Te Kahika v The King
[2025] NZCA 258
•19 June 2025 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA801/2023 |
| BETWEEN | WILLIAM DESMOND TE KAHIKA |
| AND | THE KING |
| Hearing: | 25 February 2025 |
Court: | Hinton, Woolford and Edwards JJ |
Counsel: | P L Borich KC for Appellant |
Judgment: | 19 June 2025 at 2.30 pm |
JUDGMENT OF THE COURT
AThe appeal against the convictions entered on charges four and five is allowed. The convictions are set aside, and the appellant is acquitted on both charges.
BThe appeal against the convictions entered on charges seven and eight is dismissed.
CThe sentence imposed in the District Court is set aside and substituted with convictions and discharges for charges seven and eight.
____________________________________________________________________
REASONS OF THE COURT
(Given by Edwards J)
Mr Te Kahika was found guilty of four offences under the Electoral Act 1993 following a jury trial before Judge Davenport KC in the District Court at Auckland. Two of the convictions were for filing false candidate donation returns.[1] The other two were for failing to retain records, documents, and accounts necessary to verify the return of candidate donations and election expenses.[2]
[1]Electoral Act 1993, s 209B(2)(a).
[2]Sections 209C and 205O(1).
Mr Te Kahika was sentenced to 200 hours’ community work and fined $5,000 for each of the convictions for filing false returns.[3] He was fined $2,000 for each conviction for failure to retain records.[4]
[3]R v Te Kahika [2023] NZDC 29331 at [22]–[23].
[4]At [24].
Mr Te Kahika appeals against all four convictions and sentence. The convictions appeal is advanced on the grounds that two of the charges were time‑barred, and one of those charges was also precluded on double jeopardy grounds. He says there was insufficient evidence in respect of one of the charges of failing to retain records, and that inadmissible video evidence prejudiced his trial. The sentence is said to be manifestly excessive.
The Crown acknowledges that the double jeopardy ground of appeal has merit and the appeal from that conviction should be allowed. However, the Crown says the appeal against the other convictions should be dismissed. The Crown acknowledges that the sentence is stern and says that the appeal against sentence must be allowed if the conviction on one or more of the charges is set aside.
Offending
Mr Te Kahika was a co-leader of the Advance New Zealand Party at the time of the 2020 general election. He stood as a candidate in the Te Tai Tokerau electorate.
The charges arise out of two donations (one of $5,000 and the other $10,000) that Mr Te Kahika received from Mr Kelly. The Crown alleged that these donations were for Mr Te Kahika’s electoral campaign. Mr Te Kahika said they were a personal gift.
On 17 February 2021, Mr Te Kahika filed an expenses and donations return under the Electoral Act. The return did not list the donations received by Mr Kelly. Amended returns filed on 25 February 2021, 8 March 2021, and 4 April 2021 did not disclose the donations received either.
The Crown alleged additional offending, including the fact that Mr Te Kahika had failed to retain the records necessary to verify his candidate donations and his candidate election expenses.
Charges
On 26 August 2021, six charges were filed against Mr Te Kahika.[5] For the purposes of this appeal, the most relevant of these was a single charge of filing a false candidate donation return under s 209B(2)(a) of the Electoral Act, with a CRN ending 9892 (CRN 9892). The date of offence specified in the charge was 17 February 2021, being the date that the first donation return was filed.
[5]The charges were: obtaining by deception; causing loss by deception; filing a false candidate expenses return; filing a false donations return; failing to retain records necessary to verify return of election expenses; and failing to retain records necessary to verify return of candidate donations.
There were subsequent amendments to the charges. CRN 9892 was amended on 8 February 2022 to cover the period between 16 February 2021 and 5 April 2021. The purpose of the amendment was to capture all four donation returns. Then, on 6 July 2023, the Crown filed an amended charge notice which split CRN 9892 into four separate charges of filing a false donation return — one charge for each return filed on 17 February 2021, 25 February 2021, 8 March 2021, and 4 April 2021.
By the time of the trial, Mr Te Kahika faced eight separate charges. Two of these charges were amended on the application of the Crown.[6] As a result of the amendments, two charges were subsequently discharged pursuant to s 147 of the Criminal Procedure Act 2011.[7] One of the charges dismissed related to the return dated 8 March 2021. It is the dismissal of this charge which gives rise to the appeal on double jeopardy grounds, as discussed later in this judgment.
[6]R v Te Kahika [2023] NZDC 19509 at [37]–[38].
[7]At [39].
