Maanga v Police

[2016] NZHC 2571

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CRI-2016-404-130

CRI-2016-404-131 [2016] NZHC 2571

BETWEEN

ESTHER RAWINA TE HIRERE MAANGI

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	11 July 2016
Counsel:	D Schellenberg for Appellant M Harborow for Respondent
Judgment:	27 October 2016

JUDGMENT OF DUFFY J

This judgment was delivered by me on 27 October 2016 at 3.30 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors / Counsel:

DHP Schellenberg, Auckland Meredith Connell, Auckland

MAANGI v NEW ZEALAND POLICE [2016] NZHC 2571 [27 October 2016]

[1]                  The appellant, Esther Maangi, was the subject of a hearing under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“CP(MIP)A”) to determine her fitness to stand trial (“special hearing”). She is charged with unlawfully taking a Mazda motor vehicle, registration number DFG479 (“the Mazda”). At the conclusion of the special hearing, Judge Couch decided that the evidence against Ms Maangi was sufficient to establish that she had caused the act that forms the basis of the offence with which she is charged.1 She now appeals against that decision.

[2]                  This judgment follows an earlier judgment on separate issues that were also the subject of the s 9 hearing before Judge Couch. It should be read together with the earlier judgment.2

Facts

[3]                  The evidence for the prosecution was provided to the Court in the form of written police statements. The evidence of the owner of the Mazda was that on 23 April 2015, she had left it parked outside her home. She heard a noise which sounded like her car starting, checked a few moments later and found that it was gone.

[4]                  Sergeant Franklin gave evidence that on 23 April 2015 he learned the Mazda had been taken. Approximately 16 minutes after he gained this information, he saw the Mazda driving along Eskdale Road on the North Shore. The police helicopter was also searching the area. The officers in the helicopter advised him that they had located the Mazda at the intersection of Saffron Street and Lannigan Street, and it appeared there was no-one in the vehicle. Sergeant Franklin went to the area to secure the vehicle. He said that he stopped short of the Mazda, and directly in front of a walkway next to 28 Saffron Street. He looked along the walkway and saw a male and a female standing about 30 metres from his position. The male ran off. Sergeant Franklin directed a dog handler to the location where he saw the persons standing. He then moved to where the female was standing; he stated that he “requested her to stay where she was”. By way of explanation, the female stated that she had been having a

1      New Zealand Police v Maangi [2015] NZDC 18433.

2      Maangi v New Zealand Police [2016] HZHC 1930 [19 August 2016].

domestic with her sister’s partner. The female was subsequently identified as Ms Maangi.

[5]                  Sergeant Franklin noticed that the more he spoke with Ms Maangi, the more nervous she became. He looked down at her hands and noticed a Mazda car key in her hands. He asked Ms Maangi if she “had just got out of that car” and pointed to the stolen Mazda. He recorded Ms Maangi’s reply as being that she “had taken the vehicle”. Sergeant Franklin took the car keys from her and arrested her. He advised her of her rights pursuant to the New Zealand Bill of Rights Act 1990 and then asked her the following questions:

Q.       Do you understand the rights I have just given you?

A.       Yes.

Q.What do you know about the burglary in Ocean View Road this morning?

A.       I did it.

Q.       How did you get inside the address?

A.       No answer.

Q.       Did you take the vehicle DQF479 [Mazda]?

A.       Yes.

Q.       Who was the driver when the vehicle fled from the Police?

A.       Me.

Q.       Why did you run?

A.       Because I knew the car was stolen.

[6]Ms Maangi was then transported back to the North Shore Police Centre.

Legal submissions

[7]                  Ms Maangi argues that the incriminating admissions she made were obtained in breach of her rights under the New Zealand Bill of Rights Act 1990 (“NZBORA”) and the rules set out in the Chief Justice’s Practice Note on Police Questioning. The argument is that from the time Sergeant Franklin requested her to stay where she was, Ms Maangi was detained arbitrarily. Further that, having made the request for her to

stay where she was and having viewed the Mazda keys in her possession, Sergeant Franklin should have informed Ms Maangi of her right to silence rather than asking her if she had got out of the Mazda, which carried with it the implication that she had earlier been in a car that Sergeant Franklin knew to have been unlawfully taken from its owner.

[8]                  Ms Maangi contends that the arbitrary detention and admission obtained thereunder taint the further admissions that followed the police caution, such that all admissions should be excluded from use as evidence against Ms Maangi.

