R v Cameron

[2007] NZCA 564

ORDER PROHIBITING PUBLICATION OF JUDGMENT OR THE REASONS IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA430/07 [2007] NZCA 564

THE QUEEN

v

PAUL CAMERON

Hearing:         5 November 2007

Court:            Ellen France, John Hansen and Heath JJ Counsel:      D J Sharp for Appellant

S B Manning for Crown

Judgment:      7 December 2007         at 11.30 am

JUDGMENT OF THE COURT

A        Leave to appeal is granted. B The appeal is dismissed.

COrder prohibiting the publication of this judgment or the reasons in news media or on internet or other publicly accessible database until final  disposition  of  trial.    Publication  in  law  report  or  law  digest

permitted.

R V CAMERON CA CA430/07  7 December 2007

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No.

Introduction  [1] Background   [7] Facts giving rise to murder charge  [8] Scenario evidence  [13]

The video-taped interview  [16] The High Court judgment  [25] Fairness of the scenario evidence  [46] The admissibility of statements made to the undercover officer – reliability  [56] Admissibility of video-taped interview  [67] Leave to appeal  [73] Result  [74]

Introduction

[1]      This  appeal  involves  consideration  of  the  use  of  “scenario”  evidence. Scenario evidence derives from an investigative technique used by police in various jurisdictions.  A suspect is invited to participate with an undercover police officer in a constructed event designed to simulate criminal activity.  During the course of his or her interaction with the police officer, admissions are sought on the suspect’s involvement in a crime under investigation (see: Tofilau v The Queen (2007) 238

ALR 650 at [219] (HCA) per Callinan, Heydon and Crennan JJ; R v Tofilau (2003)

13 VR 1 at [34] (VSC); Palmer “Applying Swaffield Part II: Fake gangs and induced confessions” (2005) 29 Crim LJ 111 at 112; and see also: R v Christou [1992] 4 All ER 559 (CA)).

[2]      In this case, the appellant is charged with the murder of Balwinder Singh.  Mr Singh’s remains were discovered in November 2005 in a forest, by two forestry workers.  As a result of their inquiries, the police came to the view that Mr Singh had been murdered.  The appellant was the prime suspect. An undercover operation of the type described was developed with the intention of drawing the appellant into an

association with a number of undercover officers.   The operation involved the appellant participating in simulated criminal activity, during the course of which a number of admissions were made to one of the undercover officers, a man known under the assumed name of “Tony”.

[3]      The  appellant  was  subsequently  arrested  on  a  warrant  for  breach  of community work.  He was cautioned, given his rights and taken to the police station. He  was  questioned  there  by  police  about  the  homicide  and,  later,  undertook  a video-taped  interview.  During  the  interview,  the  appellant  admitted  being  with Mr Singh and said that he had “just pulled the trigger on the rifle” but that he had “accidentally shot him”.

[4]      The appellant challenged the admissibility of statements he had made to Tony, those made at the police station as a result of questions from the police, and in a video-taped interview conducted before his first appearance in Court.

[5]      In  a  decision  delivered  on  10  August  2007,  Venning  J  ruled  that  the statements made to Tony were admissible.  Venning J excluded the statements made at the police station apart from the video-taped interview which the Judge ruled was admissible: HC GIS CRI 2006-016-003325.

[6]      The appellant seeks leave to appeal from the decision of the High Court under s 379A of the Crimes Act 1961.  The appeal raises issues about the approach to “scenario” evidence and as to s 28 of the Evidence Act 2006 dealing with the reliability of statements made by an accused.

Background

[7]      We consider the background under three headings.   First, we describe the facts as at depositions about the death of Mr Singh. Second, we turn to the scenario evidence  and,  third,  we  explain  the  chronology  of  events  leading  up  to  the video-taped interview.

[8]      Mr Singh, whom the appellant knew, was reported missing at the end of October 1993.  Before Mr Singh’s disappearance, he was in a relationship with the appellant’s mother.

