R v Carter HC Hamilton T 2004 419 5399

[2005] NZHC 1244

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

T2004 419 5399

THE QUEEN

v

ROBERT MICHAEL CARTER

Hearing:         11 March 2005 Appearances: M N Sturm for Crown

P Morgan QC for accused Judgment:   23 March 2005

JUDGMENT OF ALLAN J

Solicitors:

Crown Solicitor, PO Box 19-173, Hamilton Counsel

P Morgan QC, [email protected]

R V ROBERT MICHAEL CARTER HC HAM T2004 419 5399 [23 March 2005]

Introduction

[1]                 On 8 June next, Mr Carter is to stand trial on an indictment containing seven counts alleging offences under the Misuse of Drugs Act 1975.

[2]                 Mr Carter was arrested on 15 July 2004, following the execution of a search warrant in respect of his business premises. Direct responsibility for  dealing with  Mr Carter and taking a statement from him rested with Detective Constable Vaughan Sweetman who at depositions gave detailed evidence for the Crown.

[3]                 On 17 December 2004, Mr Morgan QC, counsel for Mr Carter, wrote to the Crown Solicitor advising that objection was taken to a portion of Dt Sweetman’s brief as produced at depositions. Subsequently, on 20 December 2004, the Crown made application to the Court for an order pursuant to s 344A of the Crimes Act 1961 in respect of the impugned evidence. It is that application which is the subject of this judgment.

Factual background

[4]                 Mr Carter operates a car grooming business in Hamilton. On 15 July 2004  the police executed a search warrant at his business premises. The police operation commenced at about 4.48 pm that day. During the course of the search then conducted, the police located a quantity of drugs. Three small plastic bags were found on Mr Carter. Each contained approximately 1 gram of methamphetamine. Also found on Mr Carter were 24 small dark coloured balls, which on analysis by ESR were found to contain LSD.

[5]                 In a locked cupboard in Mr Carter’s office, police found some 75 grams of dried cannabis. On a desk in his office, an envelope containing 10 blister packs of Sudafed tablets, which contain the precursor substance Pseudoephedrine, was discovered. At a later stage of the search a motor vehicle belonging  to  Mr Carter was inspected. After fruitless attempts to find keys for the vehicle, the police

smashed its windows, and subsequently extracted from it a bag found to contain a very large quantity of methamphetamine.

[6]                 The police operation occupied some hours. Dt Sweetman was with Mr Carter throughout that period. His evidence is to the effect that on three separate occasions he had advised Mr Carter of his rights under the New Zealand Bill of Rights Act 1990. The first of those occasions was just after the police operation commenced,  the second just after the finding of the quantity of cannabis earlier referred to, and  the third was in a police vehicle as Dt Sweetman and Mr Carter travelled to the Hamilton police station.

[7]                 Dt Sweetman’s evidence is that the return to the police station occurred at about 8.09 pm. Once there, Mr Carter was taken to a police interview room, containing a large video monitor and a large microphone sitting on a desk. By that time, Dt Sweetman had been with Mr Carter for something over three hours and he commenced his interview with him by indicating he wished to go through the questions and answers recorded by him in his notebook to ensure that they were accurate.

[8]                 The questions and answers occupied some seven pages of Dt Sweetman’s notebook. He read them out to Mr Carter who accepted that they constituted an accurate record, but declined to sign the notebook to that effect. Dt Sweetman then indicated to Mr Carter that  he  wished  to  take  a  statement  from  him,  but  that  Mr Carter was not bound to provide a statement, and if he wished he could consult a lawyer prior to deciding whether to make a statement or not.

[9]                 In  response,  Mr Carter  indicated  he  did   wish  to   speak  to   a   lawyer. Dt Sweetman obtained details of lawyers on the Police Detention Roster, and ultimately, at about 9 pm Mr Carter was able to speak to an independent solicitor. The evidence is that this telephone discussion occupied some eight minutes, and that Mr Carter was left alone to speak to the lawyer in private.

[10]             Mr Carter’s evidence is that the lawyer to whom he spoke advised him  against making a statement, and indeed, he was told ‘Not even to breathe’.

[11]             Having received that legal advice, Mr Carter told Dt Sweetman that he had been advised by his lawyer not to make a statement and that he did not intend to make one. That is common ground. Mr Carter also says that he told Dt Sweetman that the lawyer had told him on the telephone that he was ‘Not  even to  breathe’. That was something that Dt Sweetman could not recall, but he certainly accepts that Mr Carter was not prepared to make a formal statement.

