R v Clayton HC Wellington CRI 2005 078 1785
[2007] NZHC 1584
•7 February 2007
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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 HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2005 078 1785
THE QUEEN
v
CAROL CLAYTON
Hearing: 31 January 2007
Appearances: G Burston and C Boshier for Crown
A Courtney for Accused
Judgment: 7 February 2007 at 11.00 a.m.
RESERVED JUDGMENT OF RONALD YOUNG J
Introduction
[1] Ms Clayton is charged with the murder of Joan Betti who died in a fire in a house in Upper Hutt on 3 September 2005. She is also charged with attempting to murder Judith Betti and Latisha Owens. This judgment deals
R V CLAYTON HC WN CRI 2005 078 1785 7 February 2007
with a Crown application pursuant to s 344A of the Crimes Act that I rule a video interview given by Ms Clayton to the police as admissible at trial.
[2] This is the second such application relating to Ms Clayton’s video statement to Detective Orr. The first was the subject of a judgment of Miller J dated
22 August 2006 (HC WN CRI 2005-078-1785) and the subject of an unsuccessful appeal to the Court of Appeal (judgment given 20 October 2006 (CA 302/06)). There is dispute with respect to this application as to whether it is, in essence, a prohibited re-run of the application before Miller J. The Crown, rather than dispute whether they should file a s 344A application have chosen to do so and to deal with that issue as part of their submissions together with the substance of the issues raised by Ms Clayton.
[3] Ms Clayton says that her video interview statement, obtained when she was “detained” for the purpose of s 23(1) New Zealand Bill of Rights Act, to Detective Orr was in breach of her right to counsel under s 23(1)(b) or in the alternative was unfairly obtained. In essence, Ms Clayton says that because of her vulnerable mental state at the time of the video interview Detective Orr should have gone further in attempting to facilitate access to a lawyer after Ms Clayton’s first choice of legal counsel proved to be unavailable.
[4] I heard oral evidence from Dr Barry-Walsh, forensic psychiatrist, and Associate Professor Brinded, forensic psychiatrist, and I was invited to take into account the deposition evidence, the trial evidence from the first incomplete trial involving Ms Clayton and her two co-accused, and the evidence heard by Miller J at his pre-trial hearing (Detective Thompson, Detective Orr, Detective Warren and Ms Clayton). I have had the opportunity of viewing Ms Clayton’s video interview and I have a copy of the transcript of that interview. I have listened to the interception tapes with respect to Ms Clayton on the day of her interview and arrest.
Background facts
[5] I take a brief summary of the alleged murder and arson from the judgment of
Miller J:
[7] The fire occurred on 3 September 2005. It was initially treated as an accident, but late in October the police received information from two informants that it was arson. The informants were in Ms Clayton’s house on the night of the offence, and they described in detail the making of the molotov cocktails, Ms Clayton’s role, and what the offenders said when they returned from Thackeray St. This information clearly implicated the three accused. The police then monitored a call between one of the informants and Ms Clayton and Mr Pearce on 27 October. The depositions record that during that conversation, Ms Clayton made statements that suggest guilty knowledge.
[6] Rather than summarise the events leading up to and the taking of Ms Clayton’s statement I reproduce here, in part, the summary of events given by Miller J:
[8] In the meantime, Ms Clayton had attempted suicide on 5 October and was hospitalised until 19 October. She was administered drugs to treat anxiety, depression, and psychosis.
[9] On 27 October Detective Warren created a profile for each of the suspects. She knew there was an existing police file about a suicide attempt by Ms Clayton several weeks earlier, but found the file had been uplifted by the officer in charge of the inquiry, Detective Inspector Drew.
. . .
[11] The police also obtained search and interception warrants for Ms Clayton’s home at 66 Hikurangi Street. The warrants were part of what Detective Senior Sergeant Thompson called the termination phase of the investigation. The police were looking for physical evidence, intercepted communications of interest, and admissions. They executed the search warrant at 9.10am on Saturday, 29 October
2005. They were looking for a plastic petrol can, among other
things. At the same time, police officers spoke separately to Mr Edgarton and Mr Pearce, neither of whom was at Ms Clayton’s home at the time.
[12] When the police arrived at Hikurangi St, they introduced themselves to Ms Clayton. She agreed to accompany them to the Upper Hutt Police Station. Detective Orr told her she was not required to accompany him, but she was not cautioned. Another boarder at 66
Hikurangi St, Mr Slight, was also taken to the police station for interview.
[13] While Ms Clayton and Mr Slight were absent, the police searched the property and installed the electronic surveillance equipment.
They found a petrol can hidden behind a clothes dryer, a soft drink bottle of the sort used to make the molotov cocktails, and clothing corresponding to that which the informants said the offenders had worn on the evening of the offence.
