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R v Wetere [2022] NZDC 5501 (30 March 2022)

Last Updated: 11 July 2023

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

VERDICTS AND REASONS OF JUDGE P P CRAYTON ON JUDGE ALONE TRIAL

R v [DONALD WETERE] [2022] NZDC 5501 [30 March 2022]

[1] The defendant [Donald Wetere] faced trial on a charge list containing seven charges reflecting sexual offending. The name of the complainant is suppressed by law. Initials have been used to identify the relevant person and indeed the child witness [Editorial note: references to the complainant have been changed to “[the complainant]”, and references to the child witness have been changed to “[the child witness]”]. This is a judge-alone trial which commenced on 23 March and concluded with closings on 24 March.

[2] At the outset of the trial on arraignment the defendant pleaded guilty to charge 5, a representative charge. This plea was entered on the basis of a single occasion. A verdict is therefore not required on this charge. Inevitably I will be called upon though to make a finding as to the extent of the offending reflected by the defendant’s conduct upon that charge.

[3] I adjourned through to today for verdicts to be given and reasons to be provided.

The Law

[4] A judge hearing a criminal trial without a jury is required to deliver reasons for the verdicts that are reached. The Court of Appeal in R v Connell held that this requires:

A statement of the ingredients of each charge and any other particular relevant rules of law or practice; a concise account of the facts and a plain statement of the judge’s essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised at the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected it will almost always be vital to say so explicitly.1

[5] The Supreme Court in Sena v Police also provided guidance in this area with Justice William Young delivering the Court’s decision stating:

1 R v Connell [1985] NZCA 34; [1985] 2 NZLR 233.

We see s 232(2)(b) premised on the assumption that s 106(2) (and common law) requirements for reasons has been satisfied. Connell and Eide indicate the kind of reasons which judges should provide. They should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which exists of a conclusionary credibility preference is unlikely to suffice. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction...that a reasoned judgement is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the evidence, for instance a misapprehension of the significance of the dispute.2

The law relevant to this case

[6] Evidence was received in this case in a number of ways. By the playing of a video record or video interview. Viva voce either using an alternative mode of evidence or in court, by reading of a formal written statement, by the presentation of text messaging and a diagram and two admissions of facts are encompassed within the evidence. In addition, there are a number of background facts which were not controversial and can be identified as being accepted. The Crown bears the onus of proving each charge beyond a reasonable doubt. The defendant is not required to prove anything. He is presumed innocent until proven guilty.

[7] The defendant is being tried on six charges. I am required to consider each charge separately and come to a separate decision on each of the charges faced by the defendant, focussing on the evidence relevant to that charge. In affect there have been six separate trials. A separate verdict is delivered upon each charge and I acknowledge that different verdicts may be delivered on different charges.

[8] Charges 2, 3, 4 and 7 are representative charges. Representative charges are commonly used where there is an allegation of repeated offending over time and these are identified as relevant on the Crown charge list. I must be satisfied on each of those representative charges that during the dates alleged the offence particularising the charges by that charge has happened on at least one occasion.

2 Sena v Police [2019] NZSC 55.

Sympathy and prejudice in this case

[9] The defendant has admitted sexually offending against the complainant. This has a specific relevance to my consideration of the evidence of the complainant. However, just because the defendant has admitted such behaviour it does not make him guilty on any or all of the other charges. I approach the evidence in a wholly dispassionate way and without prejudice or sympathy, whichever way that may fall.

[10] In coming to my conclusions I am entitled to draw inferences. Inferences are logical conclusions drawn from two or more proven facts. Judges are well accustomed to drawing inferences by assessing evidence, but I identify that in respect of any aspect of the case where the evidence would support two conclusions of similar weight then to choose between them would be to guess and I would not do that.

Corroboration

[11] There is no requirement for corroboration to be identified on any or all of the charges. If the Court is sure that a charge considered separately has been proved to the requisite standard on the evidence available from the complainant alone then the Court is entitled to return a guilty verdict.

Recent Complaint

[12] In evidence the prosecution adduced from [witness 1] and [witness 2] what the complainant had said to these witnesses about events which are now subject to the charges. These reflect a prior consistent allegation made close to the time of the event which formed the basis of the charges. It was put to the complainant in cross-examination directly that her account of events was not correct, indeed, it was not true, was certainly one of the bases of cross-examination.