[12]             Dt Sweetman agreed that Mr Carter also told him at the time that he did not wish to make a statement because on a previous occasion he had made a statement to the police and it was used against him in subsequent proceedings. What followed next is the subject of a measure of agreement between Dt Sweetman and Mr Carter. The former wished to talk to Mr Carter about some more general matters relating to the drug scene in Hamilton, including in particular some detail of those who were active in the drug supply network. Dt Sweetman agreed in cross-examination that he told Mr Carter he needed information of that sort for general police work and background knowledge.

[13]             Dt Sweetman also agreed that the subsequent discussion did not focus on the drugs found at Mr Carter’s business premises earlier that evening. There was an agreement between them that they would steer clear of that topic.

[14]             However, even in relation to more general issues unrelated to the drugs discovered earlier that evening, Mr Carter was not prepared to talk to Dt Sweetman  if  the  latter  made  notes   of   any   sort.   The   subsequent   discussion   between Dt Sweetman and Mr Carter covered such topics as Mr Carter’s own daily use of drugs, and how he used them, and to some extent the identity of those in the Hamilton area who were known to supply drugs. The discussion also included a description by Mr Carter of what he had done during the earlier part of that  same day, and went on to cover Mr Carter’s auto-grooming business. For the  most  part the discussion was of the general type Dt Sweetman had outlined to Mr Carter beforehand.

[15]             There is however a disagreement between them as to the precise basis upon which the discussion was conducted. While Mr Carter says that he would not talk if

notes were taken, or if what he said was subsequently used in evidence against him, Dt Sweetman merely says that while he agreed he would not take notes during the conversation, nevertheless he told Mr Carter that he would make a record of what was discussed after the interview was over.

[16]             Mr Carter’s evidence is to the effect that he was so insistent on reaching a clear understanding as to the basis on which he would talk to Dt Sweetman, that the two of them shook hands on a deal, under which nothing he said to Dt Sweetman would subsequently be used in evidence against him. Dt Sweetman recalls shaking hands, but his recollection is that the handshake related to a proposal under which  Mr Carter might remain out of custody for a period of a few days, during which time Mr Carter would endeavour to provide assistance to the police in respect of the identification of other drug suppliers.

[17]             As noted by Mr Morgan however, Mr Carter was not released from custody for that purpose and if there was any such arrangement between them it was never carried into effect.

[18]             The discussion between Dt Sweetman and Mr Carter occupied something over an hour. At its conclusion Mr Carter was arrested and charged.

[19]             Dt Sweetman finished work at about midnight that evening and returned to work at about 7.30 am the following day. He then dictated a job sheet recording the detail of his discussion with Mr Carter and had it typed. It is noteworthy that the job sheet contains a reference to  Mr Carter’s  requirement  that  no  note  be  taken  by Dt Sweetman of the discussion between them, and indeed he records the word ‘any’ in bold type in relation  to  Mr Carter’s  refusal  to  allow  him  to  take  any  notes. Dt Sweetman said in evidence that he directed the typist to type the word ‘any’ in  that way. The obvious inference is that the prohibition was conveyed in forceful terms by Mr Carter to Dt Sweetman.

[20]             Dt Sweetman did not check the accuracy of his job sheet by referring it  to  Mr Carter, although the latter was in custody and would have been readily available. Mr Morgan cross-examined Dt Sweetman extensively on the point and suggested he

did not show his job sheet to Mr Carter simply because he was ‘… a bit ashamed of having breached the agreement you had made the night before’.

[21]             Dt Sweetman denied that and contended that he had simply overlooked the highly desirable step of checking the accuracy of his statement with Mr Carter. His failure to do so is to be contrasted with the care he took to read over and carefully check with Mr Carter the notes made earlier the previous evening. Mr Carter accepted their accuracy but declined to sign them.

[22]             Dt Sweetman’s job sheet, which was not in evidence, covers some 2½ pages written in narrative form, but Dt Sweetman could not say that the order in which events were described in the job sheet, matched the order in which they were discussed at the time.

[23]             In the course of evidence Dt Sweetman accepted that his job sheet relevantly records the following:

Told Carter I wished to make general notes in my notebook about my discussion and he stated he would not speak to me if I was making  any notes. I did not make any notes during the conversation.

