Waqairawaqa v The King - [2025] NZCA 442

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA4/2025
[2025] NZCA 442

BETWEEN	LIVAI SAKEO WAQAIRAWAQA Appellant
AND	THE KING Respondent

Hearing:	23 June 2025
Court:	Woolford, Dunningham and Walker JJ
Counsel:	A C Cresswell and M T Dempsey for Appellant J G Fenton for Respondent
Judgment:	3 September 2025 at 11 am

JUDGMENT OF THE COURT

A The application for an extension of time to appeal is granted.

B The appeal is dismissed.

REASONS OF THE COURT

(Given by Walker J)

Following a trial before Judge J Bergseng and a jury, Mr Waqairawaqa was convicted on charges of supplying methamphetamine and conspiring to supply methamphetamine.[1] He was sentenced to four years and four months’ imprisonment.[2]
[1]Misuse of Drugs Act 1975, s 6(1)(c)(ii) and (2A).
[2]R v Waqairawaqa [2024] NZDC 27255 [sentencing notes] at [51].
He now appeals his conviction.

Events giving rise to the charges

There are two different periods to which the charges relate. In respect of each, the Crown pinned its case on text or Wickr (an encrypted messaging application) messages on Mr Waqairawaqa’s cell phone, obtained pursuant to a production order.
The Crown case was that the messages showed that Mr Waqairawaqa
supplied 28 grams of methamphetamine between 8 and 9 March 2023 to an associate to on‑sell to others. This resulted in the supply charge.
In respect of the second period, the Crown case was that Wickr messages between Mr Waqairawaqa and others showed that, between 4 and 8 December 2023, he acted as middleman arranging the supply of a kilogram of methamphetamine to Rotorua from Auckland. The transaction did not come to fruition but resulted in the conspiracy to supply charge.
An essential element of both charges required proof beyond reasonable doubt that the messages related to methamphetamine as opposed to any other controlled drug. None of the messages expressly referenced methamphetamine by name. The Crown led expert evidence from Detective Sergeant Steven Burborough, a police officer with 23 years of experience, to explain to the jury why they could infer that the messages were about methamphetamine.
The thrust of the defence case was that the Crown could not prove, first that Mr Waqairawaqa sent the messages on which the prosecution relied or, secondly, that they referred to methamphetamine rather than any other controlled drug.

Dismissal of s 147 application

The trial Judge declined to dismiss the charges at the close of the Crown case.[3] The single ground advanced by defence counsel in support of the dismissal was that the evidence could not establish that the messages related to methamphetamine. Therefore, as a matter of law, a properly directed jury could not reasonably convict the defendant. Instead, the jury would be asked to speculate. The Judge reasoned that the expert’s evidence needed to be considered as a whole, in context, and with the other relevant evidence rather than isolating parts of the messages. He referenced aspects of drug terminology in the messages as explained by the expert,…

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.

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Details

Case: [2025] NZCA 442
Decision Date: 3 September 2025 at 11 am

CaseChat Overview and Summary

In Waqairawaqa v The King, the appellant, Livai Sakeo Waqairawaqa, was convicted of supplying and conspiring to supply methamphetamine and was sentenced to four years and four months' imprisonment. He appeals his conviction, arguing that the trial Judge erred in not dismissing the charges and in finding that there was credible and reliable evidence on which a jury could convict him. The appeal focuses on the sufficiency of the evidence, particularly whether the messages in question related to methamphetamine rather than another controlled drug.

The Court of Appeal granted an extension of time for the appeal to be filed and dismissed the appeal. The Court held that the trial Judge correctly refused to dismiss the charges and that there was sufficient credible and reliable evidence for a properly directed jury to convict the appellant. The Court found that the expert evidence from Detective Sergeant Burborough, who had extensive experience in drug-related investigations, was admissible and provided a sufficient basis for the jury to conclude that the drug discussed in the messages was methamphetamine. The Court also rejected the argument that the expert's lack of detailed knowledge about MDMA meant that he could not exclude the possibility that the drug was MDMA rather than methamphetamine. The appeal was dismissed, and the conviction and sentence were upheld.

Orders