R v Alo
[2007] NZCA 172
•3 May 2007
For a Court ready (fee required) version please follow this link
IN THE COURT OF APPEAL OF NEW ZEALAND
CA155/06
[2007] NZCA 172THE QUEEN
v
ENE-LOUIS ALO
Hearing:31 May and 20 November 2006
Court:William Young P, Chambers and Arnold JJ
Counsel:R J Stevens and E J Bradley for Appellant
J C Pike and J M Davidson for the Crown
Judgment:3 May 2007 at 4 pm
JUDGMENT OF THE COURT
The application for leave to appeal is granted but the appeal is dismissed.
REASONS
Para No.
William Young P and Arnold J [1]
Chambers J (Dissenting) [76]
WILLIAM YOUNG P AND ARNOLD J
(Given by William Young P)
Table of Contents Para No
Factual background [6]
The approach taken by Judge Mill [16]
The Judge’s conclusions as to the admissibility of what was said in the Mall [17]
Did the Judge’s conclusion that the admissions made in the Mall
were inadmissible require the Judge to exclude all of the question and
answer interview? [20]
Did the failure to remind the appellant at the police station of his right of
silence justify the exclusion of the whole of the question and
answer interview? [24]
Was there a breach at the police station of the appellant’s right to
consult a lawyer? [29]
Overview [29]
The legislative and policy environment [30]
The right to consult a lawyer – general [40]
Police obligations to facilitate the right to counsel – general [41]
Where the suspect tells the police officer that he or she cannot
afford a lawyer [42]
Subsequent New Zealand appellate decisions on facilitation where
the suspect has not explicitly raised cost as a concern [43]
The United States jurisprudence [52]
The Canadian jurisprudence [54]
The views of the commentators [62]
Evaluation [65]
This case [74]
Result [75]
[1] The appellant faces trial in the District Court at Wellington on an indictment which alleges that, with intent to do so, he caused grievous bodily harm to the victim. He seeks leave to appeal against a ruling of Judge Mill delivered on 4 April 2006 in which the Judge upheld the admissibility of certain admissions made by the appellant to the police.
[2] The case concerns an incident which occurred in Manners Mall in central Wellington. The appellant was spoken to by Constable Daniel Lyons in the immediate aftermath of the incident. He was not cautioned until after he made some preliminary admissions. He was then cautioned and given his rights under s 23(1)(b) of the New Zealand Bill of Rights Act (1990 NZBORA) and taken to the police station. At the police station he was interviewed in more detail. He was not cautioned again and it is not certain whether he was told that he could obtain legal advice without cost. He made further and more detailed admissions.
[3] In his pre-trial ruling which is now under appeal, the Judge concluded that the admissions made at Manners Mall were inadmissible but that the later admissions were admissible.
[4] The case raises three issues:
(a)Did the Judge’s conclusion that the admissions made in the Mall were inadmissible require the Judge to exclude all of the question and answer interview?
(b)Did the failure to remind the appellant at the police station of his right of silence justify the exclusion of the whole of the question and answer interview?
(c)Was there a breach at the police station of the appellant’s right to consult a lawyer?
[5] We will discuss each of these arguments in turn, but, before we do so, we think it helpful to discuss the factual background in more detail, the approach taken by Judge Mill and also his conclusions as to the admissibility of what was said in the Mall.
Factual background
[6] Judge Mill heard extensive evidence before giving his ruling and we propose to rely on his findings as to the facts.
[7] The charge relates to an incident which occurred late on 4 June 2005 in Manners Mall, near the Cuba Street intersection. On the Crown case the appellant and another person repeatedly punched and kicked the victim. This incident was interrupted by Constable Gareth Barnes.
[8] In the immediate aftermath, the appellant was dealt with by Constable Lyons. When Constable Lyons first spoke to the appellant he did not know that Constable Barnes had observed the appellant participating in the struggle with the victim. So Constable Barnes simply approached the appellant on the basis that he was either a prospective witness or suspect. After taking the appellant’s particulars, the Constable asked the appellant, “What happened?”. The appellant responded by saying that his cousin was punched and he jumped into help. This turned into a fight and he threw one punch. He also made mention of being “hit in the face”.
[9] Constable Lyons cautioned the appellant, arrested him for fighting and advised him of his rights under the New Zealand Bill of Rights 1990. He then asked the appellant if he understood his rights and the appellant responded by saying, spontaneously, “Yes” but then went on, “I didn’t start it though but I admit I threw one punch though”.
[10] The appellant was then taken to the Wellington Central Police Station.
[11] After about an hour or an hour and half (during which time Constable Lyons was briefed on what had happened) Constable Lyons took the appellant to an interview room. Constable Lyons asked the appellant if he wished to make contact with a lawyer and the appellant indicated that he wished to speak to a Mr Bradley. The constable attempted to make contact with Mr Bradley but was unable to do so. While connected to Mr Bradley’s answer phone, the constable asked the appellant if he would like him to leave a message for Mr Bradley. The appellant responded in the negative. The appellant also said that he did not know any other lawyers. Constable Lyons told the appellant that he had a list of lawyers and that he would call any lawyer on the list for the appellant and would do so until he obtained a lawyer. The appellant said that he did not want to contact another lawyer. Constable Lyons indicated that it was his usual practice to tell suspects of the entitlement to free advice but he had not recorded giving such advice to the appellant and he was not certain that he had.
[12] The Judge held that he could not be “sure” that Constable Lyons told the appellant that lawyers on the list could be called free of charge. On the other hand he found that the appellant had not raised any concern about costs.
[13] There then followed a question and answer interview which the constable recorded as follows:
Q: What happened after you threw a punch?
A:It was all happening. There was a lot of people involved. The guy that hit my cousin ended up on the ground.
Q:A police constable has told me that you kicked him while he was on the ground. Did you do that?
A:To keep him away. I thought he was going to come back at us.
QWhy did you think that?
A:I could just tell by the way he looked. He looked aggressive.
Q:How many times did you kick him?
A:3 times.
Q:Whereabouts on his body did you kick him?
A:I’m not sure. In the chest.
Q:How hard did you kick him?
A:Not very hard.
Q:What did the guy look like that you kicked?
A:He was a white guy. He had long hair.
Q:What happened after you kicked him?
A:I got dragged off by the police.
Q:Do you think that you went too far?
A:No. I was just protecting my cousin. The other guy started it. I haven’t done anything wrong.
Q:How did it all start?
A:When the white guy took a swing at my cousin. I didn’t see what happened before that because I was behind my cousin.
[14] Constable Lyons asked the appellant to read his notes to check if they were accurate. The appellant read the notes and confirmed that they were true and accurate but he declined to sign them.
[15] At the time all this happened, the appellant was 18. He had not previously been interviewed by the police.
The approach taken by Judge Mill
[16] In his ruling, the Judge found that:
(a)Constable Lyons did not “detain” the appellant when he first spoke to him.