[13] The law allows me to hear about those earlier statements in order to assist in the assessment of her evidence. The earlier statements share a consistency in her allegations and I can also use them as evidence that the events happened. It is important for me to remember that of itself repetition does not necessarily make

something true. An untruthful person might continuously repeat the same lie and a mistaken person believing themself to be correct might continuously repeat the error. So too, of course, might a truthful person repeat their complaint.

Modes of Evidence

[14] The complainant and the child witness gave evidence utilising alternative modes of evidence. This included the playing of an evidential video interview and viva voce evidence via CCTV. In each instance this was to facilitate or make easier the giving of evidence by that witness. It has nothing to do with the defendant’s circumstances or the charges and it is no reflection on the defendant that an alternative mode of evidence was utilised. It has no bearing or relevance to the factual determinations I have to make in this case that an alternative mode of evidence was utilised as regard either or both of the witnesses.

Why should the complainant lie?

[15] In this case the complainant and the defendant have given very different versions of what had happened between them. The Crown explored in cross-examination of the defendant as to why the complainant was lying. The defendant responded: “That she must be either lying or mistaken.” The Crown submit that by reason of the nature and extent of the allegations there is really no room for mistakes, but the complainant must be lying if the events described did not occur.

[16] During the course of the evidence it emerged that the complainant and the defendant had a good relationship. On the back of that it was submitted by the Crown in closing that the defendant had no apparent motive to tell lies against the defendant. It was suggested that the complainant had no motive to lie. If I accept that, it is something I can weigh in the mix in deciding whether I accept her evidence. But I must remember that just because no motive to lie has emerged in evidence that does not mean of itself that the witness is to be believed. It is just one factor I may take into account, but I need to consider all the issues and all the evidence.

[17] It is wrong of course also to think that just because the defendant is facing charges that he has a motive to lie, or has lied. That assumes he is guilty and the law is quite the opposite. A defendant is presumed innocent and does not have to prove anything. He does not have to suggest a reason why the complainant might lie, nor am I to disbelieve his evidence just because he is facing charges. That would be unfair. I consider his evidence dispassionately and without sympathy or prejudice and consider his evidence and whether it is credible and/or reliable.

The Law relating to the Charges

Sexual Violation by Unlawful sexual connection

[18] The elements or ingredients of the charge is sexual violation by unlawful sexual connection. The Crown must prove so that I am sure upon charge 1.

• (a) That the defendant introduced his finger or fingers into the genitalia of the complainant. Any degree of introduction into the genitalia suffices no matter the degree or period of time.
  
• (b) That the introduction of the finger or fingers into the complainant’s genitalia was intentional. In other words, not accidental.
  
• (c) That at the time this occurred the complainant was not consenting, that is consent freely given and informed.
  
• (d) That at the time the defendant either knew that the named complainant was not consenting or did not believe on reasonable grounds that she was consenting. In other words, that no reasonable person in the defendant’s position could have thought that the complainant was consenting.
  

Sexual conduct with a young person under 16, namely indecent assault

[19] The Crown must prove so that I am sure upon charges 2, 3, 4, 6 and 7.

• (a) That at the time the complainant was under the age of 16 years. There is no issue with this. She was born on [date deleted] 2004 and was still under 16 when the police inquiry and interviewing commenced.
  
  • (b) That the defendant did have physical contact with the complainant in the way and in the circumstances reflected by the charge which I am considering separately:
    

Regarding charge 2 by touching her genital area while in the car.

Regarding charge 3, by pulling her onto his lap and rubbing his penis against her genital area.

Regarding charge 4, by touching her breasts.

Regarding charge 6, by rubbing his penis against her bottom whilst in the kitchen.

Regarding charge 7, by rubbing his penis against her body while in the lounge. I will return to this charge at a later stage any particularisation.

As regards charges 2, 3, 4 and 7, that this occurred on at least one occasion.

(c) The Crown must prove as regard to each charge considered separately that this was an intentional act. In other words, not accidental.

(d) That in the circumstances this would be regarded as indecent by right thinking members of the community.