[9]      In October 1993, the appellant and a man called David Koia were growing cannabis in the forest where Mr Singh’s remains were found.  In late October 1993, Mr Koia and the appellant planned to go to the forest to tend to their plots.  They arranged to meet in town.  Mr Koia says that when the appellant arrived, Mr Singh was with him.  Although Mr Koia knew Mr Singh, he was not expecting to see him.

[10]     The three men then drove into the forest.  Mr Koia went to look after his plot and the appellant and Mr Singh went in a different direction.   About half an hour later, while returning to the car, Mr Koia heard two loud bangs.  The Crown case is that what Mr Koia heard were gunshots from the appellant shooting Mr Singh.  On the return trip, Mr Koia asked the appellant what had happened to Mr Singh and he says that the appellant replied:   “Never mind, don’t worry”.

[11]     The police received information from relatives and other acquaintances of the appellant that suggested he had something to do with Mr Singh’s disappearance and death.   On 27 January 2006, the appellant was interviewed by Detective Pepere about the matter.   In the course of the interview, the appellant was shown a photograph of Mr Singh.   The appellant said he had never seen the man in the photograph although later in the interview he admitted that his mother had an Indian boyfriend.   The appellant also accepted that he had spoken to family members, a former partner and a pastor about a shooting incident that had occurred in the forest where he had a cannabis plot.  He said that:

We went to grab a plot and there was gunfire going off all over the place and this guy we’ve never heard from him since.

[12]     There is no challenge to the statement taken by Detective Pepere which was recorded in her notebook and signed by the appellant.

[13]     In the course of the police operation the appellant met with Tony who was portrayed as the “boss” of the organisation with whom the appellant believed he was dealing.  That meeting took place in an apartment in Wellington on 27 October 2006. The reason given for the meeting was for Tony to determine if the appellant could be trusted before being involved in further criminal activity with the group.  To achieve this, Tony raised with the appellant the issue of the appellant’s involvement in the homicide of a man in the area in which Mr Singh had lived some years earlier.  In raising this issue, Tony referred to it in this way:

[S]o if there’s stuff out there that, you know mate, if there’s stuff in your past that we need to fix then we can fix it, but I need, I can’t do it un-unless I know.

[14]     Tony went on to explain that he had talked to “Chris”, a man who could “fix” things, about the appellant and that Chris had given him some material to make sure that the appellant was “kosher”.  Tony continued:

And he [Chris] said oh there’s the only thing mate is that there’s one drama from back in the early nineties that could come back and bite us.  But I said well mate I’ll f…..n talk to him [the appellant] about it, see if we can sort it.

[15]     During the course of the interview with Tony, which was recorded by video camera, the appellant made a number of admissions including that he had shot a person he described as a Punjabi and that he had just left the body in the forest.

The video-taped interview

[16]     Tony arranged for the appellant to fly back home from Wellington on the morning of Saturday 28 October 2006.  When the appellant arrived at the airport at

10 am he was met by Detectives Hunter and Wilkie and arrested on a warrant for breach of community work.  He was cautioned, given his rights and taken back to the police station.

[17]     When they got to the police station, Detective Hunter then told the appellant that he wished to speak to him about Mr Singh.  The Detective told the appellant that

he was still under caution and that he was a suspect for the murder of Mr Singh. Detective Hunter put a number of questions to the appellant in the presence of Detective Wilkie.  The Detective developed the interview by a series of disclosures of the information that police had obtained.  The Detective first put the statement of the appellant’s former partner and then the pastor’s account to the appellant.   The appellant denied that he had made the admissions that both his former partner and the pastor said that he had made to them.  At one stage he said “just charge me and then I’ll ring my lawyer”. At about 11.30 am Detective Hunter asked the appellant if he wanted to be interviewed on video.  The appellant stated, “nah, on paper not on video keep writing.”