(b)There was a breach of the spirit of the Judges’ Rules in that, although Constable Lyons did not know that the appellant was a suspect when he first spoke to him, there was sufficient evidence to charge him as Constable Barnes had seen him kicking the complainant. The Judge plainly thought that Constable Barnes could and should have told Constable Lyons that he had seen the appellant kicking the victim.
(c)Accordingly the admission made before the caution was inadmissible.
(d)The admission made immediately after the caution was sufficiently closely related in time and circumstance to the first inadmissible admission to be excluded.
(e)The inadmissibility of the first admission did not require exclusion of evidence of the question and answer interview at the police station save in relation to the first question and answer.
(f)The possible failure by Constable Lyons to tell the appellant at the police station that he could ring a lawyer without cost did not involve an infringement of his rights under s 23 of the New Zealand Bill of Rights.
(g)The fact that at the police station Constable Lyons did not again caution the appellant and give him his rights under s 23 of the New Zealand Bill of Rights did not involve any infringement of his rights.
(h)Accordingly the question and answer interview was admissible save as to the first question and answer.
The Judge’s conclusions as to the admissibility of what was said in the Mall
[17] Rule 2 of the Judges’ Rules is in these terms:
Whenever a police officer has made up his mind to charge a person he should first caution such person before asking him any questions or any further questions, as the case may be.
[18] Plainly there was no breach of r 2 in the initial interaction between Constable Lyons and the appellant. At that stage Constable Lyons had not made up his mind to charge the appellant. Further, the Judge’s conclusion that there had been a breach of the spirit of the Judges’ Rules was far from inevitable. Constable Lyons had acted entirely appropriately in the Mall. There was no explicit evidence given as to the practicality of Constable Barnes telling Constable Lyons that he had seen the appellant kicking the victim. Indeed the evidence suggests that Constable Barnes was dealing with a fraught situation in which it may not have been practicable for Constable Barnes to brief Constable Lyons on what he had seen.
[19] For this reason, we are inclined to think that the case fits rather more easily within the spirit of r 1 which is in these terms:
When a police officer is endeavouring to discover the author of a crime, there is no objection to his putting questions in respect thereof to any person or persons, whether suspected or not, from whom he thinks that useful information can be obtained.
Cases in which the spirit of r 2 has been invoked usually relate to the difference between the interviewing police officer’s subjective state of mind (which is what r 2 addresses) and whether objectively that officer had sufficient evidence to charge the suspect, cf R v Rogers [1979] 1 NZLR 307 (CA). No case was cited to us where r 2 had been applied in spirit on the basis of what another police officer (ie not the one interviewing the suspect) may have known.
Did the Judge’s conclusion that the admissions made in the Mall were inadmissible require the Judge to exclude all of the question and answer interview?
[20] The Judge’s reasoning on this part of the case proceeded primarily on the basis that, with the exception of the first question and answer recorded by Constable Lyons, what was said at the Police Station was insufficiently connected to what had been said earlier, in Manners Mall, to justify exclusion. Also of relevance to the Judge was the reality, as he saw it, that Constable Lyons had acted initially in good faith (not being aware that there was already evidence available implicating the appellant in the assault on the victim) and that the decision to exclude the second, post-caution admission, made in Manners Mall was “finely balanced”.
[21] The reason why post-caution admissions are excluded where there has been an earlier breach of the Judges’ Rules is because once the first admission is made, the suspect becomes committed to the interview process, including the admission which has been already made. This appears clearly enough from R v Williams CA101/00 31 July 2000 at [28] and R v Johansen CA487/99 2 December 1999 at [25]. On the argument of the appellant, the statements made were part of a single continuous interview of which the question and answer portion at the police station in effect started at the point where the discussion in Manners Mall had left off.
[22] In this case, we think it unlikely that Constable Lyons gained a substantial advantage vis à vis the appellant from what had been said in the Mall. In saying this we accept that the question and answer interview started off where the earlier discussions left off. But given that Constable Lyons knew what Constable Barnes had seen, it seems almost inevitable that, irrespective of what the appellant had said in the Mall, the discussion would have taken very much the course it did. In this we think it significant to note that the appellant was reasonably consistent in his responses to Constable Lyons in that he throughout accepted that he had been involved in the fight but asserted that he had not started the incident but rather had acted to assist his cousin.
[23] The Judge’s decisions to exclude the Mall admissions but to admit the admissions in the police station involved a substantial element of evaluation. As is apparent, we have reservations about the decision to exclude the Mall admissions. But, accepting the premise that these admissions ought to have been excluded, we see no reason to differ from the Judge’s conclusion that this did not require the admissions in the police station to be excluded.
Did the failure to remind the appellant at the police station of his right of silence justify the exclusion of the whole of the question and answer interview?
[24] This point was not raised in the District Court by the appellant but the Judge nonetheless addressed it.
[25] The appellant had been cautioned and given his rights under s 23 while at the Mall. It would appear that he still had in mind what he had been told, as he indicated at the start of the interview that he wished to speak to Mr Bradley. Perhaps because the interview process started with this request, he was not re-cautioned and again given the s 23 advice once the interview got under way.
[26] The basis of the Judge’s decision that the absence of any further caution (or reminder of his right of silence) was that there had been no substantial change in circumstance between the time when the appellant was arrested in Manners Mall and when he was re-interviewed at the police station.
[27] According to the appellant, there was a substantial change of focus. In the Mall he was arrested on a charge of fighting. By the time the appellant came to be interviewed in the police station, Constable Lyons knew that the appellant had been seen by Constable Barnes kicking the victim. As it turns out, the appellant now faces a charge which carries a maximum penalty of 14 years imprisonment.
[28] One of the problems with evaluating this argument is that it was not raised in the District Court and thus Constable Lyons did not have an opportunity to provide an explanation for the course which he took. It is not, for instance, clear on the evidence that Constable Lyons was aware of the extent of the complainant’s injuries when the interview started. Further, there is the consideration that the appellant was given his rights and a caution at the Mall and the obvious inference is that what he was told there was still operative just prior to the interview as he raised with Constable Lyons his desire to see a lawyer. In the circumstances, it seems to us that the approach taken by the Judge was open to him, cf Williams.
Was there was a breach at the police station of the appellant’s right to consult a lawyer?
Overview
[29] The appellant maintains that Constable Lyons should have explored with the appellant the possibility that his unwillingness to contact a lawyer was associated with an inability to pay. Indeed, the primary argument is that Constable Lyons ought to have told the appellant that he was entitled to obtain free legal advice.
The legislative and policy environment
[30] Sections 23(1)(b) and 24 of the New Zealand Bill of Rights provide:
23 Rights of persons arrested or detained
(1) Everyone who is arrested or who is detained under any enactment—
…
(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; …
24 Rights of persons charged
Everyone who is charged with an offence—
…
(c) Shall have the right to consult and instruct a lawyer; and
…
(f) Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; …
[31] In 1990, there was no right to free legal advice for those detained. The legal aid system then in place did not fund such advice. Further, s 23(1)(b) plainly did not confer such a right; a conclusion which is obvious given the specific but qualified provision made by s 24(f) for free legal assistance for those charged with offences. On the other hand such advice was usually (or at least often) available pursuant to arrangements put in place under an agreement between the New Zealand Police and the New Zealand Law Society that each station would hold a roster of lawyers who could provide a person in custody with legal advice immediately upon arrest.