(e) That the defendant was aware of the aspects of the touching and the surrounding circumstances which right minded members of the community would consider made his act indecent.

The Defendant exercised his right to silence

[20] The defendant did not make a statement to the police. He was arrested and spoken to by [Detective A] on 10 June 2020. He was advised of his rights under the Bill of Rights Act 1990 and then spoke with a lawyer. Subsequent to having had that opportunity the defendant exercised his right to silence. That was his right. There is no significance in that and I do not in any way hold it against him or think it says something about him. I put it to one side. He exercised his right. There is nothing more or less to be said about it.

Character Evidence

[21] The defendant’s character has been subject to an admission that he has no previous convictions. It was an admitted fact that at the age of 41 years the defendant is a person of good character, having never been convicted of any offence. Additional character evidence was not presented. It is evidence indicating that he is not the type of person likely to have committed these offences and is providing support as to the truthfulness of his evidence. But I must remember that as a matter of logic there is always a first time for everyone who has offended and here the defendant himself has accepted offending sexually against the complainant on one occasion.

[22] Evidence of good character is of itself not a defence, but it is evidence I am entitled to take into account in the ways I have explained, and I will take it into account when deciding whether the defendant is guilty or not guilty on the charge at the time I am considering that charge.

The defendant gave evidence in his own defence

[23] [Donald Wetere] gave evidence in his own defence. When giving evidence he provided an account in which he said:

• (a) Firstly, that he had been in a relationship with [witness 2] and through that relationship he had got to know the complainant.

• (b) Secondly, that during the relationship and at the relevant times he and [witness 2] had already had a son and [witness 2] gave birth to two further children.
  
  • (c) Thirdly, that he got on well with the complainant.
    
  • (d) Fourthly, that on one occasion he had indecently assaulted the complainant. That this had occurred in the complainant’s bedroom when he touched her by rubbing her bottom with his hand over her underwear. He said that he had gone into the bedroom because he was going to get a pair of shorts from the complainant for her younger sister. He said that this was the indecent assault he admitted by his guilty plea. The complainant would have been 11 or 12 years old.
    
  • (e) Fifth, that he denied that he had indecently touched the complainant on any other occasion in any of the ways alleged by the charges.
    
  • (f) Sixth, he denied that he had digitally penetrated the complainant’s genitalia at any time.
    

[24] In relation to that evidence if I accept what he says in evidence as regard to these charges, individually or collectively, then obviously the proper verdict is one of not guilty on the charge relevant to the evidence I am considering.

[25] If what he says leaves me unsure as regard to the charge I am considering then again the proper verdict would be one of not guilty on that charge.

[26] If I disbelieve his evidence about the events at the heart of this matter on any or all of the charges then I remind myself that this does not lead to a verdict of guilty on any or all of the charges. The Crown still bear the burden of proving guilt upon each charge to the requisite standard. If I were to reach the conclusion that I reject the defendant’s evidence on a particular charge as regard in particular his denial of the event then I must assess all of the evidence that I accept as reliable and ask at that

point: “Does the evidence that I have before me on that charge satisfy me of the defendant’s guilt the requisite standard?”

[27] The evidence given by the defendant is part of the evidence in this case and it is part of the evidence for me to consider as part of my deliberations on all of the charges.

A word about reliability, credibility and demeanour

[28] As regard each of the charges faced by the defendant in this judge-alone trial the strength or otherwise of the Crown case falls to be determined as a consequence of the findings I make on the reliability and credibility of the pertinent Crown witnesses and of the evidence given by the defendant. In reaching my assessment on each charge on the evidence I have considered all the evidence placed before me and have reached my verdicts based on that evidence alone.

[29] As regards the oral evidence given in court during the judge-alone trial the credibility and reliability of the complainant was called into question to a greater or lesser extent. In considering the evidence of all witnesses, including the evidence given by Mr [Wetere], I have considered the reasonableness, probability and coherence of the evidence. I have considered the evidence in terms of whether the witness although honest and sincere may be genuinely mistaken about the events or the recollection of certain events may have been influenced by what has been said by others.

