R v Chadd CA114/06

[2006] NZCA 449

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN PARA [43]) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT

OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA114/06

THE QUEEN

v

CHE LESLIE CHADD

Hearing:         24 July 2006

Court:            Robertson, Goddard and Gendall JJ Appearances: R J Stevens for Applicant

B J Horsley for Crown

Judgment:      4 September 2006         at 3pm

JUDGMENT OF THE COURT

A        Leave to appeal is granted.

BThe appeal is allowed and the evidence of the applicant’s statements is excluded.

COrder  prohibiting  publication  of  the  judgment  and  any  part  of  the proceedings (except the result as set out in para [43]) in News Media or

R V CHADD CA CA114/06  4 September 2006

on Internet or other publicly available database until final disposition of

trial.  Publication in Law Report or Law Digest permitted.

REASONS OF THE COURT

(Given by Gendall J)

[1]      The applicant is awaiting trial in the District Court at Wellington on a count of being a party to the offence of possession of the class B controlled drug ecstasy for the purpose of supply, through tampering with the evidence against a principal party in order to enable that person to escape conviction.  He seeks leave to appeal against a pre-trial ruling that two statements he made to separate police officers should be admitted in evidence.

Background

[2]      On 24 April 2004 a man named Paul Richard Connolly was admitted to Wellington Hospital and found to be in possession of a large amount of cash and drugs.  Upon execution of a search warrant by the police at Mr Connolly’s flat, they found the door ajar.  In the apartment a bag was found containing a syringe, three glass methamphetamine pipes, drug point bags, a quantity of cannabis material, a chemical substance later found to be ecstasy, together with labels which suggested the bag was the applicant’s.  ESR analysis identified some of the drugs in the bag as being the class B drug MDMA (ecstasy) together with a small amount of the class A drug methamphetamine and plant material being the class C drug cannabis.

[3]      Mr  Connolly was charged  with possession of ecstasy for  the  purpose of supply and pleaded guilty on 2 September 2004.

[4]      About three months after the execution of the search warrant, on 28 July

2004, the applicant was arrested in relation to fraud charges arising from his occupation  of a  hotel room,  together  with  possession  of  methamphetamine  and

utensils apparently found on him at that time.  He was later to plead guilty to those charges.

[5]      The present appeal arises from the following events.   On the morning of

29 July 2004 a police officer Detective Constable Barnard (who had executed the search warrant on 25 April), became aware that Mr Chadd had been arrested and was in  police  custody.    He  was  directed  by Sergeant McMeeking,  the  senior  police officer at the station to interview Mr Chadd about the April search.  Mr Chadd was due to appear at the Wellington District Court at 9.00am in relation to his fraud and drug charges.  But at 8.55am he was taken to an interview room.  He had spoken to a lawyer about the matters in respect of which he was in custody, but not about the April matters as he was not aware that questioning was to arise in respect of them. He was not taken to Court until 11.30am.  It is the intervening police interviews and discussions that were the subject of objection.

[6]      Initially, Mr Chadd was interviewed by Detective Constable Barnard.   He was properly warned and advised of his rights under the New Zealand Bill of Rights Act 1990 (“NZBORA”).  He stated that his lawyer had told him to say nothing but said that he did not “want to be uncooperative”.  He said that he knew Mr Connolly and went to his apartment to clean his house when he learnt that Mr Connolly was in hospital, and that he went to get rid of the drugs and that the items found in the luggage did not belong to Mr Chadd.  After the interview Mr Chadd was shown the question and answer notes recorded by the detective constable but declined to sign them.   Thereafter, Detective Constable Barnard had an “off the record” discussion with the applicant which was later recorded on a jobsheet.  This was not disclosed to the Court because it may have given some “informant status” to Mr Chadd.

[7]      Sergeant McMeeking, wishing to clarify certain matters, went to speak to Mr Chadd at about 9.30am.   No  additional NZBORA warning  was given.    The essence of the conversation was that Mr Chadd said he was aware that Mr Connolly had been admitted to hospital; that he had been trying to do him a favour by cleaning up any drugs left at the flat before the police searched it; and that he had put the drugs and point bags into his bag.  He said he left the apartment temporarily only to return to find that the police had already executed the warrant.  Thereafter, Sergeant

McMeeking wrote up his notes at about 10.25am.  He put these notes to Mr Chadd who said that he did not wish to sign them.  At the hearing of the s 344A application, Mr Chadd disputed that he had told Sergeant McMeeking that the notes were in fact a true and accurate record and contended that he did not make any incriminating admissions to the police.  The Judge found otherwise and accepted the evidence of the police officer.