[32] In 1992 the New Zealand Law Commission issued a discussion paper entitled Criminal Evidence: Police Questioning (NZLC PP21 1992). The Commission proposed that police be allowed to question suspects after arrest and before charge. But, at [105] it indicated that effective access to legal advice was:
an essential component of the proposed questioning regime, to the extent that, in the absence of such access, we would not recommend that provision be made to enable the questioning of suspects after arrest and before charge.
[33] The Commission published its final report on the topic of police questioning in 1994: Police Questioning (NZLC R31 1994). At [8], it suggested that people suspected of criminal offences whom the police wish to question should have safeguards to ensure that improper pressure is not brought to bear on them, including the right to consult a lawyer without delay, in private, and free of charge. The Commission’s proposals were formulated specifically on the basis that a system would be established for making legal advice available to all suspects, and that the questioning of a suspect who has requested legal advice would be deferred until a reasonable opportunity had been given to consult a lawyer.
[34] Against that background and perhaps prompted by this Court’s approach to s 23(1)(b) in Ministry of Transport v Noort; Police v Curran [1992] 3 NZLR 260 (CA), the Police Detention Legal Assistance scheme (PDLA) was established in 1995 with the insertion of s 158C into the Legal Services Act 1991. The Legal Services Act 2001 continued this scheme, albeit in slightly different terms.
[35] Sections 50 and 51 of the Legal Services Act provide:
50 Object of PDLA scheme
The object of the PDLA scheme is to ensure that there is available a sufficient number of lawyers to provide legal advice, or legal assistance, or both, to any person—
(a) to whom the scheme applies; and
(b) who wishes to consult or instruct a lawyer about any matter relating to the person's questioning or detention.
51 Who PDLA scheme applies to, and their rights
(1) The PDLA scheme applies to every unrepresented person who—
(a) is being questioned by the police, or who the police want to question, in relation to the commission or possible commission of an offence by that person, and who is advised by the police, before or in the course of questioning, that he or she may consult a lawyer; or
(b) is being detained by the police, with or without arrest, and is entitled, under section 23(1)(b) of the New Zealand Bill of Rights Act 1990, to consult and instruct a lawyer without delay.
(2) Every person to whom the PDLA scheme applies is entitled (subject to this Act and any regulations made under it) to the services of 1 lawyer during the period for which the person is being questioned or detained.
Noticeably absent from these provisions is any explicit requirement to advise suspects of the existence of the PDLA scheme.
[36] There would plainly be logistical difficulties with any sort of screening process. Accordingly entitlement to legal advice under the PDLA scheme is not means tested. Further, because police officers frequently give s 23(1)(b) advice to those who are not detained, the scheme provides for free legal advice to be provided wherever such advice has been given. In other words, the scheme is not confined to those who are entitled to advice under s 23(1)(b).
[37] In 2004 the Law Commission issued its report Delivering Justice for All (NZLC R85 2004). The report included recommendations aimed at improving access to legal representation. One of these recommendations (see 26) was that police should be under an obligation to inform people in their custody of the existence of the PDLA scheme.
[38] The Government’s response to the Commission’s report was presented in August 2004. The report is posted on the Ministry of Justice website at < – and includes the following comments:
65. The Government agrees that the initial stage in a criminal investigation can have profound effects on what happens later in the process and is committed to ensuring that people receive adequate assistance during this time.
66. The LSA plans to review initial criminal legal services as part of its work programme. This will include an evaluation of the existing Duty Solicitor Scheme as well as the PDLA scheme and will be initiated this year. As the Agency with responsibility for administering the Duty Solicitor Scheme, the Government considers it appropriate that the LSA undertake the evaluation. The Review provides an appropriate opportunity for the LSA to consider some of the concerns raised by the Commission.
67. The Government has also directed the Ministry of Justice to form and lead a working group with the New Zealand Police and the LSA to respond to the particular recommendation concerning people in custody being advised of the existence of the PDLA Scheme. This work will begin once the LSA has identified any changes needed to the operational aspects of the Scheme.
[39] Two and half years on, the PDLA Scheme Improvement Project has not been completed; it remains part of a wider project for Review of Initial Criminal Legal Services.
The right to consult a lawyer - general
[40] The right to consult a lawyer is “part of [New Zealand’s] basic constitutional inheritance”: Noort at 279 per Richardson J. Prior to the enactment of the New Zealand Bill of Rights, the courts recognised the right of access to a solicitor when sought by a person in police custody as a fundamental but not absolute right: R v Webster [1989] 2 NZLR 129 at 140 (CA). As already noted, the Judges’ Rules prohibit the questioning of people in custody without prior caution. The right to legal advice conferred by s 23(1)(b) allows the detainee to make informed decisions from the moment he or she is in jeopardy and enables the effective enjoyment of relevant human rights, such as rights to question the validity of continued detention, to bail, to silence, and to complain about any oppression and abuse of power by officials of the State: Noort at 279. In R v Barlow (1995) 14 CRNZ 9 at 29-30 (CA) Richardson J commented on the importance of the s 23(1)(b) right:
A person arrested or detained and not yet charged is in a particularly vulnerable position. Of its nature arrest is coercive. It involves subordination of the individual to the authority of the State. At a time when the individual cannot know whether or not any charge or what charge will be brought, it is particularly important that he or she be informed of the right to consult a lawyer without delay and the right to refrain from any comment… A purposive approach to the identification and evaluation of Bill of Rights protections requires focusing on the particular right and so on the nature and incidence of any right of silence expressed or inherent in that particular right.
Police obligations to facilitate the right to counsel – general
[41] In R vMallinson [1993] 1 NZLR 528 (CA) Richardson J set out the requirements of s 23(1)(b) in a series of steps (at 530-531):
1.Section 23(1)(b) declares that everyone who is arrested shall have (a) the right to consult and instruct a lawyer without delay; and (b) the right to be informed of that right. Both rights arise on arrest and for the right to consult a lawyer without delay to be effective the right to be informed must be accorded immediately on arrest.
2.The temporal expression “without delay” is not synonymous with instantly or immediately. It is a negative injunction – not to delay – which in the absence of any further qualification necessarily imports as the test whether the delay is reasonable in all the circumstances having regard to the purpose of the right. The relevant interests which s 23(1)(b) protects are the ascertaining of one’s legal rights and obligations and representation by an independent adviser. If the right is to be effective it must be exercisable before the legitimate interests of the person who is arrested are jeopardised. That includes not prejudicing one’s legal position by words or conduct without the opportunity for legal advice.
