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 the balancing exercise required by R v Shaheed [2002] 2 NZLR 377 (CA).

Was the Appellant “detained” under s 23(1) of the NZBORA?

[9]      Counsel agreed that the test as to whether a person is “detained” for the purposes of ss 22 and 23(1) of the NZBORA was as discussed in R v M [1995]

1 NZLR 242, 245 (HC) where Blanchard J held that it is a mixed objective/subjective test: does the suspect have a reasonably held belief, induced by police conduct, that he or she is not free to leave?

[10]     It is helpful to recount a little of the background against which this question is to be determined.  It is taken principally from Miller J’s judgment and counsels’ submissions.

[11]     The fire on 3 September 2005 was originally thought by the police to be accidental.  But on 25 October the police received information from two informants that it was arson.  The informants told police of discussions at Ms Clayton’s house

on the night of the offence concerning preparations for the fire-bombing and what was said on the perpetrators’ return.  That information implicated all three accused. The police then monitored a telephone call between one of the informants and two of the accused,  including  Ms Clayton,  in  which  incriminatory remarks  were  made. After further investigations, one of the informants made a second statement to police on 27 October 2005 amplifying the accuseds’ roles.   The other informant made a statement largely corroborative of the matter.

[12]     On 29 October 2005 the police went to the appellant’s address with search and  interception  warrants.    They asked  Ms  Clayton  to  accompany  them to  the Upper Hutt Police Station at about 9:10am because conversation would be easier there while the house was being searched.  Ms Clayton was cautioned and given her NZBORA rights before departure.  At the police station she was told she was free to leave at any stage, not detained in any way, and the interview room door was shut solely for privacy purposes.   She signed an acknowledgement in Detective Orr’s notebook that she was not detained.

[13]     A lengthy interview then ensued, largely devoted to matters peripheral to the offending.

[14]     During the first interview the police completed their execution of the search warrant and installed a listening device pursuant to the interception warrant.  They hoped  by the  latter  means  to  intercept  incriminating  conversations  between  the occupants.

[15]     During the afternoon, in the expectation the information would be passed to the appellant, the police advised one of Ms Clayton’s associates of Mr Edgarton’s arrest.

[16]     Police returned to Ms Clayton’s address at about 7:45pm on 29 October 2005 and asked her to return to the police station to discuss matters further, telling her they knew she had not been entirely truthful earlier in the day.  She said she was scared. They suggested she bring some warm clothing and a woman detective accompanied her while she collected it.  In the bedroom she became upset and told the detective

she was scared of going to gaol.  That elicited the response that she should be honest with Detective Orr and the police.  Detective Orr told Ms Clayton she was not under arrest.  She was taken to the police station in an unmarked police car.  At the police station she was told of Mr Pearce’s arrest.   The position of Messrs Pearce and Edgarton was likely to have been discussed with Ms Clayton before the videotaped interview began.   She was again cautioned  and  advised  of her  rights under  the NZBORA but, unlike the earlier interview, was not told she was free to leave nor was she told she was not being detained.

[17]     Mr Stevens linked his emphasis on each aspect of that factual background with  what  police  knew  about  Ms  Clayton’s  mental  history.     Admitted  to  a community home for about a fortnight in May 2005, she attended the Acute Day Service at Hutt Hospital until she discharged herself on 9 August.   She attempted suicide by overdose on 5 October 2005 and was admitted to the Mental Health Unit at Hutt Hospital until 19 October 2005.   On discharge, she was prescribed  new medication which she was still taking when interviewed.

[18]     Although Miller J found it unnecessary to decide whether Ms Clayton was “detained”  because  he  had  earlier  held  that  police  had  complied  with  their obligations under s 23(1)(b), the Judge nonetheless referred to M and the list of pointers discussed by Blanchard J in that case:  the language of the request;  whether a choice was given;  whether the person was escorted to the police station;  whether the  interview  ended  in  arrest;    the  state of the  investigation;    the  level  of  the interviewee’s involvement and whether questions were general or of a more pointed nature.