District Court decision

[8]      The District Court Judge identified four issues:

(a)             Was there a breach of the applicant’s right to be taken before the

Court as soon as possible pursuant to s 23(3) NZBORA?

(b)             Was there a breach of s 23(4) of the applicant’s right of silence?

(c)            Was  there  a  breach  of  Rule  9  of  the  Judges’  Rules  because Sergeant McMeeking did not take notes contemporaneously of his discussion with the applicant?

(d)            Assuming  there  were  breaches  of  the  NZBORA  should  the evidence be admitted pursuant to the balancing exercise in terms of R v Shaheed [2002] 2 NZLR 377 (CA)?

[9]      The Judge found that there had been a breach of s 23(3) because Mr Chadd was clearly arrested in respect of the offences of the night before, and he was not brought before the Court in respect of those offences “as soon as possible”.   Such requirement did not allow a person to be held and questioned on unrelated crime when it was possible for an accused to appear before a Court.

[10]     The Judge held that there had not been any breach of Mr Chadd’s right of silence.    Advice  of  that  right  was  given  by  Detective  Constable  Barnard  and Mr Chadd chose to waive it, because, in his own words, he did not “want to be uncooperative”.  The Judge said that he chose, with full knowledge of his lawyer’s

advice, to give answers to some of the questions which were not presented in an overbearing or persistent manner.

[11]     Likewise,  the  Judge  found  that  there  was  no  breach  of  Rule  9  of  the Judges’ Rules because the notes taken by Sergeant McMeeking were sufficiently contemporaneous to the interview.  The Judge held that even if there was a breach the evidence would have been admitted in any event pursuant to her discretion and it had not been unfairly obtained.

[12]     In dealing with the breach of s 23(3), and the balancing exercise required by Shaheed, the Judge noted that the delay in being taken to Court was limited to two and a half hours and she said the breach was at the least serious end of the scale.  Her conclusion was that she could not infer from the evidence that Mr Chadd would have behaved any differently had he been taken to Court, remanded on those matters and then approached by the police for interview about the April 2004 events, given that he had said that he did not wish to be “uncooperative”.   The Judge admitted both statements  made  to  Detective  Constable  Barnard  and  Sergeant McMeeking  into evidence.

The Shaheed balancing exercise and confessions

[13]     It is not clear whether the Shaheed balancing exercise has any applicability to confessions obtained in breach of the NZBORA.   We do not intend to address the point.  It is sufficient to note that the Judge applied Shaheed in this instance and we address the reasoning of the Judge.  We have come to a different conclusion to the District Court Judge finding that the statements made to both police officers ought to be excluded.   Accordingly, the outcome is the same for Mr Chadd whether the Shaheed balancing exercise is applied or not.

Breaches of the NZBORA

[14]     We deal with the statements made to the two police officers separately.

The statement to Detective Constable Barnard

[15]     Mr Stevens on behalf of the applicant submitted that this statement should be excluded through having been made in breach of the applicant’s rights pursuant to ss 23(3) and 23(4) of the NZBORA.

[16]     The Crown did not contest the finding of the District Court Judge that on the facts of the case it was practicable to bring Mr Chadd to Court at 9.00am, as he had been lined up ready to travel there with other prisoners.   There was a breach of s 23(3) by reason of the two and a half hour delay in the applicant being taken to Court.

[17]     Mr Stevens submitted that the Judge erred in concluding there had been no breach of Mr Chadd’s right to silence pursuant to s 23(4).  Whilst Mr Chadd received legal advice, it did not relate to the matter upon which he was later interviewed.  It was contended that he had attempted to assert his right of silence but this had been ignored by Detective Constable Barnard who continued to ask questions.   It was argued that the Judge erred in finding that the right to silence had been waived by Mr Chadd through his partially answering some of the questions.