[24]             Dt Sweetman also accepted that there is no reference in the job sheet (or indeed in his notebook), to the advice he said he conveyed to Mr Carter, to the effect that a note would be made of their discussion once it was concluded.  Taxed with  this omission by Mr Morgan, Dt Sweetman said in evidence:

…It was an oversight. I told him I would not make any notes during the conversation, and failed to record the other bit.

[25]             The contest between Dt Sweetman and Mr Carter therefore comes down to this: Mr Carter’s version is that he made it plain to the detective that he would not have a discussion with him unless no notes were taken and nothing he said would be used in evidence  against  him.  Dt Sweetman’s  version  is  that  while  he  accepts Mr Carter required no notes to be taken during the discussion, a record could be made later in time.

The impugned evidence

[26]             Mr Carter complains of a passage in Dt Sweetman’s deposition which commences at line 9 on p 10, and concludes with line 12 p 11. The passage commences as follows:

During conversations with the defendant whilst at the Hamilton police station he stated that he did not wish for me to make recorded notes whilst we were conversing about matters in general and advised me that he would not speak with me if I was making notes of any sort.

I advised him that I would not make notes during our conversation but would be recording the contact of the conversation at a later stage.

Our conversation revolved around drug matters and the defendant’s involvement with methamphetamine.

As soon as possible after dealing with the defendant I recorded the contents of the conversation on a police job sheet.

[27]             Following this passage there is a paragraph some 12 lines long which, if accepted, would amount to a confession by Mr Carter of supply by him to some of his employees of methamphetamine. Apart from the first six words, this passage is couched as a direct quote; that is, it purports to record accurately the  precise language used by Mr Carter.

During this conversation the defendant stated ‘I use about half a gram of P a day and always either snort it or drop it into my V or coffee. I’m from the ‘old school’ where you just snort so I just got into snorting P. I have a few people who I get gear from and I usually buy grams  because I use so much.  I snort at work and the last time I had a snort was at about 12 today, but that’s worn off pretty quick when you fullas turned up. Sometimes if I’m having a line at work and some of the boys see me they come over and ask me for some and I usually make them a small line and they put it into a bag,  I guess for later on. I don’t sell it to them and I don’t like them seeing me using because they always ask me for some and I’m a kind person so … I was at the Casino till 3 this morning and won about 6 grand. I  had to sign for it so you can check at the Casino for that’.

[28]             Unsurprisingly Mr Carter vigorously contests the accuracy of Dt Sweetman’s recollection, and says he described to Dt Sweetman the supply of methamphetamine to him by others, rather than the other way around. It is that sort of contest  which can so simply be avoided if the police account of an interview is checked with the interviewee immediately the interview has concluded.

[29]As outlined earlier Mr Carter faces seven counts. In summary they are:

a)Count 1: possession of methamphetamine for supply (this relates to the small quantity found on Mr Carter himself);

b)Count 2: possession of LSD for supply in relation to the 24 small black balls found on Mr Carter;

c)Count 3: possession of cannabis for supply in relation to the quantity found in Mr Carter’s office;

d)Count 4: possession of precursor substances with intent based on the Sudafed tablets containing Pseudoephedrine found in Mr Carter’s office;

e)Count 5: possession of methamphetamine for supply being the large quantity of that substance found in Mr Carter’s motor vehicle;

f)Count 6: supplying methamphetamine. This count is based in part upon Mr Carter’s alleged admissions to Dt Sweetman and is most directly affected by the outcome of this application;

g)Count 7: Conspiring to supply methamphetamine based on some text messages.

Factual findings

[30]             It is common ground that Mr Carter would talk to Dt Sweetman only if the latter made no notes of their discussions. Mr Carter’s evidence is that his prohibition on note taking was total; that is, there was to be no record whatsoever made of their discussion and the contents of their discussion were not to be given in evidence against him.

[31]             Dt Sweetman’s version is different. He says that the only prohibition was against taking notes during the discussion itself and he made it clear to  Mr Carter that he would make a written note once the interview was over.

