A judge has acquitted a party boat company over the death of a man who fell into Waitematā Harbour, saying he cannot conclusively rule who is to blame for the tragedy.

But the judge has slated "unacceptable" failings in the prosecution by Maritime New Zealand, which was unable to prove the charter company was legally culpable.

Tongan-born Tevita Kava fell from The Red Boats' charter vessel Reo Moana during a friend's 30th birthday party cruise on the Waitematā Harbour on June 3, 2017.

Witnesses said the Māngere father-of-one, who had worked in the freezers at Tip Top ice-cream factory, was standing at the back of the boat when a boarding ramp he was leaning on gave way and he fell backwards into the water.

Kava's body was found in water near Te Atatū nine days later after a painstaking search by his loved ones.


It had been his first trip on a boat.

In June last year Maritime New Zealand charged the charter company under the Health and Safety at Work Act with failing to comply with duty that exposed Kava to risk of death or serious injury.

The company defended the charge at a trial in the Auckland District Court before Judge Noel Sainsbury this year.

Prosecutor Sam Lowery said Kava effectively died as a result of "inadequate" safety measures.

However, the company denied that was the case.

Tevita Kava. Photo / Supplied
Tevita Kava. Photo / Supplied

Judge Sainsbury reserved his decision, which was provided to the Herald yesterday.

"The decision does not provide the full answers that it should to the question of how Mr Kava's death came to happen," the judge said.

"That is because the evidence presented to the court did not address issues that it could have and should have covered.


"The result is that I cannot say with sufficient certainty how this event happened and who is to blame for it."

Judge Sainsbury said had he made a call on blame, it would have been "unfair to the memory of Tevita Kava" his loved ones and the boat company and staff.

However, he stressed that no blame should be placed on the victim.

"I wish to make it very clear that there is no evidence whatsoever that Mr Kava in any way contributed to his falling off the vessel," said Judge Sainsbury.

"While he did lean against the ramp, in the circumstances he had good reason to consider that that would be a sufficient support for him."

There was no evidence that Kava - who could not swim and mentioned that during the night - would have put himself in harm's way.

"Indeed, he was openly concerned about not falling off the vessel," said Judge Sainsbury.

"If anything, he would have been vigilant and careful about not putting himself at risk of falling off."

Judge Sainsbury said he rejected third-party interference and he was satisfied there was no staff error by the boat's crew on the night and the ramp had been properly stored and latched.

The Red Boats charter company was accused of failures that exposed Tevita Kava to risk of death or serious injury. Photo / Nick Reed
The Red Boats charter company was accused of failures that exposed Tevita Kava to risk of death or serious injury. Photo / Nick Reed

"What really lies at the heart of this case is the issue of whether the ramp was faulty," he said.

"The obvious and bewildering aspect of [the case] is that the boat has been fitted with a ramp that appears to have functioned as it should and yet on this evening failed."

He revealed that after the death the ramp was removed from the boat and given to a Maritime New Zealand investigator.

The investigator left his role in February 2018 and the case was passed to a colleague.

No evidence was presented to the court about the ramp and whether it was tested, or subjected to scientific analysis.

"What remains unexplained, and in my view inexplicable and unacceptable, is the fact that the last time the ramp features in this trial as a physical entity is when it was unbolted and handed to [the Maritime investigator].

"It may well be that he started on the path of getting the ramp tested but that got derailed after he left.

"Maybe the ramp was tested but the results went missing.

"I have no idea because no one saw fit to put in front of me evidence that may have resolved this conundrum."

Judge Sainsbury said Maritime NZ had not proven beyond reasonable doubt that the ramp was faulty or that Red Boats was aware.

The only conclusion he could come to was that a fault had occurred with the ramp the night Kava died, but there was no evidence to explain exactly what went wrong.

"In the circumstances, the defendant company must be acquitted of this charge."

Kava's death will now be considered by the Coroner.

"I hope that ramp has been preserved," said Judge Sainsbury.

"It may mean that at this late stage a proper investigation happens to assist with the coronial inquest.

"That should have happened for this case."

In a statement last night, Maritime New Zealand said it was still in possession of the ramp, Northern regional compliance manager Neil Rowarth said.

"The judge has made a decision. Maritime NZ is not going to appeal the decision or investigate further at this stage," he said.

Red Boats director Andrew Somers said: "This was a terrible tragedy and we are saddened by the death of Mr Kava. Our thoughts go to Mr Kava's family."

Attempts to reach Kava's family last night were unsuccessful.