[18]     Mr Horsley on behalf of the Crown submitted that the Judge did not err in finding that Mr Chadd had waived his right to silence because there was no absolute prohibition on police continuing to question a suspect  after he had attempted to assert this right:  R v Ormsby CA493/04 8 April 2005 at [21].  Detective Constable Barnard’s notes of interview record the following:

Q.       Do you know Paul Connolly?

A.        I spoke with my lawyer  this    morning.    He told  me not  to say anything but I do know him.  I don’t want to be uncooperative but I have known him for many years, I used to go to school with him.

Q.       Do you make many trips to Wellington? A.       Nah.  I was told not to say anything.

[19]     Mr Chadd was given the opportunity to speak with a lawyer.   It is beyond doubt that a person who has received legal advice as to his right of silence is entitled

to waive that right:  R v Pinkerton CA342/92 23 March 1993 at [10]-[11].  Clearly, at the time he spoke to a lawyer he may not have known of the matters about which the police would be questioning him, but he was advised of his right of silence and asserted this right by refusing to answer some questions put to him by the police officer.  His decision to partially waive this right of silence is further evidenced by the statement “I don’t want to be uncooperative”.

[20]     Mr Chadd chose which questions he would answer, and when he did not wish to  offer  an  answer  he  asserted  his  right  not  to  do  so.    We  do  not  think  that Detective Constable Barnard persisted with any question unduly which Mr Chadd had  declined  to  answer.     There  is  nothing  in  the  circumstances  to  suggest overbearing or coercive police interviewing tactics – apart from being held back from appearing before a Court.  In those circumstances the inevitable interpretation of what happened is that Mr Chadd had waived his right of silence in relation to questions that he chose to answer.  The Judge was entitled to make the finding that this statement  made to  Detective Constable Barnard was not  made in breach of Mr Chadd’s right of silence.

Statement made to Sergeant McMeeking

[21]     When Sergeant McMeeking decided to further question the applicant he did not caution him before asking questions.  The interview began at 9.30am and lasted about 30 minutes during which time Sergeant McMeeking did not take notes.  After the  questioning  the  Sergeant  went  away to  write  up  his  notes  and  at  10.35am returned to Mr Chadd and referred his notes to him so as to assess their accuracy.

[22]     Clearly this statement was taken also in breach of the applicant’s rights under s 23(3) of the NZBORA.

[23]     Although counsel did  not  expressly present  an argument  that  the  second statement was made in breach of the applicant’s right of silence, we assume that the submissions  in this regard  were directed  at  the  statements  made  to  both  police officers.

[24]     It is clear that the discussion with Detective Constable Barnard concluded with the “off the record” discussion.  Such discussions sometimes can mean that any statement made will not be given in evidence:  R v Moresi (No. 2) (1996) 14 CRNZ

322 (HC).  The “off the record” disclosures in the present case are not sought to be given in evidence and it is accepted between the parties that those are not admissible.

[25]     When Sergeant McMeeking came to interview Mr Chadd he did not repeat the NZBORA caution and did not take any notes.   It may have been possible for Mr Chadd to assume that the continuing discussions with Sergeant McMeeking may also have been “off the record”.   We think that generally a caution ought to be repeated, before police recommence questioning an accused after an “off the record” statement, to ensure that the accused clearly understands the position.

[26]     In this case the Judge made a factual finding that Mr Chadd did not say in evidence before her that he considered the statements to be “off the record” and therefore there was no reason to find that the absence of any caution had impact on the statements that he made.  In determining whether there has been a breach of the right of silence much turns on the factual evaluation of the Judge at first instance and this Court will always be reluctant to interfere with such findings of fact:  Ormsby at [14]. Although it may be that there was no breach of Mr Chadd’s right of silence, the conduct of the sergeant in not repeating the caution was unwise.

Rule 9 of the Judges’ Rules

[27]     Mr Stevens contended that the statement to Sergeant McMeeking was made in breach of Rule 9 of the Judges’ Rules and should be excluded on the grounds of unfairness.  Rule 9 of the Judges’ Rules provides:

Any statement made in accordance with the above rules should whenever possible be taken down in writing and signed by the person making it after it has been read over to him and he has been invited to make any corrections he may wish.