3.To be “informed” of the right to a lawyer is to be made aware of it. The purpose is to provide a fair opportunity for the person arrested to consider and decide whether or not to exercise the right. The obligation on the arrester or other officer concerned is to communicate clearly to the person arrested that he or she has that right. No particular formula is required so long as the content of the right is brought home to the person arrested. To use the language of s 23(1)(b) may save argument later. In the end whether or not the obligation was satisfied must turn on what was said and what is to be implied from what was said in the particular context and circumstances. Even though no particular words are used the context may make it clear that the right to a lawyer is immediately exercisable; and so, in relation to any subsequent use of answers to police questioning, that the right is exercisable before any questioning begins.
4.There are three elements of the protective right: the right to consult a lawyer; the right to instruct a lawyer; and the exercise of those rights without delay. In that regard it is important that anyone arrested be made aware that he or she can exercise the right to a lawyer without delay, that is as soon as reasonably possible in the circumstances. The requirement is not satisfied if the person arrested may reasonably be left with the impression that access to a lawyer is not available until after any questioning is finished.
5.Where the admissibility of a statement made to the police is challenged on the grounds of a specific breach of the Bill of Rights Act, the Court has to determine whether the accused was accorded the particular right claimed to have been breached. In that situation we consider that the ordinary rules as to onus of proof in relation to the admission of such evidence should apply. Accordingly the burden of establishing the admissibility of the statement rests on the Crown just as it does where, as will often be the case, it is also challenged on fairness grounds. The standard of proof to be applied is a matter upon which full argument will be needed in an appropriate case.
Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused's answers at face value. If following advice as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights. But more than a bare statement of the s 23(1)(b) right and a bare acknowledgement of understanding is likely to be required where, for example, the person arrested is intoxicated or under drugs or appears to have a mental or physical disability which could interfere with his or her comprehension of the rights.
6.The crucial question is whether it was brought home to the arrested person that he or she had those rights. That is not the same question as whether the police were justified in assuming that he or she did understand them. To look at it simply from the perspective of the police officer would mean that the person arrested who did not in fact understand the position would not be able to make an informed choice with respect to the exercise or waiver of the guaranteed right.
7.Informing persons arrested of their s 23(1)(b) rights ordinarily carries with it the obvious implication that they are entitled to exercise those rights. But there is no duty on the police when informing persons arrested of their right to a lawyer to go on to give advice designed to facilitate the exercise of that right. The police officer may decide to do so in order to assist in the understanding of the right. But any duty to facilitate the manner of its exercise is not triggered until there is an indication by the person arrested of the desire to consult a lawyer. What, if anything, is then required of the police will depend on the particular circumstances.
8.The Bill of Rights Act is not a technical document. It has to be applied in our society in a realistic way. The question is whether what was done gave practical effect in the particular circumstances to the rights protected by the particular guarantee, here s 23(1)(b). And anyone complaining of a breach of the Bill of Rights Act must, as the Canadian Courts say, invest the complaint with an air of reality.
Where the suspect tells the police officer that he or she cannot afford a lawyer
[42] It is common ground that if a suspect has told the interviewing officer that he or she cannot afford legal advice, the police officer must facilitate the suspect’s right to consult a lawyer by telling the suspect of the availability of free legal advice, see R v Barber (1993) 10 CRNZ 301 (HC) and Johnson v Police HC ROT AP33/97 2 July 1997.
Subsequent New Zealand appellate decisions on facilitation where the suspect has not explicitly raised cost as a concern
[43] In R v Hotereni CA99/96 19 August 1996 Mr Hotereni had been cautioned by a police constable and asked whether he wanted to phone a lawyer. When he replied that he did not have one, the constable gave him a copy of the yellow pages and left the room. He returned and asked if Mr Hotereni wanted to phone anybody, and the reply was “No”. Mr Hotereni gave evidence that he told the constable that he did not want to telephone anyone because could not find a firm that took calls after hours or was available 24 hours a day. The police had a list of lawyers on a roster but that was not made available. The Court said that it was obvious that Mr Hotereni was informed of his right to counsel, that facilities were provided to him to enable this to be done, and he had stated clearly and unequivocally that he did not want to phone anybody. The Court found no reason for not taking his answer at face value, as there were no circumstances which could have affected Mr Hotereni’s understanding or comprehension of his rights.
[44] On the other hand, in R v Schriek [1997] 2 NZLR 139 (CA) the Court held that a detainee’s response “Don’t have a lawyer” required the interviewing officer to inform her that a list of lawyers could be supplied. The Court considered the detainee’s statement indicated a lack of understanding of the nature of the right and thus triggered a police obligation to facilitate the right by ensuring that she understood the right as it had been given practical effect to in New Zealand, that is that there was a roster of lawyers she could telephone if she did not already have a lawyer. On the issue of informing detainees of the legal aid schemes available, the Court leaned in favour of adopting the North American position as set out in R v Brydges [1990] 1 SCR 190 and Miranda v Arizona 384 US 426 (1966) (which we discuss below) as this would be in accordance with the normal police practice of providing suspects with the list of available solicitors drawn up by various law societies, as envisioned by the Legal Services Act 1991.
[45] In R v Kepa CA214/99 1 July 1999, the appellant was advised of his rights and replied that he understood and that he did not wish to speak to a lawyer. He said in evidence that he thought that the police officer’s advice meant that if he had known a lawyer himself he should call him and that he would then have to pay for the lawyer. He said he did not ask to speak to a lawyer because he did not know any and he could not afford to pay for one anyway. He testified that if he had been shown a list of phone numbers of lawyers and told that he could talk to one for free he would definitely have called a lawyer. This Court applied Mallinson and held that the police officer had no obligation to advise Mr Kepa of the availability of free legal advice. The Court took the view that there is no duty on the police to advise a detainee of the existence of free legal advice schemes unless the detainee has indicated a desire to consult a lawyer and that he or she cannot afford to do so.
[46] In R v Ali CA253/99 8 December 1999 counsel for the appellant and the Legal Services Board invited this Court to require police officers to explain to detainees that legal advice could be obtained free under the PDLA. The Court rejected the invitation, finding that adequate warnings of Mr Ali’s s 23(1) rights were given and that the Crown had established that he understood them. The Court said that there was no evidence that the potential cost of legal advice was or might have been a relevant factor in the Mr Ali’s decision not to instruct counsel and remarked that Bill of Rights complaints must be invested with “an air of reality” and be grounded in the evidence.
[47] R v DH CA215/02 18 July 2002 involved a child who was 15 and had rights under the Children, Young Persons and Their Families Act 1989, including the right to have a lawyer and a support person present during the interview. DH asked to have his mother present and, when she arrived, made a written statement to the police implicating himself in the offending. The constable gave evidence that he advised DH at appropriate times that he could consult a lawyer, that the police had a list of duty solicitors available or, if he wished to use his own lawyer, he could use the yellow pages or a phonebook. The Court found that DH understood his rights, that he had his mother there to aid him, and that neither of them indicated that they had concerns about cost or any other practical impediment to the exercise of the right to legal advice. In the absence of the expression of a concern over costs, the constable was right to draw the inference that DH’s choice not to avail himself of the right to legal assistance was made in full awareness of his rights following an effective explanation. The Court held that a detainee need not be told by police that legal advice could be obtained for free.