[18]     The appellant was then advised that the police believed that Mr Koia was with him when he went to the forest in October 1993.  The appellant denied that.  He was told the police were in the process of getting a statement from Mr Koia.  The appellant was then informed that the police had “bugged” his house and that he had been recorded as saying that he “should have cut up the body and scattered the pieces”.  His response was, “whatever”.

[19]     At 12.30 pm the appellant was given his rights again.  Detective Hunter then continued to question the appellant during the course of the afternoon of 28 October. The undercover operation was disclosed to him and he was shown video footage of the meeting with Tony on 27 October.  When asked to clarify the conversation with Tony the appellant said: “Whatever, I didn’t murder anyone”.   At 3.05 pm the appellant was returned to the cell block and processed on the arrest warrant.  He was kept in custody overnight on the warrant.

[20]     Detective Hunter recorded the interview in his notebook but the appellant was not asked to read back or sign the record of interview on 28 October.

[21]     At about 9.45 am the next morning, the appellant was taken outside for a cigarette.  Detective Wilkie spoke to him again and invited him to go over the notes from the day before and also Mr Koia’s statement which was by then available.  The appellant refused and said he wanted to speak to a lawyer.  He spoke to a lawyer, Mr Sceats, by telephone.  Mr Sceats then spoke to Detective Wilkie.  Mr Sceats told

the Detective that the appellant did not want to make a statement or answer any more questions.   Detective Wilkie, as Venning J noted at [11], “was careful not to make any agreement with Mr Sceats” that he would not speak to the appellant.

[22]     At 10.10 am Detective Wilkie gave the appellant his rights again and sought to speak further with him.  The appellant swore at him and effectively declined to answer further questions.  Mr Sceats sent a fax at about 10.20 am to the police which confirmed the conversation with Detective Wilkie and advised that the appellant did not wish to make a statement or answer any questions regarding any matters.  The fax went on to say:

Furthermore he does not wish to read the notes made by you yesterday until he has a lawyer present, his lawyer being Ray Hovell.  [The appellant] has advised me [that] he wished to read those notes yesterday and was not permitted to do so.  Nor was he permitted to contact a lawyer throughout the whole of yesterday and today until he was permitted to call me this morning.

He has injured eyes and wishes to receive treatment for them.   He has advised  me  that  he  has  requested  this  of  the  jailer  but  this  has  [been] declined according to [the appellant] on your instructions.

[23]     The Detective continued to try to speak to the appellant and to read out his notebook entries from the day before.   The appellant declined to engage in any discussion and was taken back to the cellblock.

[24]     At 1.07 pm on 28 October Detective Hunter charged the appellant with the murder of Mr Singh.  What happened next is described as follows by Venning J at [14]:

Neither Detective Wilkie nor Detective Hunter sought to speak to [the appellant] after he was arrested on the charge of murder.  At about 5.10 p.m. Detective Wilkie was advised by the watchhouse keeper that the [appellant] wanted to see him.   Detective Wilkie went to the cells and spoke to the [appellant]. The [appellant] said that he needed to tell Detective Wilkie what had happened because he couldn’t handle it anymore.  Detective Wilkie then spoke to the [appellant].  The [appellant] agreed to make a video interview. Arrangements were made for a video interview.  The [appellant] then made a video interview from approximately 10 past 6 until 9 p.m. that evening. During the interview the [appellant] admitted being with the deceased, said that he had “just pulled the trigger on the rifle …” but said that he had “accidentally shot him”.

The High Court judgment

[25]     Venning  J  accepted  that  some  of  what  the  appellant  told  Tony  was implausible.  Reference was made in this context to the appellant’s statement that he and his mate had ripped off an old bobcat from a farmer up the road and buried two cars in the forest.  The Judge said the implausibility of some of the statements raised the issue of the reliability of at least some aspects of the appellant’s statement to Tony  on  27  October  2006.    Venning  J  then  turned  to  consider  s 28(4)  of  the Evidence Act which sets out the factors the court must take into account in determining questions of reliability.   His Honour concluded that there was no evidence of any particular physical, mental or psychological condition or relevant or pertinent  characteristics  of  the  appellant  so  neither  ss 28(4)(a)  nor  (b)  of  the Evidence Act were applicable.