[19]     After  recording  the  differing  views  as  to  whether  Detective  Orr  told Ms Clayton she was not detained on the second occasion – preferring the detective’s evidence that  such was not  said  –  the  Judge  opined  that  the  appellant  was not detained at the commencement of the interview though she was under the impression she had no option but to go with the police because she thought her arrest was inevitable following Mr Edgarton’s confession.  Thinking she had accompanied the police voluntarily, the Judge held that she “did not have a reasonably held belief induced  by  the  police  conduct  that  she  was  detained”  at  the  beginning  of  the

interview, but Detective Orr “reasonably led her to believe that she was detained” as the interview proceeded, particularly after she admitted her part in the offences:  at [48]-[49].

[20]     Though  it  makes  little  difference  to  the  outcome  of this  appeal  and  we acknowledge we do not have the Judge’s advantage of seeing the interviewed participants give evidence, we take the view that Ms Clayton was “detained” for the purposes of s 23(1) from the commencement of the interview.   That particularly arises from the police invitation to Ms Clayton to take some warm clothing with her, thus indicating she would be at the police station for a long time, and the detective standing guard over her as she did so.  She told them she was scared of going to gaol and the police merely deflected rather than disabused her of that view.  She expected arrest.  She was unlikely to have noted that on this occasion she had not been told she was not being detained.  She was taken to the police station in a police car.  She knew of the arrest of what are now her fellow accused for the matters about which she had been interviewed.   The police told her they knew she had earlier  been untruthful and she was now to be re-interviewed on the matter.   Then, very soon after the videotaped interview began it was clear that, rather than the generalities discussed in the first interview, the second interview would be much more pointed as far as Ms Clayton’s involvement was concerned.

[21]     We therefore find she was “detained” for the purposes of s 23(1) at about the commencement of the videotaped interview and certainly before the matters next to be discussed arose.

Compliance with right to counsel under s 23(1)(b) and waiver

[22]     We  preface  this  section  of  the  judgment  by  noting  that,  at  counsel’s invitation, we viewed the salient portion of the appellant’s videotaped interview.

[23]     It   was   common   ground   that   before   the   videotaped   interview   began Detective Orr  again  cautioned  Ms  Clayton  and  advised  her  of  her  rights  under s 23(1)(b).  He also again advised her that she had the right under s 23(4) to refrain from making a statement.  In the usual way, at the commencement of the videotaped

interview he obtained Ms Clayton’s confirmation that  she had  been given those rights and understood them.

[24]     The interview then proceeded:

RO      Excellent.  Um and as far as any ah prior events, then we’ve come into the video interview room where you’ve agreed to make a video interview with me in regards …

CC      … Yes …

RO     To that incident at [relevant address] on the 3rd of September. CC Yeah

RO      Probably the easiest way to start it off Carol and like um rather than beating around the bush, um what if we go back to that week, how’s that, the week prior to the fire at [relevant address]

CC      Just one thing, I want to …

RO     … Yeah …

CC      … Just ask you first

RO     Hmm Hmm

CC      Do you think I need a lawyer?

RO      I can’t advise you on that Carol, that’s entirely up to you, like I said, I do wanna speak to you about the incident, all I’ve asked you is for your honesty …

CC      … I will be honest …

RO     … Um I do wanna speak to you about the incident though and like I

said, hopefully you wanna speak to me about it

CC      I will speak to you about it

RO      Um and I can’t advise you either way, whether you want to speak to a solicitor, that’s entirely …

CC      … I’ve never sp…

RO     … your prerogative …

CC      … I don’t know what to do cos I’ve never been, had anything like this before

RO      No, well that’s fair, um like I said though, you have the right to consult and instruct a solicitor okay um and one can be contacted from the Police Station if you want that to happen

CC      Well could you do that please?

RO     You want that to happen?