[48] In R v Ji [2004] 1 NZLR 59 (CA) the Court excluded admissions on the basis that continued questioning of Mr Ji when he had indicated that he wished to answer no more questions amounted to a breach of the Judges’ Rules and the Bill of Rights. As well, the Court gave a strong indication that it would soon adopt the position that the police must advise a suspect that free legal advice was available under the PDLA scheme:
[36] It may be strongly urged that the law should now recognise that concerns about the means, financial and organisational, of getting access to legal advice will often, it might be thought usually, deter a detained person from asked for access to a lawyer.
…
[38] Given the existence of [the PDLA] scheme and its purpose and given that a true decision whether or not to exercise a right requires knowledge not just of its existence but of its practical availability, it may be thought that the only reason why one would not inform a detained person of the existence of the scheme is to reduce the prospect that it might be availed of. It is not as though any effort is required of the police or other detainer to explain that advice can be obtained free of charge from a lawyer available under a government-funded scheme and that access to such a lawyer will be given if the detained person wants that.
[39] … There is a question whether advice as to the existence and availability of legal assistance such as the PDLA scheme amounts merely to facilitation, or whether it is integral to the existence of what this Court referred to in Mallinson at p 530 as a:
“… fair opportunity for the person arrested to consider and decide whether or not to exercise that right”.
It seems to the majority of the Court that the latter view is more consonant with an appreciation of the realities of detention, and with the principle of access to justice acknowledged by the Legal Services Act 2000.
[49] In R v Abraham CA139/03 28 October 2003 the Court admitted Mr Abraham’s statement on the basis that he was not detained at the time he was being questioned, meaning that the Bill of Rights had not been triggered. However, the Court also referred to R v Ji and emphasised that if there had been a detention, it would have found a breach of s 23(1)(b) because (among other defects) Mr Abraham had not been informed of access to free legal advice.
[50] In R v Fukushima & Ors (CA 128, 130, 134 and 170/04, 13 September 2004 a different approach was taken (at [102]):
We do not accept that the law has reached the point that advice as to the existence of the PDLA scheme is a prerequisite to police questioning. Section 23(1) of the Bill of Rights sets out in clear terms the requirements stipulated by Parliament, which, of course, reflect the terms of international instruments. Section 23(1)(b) says a detainee shall have the right to consult and instruct a lawyer without delay and to be informed of that right. In some circumstances, fairness requires more than bare compliance with s 23. However, we do not think that there is a general requirement to provide details of particular schemes for the provision of legal advice in all cases. In the circumstances of this case, we do not consider that a failure to give such an explanation amounted to a breach of s 23.
[51] In R v Balmer CA338/04 5 October 2004 the central issue on appeal was the effect of the detective’s failure to advise Mr Balmer prior to a video interview that he could consult and instruct a lawyer without delay and in private. Counsel also argued that the detective should have advised Mr Balmer that the services of the lawyer would be provided free of charge. Counsel relied on the observations of this court in Ji but was not aware of the recent judgment of the court in Fukushima. Once Mr Balmer’s counsel was made aware of the Court’s comments in Fukushima, he conceded that that case was a complete answer to Ji and that this was not a case where fairness could require more than bare compliance with s 23(1)(b) in terms of Mallinson.
The United States jurisprudence
[52] The Fifth Amendment of the United States Constitution is in these terms:
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
And the Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
[53] Neither the Fifth nor Sixth Amendments expressly provide for suspects or detainees to be provided with free legal advice or information as to that entitlement. However, an expansive approach was taken by the United States Supreme Court in Miranda. The Court said (at 469):
The circumstances surrounding in-custody interrogation can operate very quickly to overbear the will of one merely made aware of his privilege [against self-incrimination] by his interrogators. Therefore, the right to have counsel present at the interrogation is indispensable to the protection of the Fifth Amendment privilege under the system we delineate today. Our aim is to assure that the individual’s right to choose between silence and speech remains unfettered throughout the interrogation process… A mere warning given by the interrogators is not alone sufficient to accomplish that end. Prosecutors themselves claim that the admonishment of the right to remain silent without more “will benefit only the recidivist and the professional.”
And at 472-473:
If an individual indicates that he wishes the assistance of counsel before any interrogation occurs, the authorities cannot rationally ignore or deny his request on the basis that the individual does not have or cannot afford a retained attorney. The financial ability of the individual has no relationship to the scope of the rights involved here. The privilege against self-incrimination secured by the Constitution applies to all individuals. The need for counsel in order to protect the privilege exists for the indigent as well as the affluent… . While the authorities are not required to relieve the accused of his poverty, they have the obligation not to take advantage of indigence in the administration of justice … .
In order to fully apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent – the person most often subjected to interrogation – the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.
The Canadian jurisprudence
[54] Section 10(b) of the Canadian Charter of Rights and Freedoms closely corresponds to s 23(1)(b) of the New Zealand Bill of Rights Act, providing that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right. There are two key decisions of the Supreme Court of Canada in relation to the giving of information about free legal advice schemes: R v Brydges [1990] 1 SCR 190 and R v Bartle [1994] 3 SCR 173.
[55] In R v Brydges, Mr Brydges was arrested in Manitoba for a murder committed in Alberta. When informed of his right to retain and instruct counsel Mr Brydges said he did not know any lawyers and asked whether Manitoba had free legal aid. The police officer, who was from Alberta, said he was not familiar with the position in Manitoba, and Mr Brydges then stated “Won’t be able to afford anyone, hey? That’s the main thing”. The officer then asked Mr Brydges if there was a reason for his wanting to talk to a lawyer to which the appellant replied “Not right now no”. Following some questioning, in the course of which he made inculpatory admissions, Mr Brydges indicated that he wished to talk to someone at which stage the officer checked the position regarding the availability of legal aid. After Mr Brydges had spoken to a legal aid lawyer he elected to say nothing further.
[56] The Supreme Court of Canada was unanimous in holding that the evidence of the admissions should have been excluded. As Mr Brydges had expressed a concern that the right to counsel depended upon the ability to afford a lawyer, it was incumbent on police to inform him of the existence and availability of the legal aid and duty counsel schemes. However Lamer J went further and held that, as part of the informational component of the constitutional guarantee under s 10(b) of the Charter, a detainee should be informed in all cases of the existence and availability of the applicable systems of duty counsel and legal aid plans in the relevant jurisdiction. Lamer J considered that the right to be told of the availability of free legal advice flowed from the need to ensure effective enjoyment of the right to counsel and was not determined by the separate issue whether the Charter actually required there to be a free legal assistance scheme in place for persons subject to detention or arrest. Lamer J’s views were supported by a majority of the Judges with La Forest, L’Heureux-Dubé and McLachlin JJ reserving their positions.