[30] I am mindful that a number of matters go towards assessing credibility and reliability. Sometimes conflicts and differences in the evidence can be caused by mistakes and misinterpretation. Sometimes witnesses can see and hear things that were not seen and heard by other witnesses. That does not necessarily mean that one of the witnesses is not necessarily telling the truth. Sometimes conflicts are not able to be explained away. Sometimes there is no room for mistake or misinterpretation between witnesses. There are those three questions to consider when assessing each of the witnesses and the evidence they give.

• (a) Firstly, was the witness honest?
  
  • (b) Secondly, was the witness credible?
    
  • (c) Thirdly, was the witness reliable?
    

[31] They are though three different concepts. A witness may be honest but may be mistaken.

[32] I am aware a finder of fact can be influenced not only by what was said but how it was said, including the witnesses’ tone of voice, their body language and facial expressions. However, I am also cognisant that the fact finder should not jump to conclusions based entirely on how a witness has reacted, or not reacted, to the questions asked. Looks can be deceiving. Giving evidence in a trial is not a common experience for most witnesses. People react differently. Witnesses have different abilities, values and life experiences. There are simply too many variables to make the way in which a witness testifies the most important factor in deciding credibility and reliability. The following factors are some that I have utilised in making credibility assessments in this case.

• (a) Firstly, consistency with the evidence of other witnesses whose evidence I accept.
  
• (b) Secondly, consistency with objective evidence, such as text messages or other verifiable events and if not, what other explanation is offered for inconsistency.
  
• (c) Thirdly, plausibility. Does the account make sense? Is it likely that someone would have acted or behaved in the way suggested?
  
• (d) Fourthly, consistency of an account over time, and if not, why not.
  

[33] I bear in mind that when considering the evidence witnesses can be inaccurate, or may not remember secondary marginal or unimportant facts due to the passage of time or because they were not seen as important at the time. Notwithstanding that the

evidence given by the witness may be accurate about essential matters, but not about peripheral detail.

[34] I remind myself that I do not have to accept or reject everything a witness says in evidence. I can accept or reject everything a witness has said, but I can also accept parts of what a witness has said and reject other parts.

The evidence presented at this trial, [the complainant]

[35] The complainant gave evidence-in-chief via the playing of two video records. They were recorded on 19 September 2019, exhibits 1 and 2, and 28 January 2020, exhibits 3 and 4. It was clear that in the four and a half months between the interviews the complainant had been discussing events, or her account of what had occurred, with her mother.

[36] In the first interview the complainant described:

• (a) Firstly, that her stepdad, there is no issue she was referring to the defendant, had done some touching. That he had touched her on her body, all of it.
  
• (b) Secondly, she went on to say that he had touched her and that the first occasion was at a family camp when they were sleeping together on mattresses. Her mum had left after an argument with the defendant, that she had felt scared when what was happening when she was being touched by the defendant.
  

[37] She went on to describe that the defendant during the offending period had touched her on her backside, frontside, legs, boobs and vagina. She said that this had happened a few times, it was often. She said that when she had been in the car with him he had been driving, he had put his hand there, and she indicated her vaginal or genital area, that he had rubbed her there a few times. She later demonstrated a rubbing motion with her hand. She went on to say that she was clear he had not touched her under her clothing. She was asked: “Had he ever said anything when touching her?”

Her response was she had the impression “that he was more worried about getting caught or something.” When asked how long this had happened for, she said: “It had gone on for years.”

[38] The complainant made it clear that she thought that [Donald Wetere] was a good guy apart from this. She described how the school had become involved and that after she did that she had told her mum. Her mum had confronted the defendant and he had apologised. He had said when apologising that “he would never do any of what he did to me to anyone and to me again.” Given the account of the defendant in evidence that is an important phrase.

[39] The complainant repeated that she had been happy how it had been left by that apology. She stated she had not wanted to do any of this. From that I take the interview and the investigation. She said that she forgave him, but she said it was still a bit awkward.

[40] In the second interview, some four and a half months later, the complainant described that the defendant had digitally penetrated her genitalia from behind when she was on the ground playing with one of her younger siblings. That he had a weird look on his face. She described that on occasions the defendant would pull her onto his lap and rub his penis against her. That this would be a regular occurrence, two or three times a day. That he would touch her breast by putting his hand up her clothes. That this happened quite a lot. That there was a single occasion when the defendant came behind her in the kitchen and rubbed his penis against her bum. She would have been 12 years old.