[28]     The purpose of the Rule is discussed in R v Mason [1988] 2 NZLR 61 (CA)

at 63:

Not  only  is  it  manifestly  desirable  to  have  all  confessional  statements recorded in writing, but it is equally important to ensure their accuracy.  This is especially so when the suspect has been told that anything said may be taken  down in  writing  and  used  in  evidence.    Rule (9)…is  intended  to achieve those results.

[29]     Counsel challenged the accuracy of the notes contending that they were not in question and answer format, failed to record how the sergeant established that the applicant was talking “on the record”, and included explanations of the sergeant which did not originate from Mr Chadd, as well as not mentioning everything that was discussed.

[30]    Mr Horsley said that any breach of Rule 9 was inconsequential in the circumstances because Sergeant McMeeking had read the notes back to Mr Chadd who had acknowledged that they were a true and accurate record, which evidence the Judge accepted.

[31]     Whilst  there  was  no  requirement  of contemporaneous  note taking  by  an interviewing  officer,  it  is  desirable  that  notes  be  taken  before  the  end  of  the interview:   R v R (2003) 20 CRNZ 327 (CA) at [14].   The importance of taking contemporaneous notes by Sergeant McMeeking was increased because of the previous “off the record” discussion that Mr Chadd had with Detective Constable Barnard.  We think the Judge erred in finding that there was not a breach of Rule 9. That is not decisive in determining whether the confessional statement should be excluded, because the issue must always be one of fairness.  In this case, although Mr Chadd challenged the accuracy of the police evidence, the Judge found as a fact that the notes had been read by him, acknowledged to be accurate despite declining to sign them.   Any breach of Rule 9 would not be enough on its own to warrant exclusion of the second  statement,  but the breach is a relevant  circumstance to consider when determining admissibility under the Shaheed balancing test which is required because of the breach of s 23(3).

Causation

[32]     We need to say something about this because despite the Judge’s discussion of the Shaheed balancing exercise, her real reason for admitting the confessional

statements was lack of causal connection between the breach of s 23(3) and the making of the statements.  The Judge said:

When I consider the actual effect of the breach it is also relevant to note there is no evidence before me from which I could infer the accused would have behaved any  differently –  had he been taken to Court  – and  then remanded on the July fraud matter and then approached by the police about the April matters.  The accused himself said in his statement that he did not want to be uncooperative.

[33]     It is common ground that “as soon as possible” and “promptly” has to be interpreted realistically.   Confessions obtained where the person arrested is deliberately kept in custody under a holding charge whilst another case is being further  investigated,  rather  than  brought  before the  Court,  will  be  in  breach  of s 23(3): see R v Te Kira [1993] 3 NZLR 257 (CA). The statement may be excluded if there is a material causal connection between the breach and the subsequent damaging statement: R v Greenaway [1995] 1 NZLR 205, 208 (CA). The test for causation is that there is a “real and substantial connection” between the breach and the evidence: Te Kira  at 272. There has to be a reasonable time allowed for decisions to be made and the requisite processing to be completed: R v Rogers (1993) 1 HRNZ 282 (CA).

[34]     In Greenaway the Court found the link between confession and breach to be too remote because the coercive effect of the custody did not play a real part in an accused’s decision to confess.  Similarly, in R v Schriek [1997] 2 NZLR 139, 153 (CA), although an applicant was not taken to Court at the earliest reasonable time, the breach of s 23(3) was inconsequential as the confessional interview was completed before the suspect ought to have appeared in Court.

[35]     The causation point is finely balanced as it relates to the statement made to Detective Constable Barnard.  The delay was only a short period and the interview finished at 9.30am, with Mr Chadd saying he did not wish to be uncooperative.  The additional delay occasioned by Sergeant McMeeking’s interview of the applicant is rather    more    significant,    being    approximately    one    and    a    half    hours. Judge Mackintosh concluded that there was no causal connection between the breach of s 23(3) and both statements because she considered it likely that the applicant would have given the same statements to the police had they questioned him after he

had appeared in Court.  Whilst the Judge thought that the applicant would have given the same statements to the police irrespective, and therefore there was no causal connection, we do not think it was open to the Judge to draw such a conclusion given the  evidence  that  the  applicant  was  physically  shaking  and  sighing  at  regular intervals during the interview.  This indicates some adverse effects upon him and we do not think it is open to say that the coercive effects of custody did not play a real part in his decision to make the statements.

