R v Clayton CA302/06 - [2006] NZCA 466

ORDER PROHIBITING PUBLICATION 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

CA302/06

THE QUEEN

v

CAROL MAY CLAYTON

Hearing: 11 October 2006
Court: Robertson, Williams and Panckhurst JJ Counsel: R J Stevens for Appellant
G J Burston for Crown

Judgment: 20 October 2006 at 4.30pm

JUDGMENT OF THE COURT

A The appeal is dismissed.

BOrder prohibiting publication 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 CLAYTON CA CA302/06 20 October 2006

REASONS OF THE COURT

(Given by Williams J)

Introduction

[1] In the early hours of 3 September 2005 a property in Upper Hutt, was fire- bombed. A Ms Owens and a Ms Judith Betti escaped but a Ms Joan Betti died in the fire.

[2] As a result the appellant, Ms Clayton, and two young men, Messrs Pearce and Edgarton, are jointly charged with arson and Ms Betti’s murder. Ms Clayton is also charged with attempting to murder Ms Owens and Ms Judith Betti, the Crown asserting that she arranged for Messrs Pearce and Edgarton to carry out the fire- bombing because she wished to kill both.

[3] The trial has a three week fixture set to begin in the Wellington High Court on 30 October 2006.

[4] On 29 October 2005, Ms Clayton was twice interviewed at the Upper Hutt Police Station. The earlier discussion which concluded with her being returned to her home a little after noon that day is pertinent to this appeal only for narrative purposes.

[5] The second interview began at about 8:30pm. It was recorded on videotape. In it, Ms Clayton made a number of inculpatory statements concerning her involvement in matters giving rise to the charges.

[6] Mr Stevens, counsel for Ms Clayton, challenged the admissibility of the videotaped interview in an application brought by the Crown under s 344A of the Crimes Act 1961.

[7] The application was heard over three days in early August 2006. The hearing included evidence from Ms Clayton and the interviewing officer, Detective Orr. In a

reserved judgment delivered on 22 August 2006 Miller J rejected all the grounds advanced on Ms Clayton’s behalf and held the statement admissible.

[8] This appeal is brought against that decision on grounds that, contrary to the

Judge’s rulings:

(a) The appellant was “detained” during the second interview contrary to ss 22 and 23(1) of the New Zealand Bill of Rights Act 1990 (“NZBORA”);

(b) The way in which the Police endeavoured to satisfy s 23(1)(b) in fact breached the rights affirmed by that subsection;

(c) The appellant did not waive her rights under s 23(1)(b); and

(d) That even if the other grounds of appeal were determined against the appellant, the interview should be excluded in the exercise of the fairness discretion or as a result of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] NZCA 466
Decision Date: 20 October 2006

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of R v Clayton CA302/06 was heard, involving the appellant Carol May Clayton, who, along with two other men, is jointly charged with arson and murder. Clayton is additionally charged with attempting to murder two other individuals. The case revolves around the admissibility of a videotaped interview of Clayton, recorded during her second interrogation by the police. Counsel for Clayton argued against the admissibility of the interview, contending various breaches of her rights under the New Zealand Bill of Rights Act 1990 (NZBORA). The court, however, dismissed the appeal, affirming the admissibility of the videotaped interview. The court found that Clayton was not "detained" under the NZBORA at the start of the interview and that she effectively waived her right to counsel when she chose to proceed with the interview without legal representation. Additionally, the court held that the police did not breach any obligations under s 23(1)(b) of the NZBORA, and that the interview should not be excluded based on the fairness discretion or the balancing exercise required by R v Shaheed. Consequently, the appeal was dismissed, and the videotaped interview remains admissible as evidence.

Orders