Adams
[16] Mr Taikato’s current version of events needs to be considered in the context of discussions he held with his former counsel, Ms Rachael Adams, during the period leading up to and shortly after the entry of the guilty pleas. Mr Taikato has waived privilege in respect of his communications with Ms Adams and she has sworn an affidavit in opposition to his application. Mr Taikato acknowledges Ms Adams has correctly recorded the matters he discussed with her.
[17] Ms Adams confirms she was assigned by Legal Services to act as Mr Taikato’s counsel 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 the conditions of his bail. She then spoke to Mr Taikato briefly after meeting with his parents. At that stage his focus was being released on bail rather than providing Ms Adams with instructions for his defence. Ms Adams asked Mr Taikato if he wanted her to send him a copy of the disclosure material she had received from the police. He asked her to wait until he had been granted bail before providing him with that material.
[18] Mr Taikato was eventually granted EM bail on 10 November 2016. After some prompting, Mr Taikato met with Ms Adams on 2 June 2017 in the company of his mother. Ms Adams deposes she found Mr Taikato “very hard to engage”. When she asked him to be clear and specific about his defence, he replied “I wasn’t there, it wasn’t me”. When Ms Adams asked Mr Taikato why the complainants would invent such a story, he told her they owed him a lot of money and that this was what he had been discussing with them on 28 May 2016.
4 At [38].
[19] Ms Adams became concerned that Mr Taikato’s version of events appeared to continually 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 what his defence was to be.
[20] Mr Taikato and his mother saw Ms Adams again on 5 July 2017. As with earlier discussions, Ms Adams made file notes of her discussion with Mr Taikato on this occasion. Mr Taikato told Ms Adams he had decided to tell her “what it was really all about”. He then said “It all happened just as they said” with reference to the allegations 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 the victims owed him money for a car he had sold to them. He said he was desperate for money.
[21] Ms Adams said Mr Taikato then asked her what would happen if he said that he was not involved and denied that he was ever there. Ms Adams describes her advice to him at this point in the following terms:
27.My advice to him was that this would not be credible. He would have to explain his fingerprint. There would have to be some plausible explanation as to why the victims would make everything up. My advice to him was that he would probably have to give evidence to establish any previous dealings with the witnesses or motivation on their part. I said that I could not support him giving evidence [denying he was there] which was contrary to what he had told me had happened.
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, under those circumstances, he would have to give evidence about what he says did take place.
29.I was concerned that both these options raised by Mr Taikato were not consistent 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 in their statements. I told him that I thought this was unlikely, and explained that the Police would arrange transport and security for the witnesses and undoubtedly review their evidence with them prior to the trial. I also explained that their previous statements could be used to cross-examine if they told another story now.
31.Mr Taikato thought this over for a few minutes. Then he told me that he wanted to plead guilty.
[22] Ms Adams says Mr Taikato telephoned her on 26 July 2017 and confirmed his intention to plead guilty to the charges. He then appeared in the High Court at Hamilton on 31 July 2017 and entered guilty pleas to all charges. He was remanded in custody for sentencing.
[23] On 1 August 2017, Mr Taikato telephoned Ms Adams again. He said he was writing “remorse letters”, and asked about the possibility of obtaining bail. He also confirmed that “it was all okay with him”.
[24] On 18 August 2017, Ms Adams spoke to Mr Taikato by means of an AVL link to the prison where he was being held on remand. She says Mr Taikato told her that Mr Johnson owed him money for a car. Mr Taikato said that on the night of the alleged offending he was very intoxicated and desperate, and could not remember much due to his consumption of alcohol and cannabis. He says that over the next few days others had told him what he had done that night. He also said he wanted to change his pleas because Mr Johnson had told him he wanted to retract his statement to the police. He told Ms Adams that another of the complainants was his “mate”, and he thought that if 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 the witnesses 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 his belief 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 August 2017 make it clear that Mr Taikato made his decision to enter guilty pleas on a fully informed basis. Furthermore, his statement to the effect that events had happened just as the complainants said was a frank admission to Ms Adams that he was the person who kidnapped the complainants at gunpoint. It confirms the correctness of Mr Johnson’s nomination of him as that person.
[27] I place no weight on the evidence given by Mr Taikato’s sister. She said she did not suspect her brother was involved in the offending until she saw an article in a newspaper about the kidnapping. She said that by this stage Mr Taikato was on EM bail. This means she cannot have seen the newspaper article until after 10 November 2016, some six months after the incident. In addition, she could not say why she associated the article with her brother.
[28] Furthermore, the only reason Mr Taikato’s sister can give for remembering her brother returning between 4 and 5 am on 28 May 2016 is that it occurred eight days after her daughter’s birthday. She could not explain why that fact was of any particular significance, and she could not remember any other events that occurred around the same time. She also confirmed there was nothing memorable about her exchanges with her brother when he came home in the early hours of 28 May. She was not asked to recall matters again until a private investigator approached her in October or November 2017 in relation to the present application. Taking these factors into account the assertion by Mr Taikato’s sister that she can recall her brother returning home between 4 and 5 am on 28 May 2016 is wholly unconvincing. I therefore put that evidence to one side.
[29] Mr Cranston’s evidence is also of little assistance. He can only say that he does not recall any occasion on which he arrived at the McDonald’s carpark with Mr Taikato and then left without him.
[30] I consider Mr Taikato entered his guilty pleas because he accepted he had committed the offences with which he is charged. He acknowledged as much to Ms Adams on 5 July 2017. Subsequently, however, he came to believe, for whatever reason, that if he could vacate his pleas the complainants would not give evidence against him. This belief prompted Mr Taikato to tell Ms Adams that he wished to change 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 vacate appropriately entered guilty pleas.
[31] For those reasons, and as will already be apparent, I do not consider any miscarriage 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 J
Solicitors:
Crown Solicitor, Tauranga
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