[26]     In  terms  of  s 28(4)(c),  dealing  with  the  nature  of  questions  put  to  the appellant, the Judge said that the most damaging admissions by the appellant came from direct questions from Tony such as (at [28]):

Tony:        Did you shoot ‘em all? [Appellant]: Nah.

Tony:        Or just that c…?

[Appellant]: No just him, yeah.   For bringing all those other c…s back. And later:

Tony:        What you, and you (does a gun gesture with his right hand)

f…. just shot that c… in the plot did you? [Appellant]: Yep.  Well not too far from it.

And later:

[Appellant]: You know and I thought f… I’ve done all this for what?

You know, just a paddock mate, lined them all up and just

(does a gesture as if firing a rifle) let rip.

Tony:        Oh yeah.   Well what did you shoot with? A sawn off or something?

[Appellant]: Nah.  A rifle.

[27]     The Judge considered the questions were against the background that the appellant had been “leading up” to explain his connection with the death of the deceased and had said that he was there when the deceased was shot.  The interview had advanced to the stage where the appellant was willing to discuss the killing and to disclose it to Tony.  In that context, Venning J considered that: “[W]hile leading, the questions were not directory.  They were in effect an attempt by Tony (playing the role of gang boss) to draw the threads of the rather rambling discussion together” (at [29]).

[28]    The Judge turned then to consider the nature of any threat, promise or representation made to the defendant (s 28(4)(d)).  The Judge took the view that the promise  must  be  by  a  person  in  authority,  as  is  the  position  at  common  law. Venning  J  considered  that  absent  unusual  circumstances  an  undercover  officer cannot be a person in authority.  State coercive power was not engaged.

[29]     The  Judge  also  took  into  account  “the  overall  context”  of  the  meeting (at [31]).  By this, Venning J was referring to the voluntary nature of the meeting and the fact that Tony had put it to the appellant on a number of occasions that he was free to walk away if he wished. The Judge concluded at [31]:

The overall interplay between the [appellant] and Tony on the 27 October also leaves me satisfied there was no undue pressure on the [appellant] that may have affected the reliability of the admissions.

[30]     His Honour also considered there were a number of other indicia of the reliability of the statement in this case.  For example, on crucial issues the Judge said that this statement was consistent with other statements made by the appellant to various people (at [34]).

[31]     In terms of the questioning at the police station, Venning J found that on Saturday 28 October there had been a breach of the appellant’s right to be brought before the court at the earliest opportunity in terms of s 23(3) of the New Zealand Bill of Rights Act 1990.  The Judge said there could be no complaint about the time for which the appellant had been held in custody after his arrest at 1.07 pm on the Sunday for murder.

[32]     Next, the Judge said there was a breach of the appellant’s right to be advised of his right to a lawyer in terms of s 23(1)(b) of the Bill of Rights when the Detective said that he wanted to speak to the appellant about Mr Singh and that he was “still under caution”.  On this aspect, the Judge at [47] said:

The important point is that the [appellant] would have understood that the initial rights advice  given  on the  Saturday  was  in  relation  to  the  arrest warrant for breach of the community work order.  That particular charge and the consequences of it may not have been of concern to the [appellant].  But given the change from that to the serious issue of being questioned as a suspect in a murder inquiry he was entitled to have his rights expressly brought to his attention again at the police station at the time the situation changed … .  The expression of the rights guaranteed by s 23(1) in a clear and  unambiguous  way  directed  at  the  particular  charge  in  issue  is  an important safeguard to a person in the position the [appellant] was on that Saturday morning.

[33]     Venning J would also have been prepared to find that the appellant’s right to silence  was  breached  on  the  Sunday  morning  by  Detective  Wilkie  seeking  to re-interview him after Mr Sceats had told the Detective that the appellant did not wish to speak to the police.

