Fan v R

[2012] NZCA 114

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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 COURT OF APPEAL OF NEW ZEALAND

CA372/2011 [2012] NZCA 114

BETWEEN  CHAO FAN Appellant

ANDTHE QUEEN Respondent

CA373/2011

AND BETWEEN            YUNKE SUN Appellant

ANDTHE QUEEN Respondent

Hearing:         1 November 2011

Court:            Harrison, Miller and Asher JJ Counsel: R Mansfield for Appellants

M D Downs for Respondent

Judgment:      28 March 2012 at 2.30 pm

JUDGMENT OF THE COURT

A        The appeal is dismissed.

BOrder  prohibiting  publication  of  the  judgment  and  any  part  of  the proceedings (including the result) in news media or on the internet or

FAN V R COA CA372/2011 [28 March 2012]

other   publicly   available   database   until   final   disposition   of   trial.

Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Asher J)

Introduction

[1]      The appellants Yunke Sun and Chao Fan appeal against a pre-trial ruling in the District Court at Auckland under s 344A of the Crimes Act 1961.1   In that ruling Judge Hubble declined to order that the appellants’ highly incriminating statements to the Police were inadmissible.

Background

[2]      At 6.40 pm on Tuesday, 22 December 2009, Messrs Sun and Fan and another were seated in a Mercedes-Benz motor vehicle parked in Vogel Lane, Auckland. They were approached by Police conducting a routine patrol.   As the Police approached, the third person hastily exited the vehicle.  During the conversation that followed, one of the Police officers noticed a Gucci bag between Mr Sun’s legs.  He could see that this had within it a zip-lock bag containing pink and yellow granules. The officer recognised these as ContacNT granules, which contain the class C controlled drug pseudoephedrine.

[3]      Messrs Sun and Fan were immediately arrested and searched.  The Gucci bag was found to contain two large snap-lock plastic bags containing approximately four kilograms of ContacNT granules.   The likely yield, if used to manufacture methamphetamine, was approximately one kilogram.  Mr Sun stated that he knew he had done wrong.   Mr Fan admitted owning the vehicle but stated that the bag

belonged to Mr Sun.  He denied knowledge of its contents.

1      R v Sun and Fan DC Auckland CRI-2009-004-28216, 8 June 2011.

[4]      Messrs Sun and Fan were taken to the Police Station and sought the advice of a lawyer.  There then followed exchanges between Sergeant O’Neill and Mr Kan, a Mandarin-speaking lawyer, and Mr Kan and Messrs Sun and Fan.   These led to Messrs Sun and Fan making statements to the Police in which they gave an account not only of how they came to have the ContacNT granules in the car, but also how they had been involved in at least two or three earlier supplies of ContacNT intended for the manufacture of methamphetamine.   In addition to being charged with possession of the pseudoephedrine found in the vehicle on 22 December 2009 for the purpose of sale, they were charged with conspiring to sell pseudoephedrine on that date  and  selling  pseudoephedrine  between  1 November  2009  and  21  December

2009.

[5]      Messrs Sun and Fan challenged the admissibility of their statements.  They alleged  that  the  Police  had  indicated  to  them,  through  Mr  Kan,  that  if  they cooperated and made statements they would face summary rather than indictable charges and that a much lesser sentence than would otherwise be imposed would follow.  They argued that as a consequence of this representation, their statements should be excluded on the ground that they were unreliable in terms of s 28 of the Evidence Act 2006 (the Evidence Act) and should in any event be excluded on the ground that they were improperly obtained in terms of s 30 of the Evidence Act.

[6]      At a hearing before Judge Hubble evidence was given by the Police officers involved, Messrs Sun and Fan, and Mr Kan.  The Judge found as a matter of fact that no undertaking or promise was ever given by any of the Police officers that the charges would be laid summarily if Messrs Sun and Fan “came clean” and made statements.  He concluded that s 28 of the Evidence Act was not engaged.  Messrs Sun and Fan do not challenge his findings of fact or that conclusion.  Judge Hubble also found that there was nothing to suggest that the evidence was obtained unfairly in terms of s 30 of the Evidence Act.  The Police officers, he concluded, had treated Messrs Sun and Fan “gently and responsibly” throughout.

