R v Alo

Case [2007] NZCA 172 3 May 2007

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA155/06
[2007] NZCA 172
THE 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:

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Alo

Details

AGLC: R v Alo [2007] NZCA 172
Case: [2007] NZCA 172
Decision Date: 3 May 2007

CaseChat Overview and Summary

The appellant is facing trial for an incident in Manners Mall where he allegedly caused grievous bodily harm to the victim. He appeals against the ruling of Judge Mill which upheld the admissibility of certain admissions he made to the police. The issues are whether the appellant's admissions in the Mall were inadmissible, whether the failure to remind him of his right of silence justified the exclusion of the whole interview, and whether there was a breach of his right to consult a lawyer at the police station. The Court found that the Judge's conclusion that the admissions made in the Mall were inadmissible did not require the exclusion of the question and answer interview. The failure to remind the appellant of his right of silence did not justify the exclusion of the whole interview. The appellant had not provided an evidential basis for the contention that he chose not to take legal advice because of cost considerations, and there was no substantial basis for concern that he was unaware of his practical ability to obtain legal advice if he chose to do so. The Court concluded that there is no absolute requirement for the police to advise suspects of the existence of the Police Detention Legal Assistance (PDLA) scheme. The application for leave to appeal was granted but the appeal was dismissed.

Orders