[34]     Having decided that there were breaches of s 23 of the Bill of Rights, the Judge then turned to the effect of those breaches on the admissibility of the question and answer statements taken on 28 October and the record of the exchanges between the appellant and the detectives on the next morning.  The Judge applied s 30 of the Evidence Act (improperly obtained evidence).   In terms of the factors set out in s 30(3), Venning J described the right of a person arrested to be brought as soon as possible before a court as lying close to “the heart” of a free and democratic society but the seriousness of the breach as moderate (at [56]).   The right to be given a caution was seen as fundamental, but, again, the breach moderate (at [56]).

[35]     As to whether the impropriety was deliberate, reckless or in bad faith, the Judge accepted that the detectives were not acting in bad faith rather, they considered it was a valid investigatory technique to hold the appellant at the station.  Venning J said that it was however a deliberate breach of the right.  His Honour continued at [56]:

The  reference  to  the  earlier  caution  was  not  an  attempt  to  defeat  the

[appellant’s] rights, it was simply an ill-considered shortcut.  Again, I accept

the attempt to continue to re-interview on the Sunday morning was not done in  bad faith.    Detective  Wilkie  considered  that  as  he  had  not  made  an agreement with Mr Sceats he was entitled to do so.

[36]     The Judge then dealt with the nature and quality of the improperly obtained evidence (s 30(3)(c)).  As to the evidence of discussions on the Sunday, the Judge saw those as having little probative value.   The evidence on the Saturday was of more value but again, the Judge said, consisted largely of denials by the appellant. Overall, this evidence was seen as “generally” of limited value to the prosecution (at [56]).  In terms of the remaining factors in s 30, Venning J noted: that the appellant was charged with murder, the most serious offence; this was not a case where other investigatory techniques were available or applicable; there were no remedies apart from the exclusion of the evidence to adequately provide redress; the impropriety was not necessary to avoid any danger to the police or others; and, it could not be said there was any urgency.

[37]     On balance, having regard to the above factors, the Judge ruled that the question and answer statements on the  Saturday and  Sunday morning were  not admissible (at [57]).   There is no challenge to these conclusions.

[38] On this basis, the Judge did not have to consider whether there had been any breach of the practice note issued by the Chief Justice in accordance with s 30(6) of the Evidence Act ([2007] 3 NZLR 297).

[39]     The  Judge  then  dealt  with  the  challenge  to  the  video-taped  interview. Venning J identified two issues in relation to that.  First, whether the interview was tainted with the earlier breach of the appellant’s rights under s 23(3) of the Bill of Rights and second, given that the appellant had earlier that day made it clear that he did not wish to speak to the police, whether he had made a proper fully informed waiver of that right when speaking to Detective Wilkie later that evening (at [59]).

[40]     Applying the approach adopted in R v Greenaway [1995] 1 NZLR 204 (CA), the Judge concluded that although there was a breach of the right under s 23(3) it could not be said that there was a real and substantial connection between the

violation  of  the  appellant’s  rights  and  the  evidence  he  gave  by  way  of  video statement to Detective Wilkie on the Sunday afternoon.

[41]     Two factors were relevant to this conclusion.   The first was that although there had been a breach, it was inevitable that if a bail hearing had been arranged and there was a chance the appellant would be admitted to bail, the police would have sought to speak with him and if necessary arrest him on the charge of murder.  By the Saturday the police had the video of the meeting between the appellant and Tony and statements from the appellant’s former partner and pastor.   By early Sunday morning the police also had the statement from Mr Koia.   Hence, Venning J said, “[i]t is inevitable the [appellant] would have been detained and arrested for murder.” (at [62]).

[42]     Second, the Judge considered that the appellant wanted to get matters off his chest.  During the course of the earlier interviews he had said words to the effect of “you try living with it mate”.  Hence the Judge concluded that, “[t]he burden of what had occurred appears itself to have been a driver for the [appellant] wanting to make the statement on the Sunday afternoon” (at [64]).