[32]             The evidence as a whole indicates that Dt Sweetman acted courteously and with consideration towards Mr Carter. I do not doubt that Dt Sweetman acted  in good faith throughout, but I prefer Mr Carter’s account of events for these reasons:

a)Mr Carter had on a previous occasion encountered difficulties  with the police in respect of allegations of serious offending, when he had made a statement which was used against him in subsequent criminal proceedings to his detriment. He was therefore well aware of the disadvantages of making a formal statement to the police, and would have been on his guard when the possibility of making such a statement was mooted by Dt Sweetman.

b)By reason of his earlier experience, Mr Carter took up Dt Sweetman’s offer of a telephone consultation with an independent lawyer. The evidence is that he took some eight minutes in conducting that telephone discussion.

c)Ultimately he did make a statement but only on the basis that no notes were taken by Dt Sweetman. That condition was clearly imposed in the strongest terms and indeed, Dt Sweetman accepted in his evidence that this was so, and that it had led to his decision to use bold type when recording the prohibition on the use of ‘any’ notes. Given the legal advice Mr Carter had received, it is highly likely that he would have made it plain to Dt Sweetman that any discussions were to be off the record in the sense they were not to be used at all in later proceedings, including the giving of evidence.

d)Although Dt Sweetman’s job sheet was extensive and he purported to record in detail the arrangements made as to the basis upon which the discussion took place, he has failed to record what must, from the

police point of view, have been the most vital point of all, namely his advice to Mr Carter that he would subsequently make a written note  of what had taken place between them.

e)The subject matter of the discussions was wide and generally not focused upon what had occurred earlier in the day at the accused’s business premises. That is consistent with the purpose of the discussions as both Dt Sweetman and Mr Carter had described them: to provide the police with background material about the drug  scene in and around Hamilton. Mr Carter was not prepared to permit even general discussions of that sort to be the subject of a record kept  by Dt Sweetman. That being so, it is even more  likely in  my view, that he would not have countenanced a record of the confession which he was said to have made of supplying methamphetamine, which alleged confession seems to have arisen in the course of Mr Carter’s explanation of his own drug use.

f)If Dt Sweetman is right and Mr Carter, while prohibiting the taking of notes during the discussion was nevertheless clearly on notice that a subsequent note would be taken, then the question arises as to why  Mr Carter would talk at all on any topic to Dt Sweetman. There were repercussions on a previous occasion when he had given a statement to the police; he had received the clearest legal advice not to make a statement, and in the clearest terms he had indicated to Dt Sweetman that he was not prepared to make any such statement if a note was to be taken. It is highly improbable that despite all of that, Mr Carter’s only concern was to ensure that no note of what passed between himself  and  Dt Sweetman  was  taken  at  the  time.  In  my   view, Mr Carter’s  intention  was   to   ensure   that   nothing   he   said   to Dt Sweetman would later be admissible in evidence against him, and that intention was sufficiently clearly made known to Dt Sweetman.

Discussion

[33]             Mr Morgan submitted that the Court should rule inadmissible the portion of Dt Sweetman’s deposition to which I have earlier referred, upon either or both of two grounds:

a)a breach of s 23(4) of the New Zealand Bill of Rights Act 1990 which provides that everyone who is arrested for any offence or suspected offence has the right to refrain from making any statement and to be informed of that right;

b)Rule 9 of the Judges’ Rules which provides that ‘Any statement made in accordance with the above Rules should, wherever possible, be taken down in writing and signed by the person making it after it has been read to him or her and he or she has been invited to make any corrections he or she may wish’.

[34]             In my view it is sufficient to deal with the matter under s 23(4) of the New Zealand Bill of Rights Act. Before turning to that sub-section, it is appropriate to note the essentially practical point made by Mr Morgan in respect of Rule 9. He submits that there was an obligation upon Dt Sweetman to make some effort to have Mr Carter verify the accuracy of the note he had made by way of job sheet of the interview conducted with Mr Carter the previous day. Dt Sweetman had  taken care to check the contents of his notebook (as distinct from his job sheet) in that way, and obtained verification from Mr Carter as to the accuracy of the contents of his notebook. Had he taken similar care with the contents of his job sheet, then the apparent misunderstanding between the two of them as to the basis upon which their discussions were conducted would then have been uncovered. Because the matter would still have been fresh in their minds, it might have been possible to resolve it without as much difficulty as has now arisen. In some circumstances Rule 9 may well continue to play a role in ensuring that Crown obligations of overall fairness are observed.

[35]             In the present case however, I believe it is appropriate to consider the matter by reference to s 23(4) of the New Zealand Bill of Rights Act. As earlier outlined, I have concluded that Mr Carter, having received legal advice, declined to make a statement to Dt Sweetman about his alleged offending, and so invoked his right to remain silent under s 23(4). What subsequently ensued was a more general discussion, not intended by Mr Carter, nor indeed at least initially by Dt Sweetman, to trespass upon the area of the currently alleged offending, which was not to be the subject of any note-taking by Dt Sweetman.