[7]      Without objection from the Crown Messrs Sun and Fan challenge the s 30 finding on different grounds to those put to Judge Hubble.  Mr Mansfield submits on their behalf that the statements were obtained unfairly not because of any error that

could be directly attributed to the Police, but rather because Messrs Sun and Fan believed  on  advice  from  Mr Kan  that  if  they cooperated and  made  statements, charges would be laid summarily and  they would receive lesser sentences.   He submits that the statements should be excluded on that basis.  By mistake they had abandoned their earlier asserted right to silence and made significant admissions, limiting any defence of the charge they would have faced, and providing a basis for others to be laid.

The interviews of Messrs Sun and Fan

[8]      On  arrival  at  the  Police Station,  Mr Sun  requested  a Mandarin-speaking lawyer.   Sergeant O’Neill, who ultimately took the lead role for the Police in the inquiry on the night, provided the name of a Mandarin-speaking lawyer, Mr Kan. The Police contacted Mr Kan who came to the station.  It is accepted that on arrival Mr Kan assumed the role of counsel for Messrs Sun and Fan.   Mr Kan had approximately four years experience as a barrister, had carried out defended hearings and  a  few  jury  trials  and  attended,  on  his  estimate,  about  50  Police  Station interviews.

[9]      On his arrival Mr Kan had an initial discussion with Sergeant O’Neill who told him what the arrests were about.  He then saw Messrs Sun and Fan.  He advised them to remain silent and told them of their rights and the procedures that would be followed.    He was  concerned  about  Mr Sun  because he was  very nervous  and emotional.   He asked him whether he should approach the Police about doing a “deal”.  Mr Sun did not answer him specifically, but Mr Kan took Mr Sun’s response to be affirmative.

[10]     Mr Kan left his clients and asked Sergeant O’Neill whether the charges could be laid summarily rather than indictably.   He had in mind that if his clients co- operated, the lesser charges would be laid.  Both Sergeant O’Neill and Mr Kan gave detailed evidence before Judge Hubble about the interchange.  Judge Hubble found that Sergeant O’Neill gave no indication as to whether charges might be laid summarily or indictably.   The prospect was discussed and the Police were undoubtedly prepared to consider the possibility of summary charges in due course,

but no promises were given.  The Police did not know, of course, what they would learn.

[11]     Following his discussion with Sergeant O’Neill, Mr Kan spoke for a second time to Mr Sun.   Mr Kan did not make a note of this discussion.   However, his evidence was that he advised Mr Sun that he did not have to cooperate, but if he did the charges would be reduced to a point where he probably would not go to jail. Mr Sun gave unchallenged evidence that when he asked Mr Kan whether that meant that he should just talk about the pseudoephedrine with which he was found or whether he should refer to “the other stuff [he] talked about”, he was told by Mr Kan “tell whatever you have”.  Mr Sun decided to make a statement.

[12]     The Police then conducted a formal video interview with Mr Sun over the next two hours.  Mr Kan was present throughout.  Mr Sun made admissions that did not only relate to the pseudoephedrine found within the vehicle.  He also gave details of two or three earlier significant sales of pseudoephedrine, each relating to a larger quantity of pseudoephedrine that he had initially received from his supplier.  Mr Sun stated  that  he paid  the  proceeds  of the sales  back  to  his  supplier and  received comparatively modest commissions.   Mr Sun gave unchallenged evidence that he would not have made these admissions if he had not been told that the charges would be reduced or lowered.

[13]     Following  the  interview  with  Mr  Sun,  the  Police  wished  to  re-interview Mr Fan.  Mr Kan spoke to Mr Fan in private.  Mr Kan gave evidence that he advised Mr Fan, as he had Mr Sun, that he did not have to cooperate, but if he did “cough up what happened then the charge will be reduced from indictable to summary” and he would be unlikely to face imprisonment.   Mr Kan told Mr Fan that he had been implicated by Mr Sun in his interview.  Mr Fan gave evidence that Mr Kan told him that if he cooperated his charge would be reduced and he would receive a minimal sentence.  It was now well after midnight.