[36]     If the applicant had not been required to be presented to Court until 10.00am, as  asserted  by the  Crown,  we  would  have  concluded  that  any  breach  was  not causative as it related to the statement made to Detective Constable Barnard because that statement  concluded at  9.30am.   However, the actual position was that  the applicant, together with other prisoners in police custody, were to be taken to the District Court for a Registrar’s hearing at 9.00am.  This is what in fact happened in respect of all other prisoners.  That being the case then the retaining of the applicant at the police station for a further 30 minutes during which time the interview with Detective Constable Barnard took place meant that there was a causal connection between the breach of s 23(3) and both statements.  The situation is distinguishable from Greenaway and in terms of Te Kira there was a real and substantial connection between the breach and both statements.

The balancing of relevant factors – does it require excluding of the evidence as a proportionate response to the breach of the rights which have occurred?

[37]     Taking into account the matters referred to by the majority in Shaheed, we accept that there was a serious intrusion into the breach of the right to be taken promptly to the Court.  The applicant should not have been further questioned until after he had been dealt with by the District Court.

[38]     There was some evidence that the police officers were aware of the rights available to Mr Chadd under s 23(3).   They proceeded to detain him nevertheless. We would not go so far as to conclude that there was bad faith.  In terms of Shaheed that would usually require exclusion of the evidence.  Yet the ultimate test must be whether the police had behaved in a way which was unreasonable to the extent that it went beyond the limits, and there must come a time when the Court will speak out

against the shortcomings arising from the cumulative effect of bad practices.  As was said in Shaheed at [150]:

[150]    The  balance  may  be  more  likely  to  come  down  in  favour  of exclusion where other investigatory techniques, not involving any breach of rights, were known to the police to be available and not used.  It is of some reassurance to the community where evidence is excluded in such circumstances that, if the same situation arises again, the police do have an available means of obtaining the evidence in a proper way.

[39]     In the present case it was entirely open to the police to interview Mr Chadd later that morning after his appearance in the District  Court, but they chose for reasons of convenience to detain him in breach of s 23(3).  The offence with which he is charged is of the nature of being an accessory after the fact.  It does not rate highly on the scale of seriousness given that Mr Connolly had already pleaded guilty and been dealt with in respect of the substantive offence.   So, to that extent, the seriousness of the crime charged against the applicant does not reach a particularly high level.  It is, in the context of this case, a comparatively minor charge.  As was said in Shaheed at [152]:

[152]    ….Weight is given to the seriousness of the crime not because the infringed right is less valuable to an accused murderer than it would be to, say, an accused burglar, but in recognition of the enhanced public interest in convicting and confining the murderer.   In contrast, where the crime with which the accused is charged is comparatively minor,  it  is  unlikely that evidence improperly obtained will be admitted in the face of a more than minor breach of the accused’s rights.

[40]     In the end, the balancing exercise must be aimed at determining whether an admitted breach of the rights crosses the threshold which dictates that the evidence should be excluded.   In this case a combination of factors lead in our view to the threshold being crossed.  The nature of the right breached, the cumulative extent of the police actions, including their not using “best practices” ought to have led to a ruling that the evidence be excluded.  It is not a question of there being no causative link between the breach and the admission being made because Mr Chadd may have made the same statement had he been interviewed the night before at a time when it was not reasonable for him to be taken to a Court.

[41]     That is not the issue in this case.  It is simply that the breach was not at the minor end of the scale, the applicant having been removed from the line up just

before he was to be taken to Court solely for the purpose of further interviewing on matters in respect of which he was not arrested or in custody.   He may have been properly cautioned  and  warned  initially,  but  after  being  engaged  in  an  “off  the record” discussion, the further interview by the sergeant occurred in circumstances of continued detention without further caution or warnings and where contemporaneous notes were not taken.   The applicant may have been justified in believing that “off the record” rules still applied.   None of those factors alone are determinative, but are to be placed on the “balancing exercise” scales.

[42]     The combination of factors satisfy us that  the police actions crossed the requisite threshold.  The Courts need to make it clear that “near enough is not good enough” in police practices.

Result

[43]     For those reasons leave to appeal is granted and the appeal is allowed. The evidence of both statements is to be excluded at trial.

Solicitors:

Fanselows, Wellington, for Applicant

Crown Law Office, Wellington