CC      If I could, I’ll still gonna be honest with you though

RO     Okay, like I said, I do definitely want you to be honest with me

CC      I will

RO      and I do want a chat about that fire and I am sure that you will want to talk about it cos …

CC      … I do …

RO      … if your conscience, for the sake of your conscience, I think you wanna clear it

CC      I do

RO     Is that fair? CC  Yep

RO     Okay, however you’d like me ta sp…

CC      … if I could please, yeah or if you could

RO      Okay, what I’ll do is I’ll just leave the room now and um I’ll get a list of solicitors then

CC      Ian HARD if possible

RO     Ian HARD, excellent

(Detective Orr gets his notebook off the desk and other papers off the floor and proceeds to leave the room)

CC      Because I’ve sort of know, well I’ve dealt with him through not, not myself but he was Daniel’s lawyer and

RO     That’s as good as gold Carol … CC       … you know …

RO      … the time on the clock up there is 1940, okay going by my watch, the time is 1834

(Detective Orr walks over and shows Carol his watch). You agree with that? CC  Yeah.

RO     Cool, I shall get hold of Ian HARD.

(Detective Orr  opens  the  door  and  leaves  the room.   Carol  CLAYTON

remains seated at the interview desk and consumes her drink). CC         Thank you very much

(After approximately four minutes, the door reopens  and Detective ORR

returns to the room).

RO     Righteo Carol … CC     … Okay …

RO     … Okay, I just tried Ian. CC      Yeah

RO      um he’s not available, tried him on his cellphone and his  normal phone, he may well be at the fireworks fantastic, he just lives down the road I think

CC      Aw true he does too

RO     Yeah …

CC      … Well shall, well shall we just carry on and …

RO     … good as gold …

CC      … ring him at some, I don’t know, if I need a lawyer I can ring him though …

RO     … at any stage if you want to … CC      … yeah, yeah okay …

RO     … you can ask me to ring Ian or whatever

CC      Okay

RO     Okay, so you’re quite happy to carry on … CC    … yeah no we’ll carry on yeah

RO     Is that alright? CC        Yeah, yeah

RO     Excellent, righteo, now where did we get to …

[25]     In evidence, in response to  a leading question, Ms Clayton said she was unaware there was a list of lawyers at the police station who could be called to give free advice and she would have asked Detective Orr to call someone on that list other than Mr Hard had she known of it.

[26] The Judge accepted that before the videotaped interview began the police had good cause to suspect Ms Clayton of involvement in the offences, but that they did not decide to arrest her until she made the admissions on the videotape. He held that “had she not done so the police might have allowed her to return home in the hope that the electronic surveillance would produce more evidence”: at [20]. Then, after citing the above passages, the Judge noted the interview continued until 10:24pm with breaks but no further mention by either party of contacting a lawyer. He said that although the detective had omitted to tell Ms Clayton that legal advice was available without charge, there was no suggestion from her that she was concerned about difficulty with payment.

[27]     The Judge noted that Mr Hard had been telephoned at  10:47pm about  a separate matter and that Ms Clayton was arrested and charged at 11:15pm.  He also noted the police then called a doctor to examine Ms Clayton in light of her medical

history and recounted the doctor’s findings that she had “full insight into why she was at the police station” though she “did seem to be significantly depressed and spoke of killing herself”: at [32].

[28]     After summarising the issues posed by counsel, the Judge noted there was no doubt that Ms Clayton was told of her rights under s 23(1)(b) and exercised them, so the question became whether in the circumstances the failure to advise Ms Clayton that free legal advice was available meant the s 23(1)(b) advice was not effected.

[29]     After summarising Mr Stevens’ submissions, including those which stressed

Ms Clayton’s mental history, the Judge nonetheless concluded :

[39]     However, the evidence satisfied me that Ms Clayton understood her rights.   Her speech and conduct during the interview is consistent with  Dr  Kusel’s  conclusions.    She  was  taking  her  medications, which were intended to control symptoms such as anxiety, and there is no evidence that the medications themselves might have made her more vulnerable.  She was told that the police could give her a list of lawyers and it was she who nominated Mr Hard;  accordingly, she was well aware that other lawyers were available.   He was not a family solicitor or friend;  she knew him because he had represented her son on legal aid.   She raised no concern about ability to pay, which suggests that she had the means to do so, or knew about legal aid, or that payment did not occur to her as a barrier.  Her evidence was that she simply did not think about it.   If so, the question of payment did not operate as a barrier to obtaining legal advice.  Nor was there anything about the circumstance that called for further inquiry directed to the availability of free legal advice.