[14]     Following  the  discussion  with  Mr  Kan,  Mr  Fan  made  a  further  short statement to the Police.  This was recorded in handwriting and he signed it.  In his second statement he admitted his knowledge of the ContacNT granules in the Gucci

bag and admitted his involvement in at least three earlier sales of larger quantities of the drug.

[15]     There was not in the end any significant difference in the approaches of

Mr Mansfield and the Crown to these facts.  In summary:

(a)      Although  there  was  a  discussion  between  Mr  Kan  and  Sergeant O’Neill about outcomes if there was cooperation, the Police made no promises or representations as to outcomes should Messrs Sun and Fan fully cooperate.

(b)Mr Kan proceeded to tell Messrs Sun and Fan that if they cooperated and spoke frankly to the Police they would face summary charges, or charges that were in some way less serious, and that the result would be a significantly lesser sentence for them both than if they did not cooperate.

(c)      Messrs Sun and Fan acted on this representation.  Having previously not made any statement they proceeded to admit to the Police not only their knowledge that they had in their possession ContacNT for the purposes of sale but also their involvement in previous ContacNT sales.  Mr Kan, who was with them when they made their statements, did not intervene.

(d)The consequence of this was that the Police gained an evidential basis to lay further charges relating to the earlier sales.  Messrs Sun and Fan now face charges in relation to those sales.   Also, the Police have evidence from the statements of Messrs Sun and Fan’s knowledge that the ContacNT found in the vehicle contained pseudoephedrine, and their intent to sell these for the manufacture of methamphetamine.

(e)      On an overview the gravity of the charges will be greater and the chances of a successful defence reduced at the pending trial, as a

consequence  of  Messrs  Sun  and  Fan  having  made  statements following Mr Kan’s advice.

Exclusion for unfairness?

Sections 8(1)(a) and 30 of the Evidence Act

[16]     Messrs Sun and Fan do not seek to rely on s 8(1)(a) of the Evidence Act, but we mention it for the sake of completeness.   Section 8(1)(a) of the Evidence Act provides that in any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that it will have an unfairly prejudicial effect on the proceeding.  The focus in s 8(1)(a) is on a weighing of the probative and prejudicial effects of admission of evidence at trial.  It does not assist in resolving the question of the fairness or otherwise of the process by which evidence was obtained prior to trial.

[17]     It is s 30 of the Evidence Act which relates to the admissibility of improperly obtained evidence and it was this section that was the focus of submissions.  If s 30 is raised then the Judge must find whether or not the evidence was improperly obtained and if it was, determine whether or not it should be excluded.  Section 30(5) defines improperly obtained evidence:

30   Improperly obtained evidence

…

(5)   For the purposes of this section, evidence is improperly obtained if it is obtained—

(a)   in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act

1990 applies; or

(b)   in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c)   unfairly.

[18]     The ground of impropriety relied on by Mr Mansfield was that set out in s 30(5)(c).  He submitted that the evidence was obtained unfairly.  Mr Downs for the

Crown submitted in response that there has been no case in which it was alleged that unfairness in the requisite sense could arise from the errors of counsel prior to a statement being made.   He submitted that the pre-Evidence Act cases excluding evidence on the ground of general unfairness could not be relied on, given the requirement in s 30 that the evidence be “obtained unfairly”.  He did however draw

our  attention  to  the  recent  decision  of  this  Court  in  R  v  Simanu2   where  the

admissions of a detainee were excluded on the basis the detainee had no appreciation of the jeopardy he was in.

[19]     The word “obtain” has a dictionary definition of to “secure or gain as the result of request or effort”, and hence generally to “acquire” or “get”.3   Its ordinary meaning connotes a process that emanates from the person who obtains, rather from the person who is giving or providing.  The consideration of unfairness, therefore, focuses on the act of obtaining.   In this case that is the action of the Police in procuring the relevant statements.