[57] The position was put beyond doubt in Bartle. Mr Bartle had been arrested for impaired driving after failing a roadside breath test. The arresting officer read Mr Bartle his rights under s 10(b) of the Charter from a pre-printed caution card that mentioned the availability of legal aid. The officer did not, however, refer to the fact that free and immediate preliminary advice was available from duty counsel, who could be reached by calling a toll-free number printed on the caution card. Shortly after the caution was read to him Mr Bartle made an incriminating statement. After being taken to the police station, Mr Bartle was twice asked whether he wanted to call a lawyer. Again, no mention was made of the toll-free number for free duty counsel. On both occasions Mr Bartle declined to consult a lawyer. He later testified that he thought that he could only contact a lawyer during normal working hours, and that he had indicated to a constable that he did not know who to call at that time of the night.
[58] Led by Lamer CJ, a majority of the Supreme Court held that, as part of the informational component of s 10(b), a police officer ought specifically to inform a detainee, in the case of a free-phone legal advice system, that such a system was in place and access to it could be facilitated immediately or at least without delay. McLachlin J held that there is a duty to advise of a right to immediate consultation with counsel independent of financial means. On the other hand, L’Heureux-Dubé J who dissented was of the view that there is no duty to advise detainees of the existence of counsel services, whether or not such services are available.
[59] The Court noted that the number of people accessing the available legal assistance services had increased dramatically post-Brydges, indicating that if people knew of such schemes they would use them. The Court considered that imposing additional informational requirements on police authorities is justified by the need to fulfil the underlying purpose of the Charter-guaranteed right to counsel. Lamer CJ said (at 193-194):
… because the purpose of the right to counsel under s. 10(b) is about providing detainees with meaningful choices, it follows that a detainee should be fully advised of available services before being expected to assert that right, particularly given that subsequent duties on the state are not triggered unless and until a detainee expresses a desire to contact counsel. In my opinion, the purpose of the right to counsel would be defeated if police were only required to advise detainees of the existence and availability of Legal Aid and duty counsel after some triggering assertion of the right by the detainee. (Emphasis in original)
And at 196-197:
To conclude, Brydges stands for the proposition that police authorities are required to inform detainees about Legal Aid and duty counsel services which are in existence and available in the jurisdiction at the time of detention. In case there is any doubt, I would add here that basic information about how to access available services which provide free, preliminary legal advice should be included in the standard s 10(b) caution. This need consist of no more than telling a detainee in plain language that he or she will be provided with a phone number should he or she wish to contact a lawyer right away. Failure to provide such information is, in the absence of a valid waiver (which, as I explain infra, will be a rarity) a breach of s 10(b) of the Charter. It follows therefore, that where informational obligations under s 10(b) have not been properly complied with by police, questions about whether a particular detainee exercised his or her right to counsel with reasonable diligence and/or whether he or she waived his or her facilitation rights do not properly arise for consideration.
[60] As indicated, L’Heureux-Dubé J disagreed with the imposition of a broader informational obligation on the police under s 10(b). Although she agreed that it is desirable to inform a person under arrest or detention of the availability of 24-hour duty counsel services, she concluded that such information is not required by s 10(b) of the Charter. In her view, the informational right included in s 10(b) is limited to information concerning the scope of the right to counsel covered by s 10(b). Since s 10(b) does not require the provinces to establish legal aid or duty counsel programmes, it cannot require that police officers provide detainees with information concerning such programmes in the event that they exist.
[61] In R v Prosper [1994] 3 SCR 236, the Supreme Court declined to require governments to establish such services. The Court confirmed that there was an obligation to inform a detainee of any relevant scheme through which legal advice could currently be obtained, but held that there was no constitutional obligation on provincial or federal governments arising out of s 10(b) of the Charter to create free legal assistance schemes for detainees. The Court considered that it would be inappropriate for the courts to order that such a system be put in place. However, a number of the judges expressed the view that, in the absence of such a system, the courts might need to consider excluding evidence from a detainee who had no effective opportunity to consult with a lawyer prior to making incriminating statements or furnishing incriminating material.
The views of the commentators
[62] The commentators do not speak with a single voice on this issue.
[63] Scott Optican has advocated a requirement for the police to give affirmative notice of the PDLA scheme when first giving criminal suspects their rights under s 23, see Optican “Police Interrogation and the Rights to Silence and Counsel under s 23 of the New Zealand Bill of Rights Act 1990 – Rhetoric and Reality” (Criminal Bar Association: Criminal Law Conference, 2006). Other commentators have suggested that s 23(1)(b) places an obligation on police to inform a detainee of the existence of the PDLA scheme: see Rishworth and others The New Zealand Bill of Rights (2003) at 534; Mahoney “Evidence” [2004] NZLRev 163; Lithgow “Criminal Practice” [2005] NZLJ 21.
[64] On the other hand, Butler and Butler (in The New Zealand Bill of Rights Act: A Commentary (2005)) maintain that as s 24(f) of the New Zealand Bill of Rights Act provides a limited right of free legal assistance only to persons who have been “charged with an offence”, Parliament deliberately decided to commence legal aid entitlements under the Bill of Rights Act at the point of charging and not before. They also suggest that the fact that Parliament has seen fit to go beyond its New Zealand Bill of Rights Act obligations and provide for the PDLA scheme does not mean that it is legitimate to extend the scope of s 23(1)(b): at [20.7.21] - [20.7.23]. Furthermore, they argue that there is nothing in the language of s 23(1)(b) to require the provision of free legal assistance for those who cannot afford legal advice. They see the question whether the police should inform a detainee of the existence of the PDLA scheme as depending on whether the right to free legal assistance for an initial consultation is a component of the substantive right to consult a lawyer guaranteed by s 23(1)(b). As s 23(1)(b) does not guarantee a right to free legal advice the police should not be required to mention the scheme as part of the initial rights advice: at [20.7.32] - [20.7.33].
Evaluation
[65] Cases where a detainee says that he or she cannot afford a lawyer are rare. But it is obvious that a detainee who has not used such words may nonetheless have silently ruled out the possibility of consulting with a lawyer because of cost concerns. So in cases in which the detainee has not explicitly raised costs concerns, it will be difficult, if not impossible, to determine later whether the detainee would have responded differently if aware of the statutory entitlement to free legal advice. Further, as this Court pointed out in Ji, it is difficult to see what good reason there can be for the police not to advise detainees of the existence of the PDLA scheme.
[66] There are, however, a number of considerations which go the other way:
(a)As a matter of interpretation of s 23(1)(b), the “right” of which the detainee must be informed is necessarily the substantive right which is provided for, namely the “right to consult and instruct a lawyer without delay”. Since that substantive right does not extend to free legal advice, logic suggests that there is thus no “constitutional” entitlement to be told of a right to free legal advice. This effectively is the position taken by L’Heureux-Dubé J in Bartle and by Butler and Butler.
(b)As a matter of logic it would appear to follow that any requirement for the police to inform detainees of the PDLA scheme must simply be a subset of the general police obligations to facilitate the exercise of s 23(1)(b) rights and thus arise unless facilitation obligations are triggered.