[9]                  The respondent  accepted  on  appeal  that  without  the  admissions  from  Ms Maangi, there was insufficient evidence to prove that Ms Maangi caused the act that forms the basis of the offence of unlawfully taking the Mazda. The respondent argued that questions regarding admissibility of evidence should be left to the trial, in the event that Ms Maangi is found fit to stand trial.

[10]              The respondent also argued that it was open to the Judge to conclude that the statements by Ms Maangi were admissible. In this regard, the respondent said there was no unequivocal evidence before the Judge to suggest that Ms Maangi laboured under a mental illness at the time the relevant act was committed, such that any admissions by her should be rendered entirely null and void. The respondent referred to the Judge’s finding:3

I conclude the admission should be treated in this way [some minimal weight] because the psychiatrist’s opinion is directed to the Court’s request for a report under s 38 as to the defendant’s fitness to plead. That necessarily focused the psychiatrist’s consideration and opinion on her fitness to plead as at the current time. The report is not clear about the defendant’s mental health at the time these offences are said to have occurred. I therefore do take the admissions into account but I place somewhat less weight than I would otherwise place on them had they been made by a person with no apparent cognitive difficulties.

Appellate principles

[11]The CP(MIP)A provides for rights of appeal to this Court:

3 At [12].

16Appeal by defendant against finding relating to fitness to stand trial

(1)A defendant about whom a finding under section 14(2)(b) has been made may appeal against one or both of the following findings:

(a)that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged:

(b)that the defendant is unfit to stand trial or, as the case may be, fit to stand trial.

(2)For the purposes of an appeal under this section,—

(a)the finding appealed against is to be regarded as a conviction; and

(b)the provisions of Part 6 of the Criminal Procedure Act 2011 relating to appeals against conviction, so far as they are applicable and with any necessary modifications, apply to the appeal.

[12]              Appeals under s 16 of the CP(MIP)A are general appeals, subject to general principles established in Austin Nichols & Co Inc v Stichting Lodestar.4

Discussion

[13]The key issues which fall to be determined, it seems to me, are as follows:

(a)Does s 30 of the Evidence Act 2006 apply in relation to a special hearing?

(b)If so, should the evidence of Ms Maangi’s confession be excluded from consideration?

Does s 30 of the Evidence Act apply in relation to a special hearing?

[14]              In order to determine whether s 30 of the Evidence Act is applicable to a special hearing, it is first necessary to consider whether the Evidence Act as a whole applies. Section 5 of the Evidence Act relevantly provides as follows:

4      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

5        Application

(1)If there is an inconsistency between the provisions of this Act and any other enactment, the provisions of that other enactment prevail, unless this Act provides otherwise.

(2)       …

(3)This Act applies to all proceedings commenced before, on, or after the commencement of this section except—

(a)the continuation of a hearing that commenced before the commencement of this section; and

(b)any appeal from, or review of, a determination made at a hearing of that kind.

[15]              Therefore the Evidence Act applies to a special hearing except insofar as the provisions of the CP(MIP)A which govern a special hearing are inconsistent with the Evidence Act.

[16]Section 9 of the CP(MIP)A provides as follows:

9Court must be satisfied of defendant’s involvement in offence

A court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant cause the act or omission that forms the basis of the offence with which the defendant is charged.

[17]              Although the section refers to “the evidence against the defendant”, there is no further indication regarding the permissible form or content of that evidence. However, there is some guidance on this issue in ss 10, 11 and 12 of the CP(MIP)A. Section 10 applies in respect of a special hearing which takes place before trial, as in the present case. Sections 11 and 12 apply in respect of a special hearing during the course of a trial (Judge-alone and jury trials, respectively). Section 10 provides:

10Inquiry before trial into defendant’s involvement in offence

(1)This section applies if the question whether the defendant is unfit to stand trial arises before the trial.

(2)The court must ascertain whether the court is satisfied of the matter specified in section 9.

(3)For the purposes of subsection (2), the court may consider—

(a)any formal statements that have been filed under section 85 of the Criminal Procedure Act 2011:

(b)any oral evidence that has been taken in accordance with an order made under section 92 of the Criminal Procedure Act 2011:

(c)any other evidence that is submitted by the prosecutor or defendant.

[18]              Paragraphs (3)(a) and (3)(c) seem to indicate that the forms of evidence which will be acceptable for the purposes of a special hearing may be more wide-ranging than those that would generally be acceptable at trial. However, subs (3) does not offer any indication regarding the content of evidence that may be offered in the course of a special hearing, other than that the court may consider “any” of the listed evidence.