[14] In the meantime, Detective Orr conducted an interview with Ms Clayton. He began by telling her that he wanted to talk to her about what she was doing on the night of the fire. He told her that she was free to go at any stage, and she was not detained in any way; he had shut the door to the interview room they were in only for privacy. She signed an acknowledgement in his notebook that she was not detained. He did not caution her. The discussion was general in nature, designed in part to build a rapport with her. Ms Clayton told him that she had had a nervous breakdown, and that she suffered from depression and anxiety attacks. She mentioned a suicide attempt. The Detective learned that she was on an invalids benefit. He asked Ms Clayton questions about her friendship with David Betti and the Betti family. The Detective did not confront her with the allegations that the informants had made, but he did put to her at the end of the interview that Richard Pearce had been involved in the fire; she denied it. He also asked her what she had been doing that night, and she said that she was in bed. That, she told me, was a lie.
[15] At the end of the interview, Ms Clayton read and signed the
Detective’s notes. She was returned to her home at 12.15pm.
[16] At 1.23pm instructions were given to arrest Mr Edgarton, who had made a statement admitting his involvement. He was charged with murder and arson. Mr Pearce made a statement denying involvement and, like Ms Clayton, was allowed to go. The police hoped the electronic surveillance, which was operational by early afternoon, would produce further evidence. There was an intercepted call in which Ms Clayton mentioned that she might be arrested for murder. She formed that view because Mr Slight had told her that Edgarton had been arrested. The police had given him that information to generate discussion involving Clayton and Pearce when the three of them returned to the house, in the hope that they might incriminate themselves while under surveillance. The police also intercepted a call between Mr Pearce, Ms Clayton and another woman in which there was reference to an “anarchy” cookbook; there is evidence that the instructions for making the molotov cocktails came from a book or website associated with that term. Like the physical evidence found at the house, these statements were not notably incriminating.
[17] The surveillance did lead to Mr Pearce being arrested about 7.30 that evening after he made a phone call that suggested he was a flight risk and a danger to police officers. That in turn led the police to decide to bring Ms Clayton in for a further interview.
[18] At about 7pm Detective Senior Sergeant Thompson asked Detective Orr to request another interview with Ms Clayton. He and Detective Warren returned to 66 Hikurangi St at 7.47pm, and asked Ms Clayton to accompany him to the police station for interview. She was told that she was not under arrest. Ms Clayton was
apprehensive, and told the officers that she knew they would return. She agreed that she could probably help with their inquiries. She was told that Detective Orr wanted her to return to the police station because he needed to clarify a few things with her, things that she could help him with. He said that she hadn’t been entirely truthful earlier in the day. He told her she should get some warm clothing and Det Warren, who is female, escorted her to the bedroom to get it. There she turned to Detective Warren, and said, in tears, that she was scared. The Detective told her that honesty was the best policy and the best thing that she could do would be to tell the truth to Detective Orr. Ms Clayton was asked to confirm that she was happy to accompany the officers, and she did so. Detective Orr had no instructions to arrest her, and I accept that he had not considered what would happen had she refused to accompany him to the police station.
[19] The advice that Ms Clayton was not required to accompany the officers was repeated at the Upper Hutt Police Station when Ms Clayton told Detective Warren that she was afraid of going to gaol. Detective Warren told her that Detective Orr was a fair police officer and that if she had any questions she should feel free to ask him, and he would try and answer them. Ms Clayton agreed that it would be a weight off her shoulders once she had spoken to Detective Orr and told him the truth. Detective Warren reiterated that honesty was the best policy and that she should tell the truth. She urged Ms Clayton to clear her conscience. It was put to Detective Warren that she told Ms Clayton that if she was honest with him he would look after her; she accepted that was possible but did not recall it. Ms Clayton’s evidence was that Detective Warren did give her that assurance, and I accept her evidence on this point. Detective Warren did recall saying that Detective Orr was a very fair policeman, and that if Ms Clayton had any questions she should ask him and he would try to answer them. She explained that she told Ms Clayton that honesty was the best policy because she thought Ms Clayton was very troubled about something and might be hiding something to protect the other accused.
[20] I accept Mr Stevens’ submission that by this time, the police thought they had good cause to suspect Ms Clayton of involvement in the offences. Indeed, they must have been in that position when they obtained the warrants. Their actions on 29 October were directed to obtaining evidence. That must have been the purpose of returning Ms Clayton to her home after the first, deliberately general, interview, releasing Mr Pearce, and telling Mr Slight that Mr Edgarton had been arrested. However, I am satisfied that the police did not decide to arrest Ms Clayton until she made her admissions during the evening interview. I find 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. She was not seen as a flight risk or a risk to others.