[20]     This interpretation of s 30(5) is supported by s 30(6) which provides that in deciding whether a statement obtained by a member of the Police has been obtained unfairly for the purposes of s 30(5)(c), the Judge must take into account guidelines for the Police set out in practice notes on that subject issued by the Chief Justice. This indicates that it is the act of obtaining that is relevant. This interpretation is also supported by s 30(3) which sets out the matters to which the court may have regard in determining whether or not to exclude the evidence.   That process involves a balancing of the impropriety against other factors.  Section 30(3)(g) lists as a factor “whether the impropriety was necessary to avoid apprehended physical danger to the Police or others”. The focus is again on the act of obtaining.

[21]     Even if the word “obtain” is used in the passive sense of “receive”, s 30(5)(c) cannot be construed so as to admit of a basis to exclude in this case, as it was not the receiving of the statement that is said to be unfair, but the giving.  Further, it is not possible to apply s 30(2)(b) sensibly to determine if exclusion is proportionate to the

impropriety. There has been no impropriety. The “obtaining” by the Police was fair.

2      R v Simanu [2011] NZCA 326.

3      Lesley Brown (ed)  The New Shorter Oxford English Dictionary (4th ed, Clarendon Press, Oxford, 1993) vol 2.

[22]     The fact that the Police recommended Mr Kan to Messrs Sun and Fan does not change the analysis.  They had asked for a lawyer.  They had been shown a list of lawyers but had asked for a Mandarin-speaking lawyer.  Mr Kan was a Mandarin- speaking lawyer known to the Police.  There was nothing to indicate that the Police had any improper connection with Mr Kan, or placed him under any pressure, or had any reason to believe that he would not give sound legal advice.  Indeed, it would appear that Mr Kan thought he was acting in the very best interests of his clients in giving them the advice that he did.

[23]     Nevertheless, it is necessary to look further to whether it was in fact the intention of the drafters of the Act to limit the consideration of unfairness only to the act of “obtaining”.

Exclusion on the general ground of unfairness?

[24]     The courts have recognised a discretion to exclude evidence on the general ground of unfairness.4     The discretion has a long history in New Zealand.5     In R v Smith (Malcolm) it was stated:6

It is well settled at common law that the courts of New Zealand have a discretion  to  exclude  legally  admissible  evidence  on  the  ground  of unfairness.   An obvious example is where voluntary admissions or confessions are made in circumstances rendering the use of the evidence unfair.

[25]     The above statement was referred to in R v Shaheed.7    It was accepted in R v Ahamat8   that  the  discretion  covers  circumstances  not  engaged  by  the  New Zealand Bill of Rights Act 1990 (the Bill of Rights).  In Ahamat, a case involving an admission elicited by Police deception which was held admissible, this Court said of this discretion:9

There must be unfairness in the manner in which the evidence is obtained … or unfairness likely to arise from the giving of the evidence at the trial.  … To exclude probative evidence on fairness grounds is warranted only when

4      R v Smith (Malcolm) [2000] 3 NZLR 656 (CA) at [33] and R v Ali CA253/99, 8 December 1999.

5      See R v Convery [1968] NZLR 426 (CA) at 437.

6 At [33].

7      R v Shaheed [2002] 2 NZLR 377 (CA) at [64].

8      R v Ahamat CA143/00, 19 June 2000 at [11].

9      Ibid.

that is consistent with the interests of justice or when that is necessary to assure the fundamental right of an accused to a fair trial.

[26]     The first of the two categories of unfairness identified in Ahamat is now covered by s 30(5)(c) of the Evidence Act.   We are concerned with the second or general category.   The general discretion to exclude evidence on the grounds of unfairness has been invoked where an accused has, because of some condition, been unable to make an informed decision as to whether to make a statement because of

the influence of drugs10 or limited intellectual capacity.11   Judges have also refused to

admit evidence where the detainee was under the influence of cannabis12  or drugs which resulted in him not being able to appreciate the long-term implications of the interview13 or suffering from a major depressive illness.14

[27]     This Court has since the advent of the Evidence Act quoted the passage from R v Ahamat with approval and referred to the general discretion to exclude on fairness grounds,15 although there has been no explicit consideration of whether the general discretion survived the enactment of the Act.

