Charlesworth v Police

[2018] NZHC 1051

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI 2018-485-19

[2018] NZHC 1051

BETWEEN

TIMOTHY STUART CHARLESWORTH

Applicant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

24 April 2018

Counsel:

A Dye and K Pedder for Applicant

A R Garrick and T C Bain for Respondent

Judgment:

15 May 2018

JUDGMENT OF SIMON FRANCE J

[1]                  Mr Charlesworth seeks leave to appeal a decision of the District Court declining to order excisions from the defendant’s evidential interview.1 Each of the three challenged passages consists of a question and a “no comment” answer. The contended bases for exclusion are that the exchanges are irrelevant and therefore per se inadmissible, or alternatively their potential prejudicial impact far outweighs any probative value.

1      New Zealand Police v Charlesworth [2018] NZDC 2761.

CHARLESWORTH v POLICE [2018] NZHC 1051 [15 May 2018]

[2]                  Mr Charlesworth is charged with five counts of possessing objectionable publications. The images had been stored on a computer owned by Mr Charlesworth’s former wife.

[3]                  The transcript of Mr Charlesworth’s interview consists of 33 pages. The first few pages, as is customary, traversed the history of exchanges prior to the commencement of the formal interview. There then occurred this exchange, which is the first of the challenged passages (the challenged lines are in italics):

BNEssentially is the process we had to do then. Um, got you a coffee and I advised you that ah I would want to speak to you about this on DVD.

TC      Yep.

BN      And you asked to speak to a lawyer, so we got the duty list. TC     Yep.

BNAnd you’ve had an opportunity this morning to speak to Shane ROBINSON I understand.

TC      Yes.

BNCool okay. So now, now we’re at this point of coming through to this room.

TC      Yep that’s alright.

BNCool alright. So… Tim I’ll just get you to tell me about when you have viewed any child exploitation images from the internet.

TCUnder advice of my attorney this morning I’m not to make any statement at this stage. Um, yeah.

BN      (Writing)

TCAnd the attorney from this list was quite um, quite emphatic on that for the time being so.

BNOkay. Um, so just to be clear, um, if I’m to ask you any questions, you don’t, you don’t want to be providing any answers at this time.

TCDepends… depends, depends on the nature of the question obviously but yeah.

BN      Okay.

TCUm, I was advised not to, so he was um, he ah, ensured it. Knows more about the process than I do so.

BNOkay. Well look I’m not going to go against that advice and, and um, that’s…

TC      Hmm.

BN      …that’s your right. TC     Yeah.

BNUm, and I’ll just remind you of those rights if you do choose to answer any questions.

TC      Yeah good as gold.

[4]                  The interview continued, with the officer exploring where the couple had lived, and who had lived in the houses. The relevance is, of course, as to who might be responsible for downloading the images. The interview then focused on one particular address, and what computers were there. Mr Charlesworth accepted the presence of a computer but observed the only time he ever saw it was to play games on it. He added they originally had no internet, although it was obtained at some time but he was unsure when. He very rarely used the internet, and only for Facebook and email.

[5]The interview continued:

BN      Right.

TC…other than that no (yawning) not particularly that often. I think we’d only had it on for about maybe three or four months before we moved out.

BN      Okay. (Writing). Did you have your own log-in on the computer?

TCI couldn’t tell you, no idea. Its two years ago mate and a shit loads happened since then so.

BN      Hmhm. Did you ever download any images from the internet? TC  Ah under the advice of my lawyer mate, no comment.

BNOkay. Did [your ex-wife] ever confront you about images she found on the computer?

TC       Under the advice of my attorney mate no comment.

BNOkay. (Sorting paperwork) What um, what was [your ex-wife’s] computer.

TCAs in, what do you mean? I’m not a computer guy mate I wouldn’t have a clue.

BN      Right what did it look like?

TC      (Blows) it’s two years since I last seen the bloody thing so, hmm.

BNYeah well computers can be desktop boxes, they can be laptops, they can be little tablets or iPads.

TC      (Yawning) oh it was a desktop off memory.

BN Okay. I’m just gonna go back over, um just a little bit of background you’ve told me is that um, you were married to ah [your ex-wife] since 2012.

TC      Hmm.

[6]                  This extract occurs at page 11 of the transcript. The interview carries on for another 22 pages with all questions answered, other than on page 26. At that point the officer  had  been  going  through  the  internal  search  history  of  the  computer.  Mr Charlesworth asked for the search history to be provided to his lawyer as he had not seen the computer in years. The officer continued:

BN      Um…are you...do you think [your ex-wife] has looked at those images. TC   No comment.

BN      Okay. Alright.

TC       Sorry mate no, no comment at the moment I’m just…

BN      No it’s…

TC      Yeah it’s sort of blown me away a bit. BN Yeah, no need to apologise.

TC      No.

BNAt the end of the day I’m just fairly informing you of you know as much as I can.