[43]     In terms of waiver, the Judge said that there was no agreement of the type which had been influential in R v Rogers [2006] 2 NZLR 156 (CA). Further, and importantly, the appellant had been reminded at the start of the video interview of the earlier discussions with Mr Sceats during the day. The appellant expressly confirmed that he wanted to speak to the Detective. Hence, the Judge concluded that the appellant had waived his right to remain silent. He had initiated the contact with the Detective and he wanted to speak to him “for his own purposes” (at [68]).

[44]     Finally, the Judge dealt with the submission that the Detective must have spoken to the appellant for some time before he started the video interview and that it was clear from the start of that interview that the Detective was leading the appellant in and directing the interviews.  The Judge said at [69] there was nothing objectionable in the general approach:

At the outset Detective Wilkie did ask a number of long questions but they simply  summarised  the  background  to  the  [appellant]  making  the  video

interview.   The detective summarised what the [appellant] had said to the detective immediately before the video interview started.   Once the [appellant] confirmed his agreement, the detective then properly changed the questioning and asked the [appellant] to put it in  his  own  words.   The detective’s approach was unobjectionable.

[45]     The video statement taken on Sunday 29 October 2006 was ruled admissible.

Fairness of the scenario evidence

[46]     At the hearing before us Mr Sharp advanced an argument based on s 30 of the Evidence  Act.    This  argument  was  not  developed  in  the  same  way  before  the High Court and so was not addressed by Venning J.   The Judge records at [22] Mr Sharp’s acceptance that there was no basis for  exclusion  on  the  grounds  of oppression either under s 29 (exclusion of statements influenced by oppression) or generally under s 30.   We add that Mr Sharp accepts there is no reliance on inducements or matters of that sort.

[47]     The  argument  is  essentially  that  the  police  should  not  have  used  the “scenario” technique in this case because the police had  not  first  utilised  other available investigative techniques.   In particular, they had not interviewed the appellant again and had not interviewed David Koia.

[48]     The appellant submits that the fact that the scenario technique was not used as a technique of last resort is unfair because it means that the police could talk to the appellant at a point in time when the case against him had not been crystallised and he had had no opportunity to respond to it.   Mr Sharp emphasises that scenario evidence involves a form of deception.

[49]     This argument can be dealt with shortly.  Mr Sharp accepts that this evidence is relevant, that the technique is a lawful one, and that there may be circumstances where the police will not have to wait until the last point before using it.  In light of that, the appellant has to rely on the argument that this technique could only be used as a matter of last resort in this case.

[50]     We do not consider that proposition is sustainable.  There is an evidential gap on  this  point  in  that  the  police  officers  were  not  asked  about  their  use  of  the technique.  But, more importantly, there is no general direction in the cases relied on by the appellant as to the point in time at which the police can use such techniques.

[51]     The  high  points  for  the  appellant  are  the  recognition  by  Vincent  JA  in R v Tofilau  (2006) 13 VR 28 at [181] and [183] (VSCA) that the stage of the investigation at which the scenario evidence was used was relevant to the assessment of fairness, and the subsequent discussion by Kirby J, dissenting, when Tofilau reached the High Court of Australia. Kirby J’s discussion at [146] – [147] sets out considerations favouring admissibility and the inadmissibility of scenario evidence. The latter considerations, however, ultimately focus on the effect of the use of the technique in terms of, for example, fairness and reliability.

[52]     In terms of any New Zealand authority, Venning J refers to R v  Meyers (1985) 1 CRNZ 656  where this Court left open the issue when  considering the admissibility of evidence obtained following a similar course of deception by an undercover officer.   In Meyers the undercover policeman had initiated a meeting with the accused just after he had been charged with possessing cannabis for sale and then released on bail.  The accused had brought up the subject of the arrest and when asked about what had happened he made a number of damaging admissions to the undercover officer.   In delivering the judgment of the Court dismissing the appeal Cooke J (as he was then) said at 657 – 658:

This case is not within the realm of incitement to commit offences.   It is concerned only with admissions of past offending.  On the Judge’s findings there was no prior intent to extract admissions by trickery.  Even if there had been, a question would have arisen as to whether under New Zealand law the case could validly be distinguished from the planted listener type of case (Deokinanan v R [1969] 1 AC 20; R v Stewart [1970] 1 All ER 689) or the ordinary case of incriminating statements to undercover officers (see R v Loughlin [1982] 1 NZLR 236, 238). But we need not go into that question and express no opinion on it one way or the other. (See also: R v Williams (1990) 7 CRNZ 378 at 383.)