[40]     Detective Orr took some care to ensure Ms Clayton understood her rights.   He told her that a list of lawyers was available, tried to contact Mr Hard, returned to the room, leaving the door open, to explain that he had been unable to contact Mr Hard, and continued with the interview only after she suggested it.   Before doing so he checked that she was willing to continue without counsel, and confirmed that she could ask for a lawyer at any time.  Only then did he close the door and resume the interview.

[41]      It follows from these findings that Ms Clayton effectively waived her right to counsel when she first suggested, and then confirmed, that  the  interview  should  proceed.    She  made  her  decision  to dispense with counsel knowing the sort of jeopardy she faced and with an understanding of the right that she was waiving:  R v Smith [1991] 4 Cr 4th 125, 129, Steel v Police (1993) 11 CRNZ 383.  This is not a case, as in Steel, where she is said to have waived the right in circumstances where she tried to exercise it and was unaware of other means of doing so.

[30]     Before us, Mr Stevens essentially repeated the arguments he unsuccessfully made to Miller J and the fact that Ms Clayton’s reaction to Detective Orr’s statement about the “list of solicitors” was that she thought he was leaving the room to “get the phone book or something”.  He said that showed Ms Clayton was not aware of the availability of the lawyers’ list from which she could make a selection and that in all the circumstances,  particularly given the seriousness of the charges Ms Clayton potentially faced, it was incumbent on the Police to do more than they did as regards the lawyers’ list.

[31]     While  acknowledging  the  continuing  authority  of  R  v  Mallinson  [1993]

1 NZLR 528, 531, Mr Stevens particularly relied on Steel.   In that case, Mr Steel failed a breath test and was asked to accompany a police officer to a police station for an evidential test.   On several occasions,  including at  the police station,  he endeavoured to consult a lawyer.   At the police station he was given a telephone book and access to a telephone.   He told the police his normal solicitor was not available but did not ask to contact any other solicitor. The Judge described the issue as whether, once a motorist had exercised the right to legal advice but been unable to communicate with a chosen solicitor, the police were under an obligation to advise that other solicitors could be available and facilitate access to one.  After referring to then current authority (Ministry of Transport  v  Noort:    Police  v  Curran  [1992]

3 NZLR 260 (CA), overruled in Shaheed) but not to Mallinson, the Judge said that “once the motorist has indicated he wishes to exercise his rights [to counsel] in my view the initiative in respect of taking reasonable steps to assist him lies with the enforcement officer”: at 391.

[32]     Mr  Burston  submitted  Ms  Clayton’s  circumstances  did  not  impose  an obligation on police to go further than they did.  Ms Clayton knew of her rights to counsel, made her choice, postponed the implementation of that choice when designated counsel was not available, and volunteered to continue with the interview after waiving her right of immediate access to a lawyer.

[33]     With the exception of one aspect of the right to counsel – whether s 23(1)(b) advice should  include  information as to the availability of lawyers who  can  be consulted immediately without cost – which is currently under reconsideration by

this Court, and subject to the emphasis which appears in later cases, the law in this area remains as settled by this Court in Mallinson: at 53l:

5.        …

Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused's answers at face value.   If following advice as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights.  But more than a bare statement of the s

23(1)(b)  right  and  a  bare  acknowledgement  of  understanding  is likely  to  be required  where,  for  example,  the person  arrested  is intoxicated or under drugs or appears to have a mental or physical disability which could interfere with his or her comprehension of the rights.