[28]     In R v Simanu the accused, who was being investigated for unlawful sexual violation when he made his statement to the Police, had no appreciation of the jeopardy he was in, and thought he was involved in an exchange of information.  He appeared to believe he was receiving advice from the Police about how to conduct sexual relationships in the future.   This Court upheld the District Court Judge’s conclusion that the statement was inadmissible.  The District Court Judge’s decision relied  on  s  30  of  the Act,  and  the  specific  source  of  the  jurisdiction  was  not considered on appeal.

[29]     The leading New Zealand texts on the Act assume that the enactment of s 30 will make it difficult to argue that it is unfair to admit the evidence as distinct from

10     R v Busby HC Auckland T124/85, 17 October 1985.

11     R v Te Huia HC Napier T17/97, 8 September 1997.

12     R v Szeto CA240/98, 30 September 1998.

13     R v Wellman (2003) 20 CRNZ 383 (HC).

14     R v Cooney [1994] 1 NZLR 38 (CA) at 46–47.

15     R v Petricevich [2007] NZCA 325 at [18] and R v Cameron [2009] NZCA 87 at [41].

arguing that it had been unfairly obtained.16     Certainly, as we have observed, if obtained means acquired or got and s 30 replaces the common law discretion to exclude for unfairness, then the Court’s power to exclude evidence for unfairness has been narrowed by the Act.

[30]     However, there is nothing to indicate in any of the Law Commission papers or reports that were issued prior to the final drafting of the Evidence Bill an intention to exclude this common law discretion when enacting s 30.17    To the contrary we note that:

(a)      Under s 10(1)(c) of the Evidence Act, the Act may be interpreted having regard to the common law to the extent that the common law is consistent with its provisions, the promotion of its purpose and its principles and the application of the rule in s 12.

(b)Under s 11 the inherent and implied powers of a court are not affected by  the Act  except  to  the  extent  that  the Act  provides  otherwise, although a court must have regard to the purpose and the principles set out in ss 6, 7 and 8 when exercising those powers.

(c)      Under s 12 if there is no provision in the Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal “with that question only in part”, decisions about the admission of that evidence must be made having regard to the purpose and principles set out in ss 6, 7 and 8.  To the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken, regard must be had to the common law.  In particular s 6(c) provides that a purpose of the Act is to help secure the just determination of proceedings by

“promoting fairness to parties and witnesses”.

16     Donald L Mathieson (ed) Cross on Evidence (online looseleaf ed, LexisNexis) at [EVA30.10]; Richard Mahoney and others The Evidence Act 2006: Act and Analysis (2nd ed, Brookers, Wellington, 2010)  at  [EV30.10(1)]; and  Bruce  Robertson (ed)  Adams on  Criminal Law  – Evidence (online looseleaf ed, Brookers) at [EA30.10].

17     Law Commission Evidence Volume 1: Reform of the Law (NZLC R55, 1999) at [105]; and Law

Commission Criminal Evidence: Police Questioning (NZLC PP21, 1993) at [44] and [56].

[31]     It  would  be  inconsistent  with  the  common  law  and  the  purpose  of  the Evidence Act which is to promote fairness to parties, to construe s 30 as excluding the common law discretion.  The continued existence of the common law discretion is consistent with the purpose of promoting fairness in s 6(c) to parties, and the Court must have regard to that purpose under s 11(2).   The exclusion of evidence on unfairness grounds   can be seen as dealt with only “in part” (in terms of s 12) by s 30, so that decisions on the admission of evidence can still involve a consideration of what is fair to the parties, that is, irrespective of the provisions of s 30.   We conclude that the common law discretion survives the Evidence Act, although s 30 governs those cases to which the section applies.

[32]     We now must consider whether that discretion should be exercised to exclude the statements on the ground of unfairness.