TC      Oh yeah, no, no it’s appreciated yeah, no.

Appellant’s submissions

[7]                  Concerning relevance, it is submitted it is impermissible to attach probative value to a “no comment” answer given in a pre-trial investigative context. Support is

taken from observations in R v Kingi.2 That case involved a situation where, despite  a clear intention not to make any statement, a series of questions were put that elicited repeated “no comment” responses. Brewer J held that the entire statement to have been improperly obtained but went on to observe the no comment questions and answers were otherwise inadmissible by virtue of s 7 of the Evidence Act 2006 (the relevance provision).3

[8]                  It is further submitted that the questions, irrelevant in themselves, are not needed here as part of the interview’s narrative. They are easily able to be excised without affecting the flow or intelligibility of the interview, and the fact there are only three of them is irrelevant to the question of whether they are admissible.

[9]                  The recognition that narrative may justify inclusion is taken from Osman v R.4 Immediately after being arrested, and while being given his rights, Mr Osman interjected to say he would not answer any questions except to his lawyer or the Judge. This exchange was led without objection but raised on appeal as being a breach of s 32 of the Evidence Act, which provides that a fact-finder may not be invited to draw an inference from a defendant’s silence. It was submitted that having been led, the trial Judge was obligated to direct the jury on it.

[10]              The Court observed that Mr Osman’s statement was part of the narrative, and merely contextual material. No-one had sought to use it incorrectly. It merely framed the interaction with the police. Mr Dye’s submission is that none of those matters arises here. He also notes the analysis in Osman was as to whether a miscarriage had occurred. That should not prevent excision prior to trial to avoid any risk of misuse.

[11]              Concerning prejudice, it is submitted the potential for the trier of fact to incorrectly place weight on the evidence is enough. No other prejudice is suggested. In that regard, I note that the challenged questions and answers involve issues central to this trial and the allegations the prosecution is making. Their content does not

2      R v Kingi HC Whangarei CRI-2010-088-2617, 29 July 2011.

3 At [40].

4      Osman v R [2010] NZCA 32.

introduce any other topic nor plant a seed of prejudice irrelevant to the core allegation of the case.

Assessment

[12]              I begin with some general observations. It is important to remember that these are assessments occurring pre-trial and based on written statements sometimes made months earlier. A trial is not a play that will be acted out in accordance with the fixed script that is these written statements. Trials are dynamic. The whole purpose of questioning is to test evidence, to see if what has been said before trial is correct and also to see if there is more the witness can say once invited to. Accordingly, pre-trial conclusions about relevance and irrelevance should necessarily be cautious.

[13]              Further, a defendant is not constrained by these pre-trial events. There is no commitment to a certain line of defence, even if one is foreshadowed in the interview. The defence can change at trial; pre-trial explanations, admissions and denials can all be abandoned, or re-explained. There cannot be any binding commitment on whether a defendant will testify or not, nor on what the defendant might say. So again, caution is needed.

[14]              The ability to test issues before trial is comparatively new. Its development probably parallels changes in pre-trial disclosure obligations. It has been a welcome addition, enabling some matters to be sorted ahead of time, and particularly with jury trials preventing delays for the jury. Where the issue is something such as the legality of a search, the pre-trial process can often be determinative and obviate the need for a trial.

[15]              It is important, however, to bear in mind the limits, particularly where the basis of the decision anticipates what a prosecution witness will say. This is so of admissibility arguments like this and also of decisions about propensity. Any pre-trial decision must necessarily be conditional, as until the witness has testified it cannot be known if the assumed basis of the pre-trial decision has proved valid. It is for these reasons that pre-trial the focus is on potential prejudice; the greater the potential harm, the more sensible it is to strike the balance in favour of not leading the evidence unless

and until evidence at trial establishes that the evidence has potential probative value greater than the inherent illegitimate prejudice.

[16]              The emphasis pre-trial on issues of prejudice rather than relevance reflects these inherent difficulties in being too definitive about relevance pre-trial. In particular, irrelevance as claimed here is a challenging concept because of uncertainty as to what might happen at trial. If there is no prejudice in the evidence, and it may have some purpose, then it is best to leave it in and see.

[17]              It is also illusory to see a criminal trial as consisting only of relevant evidence as defined in the Evidence Act. That may sound an alarming proposition, but consider what is sometimes called scene-setting or narrative evidence, or questions asked for the sole purpose of making a witness more at ease so that it is more likely they will be able to give the important relevant evidence which they have been summoned to give. Much of this evidence would need a very expansive definition of relevance before it could be said to have “a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”.5 Its presence, however, is not a concern because it serves a purpose and carries no prejudice.

[18]              None of this is to say that irrelevance can never be determined pre-trial. Particularly with the open question style of interviewing presently in vogue, interviews can become long and traverse a lot of evidence of marginal relevance at best. Often counsel will agree on excisions, and that is sensible.