[41] She recounted an occasion when she was playing video games with [name deleted – the child witness], and he came behind her and started rubbing himself against her. She said that he would pass comments telling her she was beautiful and sexy.

[42] The complainant was asked why she had not spoken about these events on the previous interview some four and a half months earlier. She said: “I honestly forgot, my mum and me were talking about stuff, she remembered that I forgot and then that

just refreshed my memory.” She later referred to that again. She said: “She told me the stuff that I told her what happened that I forgot, but the other times I just I guess remember.”

[43] It was suggested to the complainant in cross-examination that there had been only one occasion of touching and that had been to her backside when she was kneeling on the bed. The complainant said that was incorrect. She confirmed to defence counsel, Mr Keung, that she had not wanted to do this and still didn’t. She said that she had told the truth and that she had forgotten about the sexual violation at the time of the first interview. She said she now recollected that she had told her mum that [Donald Wetere] had put his mouth on her breast, that this had happened a number of times. The complainant described how the touching started when she was at [primary school deleted] and stopped when she was at [high school deleted].

[The child witness]

[44] This child witness gave evidence by the playing of a video record, exhibit 5 and 6, on 19 September 2019 in which she described the family makeup and she described how [the complainant] had told her she was going to run away. She did not want to live there anymore, particularly with “that person,” referring to the defendant. [The complainant] told [the child witness] that the defendant had touched her. This conversation had happened last year, being 2018.

[Witness 1]

[45] She described the closeness of her relationship with [the complainant] in which she described herself and the relationship as being an aunty and by a niece relationship. That she had noticed a change in the way that [the complainant] had been. She had become more withdrawn, guarded and quiet. That on or about 21 March 2019 [the complainant] had contacted her unexpectedly and had come to see her. That during the conversation [the complainant] was upset and there had been lots of crying. [The complainant] had told her that the defendant would pay special attention to her. That he had attraction to her. That he would get her to sit on his lap and she could feel his erect penis when he did this. That he would touch her legs and advance his hand up

further. That this had happened over a long period of time and there were many instances of inappropriate touching. That [the complainant] had told her the defendant’s hand went onto her vulva.

[46] The witness described how later the defendant and [witness 2] came to the house. That [Donald Wetere] had apologised for his behaviour and said that they had talked to the family about his inappropriate behaviour and that he had apologised to the girls and they had forgiven him. That he was very upset about the prospect of going to prison. That subsequently they had given [Donald Wetere] a chance to go forward to the police and when he had not then informed the police on 8 September 2019 and that was what had prompted, or set in motion, the events leading to the interview with the girls.

[Witness 2]

[47] She is the mother of the complainant and she gave evidence that after the school had called she had spoken to [the complainant]. That [the complainant] had said: “[Donald] has been touching me.” That she had repeated this. That she had spoken to [Donald Wetere], who had denied it. The response when she spoke to [the complainant] about that was that [the complainant] had said: “Well he did touch me and he needs to tell the truth. You tell him ‘tell the truth or I’m telling Uncle.’” That after this she had spoken with the defendant and he admitted that he had touched [the complainant] and then apologised to [the complainant]. That he had said to [witness 2]: “Sorry Hon I didn’t mean to do it.” That she got the impression that Mr [Wetere] was sincere in his apology at the time and also when he apologised to [witness 1] and [another person].

[48] She confirmed that the text messages were between herself and [Donald Wetere]. Those are the text messages of 2 February 2020, our exhibit 7. In cross- examination the witness agreed she had never noticed anything out of the ordinary between [the complainant] and the defendant. Further, that at the time of being told at the school [the complainant] had not said how long it had been going on for. That when she had spoken to [Donald Wetere] at the lake she had told him that [the

complainant] is saying you did touch her and you had put your mouth on her breast and it was to that he had said: “Sorry, I didn’t mean to do it.”

[Donald Wetere]

[49] The defendant [Donald Wetere] gave evidence and I have identified earlier some of the matters that he said. He went on to additionally identify, and I do not repeat those, they are already identified. He went on to say also that he had started a relationship with [witness 2] in 2012, that they now have three children together. That he had endeavoured to treat [witness 2]’s children as his own. He thought he had a good relationship with the children.