The approach to unfairness

[33]     The admission as evidence at trial of an inculpatory statement made as a consequence of reliance on poor legal advice can be seen as unfair to an accused who reasonably relied on that legal advice expecting it to be correct in fact and law. An accused who made a statement which is shown to be against that accused’s interests by relying on incorrect advice will not have a remedy against the lawyer that could ameliorate the consequences of the admission of the statement.

[34]     However, the existence of this perceived unfairness does not mean that the statement should be excluded per se.  The Court has a discretion which involves the consideration and balancing of relevant factors.  As this exercise was not undertaken in the District Court because of the different way in which the argument was run, it is necessary for us to consider afresh the exercise of the discretion to exclude.   The cases dealing with statements provided to Police informers or undercover Police officers  are  informative  in  this  regard,  where  accused  persons  have  provided evidence while labouring under mistakes induced by informers, and where, from their perspective, they have been misled.  Those circumstances also could be seen to have been unfair from the perspective of the accused.

[35]     The existence of a mistake by an accused induced by an informer has not been a barrier to admission in many of the informer cases.18   The courts draw a clear line between the state being obliged to allow a suspect to make an informed choice as to whether to speak to the authorities, and the state being obliged to protect an accused  from  making  a  statement.    In  R  v  Hebert,19   quoted  in  R  v  Barlow,20

McLachlin J explained the distinction in this way:

The guarantee of the right to consult counsel confirms that the essence of the right is the accused’s freedom to choose whether to make a statement or not. The state is not obliged to protect the suspect against making a statement; indeed, it is  open to the state to use legitimate  means  of persuasion to encourage the suspect to do so.  The state is, however, obliged to allow the suspect to make an informed choice about whether or not he will speak to the authorities.   To assist in that choice, the suspect is given the right to counsel.

[36]     There is in the end no formula to be applied in the exercise of the discretion. As Cooke P stated in R v Barlow it is a matter of “fact and degree”.21    In that case Hardie Boys J commented:22

While the question of fairness in relation to the Court’s overall discretion is a distinct issue, the factors I have been discussing are equally relevant to it.  I see nothing unfair in the procedures adopted here.  The police are not to be unnecessarily hampered in their investigation of serious crime.   They are entitled to accept offers of assistance from persons in a position to assist. They may not engage in deceit (which I use as a stronger word than deception: there are degrees of deception) or in trickery:  R v Tihi [1990] 1

NZLR 540; (1990) 5 CRNZ 472 (CA).  But for them to open opportunities for a suspect, who has already begun to talk, to continue to do so, does not

offend my sense of proper and fair conduct.

[37]     It is often the case that a statement made by a detainee in a Police Station is shown to be in hindsight a mistake.  A confession may be made in the wrong belief that it will be exculpatory, when it in fact inculpates.  A confession may be made because the detainee is under the self-induced misconception that if everything is confessed the Police will not lay charges, or will take a benevolent approach.  It may

be made because the detainee is anxious to get home, or is bored.  It may be made

18     R v Ross [2007] 2 NZLR 467 (CA); R v Hartley CA6/02, 9 May 2002 at [22]; R v Barlow (1995)

14 CRNZ 9 (CA); and R v Maretapu CA31/04, 5 April 2004.

19     R v Hebert [1990] 2 SCR 151, (1990) 77 CR (3d) 145 at 182.

20     Barlow, above n 18, at 43.

21     At 23.

22     At 46.

because a close relative, say a parent, has urged the detainee to make the statement and the detainee does not wish to go against that advice.

[38]     In all such cases from the objective perception of the accused’s best interests in avoiding ultimate conviction, the making of the statement may be seen as a real mistake.  But the fact that there has been some factor which has induced a tactically erroneous decision should not be seen alone as warranting a decision that the confession is inadmissible.   Indeed, it is difficult to discern any policy reason for such an approach.

[39]     It is necessary to bear in mind that the purpose of the right to silence is to limit the coercive power of the state to force an individual to incriminate himself or herself.  It is not to prevent individuals from incriminating themselves per se.23   To the contrary, it is in the interests of the effective administration of justice that a guilty person confesses.  The most important function of the Police advice upon detention is to ensure that the detainee understands his or her rights, the most important of which is the right to silence.24     It is not to protect a detainee from making an incriminatory statement.

