Whakatau v Police - [2023] NZHC 650

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-99

[2023] NZHC 650

BETWEEN
DEAN WHAKATAU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:
27 February 2023 with additional submissions on 8 and 13 March

2023

Appearances:

N Tahana for the Appellant

M R L Davie for the Respondent

Judgment:

28 March 2023

JUDGMENT OF PALMER J

Solicitors
Kāhui Legal, Rotorua
Crown Law Office, Wellington

WHAKATAU v NEW ZEALAND POLICE [2023] NZHC 650 [28 March 2023]

What happened?

The offending

[1] Leading up to October 2019, Mr Dean Whakatau, aged 41, became friends with the complainant, aged 15, on Facebook. They exchanged messages for a month. They were not related by blood, though the complainant’s half-sisters are also his half- sisters. Mr Whakatau and the complainant planned to, and did, meet at a family gathering in Rotorua on 1 October 2019. Her sisters said they flirted.

[2] In the early hours of the next morning, they went to another house on Cyprus Place. The complainant stayed there until Mr Whakatau dropped her off at 4 pm, near where the family gathering took place. The complainant said they had sex and oral sex at the Cyprus Place address and described a corroborated abnormality of Mr Whakatau’s penis. She also said he gave her “crack” and cannabis. After she left, Mr Whakatau and the complainant continued messaging, including him telling her not to tell anyone and to delete the messages.

[3] On 4 October 2019, the complainant got into an argument with one of her half-sisters about the messages. Mr Whakatau picked her up in the early hours of 5 October 2019. She said he pushed a shotgun into her stomach and there was more oral sex in the backseat of his car at the Waikite sportsground. When the Police found them, he had no pants on and the complainant was hiding nearby. There was a cutdown shotgun and ammunition in the car. The complainant told her mother they had had consensual sexual intercourse, though she denied that to the Police.

[4] The Police seized Mr Whakatau’s phone and asked him to provide the passcode. He refused. Mr Whakatau said he had been manipulated by the complainant and he denied they had had sexual intercourse.

The trial

[5] Mr Whakatau pleaded guilty to four charges: failing to comply with reporting obligations; unlawful possession of a firearm and ammunition; and breach of parole

conditions. On 21 January 2021, Mr Whakatau was tried in the District Court at Rotorua, before Judge G C Hollister-Jones, on another nine charges, of:1

(a)meeting a young person following grooming, between 1 September 2019 and 1 October 2019;2

(b)four offences of sexual connection with a young person, oral sex and sexual intercourse, between 2 and 5 October 2019;3

(c)supplying cannabis to a person under the age of 18, on…

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: [2023] NZHC 650
Decision Date: 28 March 2023

CaseChat Overview and Summary

In Whakatau v Police, the appellant, Dean Whakatau, sought leave to appeal out of time against his convictions for charges including sexual connection with a young person, unlawful possession of a firearm, and breach of parole conditions. Whakatau argued that his trial counsel had made errors that amounted to a miscarriage of justice, and that the police investigation had been inadequate. The High Court considered these arguments and dismissed the appeal.

The court first addressed whether counsel error caused a miscarriage of justice. Whakatau's counsel, Brian Foote, was accused of failing to follow instructions to question the complainant about a prior false sexual allegation and to seek an adjournment to allow more time for preparation. The court found that Foote's decisions were tactical choices within the bounds of his professional judgement, and that there was no reasonable possibility that additional cross-examination or an adjournment would have affected the trial outcome. The court also rejected the argument that Foote failed to inquire with a witness at the Cyprus Place house, stating it was speculative whether such testimony would have helped Whakatau's case.

The court then considered whether the police investigation was inadequate. Whakatau argued that the police failed to carry out forensic analysis on his vehicle, medically examine the complainant, and properly arrange for a support person to be present when she was interviewed. The court found that the police had legitimate reasons for their omissions, there was no allegation of bad faith, and it was unclear what the lost evidence would have shown. The court also rejected the argument that a conflict of interest tainted the investigation, finding that the issue was before the trial judge.

Ultimately, the court found that there was no miscarriage of justice based on counsel error or an inadequate police investigation. The appeal was therefore dismissed.

Orders