Mr Te Kahika was found not guilty of two charges of obtaining by deception. The four charges on which he was convicted were:
(a)charge four (in relation to the return dated 25 February 2021);[8]
(b)charge five (in relation to the return dated 8 March 2021);[9]
(c)charge seven (failed to retain donations records);[10] and
(d)charge eight (failed to retain expenses records).[11]
[8]Electoral Act 1993, s 209B(2)(a). Maximum penalty: $40,000 fine.
[9]Section 209B(2)(a). Maximum penalty: $40,000 fine.
[10]Section 209C. Maximum penalty: $40,000 fine.
[11]Section 205O(1). Maximum penalty: $40,000 fine.
We address the grounds of appeal in relation to each charge below.
Charge four: Was it time-barred?
Mr Te Kahika appeals against his conviction on charge four on the grounds that it was a nullity because it was time-barred. The arguments apply equally to the conviction on charge five. However, because the Crown accepts that the appeal should be allowed on charge five (as discussed below), we focus only on charge four in this part of the judgment.
Charge four relates to the donation return dated 25 February 2021. This charge was laid under s 209B(2)(a) of the Electoral Act. Because the charge alleged a corrupt practice, the time limit in s 226(2)(a) of the Electoral Act applied. This time limit requires the prosecution to be commenced within six months of the date on which the prosecutor is satisfied that there is sufficient evidence to warrant commencement of the proceedings.[12]
[12]Section 226(2)(a).
Both parties agree that the six-month time-period expired on 14 January 2022. CRN 9892, the original charge, was the only charge under s 209B(2)(a) which was filed prior to that deadline. CRN 9892 specified the date of offence as being 17 February 2021. As previously noted, this was the date that the first donation return was filed. Accordingly, on its face, a charge relating to the return dated 25 February 2021 was not filed within time.
However, counsel for the Crown submits that CRN 9892 should be interpreted as covering all four donation returns, meaning a charge in relation to the 25 February 2021 return was filed within time. That this was the original intention, counsel says, is made clear by the summary of facts accompanying CRN 9892. Crown counsel acknowledges that the original charge was imperfectly drafted. However, she submits that this does not render CRN 9892 a nullity, and it was capable of cure pursuant to s 379 of the Criminal Procedure Act.
We do not accept the Crown’s submissions, for the reasons which now follow.
First, s 17 of the Criminal Procedure Act provides that a charge must relate to a single offence;[13] identify if it is a representative charge;[14] and include sufficient particulars to “fully and fairly inform the defendant of the substance of the offence”.[15] The purpose of s 17 is to ensure fairness to the defendant in understanding the case to be met. CRN 9892 related to a single offence committed on 17 February 2021. There was nothing on the face of the charge to indicate that it encompassed the other returns subsequently filed.
[13]Criminal Procedure Act 2011, s 17(1).
[14]Section 17(3).
[15]Section 17(4).
Second, while the summary of facts referred to the other returns filed, we do not consider it clarified that the charge was intended to be interpreted as relating to these other donation returns. That part of the summary of facts dealing with the offending giving rise to CRN 9892 was headed “[f]iled a false candidate donations return” (emphasis added). The narration under this heading began with the return which was filed on 17 February 2021 and the failure to disclose the donations in that return. The subsequent references to the other returns filed were part of the narrative that then followed, but the focus of the summary was on the 17 February 2021 return.
Relevant here too is the fact that the other charges laid at the same time as CRN 9892 either specified a particular date or a range of dates. There was nothing in the summary of facts which suggested that CRN 9892 should be interpreted as encompassing a range of dates, rather than the date of offence specified in the charge.
Third, the subsequent amendments to CRN 9892 are inconsistent with the Crown submission. The first amendment was made on 8 February 2022. That amendment changed the 17 February 2021 date of offence to a date range which encompassed all four of the returns filed. The second change occurred on 6 July 2023, which resulted in CRN 9892 being split into four separate charges — one for each return. As the Crown accepts, a single charge was not appropriate to cover four separate documents submitted on different dates. The subsequent changes made to CRN 9892 reinforce the interpretation of that charge as only relating to the 17 February 2021 return.
Finally, contrary to the Crown submission, we do not consider s 379 of the Criminal Procedure Act and this Court’s decision in Talley’s Group Ltd v Worksafe New Zealand assists in this case.[16] Section 379 provides that a charging document will not be dismissed, set aside, or held invalid by any court by reason only of any defect, irregularity, omission or want of form, unless the court is satisfied that there has been a miscarriage of justice.[17] Section 379 was applied in Talley’s to save a charge that was defective for failing to specify particulars of the omissions which formed part of the charge. The Court found that specification of the omissions in the summary of facts served with the charge meant that Talley’s had sufficient notice of its alleged failures, and the defect was one of form only.[18]
[16]Talley’s Group Ltd v Worksafe New Zealand [2018] NZCA 587, [2019] 2 NZLR 198.