[40]     The Police must be vigilant to ensure that they do nothing unfair in the process of obtaining a statement and there are limits also to what they can do.  They must of course fairly give the required warnings and information to a detainee.  But they would be interfering in the exercise of a detainee’s rights were they to check that a relative (in the case of a young person) or lawyer is competent to advise the detainee before allowing such person to speak to the detainee or attend an interview.

[41]     We see a distinction between a detainee being under a misapprehension as to the consequences of making a statement induced by a third party, and a statement being made by a detainee while under the influence of drugs,25 or limited intellectual capacity,26 or a lack of understanding of the implications of making the statement.27

While in the latter cases it has been accepted that the Police were not at fault, the

23     R v Broyles [1991] 3 SCR 595 at [28].

24     R v Hebert, above n 19, at 182, cited in R v Barlow, above n 18, at 43.

25     R v Busby, above n 10.

26     R v Te Huia, above n 11.

27     R v Simanu, above n 2.

disability of the detainees may nevertheless have been discernible to the interviewing officer.   There can be external indicia of drug consumption, mental ill health or confusion.   There are good policy reasons to make Police officers aware that confessions may be excluded because of the presence of such factors in respect of the accused.  Such a possibility should make Police officers more vigilant to ensure that a detainee properly understands his or her rights and understands the interview process.  Even then it will be a matter of fact and degree as to whether the evidence should be excluded.  However, no such policy considerations arise in relation to the quality  of  the  legal  advice  earlier  received  by  a  detainee.    It  is  quite  simply impossible for a Police officer to monitor the quality of a detainee’s legal advice. The position of Messrs  Sun and  Fan is different from that of the defendant in

R v Simanu,28 where there was lack of understanding as to the nature of the process

of interview.

[42]     In the end, unfairness is not to be assumed to arise just because a statement has been given by a detainee labouring under a misapprehension as to the consequences.   Unfairness must be measured against the circumstances of the provision of the evidence and the factors relevant to its admission or exclusion.  We do not follow the two-stage process required by s 30 of determining whether or not there has been unfairness and then applying the discretion.  We accept the approach of the earlier unfairness cases, which consider unfairness in the round.

Matters relevant to the exercise of the discretion in this case

[43]     It is of particular importance in this case that the Police did nothing unfair or in any direct way use the coercive power of the state to elicit the statements from Messrs Sun and Fan.   They made a choice first to seek legal advice, and then to accept that advice and make the statements.

[44]     The factors set out in s 30(3) of the Evidence Act which relate to the exercise of  the  s  30  discretion  are  relevant  by  way  of  analogy  to  the  exercise  of  this

discretion.  Some particular factors arise:

28     Ibid.

(a)      At this stage the evidence in the statements appears to be of high quality and reliable.   There is no suggestion of any uncertainty or confusion on the part of Messrs Sun and Fan when they made their statements.   There has been no suggestion in this Court that the confessions were in any way incorrect.   The District Court Judge found that the threshold for exclusion under s 28 for unreliability was not crossed, and this was not challenged on appeal.  Messrs Sun and Fan were not labouring under any physical or mental disabilities that may have affected the quality of their statements.   Indeed, the statements appear to be true.

(b)In  relation  to  the  nature  of  the  charges,  under  s  30(3)(d)  (the seriousness of the offence with which the defendant is charged), it has been observed as a guideline that an offence can be considered serious if the sentence starting point for the relevant accused is likely to be in the vicinity of four years imprisonment and over.29    In R v Yeh that proposition was qualified and it was noted that  a lengthy term of imprisonment is only one of the factors to be considered.30    In this case, it is necessary to recognise the pernicious nature of this type of offending and the consequences arising from it.  Given the very large quantities of pseudoephedrine involved in this offending, we have no doubt that this is serious drug offending.   The evils that result from the manufacture of methamphetamine and its use in our society are well-known and accepted.