(c)The drift of the New Zealand cases is generally against a requirement on the police, as part of their facilitation obligations, to volunteer information about free legal advice schemes. When Mallinson was decided there was no statutory PDLA scheme but there were informal arrangements in place and this case is generally against the appellant. Mallinson and Ali (which is also against the appellant) were decisions of five judge Courts and command respect for that reason.
(d)There may be practical problems for the police if this Court was to change course abruptly on what is required of the police. It is open to question whether it would be appropriate for us to do so only prospectively (see for instance Chamberlains v Lai [2006] NZSC 70 at [129] – [148] per Tipping J) and if so how “prospective” the change might be.
(e)There may also be resource implications. In Bartle it was noted that the uptake of services under free legal advice schemes increased markedly after Brydges. The government is currently addressing the resource implications of a statutory requirement for the police to advise of the PDLA scheme (see [39] above). The resource implications may not just be financial (in terms of the cost to the government) as the willingness of lawyers to participate in the PDLA scheme is likely to be adversely affected by the number of late night telephone calls they receive.
[67] In that context, where the considerations both ways are closely balanced, we think it best to apply the Mallinson approach but on a basis which is informed by the extensive arguments and analysis which has been made available to us.
[68] We begin by citing, despite the partial repetition, what we consider to be the key passages from Mallinson (at 530 – 531):
3.To be “informed” of the right to a lawyer is to be made aware of it. The purpose is to provide a fair opportunity for the person arrested to consider and decide whether or not to exercise the right. The obligation on the arrester or other officer concerned is to communicate clearly to the person arrested that he or she has that right. No particular formula is required so long as the content of the right is brought home to the person arrested. To use the language of s 23(1)(b) may save argument later. In the end whether or not the obligation was satisfied must turn on what was said and what is to be implied from what was said in the particular context and circumstances. …
4.There are three elements of the protective right: the right to consult a lawyer; the right to instruct a lawyer; and the exercise of those rights without delay. In that regard it is important that anyone arrested be made aware that he or she can exercise the right to a lawyer without delay, that is as soon as reasonably possible in the circumstances. ...
5....
Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused's answers at face value. If following advice as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights. But more than a bare statement of the s 23(1)(b) right and a bare acknowledgement of understanding is likely to be required where, for example, the person arrested is intoxicated or under drugs or appears to have a mental or physical disability which could interfere with his or her comprehension of the rights.
6.The crucial question is whether it was brought home to the arrested person that he or she had those rights. That is not the same question as whether the police were justified in assuming that he or she did understand them. To look at it simply from the perspective of the police officer would mean that the person arrested who did not in fact understand the position would not be able to make an informed choice with respect to the exercise or waiver of the guaranteed right.
7.Informing persons arrested of their s 23(1)(b) rights ordinarily carries with it the obvious implication that they are entitled to exercise those rights. But there is no duty on the police when informing persons arrested of their right to a lawyer to go on to give advice designed to facilitate the exercise of that right. The police officer may decide to do so in order to assist in the understanding of the right. But any duty to facilitate the manner of its exercise is not triggered until there is an indication by the person arrested of the desire to consult a lawyer. What, if anything, is then required of the police will depend on the particular circumstances.
(Emphasis added)
[69] It is clear from the cases we have cited at [42] that if the detainee indicates that cost is a problem, the facilitation obligations of the police extend to providing information about the availability of free legal advice. That approach is consistent with points 3, 4 and 6 of the Mallinson discussion.
[70] For present purposes, the primary tension is between what we have italicised in points 5 and 7. This tension arises because point 5 is primarily addressed to the core informational right provided by s 23(1)(b) whereas point 7 concerns facilitation obligations. It is, however, not always altogether easy to distinguish between the obligation under s 23(1)(b) to convey information and the duty to facilitate the right to counsel. For instance in Schriek (see [45] above) the appellant had not said that she wished to consult a lawyer but simply that she did not have one. As the Court recognised, this response was ambiguous, or to put it another way, it raised “a doubt” whether she truly understood her situation. On a strict Mallinson approach, the suspect’s remark meant that the s 23(1)(b) informational obligation had not been discharged (see point 5) but would not have triggered the facilitation obligation (see point 7). But this Court held that the police officer had to provide information which was facilitative in nature.
[71] Where the suspect says something which indicates that he or she may not realise that there is a practical ability to take legal advice, the police must address the underlying concerns even if the suspect has not expressed a desire to obtain such advice. This seems to follow from Schriek. On that basis, it is difficult to see why a different approach should be taken if it is obvious from other circumstances that the suspect may not be aware of that practical ability. Logic suggests that those circumstances might include the age and experience (or otherwise) of the suspect.
[72] We conclude that there is no absolute requirement for the police to advise suspects of the existence of the PDLA scheme. But a failure to give such advice will result in a breach of s 23 if:
(a)The circumstances at the time of the interview, including the suspect’s age, experience and remarks, provide a substantial basis for believing that the suspect might not have appreciated that he or she had a practical ability to obtain legal advice;
(b)The defendant provides an evidential basis for the contention that he or she chose not to take legal advice because of cost considerations; and
(c)The Crown cannot disprove that contention on the balance of probabilities.
We emphasise that commonsense is called for. While we accept that it is likely that many, perhaps most, suspects who are interviewed may not know of the details of the PDLA scheme, a suspect who has been given his or her rights under s 23(1)(b) (particularly one who has also been given a list of lawyers and offered assistance to make contact with a lawyer) might be expected to raise the issue of cost if it is a concern.
[73] We do not see this approach as involving a major departure from the existing pattern of authorities and thus we see no need to address the question whether this judgment should have prospective effect.
This case
[74] Constable Lyons said that his usual practice was to advise of the availability of free legal advice. This in itself would have provided an evidential basis for a conclusion on the balance of probabilities that the appellant’s rights were brought home to him, even if the Judge was not “sure” that this had happened. That is perhaps by the by as the Judge did not make a balance of probabilities finding and there was conflicting evidence from the appellant. More importantly therefore, the undisputed evidence of what happened, with the appellant attempting to make contact with a particular lawyer and being told that there was a list of lawyers he could call and him not raising cost as an issue, means that there was no substantial basis for concern that the appellant was unaware of his practical ability to obtain legal advice if he chose to do so.
Result
[75] The application for leave to appeal is granted but the appeal is dismissed.
CHAMBERS J
[76] I express no view on the admissibility of Mr Alo’s admissions made before the caution was given and immediately after it. Judge Mill ruled those admissions inadmissible and the Crown has not sought to appeal.
[77] The majority in their opinion have concluded that the statement made at the police station is admissible. That decision is based on the following findings:
(a)the Bill of Rights does not generally require a suspect to be informed about the availability of free legal advice; and
(b)Mr Alo had not provided an evidential basis for the contention that he chose not to take legal advice because of cost considerations.
