R v Balmer Ca338/04

Edward John Balmer was charged with ten counts of sexual offences involving four complainants, occurring between January 1985 and March 2002. The charges ranged from indecent acts to rape. Balmer appealed a decision of the District Court that allowed a video interview conducted by Detective Thompson on 23 February 2004 to be admitted as evidence. In this interview, Balmer admitted to certain indecencies with three of the complainants but denied the allegations concerning the fourth complainant. The central issue in both the District Court and the Court of Appeal was whether Detective Thompson was required to advise Balmer of his right to consult and instruct a lawyer without delay and in private, including the right to free legal assistance before commencing the video interview.

The legal issue before the Court of Appeal was whether the failure of Detective Thompson to advise Balmer of the availability of free legal assistance, specifically the Public Defence Legal Assistance (PDLA) scheme, prior to the interview constituted a breach of section 23(1)(b) of the Bill of Rights. Balmer's counsel initially argued that the Court of Appeal's observations in R v Kai Ji [2004] 1 NZLR 59 supported the requirement for such advice. However, both parties were unaware of the recent decision in R v Fukushima & Ors (CA 128/04, CA 134/04, CA 170/04), where the Court had already addressed this issue. In Fukushima, the Court held that while fairness may require more than bare compliance with section 23(1)(b) in some circumstances, there is no general requirement to provide details of specific legal aid schemes. The Court concluded that the failure to advise Balmer about the PDLA scheme did not amount to a breach of section 23(1)(b).

Following the adjournment to consider Fukushima, Balmer's counsel conceded that the decision in Fukushima was a complete answer to the appeal. Counsel also acknowledged that the appellant had not indicated that the cost of a lawyer was an issue, and that there were no circumstances calling for obvious care and further inquiry. Given these concessions, the Court dismissed the appeal. The video interview of Balmer was admitted to evidence in accordance with the District Court Judge's decision.