[19]              On its ordinary meaning, the use of the word “any” may be understood to indicate a complete absence of restrictions regarding the acceptable content of evidence presented in a special hearing. However, a brief moment of consideration is sufficient to determine that this interpretation cannot apply here. Clearly, for example, the court could not consider evidence which relied solely upon a defendant’s race or sexuality, or was in any way irrelevant to the s 9 hearing.

[20]              A narrower interpretation of the word “any” is required. In my view, there are two possibilities:

(a)“Any” could mean “any relevant evidence of any kind”; or

(b)“Any” could mean “any admissible evidence, as determined by the provisions of the Evidence Act.”

[21]              I prefer the second interpretation, for two reasons. The first reason is that this interpretation is consistent with the direction in s 5 of the Evidence Act, that the Act applies to all proceedings save where there is an inconsistency between the provisions of the Evidence Act and the provisions of any other enactment. I have not seen any inconsistency between the provisions of the Evidence Act and those of the CP(MIP)A.

[22]              The second reason is more complex and requires consideration of the broader scheme for dealing with persons who are unfit to stand trial under the CP(MIP)A. The issue of whether a defendant is fit to stand trial may be raised at any stage after the commencement of proceedings against the defendant until all the evidence has been concluded at trial.5 The special hearing procedure will be triggered if the accused, his or her counsel, or the Crown raises a question regarding the defendant’s fitness to stand trial.6 Once the issue has been raised, the court must hold a special hearing to determine whether it is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission forming the basis of the offence(s) for which the defendant is charged.7 If the court is not satisfied of that matter, the charge(s) must be dismissed.8

[23]              However, if the court is satisfied of the defendant’s involvement, the court must proceed to determine whether the defendant is unfit to stand trial.9 If the defendant is found unfit to stand trial, the court is required to deal with the defendant under s 24 or 25 of the CP(MIP)A. Section 24 provides for the detention of the defendant as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or, depending on the nature of the defendant’s impairment, as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.10 The court may only make an order under s 24 if it is satisfied that the making of the order is necessary in the interests of the public or any person or class of person who may be affected by the court’s decision.11 Depending on the nature of the charge(s) against the defendant, he or she may be detained as a special patient or special care recipient for up to 10 years.12 If all of the charges are withdrawn or dismissed, the order requiring the defendant’s detention is treated as being cancelled.13 Alternatively, the defendant’s health may improve to the point where the defendant can instead be detained as a normal patient or care recipient;14 or, if the defendant is

5      Criminal Procedure (Mentally Impaired Persons) Act 2003 [CP(MIP)A], s 7(1).

6      McKay v R [2009] NZCA 378, [2010] 1 NZLR 441 at [34] and [39].

7      CP(MIP)A, s 9.

8      CP(MIP)A, s 13(2).

9      CP(MIP)A, s 13(4).

10     CP(MIP)A, s (2).

11     CP(MIP)A, s 24(1)(c).

12     CP(MIP)A, s 30(1).

13     CP(MIP)A, s 30(5).

14     See CP(MIP)A, s 31(3).

no longer unfit to stand trial, the defendant may be released and brought before the appropriate court.15

[24]              If a defendant is unfit to stand trial but the court is not satisfied that an order under s 24 is required, the court must deal with the defendant under s 25, by:16

(a)Ordering that the defendant be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act;

(b)Ordering that the defendant be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act;

(c)If the person is liable to be detained under a sentence of imprisonment, deciding not to make an order; or

(d)Ordering the immediate release of the defendant.

[25]              When the court makes an order under s 25 or a decision under s 25(1)(c) in respect of a defendant who has been found unfit to stand trial, the court may order that the criminal proceeding against the defendant in respect of that charge is stayed.17 If circumstances change such that the defendant is no longer unfit to stand trial, the stay on proceedings may be lifted. This often occurs where, for example, a defendant is able to obtain medication for a previously untreated mental illness and subsequently attains a level of competence which is sufficient to enable the trial to proceed. There is no equivalent provision which regulates the conduct of proceedings following an order under s 24. The reason for that omission is not clear.

[26]              I have summarised the procedures for dealing with a person who is unfit to stand trial because this demonstrates the significant impact that a special hearing may have on the course of a defendant’s life. If at the conclusion of a special hearing, the court is not satisfied that the evidential threshold has been met, then the charges against the defendant will be dismissed. On the other hand, if the court is satisfied of the

15     See CP(MIP)A, s 31(2).

16     CP(MIP)A, s 25(1).

17     CP(MIP)A, s 27(1).

defendant’s involvement in the offence, then the defendant may in some cases face detention as a special patient or special care recipient for up to 10 years without ever having been convicted of the offence at trial. In other words, the defendant may suffer a significant loss of liberty which would not have occurred, but for the outcome of the s 9 hearing.

