R v Balmer Ca338/04

[2004] NZCA 406

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 338/04

THE QUEEN

v

EDWARD JOHN BALMER

Hearing:         30 September 2004 Coram:  Glazebrook J

Potter J Salmon J

Appearances: J A Westgate for Appellant

M F Laracy for Crown Judgment:        5 October 2004

JUDGMENT OF THE COURT DELIVERED BY POTTER J

[1]    Edward John Balmer faces ten counts alleging sexual offending in relation to four complainants. The charges in the indictment cover the period January 1985 to March 2002, and range from doing an indecent act to rape.

R V BALMER CA CA 338/04 [5 October 2004]

[2]    Mr Balmer appeals a decision of District Court Judge O’Driscoll which admitted to evidence a video interview of the appellant by Detective Thompson at the Dunedin Central Police Station on 23 February 2004. In that interview the appellant admitted certain indecencies with three of the complainants confirming admissions made to Detective Thompson in the Police car en route to the Police Station, but denied the allegations in relation to the fourth complainant.

[3]    The central issue before the District Court Judge and on appeal, is the effect of Detective Thompson not advising the appellant prior to the commencement of the video interview on 23 February 2004 not only that he could consult and instruct a lawyer without delay and in private but also that the services of the lawyer would be provided free of charge.

[4]    The submissions of Mr Westgate for the appellant on this issue relied on the observations of this Court in R v Kai Ji [2004] 1 NZLR 59. However, neither counsel for the appellant nor the Crown were aware of the very recent judgment in the permanent Court in R v Fukushima & Ors (CA 128/04, CA 134/04, CA 170/04).

[5]    In Fukushima, dealing with a submission that the accused in question should have been advised of the existence of the PDLA scheme in a manner that would meaningfully assist his understanding of the right to immediate legal advice before any questioning took place, this Court quoted at para [101] from Ji at para [39] -

R v Mallinson, decided over a decade ago, found at p 531:

“… 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.”

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.

[6]The Court then continued at para [102] of Fukushima –

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 s23. 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 s23.

[7]    After a brief adjournment was taken to enable counsel to consider Fukushima, Mr Westgate for the appellant conceded that the decision in that case is a complete answer to Ji and the reliance he sought to place on observations of this Court in the judgment in Ji.

[8]    Counsel further accepted that this was not a case where fairness could require more than bare compliance with s 23(1)(b). The appellant having given no  indication to Detective Thompson that the cost of a lawyer was an issue for him, it could not be argued that there were “circumstances calling for obvious care and further inquiry” (refer Mallinson at [31]).

[9]    Counsel acknowledged that even if he could persuade the Court to accept a submission made in his written submissions, that a finding of the District Court Judge that Detective Thompson placed the PDLA scheme list before the appellant, was inconsistent with the evidence, that would not alter the situation because on the evidence  the  Detective  had  clearly  given  the  appellant  the  advice  required  by  s 23(1)(b) on three occasions prior to the video interview being recorded.

[10]   The concessions by counsel for the appellant were properly made, and disposed of the appeal. It was therefore unnecessary for the Court to consider the remaining points taken by the appellant or to hear submissions from the Crown.

Result

[11]   Leave to appeal is granted. The appeal is dismissed. The video interview of the appellant is admitted to evidence in accordance with the  decision  of  the  District Court Judge.

Solicitors:
Crown Law Office, Wellington