[50] He said that the only occasion when he touched [the complainant] inappropriately was the time when she was kneeling on the bed. That this had lasted about 10 seconds. That she had not said anything. He said: “I guess I liked what I saw, I touched her in that moment.” He later confirmed that the touching was sexually motivated. That at that moment he felt something sexual about [the complainant].

[51] He said in relation to the other occasions referred to by [the complainant] she was either lying or mistaken. That she had only sat on his knee a couple of times because she wanted to show something to him on her laptop computer. He confirmed that until the complaint to the school that he would spend time with the children alone. That when [witness 2] was pregnant much of the childcare would fall on him. Also that [the complainant] had been in the car on occasions with him.

[52] In relation to the text messaging he said that in relation to the text message at page 8, 17.06, “wasn’t naked but that was when it started,” was a reference to their problems as a whole between himself and [witness 2], not to sexual offending. He said that there had been a barrage of accusations from [witness 2] that he had responded to. He insisted this was a reference to their relationship spiralling down, not to sexual offending.

[53] He gave evidence that he recalled being together at the family camp but that he had been sleeping above [the complainant]. He denied touching her in any way, and in particular in the way described.

Assessment and evaluation of the evidence

[54] I address from the outset the analysis of the evidence of the defendant. In this assessment I bear in mind that he is a person who has not been before the Court previously. That this is a strange environment for him. I also acknowledge that he has admitted by his guilty plea a specific occasion of indecent assault on [the complainant].

[55] I did not find [Donald Wetere] to be an honest, credible or reliable witness as to his account of events. I have come to this conclusion as a result of a number of pieces of evidence.

• (a) First, the text messaging and his expression “that was when it started” I find to be absolutely in the context of an exchange about the sexual offending. In relation to that I do not find there is any plausibility in his excuse given in evidence that it was about the relationship itself.
  
• (b) Secondly, that it is contradictory to the defendant’s account as given in evidence that at no stage is there any suggestion that there was a single occasion of offending in any of the communications in the text messaging or in the conversations that he had directly with the witnesses.
  
• (c) The defendant’s account would place this single low-level occasion as having occurred several years prior without any repeated offending. There does not appear on the face of the evidence any logical explanation for the complaint being brought forward by the complainant at the time it was, or in the circumstances it was.

• (d) The defendant’s account in evidence is inconsistent with the evidence of [witness 2] about confronting the defendant at the lake, about touching and putting his mouth on her breast. In the circumstances, as it is now portrayed by his evidence, it is also surprising that the defendant’s response to [witness 2] was to just apologise and say: “I didn’t mean to do it, or I didn’t mean it.”
  

[56] In relation to what then followed it is again also utterly inconsistent with the defendant’s apology on that day to the complainant. I refer to the wording earlier and I will repeat it again, because it is significant when put against an account now of a single occasion. He said: “He’d never do any of what he did to me to anyone and to me again.” “Any of what he did to me” can only refer to different or various acts and not a single occasion.

[57] I did not find [Donald Wetere]’s account of a single occasion when he felt sexually attracted to the complainant and therefore motivated to touch her bottom, truthful. As with the initial denial when confronted immediately after this interview with the school counsellors my assessment of [Donald Wetere] was that he sought to minimise what had occurred between him and [the complainant] , as consistent with multiple occasions and inconsistent with an account of a single event of such low-level years before.

[58] I also identify the defendant’s concern as described by [witness 1] about going to prison if the police became involved. Even allowing for his lack of experience with the Court process it is surprising that there was no discussion or identification related to an isolated occasion of touching.

[59] Arriving at the conclusion that I did not find [Donald Wetere]’s evidence on the important aspects of this case to be honest, credible or reliable I identify that I put his evidence and his account as to this occurring on only one occasion to one side.

[60] I scrutinise the remaining evidence and determine whether I am sure on that evidence the Crown have proved the charge I am considering. The balance of the defence evidence is of course available to me to consider alongside the other evidence.

[61] When I turn to consider the balance of the evidence I immediately identify that I have concern about the complainant’s account. Given after a break of some four and a half months to the second interview my concerns are clear that it has been influenced, likely unintentionally and subconsciously, by the exchanges with [witness 2], her mother. Those concerns arise because it is clear that the complainant in describing those exchanges did not appear to have any independent recollection prior to her mother telling her about those events.