[36]             There is  no  evidence  that  the  police  have  practised  a  deception  upon  Mr Carter. Nor is there any evidence suggesting he was deliberately manoeuvred  into a situation in which he made a statement, against the legal advice he had earlier received. The fact remains that the  general discussions upon which Dt Sweetman and Mr Carter embarked, somehow or other, touched upon a topic which the parties at the outset had agreed to avoid, namely the detail of Mr Carter’s own involvement with drugs in the context of his business premises and operations. So Mr Carter, having understood that the discussions would not broach that topic, and in any event would not be the subject of any note which could be used in evidence against him, now finds that those discussions did involve matters which could be given in evidence against him, and is faced with a Crown contention that Dt Sweetman’s subsequent note ought to be admitted at trial.

[37]             In R v Moresi (No.2) (1996) 14 CRNZ 322, 332, Baragwanath J described a similar situation in stark terms:

In my view the ordinary New Zealander would take the view that to secure information on the basis of a promise not to use it and then to turn around and renege on the arrangement, would entail a feeling of real discomfort and distaste. Neither the police, the Court, nor the New Zealand public would countenance such a result.

[38]             That decision predated R v Shaheed [2002] 2 NZLR 377, under which the discretion to admit Dt Sweetman’s job sheet must now be considered: see R v Kokiri (2003) 20 CRNZ 1016, 1022 [19], but the passage from Moresi cited above accurately underscores the importance of the principle embodied in s 23(4) of the New Zealand Bill of Rights Act. That importance is stressed in Kokiri at paragraph

[22] where the Court of Appeal characterised the right not to make a statement after arrest as strongly entrenched in our legal system, ‘and is a right which is closely linked to the right to consult a lawyer under s 24(c)’.

[39]   The weight to be accorded the particular breach under consideration, and the seriousness of the particular intrusion upon it (Shaheed paragraph [146]), are matters which weigh importantly in the balance in the course of the undertaking of the exercise which Shaheed requires. That consideration was further explained by the Court of Appeal in R v Maihi (2002) 19 CRNZ 453 at paragraph [33]:

As the starting point is to give appropriate and significant weight to the breach of the suspect’s rights, the ultimate inquiry will generally come down to whether vindication of that breach by exclusion of the resulting evidence is out-weighed in the particular case by the competing public interest in bringing offenders to justice. The more serious the breach the stronger the public interest factors must be, before they can be seen as outweighing the need to vindicate the breach by exclusion of the resulting evidence. Conversely, of course, a lesser breach requires less on the public interest side of the scales to outweigh it.

[40]   In my view, this is a case where the scales are weighted heavily in favour of exclusion of the Detective’s relevant evidence, by reason of the nature and circumstances of the breach. The evidence concerned is in the nature of a confessional statement. There are real concerns for the reasons I have set out earlier in the judgment as to the fairness of the circumstances in which the statement was made, and that factor diminishes the weight to be accorded the interest of the community in the availability of all relevant evidence in a criminal trial.

[41]   A further factor readily conceded by Mr Sturm is this: the evidence  concerned touches only one of seven counts which appear in the indictment faced by Mr Carter. The remaining counts, if established, disclose serious drug offending. Count 6, to which the impugned evidence relates, alleges by no means the most serious offending covered by the indictment. Moreover, as Mr Sturm concedes, count 6 will not necessarily fail if the evidence concerned is excluded. Indeed, he submitted that even in the absence of Mr Carter’s statement, the Crown had sufficient evidence to establish the offence alleged in count 6.

[42]   I have held that the police have acted in good faith in relation to Mr Carter, but of course the Shaheed analysis ordinarily treats that as a neutral factor. I do not regard it as weighing against exclusion.

[43]   In the result, having regard to the fact that the evidence concerned is of a confessional nature, I have concluded that the breach which I have held to have occurred would render the use of the challenged evidence at trial unfair, and that there are insufficient countervailing factors to justify admitting it.

Result

[44]   The Crown’s application is dismissed. I rule inadmissible at Mr Carter’s trial the evidence of Dt Sweetman which commences at line 9 on p 10 of his deposition and concludes with line 12 on p 11.

C J Allan J