[21] Before the video interview began, Ms Clayton was given her rights, including the right to silence and the right to consult a lawyer without delay and in private. She was not expressly told that she was not being detained. She made a statement that Mr Slight had
told Pearce that Edgarton had confessed, and that Pearce replied that he was “out of town”. The detective told her that he wanted to record the interview because he was getting writer’s cramp, but he also told her that if the matter went to Court a lot of people would see the recording.
[22] The video interview began at 8.29pm. Detective Orr and Ms Clayton were alone in the interview room, but Detective Senior Sergeant Thompson, and other officers from time to time, monitored it from a remote monitor.
[23] After identifying the location, date, and time, and the subject of the interview (the house fire at Thackeray Street on 3 September), Detective Orr recited what had happened to date:
RO Um to confirm what has happened so far, this morning I came to your house and spoke to you. You agreed with me or agr, agreed to accompany me to the Upper Hutt Police Station
CC Yes
RO That’s right? CC Yep
RO Um you came here with me and had a chat which took place at 10.05 this morning.
CC Yep
RO Um I asked you a number of things about the BETTI family um I asked you in regards minor things in regards to the fire, the night of the fire, what was happening um where were you; you told me you were at home in bed um you told me you went around to, after the fire occurred you’d gone round to 50A Thackeray Street where you met Judith um you returned home. Really like this morning we just had a discussion about that ...
CC ... Yep ...
RO ... evening, we had a discussion about the BETTI family in general um we had a wee bit of a discussion about your family and ran over a few things like that
CC Yep
RO But certainly nothing um too serious came from that conversation, you’d agree?
CC Yep
RO Okay, um I think we returned you home at 12.15 today, that sound about right?
CC That sounds about right, yes
[24] The interview continued, with the officer recording that Ms Clayton had agreed to accompany him to the police station and that she had been given her rights:
RO Yeah, um since then um this evening I’ve come to your house again and you’ve agreed again to accompany me to the Upper Hutt Police Station?
CC Yep
RO Um on your own free will. When we’ve arrived at the Police Station, I have given you your rights, I advised you that you weren’t under arrest, however I’ve given you your rights. I’ve told, advised you that you had the right to consult and instruct a solicitor without delay. I also advised you that you had the right to refrain from making a statement. I also told you weren’t obliged to say anything but anything you did say may be given in evidence. You recall that?
CC I do, yeah
RO Okay and you un, you told me you understood those rights, is that correct?
CC Yes
[25] The officer then began to ask questions about the fire, but Ms Clayton interrupted to ask whether he thought she needed a lawyer. He said he could not advise her, but she had the right to consult and instruct a lawyer and one could be contacted from the police station if that was what she wanted. There was no reference to lawyers being available free of charge. She decided she wanted to talk to a lawyer and Detective Orr said he would get a list of lawyers. She then said “Ian Hard if possible”. He replied “Ian Hard, excellent”. Detective Orr left the room to contact Mr Hard. He tried to do so, without success. He made two calls to Mr Hard’s cellphone and home phone, but did not leave a message. Detective Ord then returned to the interview room and explained that he had been unable to contact Mr Hard, who might be at a fireworks display that was on that evening. She asked if they should just continue, and she could ring Mr Hard if she needed a lawyer. The detective agreed, and said that she could ask him to ring Ian or whatever at any stage. The transcript records the exchange:
RO Imm 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 solicitor’s 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
[26] The interview continued until 10.24pm. There were breaks for a rest and to change the videotape, but Ms Clayton was not cautioned again and there was no further mention of contacting counsel. Nor did anyone monitoring the interview try to contact Mr Hard. At no time did the Detective explain that another lawyer could be obtained free of charge. But he had referred to a list of lawyers, and there was nothing to suggest that Ms Clayton was concerned about cost.
[27] Detective Orr conducted the interview patiently and courteously, and Ms Clayton answered his questions frankly. She made stark admissions. She said that she planned the crime, that she intended to kill Judith Betti and Letisha Owens, that she acted out of sexual jealousy, and that she participated by acquiring a petrol can and petrol and driving the men to and from Thackeray St. The statement was also exculpatory in part; she said she meant Joan Betti no harm and did not know she was at the house.
[28] Ms Clayton also referred to mental illness, saying that she had suffered from depression and anxiety attacks, and was under psychiatric care. She went through a long list of medications, including anti-psychotic drugs and sleeping pills. However, she appeared lucid throughout and was able to describe the events and her feelings about them in detail.
[29] Although she was not arrested during the interview, Ms Clayton was required to stay in the room when the Detective left occasionally. On one such occasion, another officer came in to sit with her. When she wanted to take medication, Detective Orr intervened, making it clear he would not allow her to do so if it was a sleeping pill. Detective Warren accompanied her to the toilet; during the morning interview, by contrast, Ms Clayton had been permitted to go alone. Towards the end, Ms Clayton asked if Detective Warren could take her outside for a smoke.