[62] It is clear that the complainant did not wish to pursue a complaint against the defendant. She did though clearly wish to be away from the defendant. It is clear in that first interview that she was reticent about providing details. It is also clear, and utterly unsurprising, that she had difficulty placing a number on the occasions, or a timeframe on the offending. Given her age, the nature of the relationship and the frequency of the acts that is not surprising.

[63] I found the complainant in the interviews and in the evidence she gave to this court to be a credible witness. I am satisfied in both interviews and in her evidence to the Court she was endeavouring to be truthful. She was in fact totally up front in that second interview about where the additional information had come from. It is that frankness, that truthfulness, which of course raises the central question whether she can be considered a reliable witness so that the Court can be sure on any or all of the charges as to the guilt of the defendant.

[64] My concern on that second interview focuses on the influence of [witness 2] on what was described and that falls into three areas.

• (a) Firstly, the touching of the breast under the clothing.
  
• (b) Secondly, the digital penetration of the complainant on the single occasion.
  
• (c) Thirdly, the rubbing of his penis against the complainant in the kitchen and the words uttered and, to a lesser extent, the act of pulling the complainant onto his lap.

[65] I am assisted also when considering the evidence by the evidence of [witness 1] as to the complaint given to her much closer to the events and some six months before the first police interview. It is of course evidence I can consider along with the other evidence and I note that to [witness 1] the complainant described many instances of inappropriate touching; the defendant touching her legs and genital area and having her sit on his lap whilst his penis was erect.

[66] Having considered the account provided by the complainant with the evidence of [witness 1] and the admissions against interest of the defendant, because that is what they are, both by text and when first confronted, I am satisfied so that I am sure of the following:

• (a) That the defendant was sexually attracted to the complainant.
  
• (b) That he inappropriately touched the complainant on a number of occasions during the charging period.
  
• (c) That this can appropriately be described as repeated, that I am sure the offending involved the following behaviour:
  
  • (i) Firstly, touching her genital area while he was driving the car.
    
  • (ii) Secondly, touching her on the breasts over her clothing. That this included an occasion of putting his mouth on her breast area.
    
  • (iii) Thirdly, that he had her sit on his lap and that she could feel his erect penis.
    

I am satisfied that in relation to that this offending occurred individually and collectively on more than one occasion.

[67] As just identified, I am satisfied that the defendant had the complainant sit on his lap when he had an erect penis. That this was intentional. I am also satisfied that

given her age and the relationship it was indecent and the defendant was aware it was indecent and intended it to be so.

[68] Knowing the circumstances I consider that evidence and in the circumstances I amend the particulars to accord with my finding and to accord with proof. The amendment will be made in relation to charge 7. That charge presently reads: “Particulars: Charge 7, occasions when he rubbed his penis against her body in the lounge.”

[69] Pursuant to s 133(1) and subs (2) I am permitted to make such an amendment where there appears to be a variance between the proof and the charge and the amendment will make the charge fit with the proof. I am entitled to do that up until the stage when I deliver a verdict, and of course that has not yet arrived.

[70] I also am further satisfied, in the context of this case the evidence that has been given and the challenge to the evidence, that pursuant to s 136 of the Criminal Procedure Act 2011 the defendant will not be and has not been misled or prejudiced in his defence by that amendment. The amendment that I make is to the particulars. The particulars of charge 7 will read: “Occasions when the defendant had the complainant sit on his lap and had his erect penis against her body whilst in the lounge.”

[71] In relation to charge 5 where there has been a guilty plea, reflecting a single occasion, I make it clear that on the evidence I am sure that the extent of the touching of the complainant’s bottom occurred on more than one occasion.

[72] Having considered the evidence I am not satisfied so that I am sure that this offending involved the following behaviour:

Digital penetration of the complainant’s genitalia or skin to skin contact on the breast.

[73] In arriving at that conclusion I have borne in mind the complainant’s clear evidence in the first interview that he did not put his hand under or touch her under her clothing.