[78] I agree with the majority that this court’s jurisprudence has never definitively stated that the police must inform suspects of the fact that legal advice is available at no cost, although Schriek, Ji, and Abraham were following a path that would with time have led inexorably to that conclusion. Progress was halted, however, by Fukushima. For myself, I would have finished the journey. The court in Fukushima did not refer to the American and Canadian jurisprudence when declining to follow Ji. I find the reasoning of the majority of the Supreme Court of Canada in Brydges and Bartle compelling. To similar effect is the United States Supreme Court’s long-standing and famous decision in Miranda.
[79] I would have found – at least for the future, a point to which I shall return – that the police are under an obligation to inform suspects of the free nature of the current PDLA scheme. I consider none of the considerations in [66] of the majority’s opinion, which have led them to conclude that the informational obligation is limited, compelling. I turn now to these considerations.
[80] As to (a) and (b), it is not surprising that s 23(1)(b) does not explicitly refer to an entitlement “to be told of a right to free legal advice” because at the time the Bill of Rights was enacted there was no such statutory scheme. Section 10(b) of the Canadian Charter also contains no such explicit reference, but that has not prevented the Supreme Court of Canada from determining that the informational obligation extends to advice that the legal advice scheme is free. Most New Zealanders would be completely unaware of the free nature of the PDLA scheme; even if vaguely aware of “legal aid”, they would assume it is means-tested (as in all other respects it is) or would require a contribution (as is often the case). The free nature of the scheme is such an important and unusual feature that any advice of the right to a lawyer is incomplete if it is not mentioned.
[81] As to (c), I agree that Mallinson and Ali “command respect”, particularly since both were five judge courts. But Mallinson was decided at a time when there was no free statutory scheme, a fact that is key to my view. Ali is more problematic to those of us who think the journey should be finished. The decision is all the more surprising when one discovers that the Legal Services Board asked to be, and was, appointed as amicus because it so strongly believed that detained persons should be informed that their right to consult and instruct counsel was a right to “free legal advice”. The board considered it was not sufficient to leave it to the detained person “to take the initiative to ask for a lawyer before being advised of the PDLA scheme”. The board urged this court to follow Brydges and Bartle: at [21].
[82] Despite that plea from those who fund the scheme, this court refused to engage on the basis that “no factual foundation” had been provided for an argument of this kind. This court appeared concerned that “the police and other interested groups” had not had an opportunity to bring to the court their “perspectives of the underlying considerations of principle and of the practical implications” of adopting the board’s submission: at [24]. This court also noted that a Legal Services Amendment Bill was currently before a parliamentary committee. The court concluded at [24]:
While the court is not in a position to express any views on this appeal, it may be appropriate for what is undoubtedly an important question to be subject to early review.
[83] In light of that, I do not read Ali as closing the door to appropriate development in this field.
[84] As to (d), I do not accept there would be practical problems for the police if this court were to require of them that they advise suspects of the availability of free legal advice. The additional words required could not be simpler. The majority expresses a concern as to whether any ruling could be prospective. I see no difficulty on that score. Lamer J, for the majority in Brydges, said at 217:
Before concluding, it is my view that in light of the imposition of the additional duty on the police as part of the information component of the s 10(b) caution, a transition period is appropriate. This transition period is needed to enable the police to properly discharge their new burden, more specifically to take into account the reality that police officers often use printed cards from which they read the caution given to detainees. In my view a period of thirty days from the date of this judgment is sufficient time for the police forces to react, and to prepare new cautions. I note, in passing, that the imposition a transition period is not unusual.
[85] As to (e), I do not consider that resource implications should, in this instance, have any bearing on the scope of the informational requirement. The Legal Services Board’s stance in Ali is, in this instance, instructive. The board there was arguing for this court to recognise a Brydges-type information requirement. The board must have been satisfied that it had both the financial and legal resources available to it in the event this court answered its plea.
[86] With respect, therefore, I consider there are clear answers to the considerations which swayed the majority from adopting the approach which has found favour with the Supreme Courts of both the United States and Canada.
[87] There is, to my mind, a fundamental flaw in requiring a “trigger” before the police must provide the information. Most people reasonably consider that, if they use a lawyer’s services, they will have to pay for them. If that is one’s mindset, then the normal thought process in response to advice “you have a right to a lawyer” is, “well, I can’t afford one, so that’s the end of that.” Whether that thought is articulated is probably a complete matter of chance, which may depend on the age of the suspect, his or her level of education, the circumstances under which the advice is relayed, and even, perhaps, the apparent friendliness or hostility of the police officer giving the advice. Yet, on the majority’s analysis, the suspect’s entitlement to information primarily hinges on whether in fact that thought process is expressed. In Miranda, Warren CJ rejected the stance which has been adopted by the majority in this case in these words (at 473):
In order fully to apprise a person interrogated of the extent of his rights under this system then, it is necessary to warn him not only that he has the right to consult with an attorney, but also that if he is indigent a lawyer will be appointed to represent him. Without this additional warning, the admonition of the right to consult with counsel would often be understood as meaning only that he can consult with a lawyer if he has one or has the funds to obtain one. The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent – the person most often the subject of interrogation – the knowledge that he too has a right to have counsel present.
[88] My final comments relate to the new test which, on the majority’s analysis, will trigger the obligation on the police to advise suspects of the existence of the PDLA scheme: see [72]. The first point to note is that the majority recognise that their test does represent a “departure” from Mallinson, although not, they say, “a major departure”: at [73]. The fact they acknowledge a departure is possible is a recognition of the fluid state of the authorities. On that, I agree with the majority. What authorities there are cannot be regarded as binding in circumstances where:
(a)they are conflicting; and
(b)the two Full Bench decisions are inconsistent with leading United States and Canadian jurisprudence; and
(c)this court’s decision is effectively final so far as Mr Alo is concerned, there being no right to appeal against it.
[89] In light of this court not being bound by prior authority, I regard it as regrettable that the majority have not seen fit to align our law with that of the United States and Canada. I also consider that their new test will be extremely difficult to apply in practice. There will be endless dispute as to whether “the circumstances at the time of the interview, including the suspect’s age, experience and remarks, provide a substantial basis for believing that the suspect might not have appreciated that he or she had a practical ability to obtain legal advice”: at [72] (a). As Warren CJ said in Miranda (at 468-469):
Assessments of the knowledge the defendant possessed, based on information as to his age, education, intelligence, or prior contact with authorities, can never be more than speculation; a warning is a clear-cut fact.
[90] My suspicion is that the police will find the new test so imprecise that the current sporadic practice of advising that legal advice is free will become the norm. If that is what is intended or hoped for, then in my view this court should be imposing the obligation directly, not by sidewind as a result of the imprecision of the new test.
[91] I would have allowed the appeal. I would have referred the matter back to the District Court for that court to rule on whether Constable Lyons did inform Mr Alo that he had the right to free legal advice. No finding was made on that factual issue, as Judge Mill considered (rightly, as it turns out in light of the majority’s view) that the right to that information had not been triggered.
Solicitors:
Fanselows, Wellington for Appellant
Crown Law Office, Wellington
7
3
0