[17]Criminal Procedure Act, s 379.
[18]Talley’s Group Ltd v Worksafe New Zealand, above n 16, at [74].
This is not a case to which s 379 applies. We are not asked to dismiss, set aside, or hold invalid CRN 9892. Rather, we are asked to interpret CRN 9892 in such a way as to save charge four (and charge five) and the convictions entered in relation to those charges. Moreover, the proposed interpretation of CRN 9892 is to prevent charge four being found to be a nullity for being filed out of time. Section 379 does not extend to saving charges that are nullities because they are filed out of time.[19]
[19]At [45], citing Hall v Ministry of Transport [1991] 2 NZLR 53 (CA) at 57.
The decision in Talley’s is also distinguishable. The charge in that case was defective for failing to provide certain particulars which were essential to the charge. The particulars, however, were provided in the summary of facts served with the charge. We are not persuaded that CRN 9892 is defective in this case. That is, we are not satisfied that it should have specified a date range which incorporated the dates on which the amended returns were filed. As already noted, we consider the Crown was right to concede that there should have been one charge for each return filed. CRN 9892 was valid on its face insofar as it related to the 17 February 2021 return. Furthermore, as already noted, we are not persuaded that the summary of facts made it clear in this case that CRN 9892 applied to more than the 17 February 2021 return, which provides another point of distinction to the decision in Talley’s.
It follows that charge four was filed outside the six-month statutory timeframe. It is a nullity which cannot be saved by interpreting CRN 9892 as extending to the 25 February 2021 return. The conviction on charge four must be set aside, and an acquittal entered on the charge. Orders in those terms are made at the end of this judgment.
Charge five: Double jeopardy
The Crown accepts that the appeal against the conviction on charge five should be allowed on the basis that Mr Te Kahika was deemed to be acquitted of an identical charge. We consider that concession properly made. The appeal ground in relation to the conviction on charge five may be addressed relatively briefly.
The double jeopardy arises out of the sequence by which an earlier charge was first amended, and then dismissed under s 147 of the Criminal Procedure Act. The amended charge was in the same terms as charge five in that it related to the donation return filed on 8 March 2021. A dismissal under s 147 is deemed to be an acquittal of the charge.[20] In those circumstances, s 47 of the Criminal Procedure Act was engaged and a special plea of previous acquittal was available to Mr Te Kahika in relation to charge five.
[20]Criminal Procedure Act, s 147(6).
We are satisfied that the conviction on charge five must be set aside and an acquittal entered on that charge.
Charge eight: Sufficiency of evidence
Mr Te Kahika appeals the conviction on charge eight on the grounds that there was insufficient evidence for the jury to find him guilty of that charge.
Charge eight was filed under s 205O of the Electoral Act. The charge was that Mr Te Kahika failed to retain the records, documentation, and accounts necessary to verify the return of his candidate election expenses.
To prove this charge (and others), the Crown called a witness from the Electoral Commission who gave evidence about the changing and contradictory details provided in Mr Te Kahika’s returns, and the lack of supporting documentation to verify those details. This was a particular issue in relation to the apportionment of advertising expenses between candidate and party.
Mr Te Kahika also gave evidence directed to this charge. He said that he had documentation relating to himself, but he did not have any Advance New Zealand party documentation and he was unclear about how to undertake the apportionment.
We consider this to be sufficient evidence from which the jury could infer that Mr Te Kahika had not taken all reasonable steps to ensure that the documentation reasonably necessary to enable him to verify his candidate’s election expenses were retained. Moreover, the jury was entitled to reject his evidence and find that he did not have a reasonable excuse for failure to retain the necessary documentation.
This appeal ground is dismissed.
Was the admission of the Facebook live video prejudicial?
The remaining ground of appeal is that the Judge was wrong to admit a video in which the appellant was interviewed by Mr Vincent Eastwood. Mr Eastwood was the appellant’s co-defendant in a COVID-19 protest trial at the Auckland District Court during 2022.[21]
[21]Both Mr Te Kahika and Mr Eastwood were convicted and discharged of these offences. See Eastwood v New Zealand Police [2023] NZHC 3885.
Mr Te Kahika says he was prejudiced by the fact that the interview took place against the background of a scene from an anti-vaccination protest and included a rolling banner at the foot of the screen which sought donations for Mr Eastwood. That prejudice was compounded by the fact that Mr Eastwood appeared at the appellant’s trial and was ejected for allegedly trying to film part of it. Counsel for the appellant submits that Mr Eastwood is a controversial figure, and the trial took place when feelings within the community regarding COVID-19, vaccinations, and anti‑vaccination stances were polarising. It is said that the admission of this interview occasioned a miscarriage of justice.