[27]              I consider, therefore, that there are strong policy reasons which favour the consideration of admissibility issues in the course of a s 9 hearing. The alternative could result in a perverse outcome where a defendant who is fit to stand trial is later, at trial, exonerated for lack of admissible evidence while a co-defendant who is alleged to have committed the same offence and who has been found unfit to stand trial is detained for up to 10 years, on the basis of that same inadmissible evidence. I do not consider that to be an acceptable outcome. If a defendant poses a significant threat to society due to a mental disorder or intellectual disability, there are other means by which he or she can be cared for.18 Thus there are no public policy reasons for treating a mentally disordered person differently from other persons who may avoid being held responsible for their offending because their evidence is excluded on legal grounds.

[28]              I consider that the Evidence Act is relevant to determining questions of admissibility in a special hearing.

[29]              One final matter which remains to be determined under this heading is whether s 30 of the Evidence Act applies in respect of a special hearing. Section 30 governs the admissibility of improperly obtained evidence, but only applies in criminal proceedings. I am satisfied that a special hearing is a criminal proceeding. The title of the legislation, being the Criminal Procedure (Mentally Impaired Persons) Act, and the language of the relevant sections (particularly the repeated references to “the defendant”) are strong indicators regarding the nature of the special hearing procedure. Furthermore, a special hearing takes place as part of wider criminal proceedings. Therefore, s 30 is relevant when considering the admissibility of evidence in a special hearing.

18     See the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Should the evidence of Ms Maangi’s confession be excluded from consideration?

[30]              Section 30 of the Evidence Act governs the admissibility of improperly obtained evidence. That term is defined in subs (5), which provides:

(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)…

(c)unfairly.

[31]              Counsel for Ms Maangi argues that the evidence of her confession was obtained in breach of ss 22 and 23 of the NZBORA, on the basis that she was unlawfully detained and that Sergeant Franklin failed to inform Ms Maangi of her rights at a sufficiently early stage. He further contends that although Ms Maangi’s confession was recorded after she had been cautioned, that evidence is “fruit of the poisoned tree” and should therefore be inadmissible as improperly obtained evidence.

Was there an arbitrary detention?

[32]              In Everitt v Attorney-General, the Court of Appeal considered whether a request that a cyclist turn up his cycle for inspection constituted an unlawful detention.19 It held:20

Police work properly involves making inquiries without there necessarily being a power to demand compliance and the brief time involved in responding to an inquiry of that kind could not sensibly be described as an unlawful detaining. In general terms, whether someone is detained within the meaning of s27 of the Bill of Rights may be determined by a “mixed objective/subject test: does the suspect have a reasonably held belief, induced by police conduct, that he or she is not free to leave” (R v M [1995] 1 NZLR 242, 245). A common sense and practical approach is called for an something more than a temporary check on a citizen’s liberty is required. As was said in Police v Smith and Herewini [1994] 2 NZLR 306, 316, what beyond that constitutes a sufficient restraint on liberty to come within the guarantee of s22 of the Bill of Rights against arbitrary detention, will depend on the circumstances of the case and will involve consideration of the nature, purpose, extent and duration of any constraint.

19     Everitt v Attorney-General [2002] 1 NZLR 82.

20 At [7].

[33]              The unchallenged evidence of Sergeant Franklin is  that when he first saw  Ms Maangi, he “requested Ms Maangi to stay where she was”. On a common sense and practical approach, this cannot amount to an arbitrary detention of Ms Maangi. At the time she was standing in a public place. Sergeant Franklin was the only police officer who was interacting with Ms Maangi. There is nothing in the circumstances of the interaction between Sergeant Franklin and Ms Maangi that would suggest her will was overborne by his request. Further such circumstances would not reasonably suggest to anyone that he or she had no choice but to accede to Sergeant Franklin’s request. I am satisfied, therefore, that his request to Ms Maangi for her to stay where she was not an unlawful request. Furthermore, given the circumstances confronting Sergeant Franklin, I consider his request was reasonable.

Did Sergeant Franklin fail to promptly caution Ms Maangi?

[34]              Section 23 of the NZBORA provides that persons who are arrested or detained under any enactment must be informed of certain matters including the right to refrain from making a statement and the right to instruct a lawyer without delay.