[53]     The legislature may choose to limit police use of particular techniques for gathering evidence.   An illustration is found in s 312C(1)(c)(i) of the Crimes Act which provides that a judge before issuing an interception warrant must be satisfied,

amongst other things, that other investigative procedures and techniques have been tried but have failed.   The availability of other investigative techniques is also a relevant factor in s 30(3)(e) of the Evidence Act.

[54]     The closest analogy to the legislative direction may be found in a case like Nielson v Attorney-General [2001] 3 NZLR 433 where this Court said it was unfair to arrest when a summons could be used but the present case is a far cry from that.

[55]     It  may be  that  in  a  particular  case  the  nature  and  scale  of  the  scenario operation is such as to give rise to unfairness.  Questions of this nature have been relevant, for example, in the context of entrapment (contrast R v Pethig [1977]

1 NZLR 448 (SC) with Police v Lavalle [1979] 1 NZLR 45 (CA)). However, in this case, we accept the submission for the Crown that the proper focus here is on reliability in terms of s 28 of the Evidence Act.

The admissibility of statements made to the undercover officer - reliability

[56]     This part of the appeal turns on the application of s 28 of the Evidence Act. Evidence of a statement made by a defendant and offered by the prosecution is not admissible if it is excluded under s 28 (s 27(2)).  For these purposes a “statement” is defined in s 4(1) as:

(a)       a spoken or written assertion by a person of any matter; or

(b)non-verbal conduct of a person that is intended by that person as an assertion of any matter.

[57]     Section  28  applies  to  a  criminal  proceeding  in  which  the  prosecution proposes to offer a statement of a defendant if the defendant raises, “on the basis of an evidential foundation”, the issue of the reliability of the statement and informs the Judge and the prosecution accordingly (s 28(1)).

[58]     The Judge must exclude the statement, “unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability” (s 28(2)).

[59]     Section 28(4) sets out the matters a Judge must take into account in applying s 28(2) as follows:

(4)Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

(a)       any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):

(b)any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):

(c)       the nature of any questions put to the defendant and the manner and circumstances in which they were put:

(d)the nature of any threat, promise, or representation made to the defendant or any other person.

[60]     Mr Sharp’s complaints under this head are that the Judge put insufficient weight on the appellant’s unreliability as apparent from the inconsistencies in what he said, and that Tony directed the questioning towards the homicide.

[61]     We accept the submission for the Crown that the focus in terms of s 28 in this case is on the circumstances in which the statements were made by the appellant. That approach is consistent with the genesis of s 28. The immediate background of s 28 lies in the New Zealand Law Commission’s report on the reform of the law of evidence, in which a Draft Evidence Code was suggested (see Evidence (NZLC R55

Vols 1 and 2 1999), particularly what was then draft s 27 dealing with the reliability rule).  The recommendations of the Commission had been developed, however, from a  discussion  paper  issued  in  1992  (Criminal  Evidence:  Police  Questioning (NZLC PP21 1992)).  The origins of s 28 can be seen from those publications as part of a revision of “unnecessarily complex” provisions dealing with the admissibility of confessions.  Although the rules were described in that way, the Commission wanted to maintain protection of the values underlying them (see Criminal Evidence: Police Questioning at [104], [106] and [117]).  The values emphasised by the Commission were reliability (evidence which was unsafe to put before a jury should be excluded) and the protection against oppression (at [127] and [140]).