(c)      While  there  are  no  alternative  remedies  to  the  exclusion  of  the evidence, the detainees if they are convicted are likely to get credit for their frank confessions and the fact that they led to the Police being able to lay further charges.  So there may be some amelioration of the sentence that would otherwise be imposed arising from the giving of

the statements.

29     R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [135].

30     R v Yeh [2007] NZCA 580 at [55].

[45]     There is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.31   We balance the unfairness to the defendants  against the need for an effective and  credible system  of justice, referred to in s 30(2)(b).  The issue is allied to the seriousness of the offending.  The supply of products containing pseudoephedrine such as ContacNT is central to the manufacture of methamphetamine in this country.  The defendants have confessed to

being part of a very major supply of pseudoephedrine, capable of being used to manufacture methamphetamine worth millions of dollars, and to provide many thousands of hits to users.  A system of justice which excludes credible evidence relating to such a pernicious activity, in the absence of any Police impropriety, loses effectiveness and credibility.

[46]     Messrs Sun and Fan made the decisions, first, to employ Mr Kan and then to make the statements.  It may have been a bad decision to make the statements, but that is not a reason for exclusion.  They must bear any resulting burdens that arise. We have concluded that the statements should not be excluded.

Exclusion on the basis of a breach of the Bill of Rights

[47]     Mr  Mansfield’s  oral  submissions  centered  on  whether  the  evidence  was obtained  unfairly in  terms  of s  30(5)(c) of the Act,  a question  which  we have considered.  However, in his written submissions Mr Mansfield put the argument on the additional basis that the evidence was obtained in consequence of a breach of the Bill of Rights.   It was submitted that Messrs Sun and Fan’s statements were improperly obtained in breach of the following rights in the Bill of Rights:

(a)       The right to refrain from making any statement and to be informed of that right: s 23(4);

(b)      The right not to be compelled to confess guilt: s 25(d); and

(c)       The right to the observance of the principles of natural justice: s 27.

31     R v Grant 2009 SCC 32, [2009] 2 SCR 353 at [79], cited in Hamed v R [2011] NZSC 101 at

[188].

It was submitted that when assessing unfairness it is immaterial whether the offer conveyed by Mr Kan was made by the Police or represented a misunderstanding or error on his part.

[48]     Mr Downs in his reply submitted that s 3 of the Bill of Rights applied only to the legislative, executive or judicial branches of government or any person or body in the performance of any public function, power or duty conferred or imposed on that person or body by or pursuant to law.  He made the point that while, by virtue of s 3 of the Bill of Rights, Police are subject to that enactment, Mr Kan is not.

[49]     Section 3 of the Bill of Rights provides that it applies only to acts done:

(a)   by the legislative, executive, or judicial branches of the Government of

New Zealand; or

(b)   by  any  person  or  body  in  the  performance  of  any public  function, power, or duty conferred or imposed on that person or body by or pursuant to law.

[50]     The Police were required to, and did, inform Messrs Sun and Fan of their rights to refrain from making any statement.   Indeed, they respected those rights when they were exercised.   They did not compel Messrs Sun and Fan to confess guilt, or fail to observe the principles of natural justice.

[51]     It was the advice of Mr Kan that precipitated the waiver of the appellants’ rights and Mr Kan was not exercising a public function for the purposes of the Bill of Rights.   The state did not compel or indeed pressure Messrs Sun and Fan to confess guilt.   Ultimately there was nothing in the conduct of the Police that was criticised.  Messrs Sun and Fan on legal advice waived their rights to silence.   It is government conduct or the performance of a public function, power or duty with which the rights affirmed in the Bill of Rights are concerned, not the conduct of a lawyer engaged in giving privileged advice to a private client in respect of the client’s dealings with the government. There was no breach of the Bill of Rights.

Conclusion

[52]     We have had to consider the issue of admissibility afresh given the new grounds put forward on this appeal.   We conclude that there remains a  general common law discretion to exclude evidence where its admission would be unfair, but conclude, for the reasons given, that the statements should not be excluded.

Result

[53]     The appeal is dismissed.

Solicitors:

Crown Law, Wellington for Respondent