[35]              The Practice Note – Police Question (s 30(6) of the Evidence Act 2006) provides the following guidance regarding appropriate practice when asking questions of a potential suspect:21

1.A member of the police investigating an offence may ask questions of any person from whom it is thought that useful information may be obtained, whether or not that person is a suspect, but must not suggest that it is compulsory for the person questioned to answer.

2.Whenever a member of the police has sufficient evidence to charge a person with an offence, or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:

(a)that the person has the right to refrain from making any statement and to remain silent;

(b)that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme;

21     Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.

(c)that anything said by the person will be recorded and may be given in evidence.

[36]              I consider that Sergeant Franklin’s first question to Ms Maangi, namely whether she “had just got out of that car”, was reasonable in the circumstances. At the time he had seen her in the company of another person who acted suspiciously by decamping from the scene; she was approximately 30 metres from the stolen Mazda and she had a Mazda key ring with keys in her hand. That would be sufficient to connect her in Sergeant Franklin’s mind with the stolen Mazda in some way but those circumstances in my view were not sufficient to give Sergeant Franklin good cause to suspect she was the person responsible for unlawfully taking the Mazda or assisting someone else to unlawfully take it. In my view Sergeant Franklin needed to find out more about Ms Maangi’s connection with the Mazda before he could have good reason to suspect she was involved in the unlawful taking. By asking Ms Maangi if she had got out of the Mazda Sergeant Franklin framed his request for information in a neutral way as the question sought to discover if Ms Maangi had been in the Mazda in a way that did not necessarily tie her to its unlawful taking. In this regard the question left open the possibility that Ms Maangi had entered the Mazda some time after it was unlawfully taken without such knowledge. Once Ms Maangi volunteered that she had taken the Mazda, Sergeant Franklin cautioned her.

[37]              Further I am satisfied from Sergeant Franklin’s description of the circumstances that there was nothing about Ms Maangi that would have informed him that she might have mental health issues that made anything she said to him problematic.

[38]              I am satisfied, therefore that there was nothing unlawful in the oral exchange between Sergeant Franklin and Ms Maangi. According, there is no basis in that regard for finding that Ms Maangi’s confession was improperly obtained or that the exchange should be held inadmissible as evidence against Ms Maangi.

Should the confession be otherwise excluded?

[39]              The issue of the confession being unreliable in terms of s 28 of the Evidence Act due to Ms Maangi’s mental health issues was not specifically raised at the hearing.

Accordingly the procedural requisites set out in s 28(1) were not addressed. (I do not propose therefore to consider her confession in the light of s 28).

[40]              There remains the issue of whether it would be unfair to admit Ms Maangi’s evidence on view of  the  subsequent  psychiatric  report  dated  29  July  2015  of  Dr Olivera Djokovic. Dr Djokovic found that at the time she interviewed Ms Maangi she displayed signs of a mental illness and that in Dr Djokovic’s opinion a court would have difficulties finding Ms Maangi fit to stand trial. The interview took place on 22 July 2015 at the Auckland Region Women’s Corrections Facility.

[41]              The alleged offending occurred in April 2015 which was some months earlier than the interview. By July 2015 Ms Maangi had been arrested and remanded in custody. Dr Djokovic did not address what Ms Maangi’s mental state might have been in April 2015 or what effect if any the arrest and remand in custody might have had on Ms Maangi. A second report from a psychiatric registrar dated 25 September 2015 observed an improvement in Ms Maangi’s mental state as the opinion was that a court would find Ms Maangi fit to stand trial. There is nothing in either report to suggest what Ms Maangi’s mental state might have been in April 2015.

[42]              From the exchange recorded by Sergeant Franklin Ms Maangi appears to have given clear cogent answers. Those answers are incriminating. However, on many occasions persons give incriminating answers to police questions following a caution. The fact such answers were provided cannot necessarily be taken as an indication that Ms Maangi did not fully appreciate the caution or the consequences of disregard of it.

Was there sufficient evidence against Ms Maangi to satisfy the section 9 test ?

[43]              The District Court Judge adjusted the weight he placed on Ms Maangi’s incriminating answers in view of her subsequent mental health condition. Since the hearing was conducted on the papers he was in no better position than I am to reach a view on this topic. Like the District Court Judge, I am satisfied that even if regard is paid to Ms Maangi’s subsequent mental health condition and the likelihood it was present to some extent, albeit unknown, in April 2015, her admissions are sufficient to connect her to the actus reus of the offence of unlawfully taking the Mazda. Accordingly, the Judge was right to find this outcome.

Result

[44]              The appeal against the decision of Judge Couch in relation to the unlawful taking of the Mazda motor vehicle is dismissed.