[62]     We also agree with Mr Manning’s submission, reflecting the approach taken by Venning J, that the circumstances looked at overall do not suggest this is evidence which should be excluded from the jury.   The environment was not an inherently coercive one.  It was made plain to the appellant that he could leave at any time and the importance of truthfulness was emphasised.

[63]     At best, the appellant could suggest he may have adopted a level of bravado in  order  to  ingratiate  himself  into  the  gang.    However,  as  the  scenario  was constructed, the imperatives did not support that approach.

[64]     In our view, Venning J was right to reject the submission the questioning was directory.  The more direct questions have to be considered in context.

[65]     The appellant has not shown any error in approach by the Judge.

[66]     We add that to the extent the Judge relied on the common law rules as to persons in authority we doubt those rules  are  relevant under the Evidence  Act. Certainly, the Law Commission approached matters on the basis that there would no longer be a person in authority requirement because that was not a “determinative factor” in terms of the reliability of a statement (New Zealand Law Commission Evidence: Evidence Code and Commentary (NZLC R55 Vol 2 1999) at [C128] and [C140] and Criminal Evidence: Police Questioning at 217).

Admissibility of video-taped interview

[67]     The appellant makes two primary submissions on this aspect.  First, that what occurred is not adequate in the circumstances to amount to waiver.   Second, it is submitted there was a causative link between the Bill of Rights breach and the video-taped interview.

[68]     For the reasons given by the Judge at [39] – [42] (above), we consider the video-taped interview is admissible.  In reaching that conclusion, we do not condone the approach taken by the police in this case.  It is only the particular combination of circumstances as referred to by the Judge which allows the evidence to be admitted

despite the earlier breaches.   In that respect, it is relevant that the appellant exercised and demonstrated an understanding of his rights and, further, that he initiated the discussion with the Detective.

[69]     Finally it is important that, against this background, the Detective reminded the appellant of his rights and then repeated that advice.    Detective Wilkie at the outset of the interview checked that the appellant understood his rights and that he did not want a lawyer present.  The following discussion then ensued:

Detective:        Because um we also, you, you spoke to your lawyer this morning?

Appellant:      Yes.

Detective:       And then he spoke to me. Appellant:  Yes.

Detective:        And he said that we were not to contact you or speak to you any further.

Appellant:      Yes.

Detective:        Okay?  And then ah, a short time ago I got a phone call from the lady at the, in the Watchhouse there, and she said you wanted to speak to me, is that, is that correct?

Appellant:      Yes, Yes.

Detective:        So I’ve come down and, and to see what you wanted and you’ve briefly gone over what you wanted to tell me.  And you’re okay for me to talk to you about that?

Appellant:      Yes.

Detective:       Without the lawyer and … eh? Appellant: Yes.

Detective:       Okay.

[70]     We are satisfied in these circumstances that the appellant’s submission that what occurred was inadequate to waive his rights cannot succeed.

[71]     We  see  no  basis  for  disturbing  the  Judge’s  findings  that  there  was  no causative link between the earlier breaches and the video interview.  There is nothing before us to suggest that the appellant was overborne in any way.

[72]     The appellant also sought to make something of what he described as the Detective’s “dummy run” through various questions with the appellant prior to commencing the video interview.  Again, Venning J addressed this point noting that the Detective in the early stages of the interview briefly went over ground that the two had canvassed but very promptly reverted to the orthodox question and answer format.   Again, the appellant has not shown any error in the Judge’s approach.

Leave to appeal

[73]     It is appropriate to grant leave to appeal in this case given the novel points raised about the application of ss 28 and 30 of the Evidence Act.

Result

[74]     For these reasons, leave to appeal is granted but the appeal is dismissed.

[75]     We make an order prohibiting publication of the judgment or the reasons in the news media or on the internet or other publicly accessible database until final disposition of trial.  Publication in law report or law digest permitted.

Solicitors:

Burnard Bull & Co, Gisborne for Appellant

Crown Solicitor, Gisborne