[19]              Against those more general observations I turn to the present application. It could be disposed of by the observation that there is no risk of prejudice and the challenged passages do not unduly prolong the trial. There is no risk of the “no comment” answers being misused because the prosecution will be determined by a Judge sitting alone. Accordingly, there is no reason to excise the passage. However, out of respect to the submissions presented I address some of the matters raised.

[20]              I do not agree that all the statements can be excised without damage to the narrative. The first challenged passage, in particular, sets the scene for the whole of

5      Evidence Act 2006, s 7(3).

the interview. Mr Charlesworth acknowledges he has had advice, says there are some questions he accordingly will not answer, but otherwise he is willing to be interviewed. This is then demonstrated by a refusal to answer a particular question, but otherwise a voluntary engagement. It would be incorrect to excise any of it.

[21]              More generally on this issue, with a video interview there is a case to say where possible the whole of the document should be before the jury. The visual aspect of these interviews provides juries with a further tool in determining the reliability of what is said within it. Subject to excisions made to remove prejudice, and those occasions where tracts are removed by agreement, the whole of the record provides a fairer basis for making assessments.

[22]              I accept the second challenged exchange could be deleted without damage to the flow. However, the two questions are examples of the defendant being given the opportunity to comment on the core allegations. In terms of demonstrating the overall fairness of the interview, in the absence of prejudice they should not be deleted

[23]              The challenged questions within the third exchange are largely repetitive of the those in the second. However, the “blown me away” observation made by Mr Charlesworth immediately after the questions is relevant as showing a reaction of the defendant to the allegations, and it would lose some of the context shorn of the questions.

[24]              For the reason that each set of questions has a role within the interview, and carry no prejudice, I agree with the decision of the District Court.

[25]              There was considerable attention directed during the hearing to s 32 of the Evidence Act. Although it does not form any part of my reasoning, I briefly refer to the issue. Section 32 provides:6

32       Fact-finder not to be invited to infer guilt from defendant’s silence before trial

(1)        This section applies to a criminal proceeding in which it appears that the defendant failed–

6      Emphasis added.

(a)to answer a question put, or respond to a statement made, to the defendant in the course of investigative questioning before the trial; or

(b)to disclose a defence before trial.

(2)If subsection (1) applies,–

(a)no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure of the kind described in subsection (1); and

(b)if the proceeding is with a jury, the Judge must direct the jury that it may not draw that inference from a failure of that kind.

(3)This section does not apply if the fact that the defendant did not answer a question put, or respond to a statement made, before the trial is a fact to be proved in this proceeding.

[26]              This is claimed by the applicant to establish the inadmissibility of the questions. The respondent submits it is not of such import, and affirmatively advances the proposition that these no comment answers may have probative value.

[27]                 It is important to note that s 32 is not an admissibility provision. It can have an indirect impact on admissibility because it removes one potential use of the evidence, and in many cases, the only potential use. Hence the potential probative value of the evidence goes. But of itself s 32 says nothing about admissibility. Indeed, as the Crown points out, it is only relevant at all if in fact some evidence of silence has been introduced at a trial. Without such evidence, there is no need for any caution. So in that sense the section presupposes there will be such evidence.

[28]              The Crown’s response to this focus on s 32 was to contend that recent appellate decisions make it clear that silence is not always irrelevant, and that s 32 does not prevent the prosecution attaching weight to silence in certain situations.7 The potential legitimate use is to impeach credibility of the defendant’s trial testimony, although it is a fraught process.

7      Smith v R [2013] NZCA 362, [2014] 2 NZLR 421 at [42]. Hamdi v R [2017] NZCA 242 at [21],

and Hitchinson v R [2010] NZCA 388.

[29]              I accept this is correct and since one cannot know as this pre-trial stage whether the defendant will testify, it affords some reason not to delete these sorts of comments. However, I do not regard it as providing much support for admissibility if there were any potential prejudice in the questions. The opening to legitimately use silence is narrow. It is dependent both on the defendant testifying and on the content of the evidence being such as to enable the pre-trial silence to be relevant to credibility. Where there is potential prejudice in the questions, I would exclude the evidence pre-trial and then if necessary read the evidence back into the trial record.

[30]              Despite declining the excisions here, I do not disagree with the decision as in Kingi.8 The contrast there to the present case is one of degree and context. Here the defendant is willing to participate in an interview and the few no comment questions are asked at an appropriate point in the dialogue. They are in context. On the other hand there can be no legitimacy in merely reciting a series of questions knowing each will be met with the same “no comment” answer, as in Kingi. It is poor technique and undermining of the right to silence, and should be excluded.

[31]              I conclude by observing that, without being critical of the present appeal where counsel wanted the wider point of principle explored, this sort of minor matter is not suitable for pre-trial appeal. It is better to wait and see what happens at trial. In the normal course of events, I would not give leave to appeal.

Conclusion

[32]Leave to appeal is granted.

[33]The appeal is dismissed.

Simon France J

8      Kingi, above n 2.