M v Police HC Christchurch CRI 2006-409-000050

[2006] NZHC 387

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2006-409-000050

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         12 April 2006

Appearances: G B Henderson for Appellant

K T Dalziel for Respondent

Judgment:      12 April 2006

JUDGMENT OF HON JUSTICE JOHN HANSEN

The appeal is dismissed.

REASONS

[1]      On  15  December  2005  following  a  defended  summary  hearing,  Judge Crosbie convicted the appellant on charges of male assaults child, male assaults female and possession of a weapon.   At the same time he entered guilty pleas of intentional  damage,  burglary,  possession  of  cannabis  and  breach  of  community work.  He appeals against his convictions on the charges of male assaults female and

male assaults child.

M V POLICE HC CHCH CRI 2006-409-000050  12 April 2006

[2]      The appeal raises one short point, and that is whether or not the appellant was advised of his rights under the New Zealand Bill of Rights Act 1991.

[3]      The complainants in this case were Juanita and Keeley Hickey.  They made complaints of assault against the appellant.   At hearing their position changed completely.  The Judge, however, determined that despite this complete about face they were not credible witnesses.  He was clear they were not telling the truth.  He described the child in this way:

[14]      …  Keeley named in the information as a “child” aged twelve years (a less apt description I have yet to come across) gave evidence.  That was a particularly memorable experience.  She appears older than her date of birth would suggest.   She is quite accomplished at using vile language and engaging in disgraceful and disrespectful conduct.  …

[4]     The Judge recognised, however, that because of this about face by the complainants the police were faced with a problem.  That problem was the evidence required to establish the necessary elements of the offence.

[5]      The Judge noted that the appellant had been interviewed by a Const Brown. Essentially he found that that statement confirmed the version of events that had been originally put forward by the two Hickeys.   That, on its face, is enough to convict and no challenge arises from that.

[6]      What is said, however, is that the Judge was wrong to make a finding that the constable administered a Bill of Rights caution to the appellant prior to the making of that statement.  As Mr Henderson responsibly recognises, that immediately runs into difficulties in an appellate setting, given the Judge’s specific finding that such a Bill of Rights caution was administered.

[7]      Notwithstanding that, Mr Henderson has submitted that there was a proper evidential basis to raise the breach of the Bill of Rights Act and the Judge had failed to properly reason through that breach in making his determination.  Firstly, it is said the Judge should have looked to see whether or not such a warning was given and it was established on the evidence.  Secondly, was there any reason not to apply the exclusionary rule?   Thirdly, it was accepted the onus was on the balance of probabilities.

[8]      Mr Henderson pointed to the fact that the statement itself does not contain in written form that a Bill of Rights warning had been given.  Nor it is contained in the constable’s notebook.

[9]      It is apparent that there were Bill of Rights warnings.  The first being given at the roadside at 10.20, and the second at 12 noon.  His statement was said to have been taken at 10.50.

[10]     The Crown responsibly accepts that it is best practice for police officers to record in statements and in notebooks that Bill of Rights warnings have been given. But Ms Dalziel submits, obviously correctly, that there is no statutory requirement for such a practice.

[11]     It is submitted by Mr Henderson that the evidence discloses that the officer in question was distracted on the day in question, because of a major inquiry being undertaken and also because of concerns about being alone with the appellant given the constable’s knowledge of his criminal record.   In those circumstances it is submitted, coupled with the absence of a written record of the Bill of Rights warning being given, that the Judge was wrong to find on the balance of probabilities that such a warning had in fact been given.

[12]     Reliance is also placed what is said to be an equivocal answer to a question put to Const Brown.  At page 18 of the notes of evidence he was asked:

Q        The first caution at 10.20 was prior to him travelling to Papanui

Police Station, that is correct, is it not.

A        Yes.

QSo in terms of the moment when you went into the interview room and took the statement, immediately prior to taking the statement there is no record of you giving him any Bill of Rights caution is there.

ANo, but I always give a short caution and a Bill of Rights, that is what I do.

QSorry, so are you saying that you did do it again but you did not record it.

A        Possibly.

[13]     The  difficulty  with  the  final  question  and  answer,  as  is  responsibly recognised by Mr Henderson, is that it is a compound question and it is not clear what part of it the witness is answering.

[14]     Of more moment are the questions put to the witness by the Judge at page 19, where the issue was put squarely before the witness and he confirms in evidence that he did give a Bill of Rights caution orally to the witness before commencing to take the statement.  It is quite clear at the hearing that this particular point was a live and major issue before the Judge.

[15]     The Judge had the benefit of seeing the witness and observing Const Brown in the witness box.   He had seen him cross-examined, and his version of events challenged by counsel in that cross-examination.   No-one could be in any better position than he to determine whether or not the evidence of Const Brown satisfied, on the balance of probabilities, whether the warning was given immediately prior to the commencement of taking the statement.   Essentially it was a credibility issue. That issue was decided in favour of Const Brown.

[16]     It is notorious how difficult it is to successfully challenge credibility points in an appellate court.   There is nothing in the circumstances of this case that would allow such a challenge to be successfully mounted.   The reality is the Judge has heard the evidence, found the warning was properly given, and the statement was therefore admissible.

[17]     No other points arising on this appeal, the appeal against conviction on both charges is dismissed.

Solicitors:

G Henderson, Christchurch for Appellant

Raymond Donnelly, Christchurch for Respondent

CC:

Judge Crosbie