6.        The crucial question is whether it was brought home to the arrested person that he or she had those rights.  …

7.        Informing  persons  arrested  of  their  s  23(1)(b)  rights  ordinarily carries with it the obvious implication that they are entitled to exercise those rights.  But there is no duty on the police when informing persons arrested of their right to a lawyer to go on to give advice designed to facilitate the exercise of that right.   The police officer may decide to do so in order to assist in the understanding of the right.  But any duty to facilitate the manner of its exercise is not triggered until there is an indication by the person arrested of the desire to consult a lawyer.  What, if anything, is then required of the police will depend on the particular circumstances.

8.        The Bill of Rights Act is not a technical document.   It has to be applied in our society in a realistic way.  The question is whether what was done gave practical effect in the particular circumstances to the rights protected by the particular guarantee, here s 23(1)(b).   And anyone complaining of a breach of the Bill of Rights Act must, as the Canadian Courts say, invest the complaint with an air of reality.

[34]     This approach is demonstrated by cases such as R v Ji [2004] 1 NZLR 59 (CA) and R   v  Fukushima  CA128/04,   CA130/04,   CA134/04  and  CA170/04

13 September 2004.   Both confirm the observation in Mallinson that if there are indications that persons advised of their s 23(1)(b) rights are incapable of understanding the advice or think themselves incapable of exercising the rights, then Police may be under an obligation to go further than the requirements of the broad proposition in Mallinson and facilitate the person’s exercise of the right.

[35]     However, in Ms Clayton’s case, we take the same view as the Judge.  As the passage cited from the videotape shows, she was sufficiently alive to her rights, after

being advised of them, to raise the question of her obtaining legal advice at the outset of the interview, made a decision to seek legal advice at that stage and nominated a lawyer of her choice even before Detective Orr was able to fetch the promised list of lawyers.  She expressed no concern about fees.  Although she had experienced recent mental problems, we agree with the Judge that the evidence and the videotape both demonstrate  she  was  not  labouring  under  any  disability  at  least  as  far  as  her s 23(1)(b) rights were concerned.  In those circumstances, with the Judge, we agree that Ms Clayton’s position was one covered by the broad proposition in Mallinson and did not trigger a requirement for additional police facilitation.

[36]     Even if such were not the case, again with the Judge, we take the view that Ms Clayton’s position was one where, having exercised the right to counsel and been advised that counsel of her choice was unavailable, she initiated the continuation of the interview even before the detective could make an inquiry on that score.   She deliberately decided to carry on speaking with the detective and deferred seeking legal assistance until later, if need be.

[37]     In our view, that fulfils the “free and voluntary assent” test for waiver as enunciated in R v Taylor [1993] 1 NZLR 647 (CA).

Fairness and Shaheed

[38]     After citing the well-settled principle as to fairness appearing in R v Horsfall [1981] 1 NZLR 116, 121 (CA) and reviewing counsel’s submissions – largely those repeated to us – the Judge concluded that the police had a prima facie case against her when Ms Clayton was first interviewed and she should have been cautioned at that stage.  But, since she made no admissions, that aspect of the proceedings passes from consideration.  The Judge took the view that Ms Clayton returned to the police station voluntarily for the second interview and was given her rights before she made any confession and, though put under pressure, it was not unreasonable in light of her understanding.  He said she was “under no illusion that arrest would follow and did not think Detective Orr was there to protect her”.   He said that she knew the videotape might be used in Court and concluded, at [53], that:

In my opinion she confessed because she believed, following Edgarton’s confession, that the game was up.

[39]     Mr Stevens endeavoured to  persuade us to  a  different  view  on a  further review of the facts but we are not persuaded that any error in the Judge’s approach to the fairness question has been demonstrated even though we differ from him on the detention point.

[40]     As there was no breach of s 23(1)(b), the Shaheed issues do not arise.

Result

[41]     In the result all the grounds on which the appeal was advanced having been rejected, the appeal is dismissed.

Solicitors:

Fanselows, Wellington, for Appellant

Crown Law Office, Wellington