We have viewed the video in the form that the jury saw it at trial and considered the transcript. We are satisfied that the decision to admit the video was the right one. The statements made by Mr Te Kahika during that interview were directly relevant to the issues at trial. The focus of the short clip played at trial was squarely on those statements. The anti-vaccination protest and the request for donations by Mr Eastwood were very much in the background. Moreover, before the video was played, the Judge directed the jury to listen to the words of the statement but to ignore the background imagery and peripheral aspects of the recording. The probative value of the evidence was not outweighed by its unfairly prejudicial effect.
Nor are we satisfied that Mr Te Kahika’s association with Mr Eastwood, and the latter’s ejection from the Court, would have caused Mr Te Kahika unfair prejudice. The Judge directed the jury to set aside matters of prejudice and sympathy. She also directed the jury that any interactions between the Court and people visiting the Court were a sideshow and completely irrelevant to what the jury had to decide. The jury was told not to put any weight on these factors in their deliberations, and to put the interactions to one side.
We are satisfied that these directions were sufficient to mitigate any prejudice that might have arisen from Mr Eastwood’s behaviour at trial. The fact that the jury returned mixed verdicts, including acquitting Mr Te Kahika of the most serious charges of obtaining by deception, also tends to suggest there was no prejudice to Mr Te Kahika’s fair trial rights and a miscarriage of justice did not arise. This ground of appeal must be dismissed.
Sentence
The conclusions we have reached regarding the convictions on charges four and five mean that the appeal against sentence only relates to charges seven and eight. Mr Te Kahika was fined $2,000 on each of these charges.
The assessment of Mr Te Kahika’s culpability in relation to the more serious charges is likely to have influenced the Judge’s decision on the appropriate sentence for charges seven and eight. Given our conclusions on the convictions appeal, we are satisfied that the sentencing exercise needs to be undertaken afresh. Mr Te Kahika has requested this Court to undertake that exercise without remitting the matter to the District Court and on the basis of the materials already before us. We agree that this is an appropriate approach in the circumstances of this case.
We start with an assessment of the gravity of the offending. There is no evidence that the offending was deliberate or wilful. Mr Te Kahika retained some records (such as the advertisements themselves) but did not retain the necessary information to enable an apportionment to be made. Mr Te Kahika was unable to source the relevant information from the Advance New Zealand Party given the breakdown in relationship by the end of his election campaign. We consider that the gravity of the offending should be assessed at the lower end of the scale.
While Mr Te Kahika has two prior convictions, neither is relevant to the offending and an uplift cannot be justified. In terms of mitigating features, the pre‑sentence report writer assesses Mr Te Kahika as having a low probability of causing harm or re-offending. Mr Te Kahika also has the advantage of a supportive family and is currently working as a pastor.
As noted by both counsel, there are few comparable cases, and none concerning ss 209C or 205O of the Electoral Act. In Ravlich v Police, a fine of $200 was described as “generous” on appeal.[22] That fine was imposed for the failure to file a candidate’s election expenses return, a more serious offence than those here.[23] In Police v Cribb, a fine of $300 plus court costs of $130 was imposed for a failure to file election expenses and a failure to declare candidate expenses.[24] Again, these offences are more serious than a failure to maintain records.
[22]Ravlich v Police HC Auckland CRI-2010-485-000037, 5 July 2010 at [25].
[23]At [2].
[24]Police v Cribb [2021] NZDC 10475 at [6].
While we accept that the gravity of the offending is very low, we are not satisfied that the threshold for a discharge without conviction is made out in this case. Mr Te Kahika did not identify any consequences of conviction which would be disproportionate to the gravity of the offending. We consider a conviction is required to mark the importance of the record keeping obligations in the Electoral Act as a way of verifying donations and expenses and maintaining integrity in the electoral system.
Nevertheless, taking account of the circumstances of the offending and the other mitigating factors raised in the report, we consider a conviction and discharge for each offence is a reasonable and proportionate sentence in this case.
Result
The appeal against the convictions entered on charges four and five is allowed. The convictions are set aside, and the appellant is acquitted on both charges.
The appeal against the convictions entered on charges seven and eight is dismissed.
The sentence imposed in the District Court is set aside and substituted with convictions and discharges for charges seven and eight.
Solicitors:
Te Tari Ture o te Karauna | Crown Law Office, Wellington for Respondent
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