[74] I am further not satisfied so that I am sure the defendant rubbed his penis against the complainant’s bottom in the kitchen and that he was saying she was sexy and beautiful. That account was not given in the first interview or as a previous complaint. It is indeed inconsistent with the first interview recollection that the defendant, [Donald Wetere], did not say anything to her, that he was more concerned about getting caught.

[75] Making those findings therefore my verdicts are as follows:

• (a) Upon charge 1, sexual violation by unlawful sexual connection, not being sure on the evidence that you digitally penetrated the complainant’s genitalia the verdict is one of not guilty.
  
• (b) In relation to charge 2, sexual conduct with a young person under 16, particularised as the occasions when you touched her genital area whilst driving the car. I am sure on the evidence that you touched her genitalia whilst driving the car on at least one occasion. I am sure that that was intentional. I am sure that given her age and the relationship it was indecent. I am also sure that you were aware that it was indecent and intended it to be so. Finding those facts so that I am sure the verdict on charge 2 is one of guilty.
  
• (c) In relation to charge 3, sexual conduct with a young person under 16, particularised as occasions when you pulled her onto your lap and rubbed your penis against her genital area. In relation to that charge as it stands, I am not satisfied so that I am sure on the evidence that you pulled her onto your lap in order to rub your penis against her genital area. In the circumstances in relation to that charge as it is drafted, not being sure on the evidence, the verdict is one of not guilty.
  
• (d) In relation to charge 4, sexual conduct with a young person under 16, particularised as occasions when you touched her breast. In relation to that charge I am satisfied so that I am sure on the evidence that on at least one occasion you touched the complainant’s breast. I am satisfied

so I am sure that that was intentional. I am also satisfied so that I am sure that given her age and the relationship between you it was indecent. Further, I am satisfied that I am sure that you were aware it was indecent and intended it to be so. In relation to charge 4 the verdict on the evidence is one of guilty.

(e) Charge 5 I have already addressed in relation to this and you have pleaded guilty to that charge. I move to charge 6.

(f) Charge 6 is a charge of sexual conduct with a young person under 16. Particularised as an occasion when you rubbed your penis against her bottom in the kitchen. In relation to charge 6 I am not sure on the evidence that the specific occasion of offending occurred in the manner and to the extent described in the second interview of the complainant. That being so, the verdict on charge 6 is one of not guilty.

(g) In relation to charge 7, this is the charge which I have amended. The particulars of that charge are occasions when the defendant had the complainant sit on his lap and had his erect penis against her body whilst in the lounge. I am satisfied that on the evidence so that I am sure that you had the complainant sit on your lap at a time when you had an erect penis. That that was intentional and I am satisfied so that I am sure that given her age and the relationship that that was indecent. Further, I am satisfied so I am sure that you were aware it was indecent and you intended it to be so. I am satisfied that that occurred on at least one occasion. In relation to charge 7, the verdict on the evidence is one of guilty.

[76] Mr [Wetere] given your convictions for sexual conduct with a young person under 16 you are now subject to the three strikes law. I am going to give you a warning of the consequences of another serious violence conviction. You will also receive and be given a written notice outlining these consequences which lists the serious violent offences.

[77] If you are convicted of any serious violent offence other than murder committed after this warning and if a judge imposes a sentence of imprisonment then you will serve that sentence without parole or early release.

[78] If you are convicted of murder committed after this warning then you must be sentenced to life imprisonment. That will be served without parole unless it would be manifestly unjust. In that event the judge must sentence you to a minimum term of imprisonment.

[79] You will receive the notice and the schedule of serious violent offences before you leave court today and you must not leave court until you have been provided with that material.

[80] I am going to remand you on bail to continue on the same terms as before through to 14 June at 11.45. I will call for a pre-sentence report with an EM appendix. I give no indication as to where this sentence will end by asking for an EM appendix.

[81] However, you must be very clear that Probation will ask you to attend at interviews and to provide certain documentation. You need to do what they say, when they say. You have to be absolutely clear, the sentence starts here with imprisonment. It may well end up with imprisonment. I make no indication one way or the other. But what I can say to you is if you want to have any options available to the Court, if the Court arrives at a sentence of less than two years and considers it appropriate to commute to home detention then you need to have done what is necessary so the Court has that option. If you do not then there will be no option to imprisonment in this case, even if I came to those conclusions.

Judge PP Crayton

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 04/04/2022