[30] At 11.15 pm Ms Clayton was arrested and charged with murder and arson.
. . .
[32] Detective Orr also called Doctor Kusel to examine Ms Clayton.
Knowing she had attempted suicide several weeks before and was on medication, the police wanted a medical practitioner to examine her. He did so in private, and formed the view that she was orientated in time, place, and person, lucid, and had full insight into why she was at the police station. She was able to describe her medication and
dosage accurately. She was not agitated and there was no evidence of flight of ideas, pressure of speech, or delusional thinking. She did seem to be significantly depressed and spoke of killing herself. He checked her medications and divided them up so she could be given the correct pills at the appropriate time.
[7] Miller J identified one of the issues before him as follows:
33(a) Whether Ms Clayton’s right to consult and instruct a lawyer was engaged. Counsel agreed that it might be engaged if she was arrested (s.23 NZBORA), or if she was detained (s.22 NZBORA). It was common ground that she was not detained under an enactment for purposes of s.23, but Mr Stevens maintained that she was nonetheless detained if not arrested, and Mr La Hood accepted that detention would be arbitrary for the purposes of section 22 if the police detained her without extending her the right to legal advice.
[8] As to this he said:
[35] There is no doubt that Ms Clayton was told of her right to counsel, and exercised it. Mr Stevens contended that the right was not effectively extended to her, however, because she was not told that other lawyers could be made available free of charge. He also contended that, in the absence of such advice, she could not effectively waive her right to counsel, as she undoubtedly purported to do.
[36] The question whether the right to counsel requires that a person detained be told that free advice is available is presently before the Court of Appeal: R v Alo (CA 155/06). Counsel agreed that I am bound by decisions of that Court establishing, at least for now, that the police have no general obligation to tell those detained that free legal advice is available: R v Fukushima (CA 128/04, 13 September
2004). They also agreed that an obligation to explain that free legal
advice is available may arise in the circumstances of any given detention; the question for me is whether this is such a case.
. . .
[38] Mr Stevens highlighted the failure to remind Ms Clayton of the availability of other lawyers when she learned that Mr Hard was unavailable, the failure to explain they were available without fee, Ms Clayton’s mental condition, the pressure that she had been placed under throughout the day, including the detective building a rapport with her during the first interview, the urging to confess, and the decision to let her know that Mr Edgarton had confessed. He also pointed out that the detective had established during the first interview that she was on an invalid’s benefit.
[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.
[9] Ms Clayton has had a background of a fragile mental state including depression and admission to psychiatric institutes for short periods of time.
Evidence of Dr Barry-Walsh and Associate Professor Brinded
[10] Dr Justin Barry-Walsh is a Forensic Psychiatrist and has reviewed Ms Clayton’s videotape interview with the police, Dr Kusel’s brief of evidence (who saw Ms Clayton immediately after arrest), background medical records and has interviewed Ms Clayton. He reached a number of conclusions about Ms Clayton. Firstly, in common with Dr Jacqueline Short (a psychiatrist who completed a report on Ms Clayton) he concluded Ms Clayton suffered from borderline personality disorder “associated problems with mood instability, anxiety and intermittent abusive episodes”.
[11] Secondly, Dr Barry-Walsh said, “In my opinion it is possible that Ms Clayton was vulnerable at the time of her interview”. Thirdly, he reported that Ms Clayton had told him she felt anxious during the interview and felt “unreal and disconnected”. Fourthly, he said that Ms Clayton’s history showed she had a tendency to be dependent on others to solve crises and at times this might include a rapid transfer of feelings onto those who appeared to be in a position of support and help to her. He said:
It is possible that Ms Clayton transferred feelings onto the interviewing officer, seeing him in a strong positive light and being eager to please, although I found limited support for this contention when I interviewed Ms Clayton.
[12] The essence of Professor Brinded’s evidence can be summarised in paras
16-19 of his brief of evidence:
16.I could find no evidence in the police videotape to suggest that, although probably feeling vulnerable, Ms Clayton’s psychiatric state prevented her from understanding the caution given to her nor from exercising her own choice and free will as to whether to answer questions put to her or not.
17.I could find no evidence to suggest that during the interview process there may have been a “rapid transfer of feelings onto those who appear to be in a position of support and help to her” as suggested by Dr Barry-Walsh. I think that proposition most unlikely.
18.It is possible that previous ingestion of medication may have some effect of memory retrieval in Ms Clayton’s case. I could however find no evidence to suggest that medication effects impaired Ms Clayton during the interview to the point where sedation or other possible effects impaired her ability to understand the caution she was given and for her to willingly proceed with the interview.
19.After the interview, Dr Kusel describes Ms Clayton as significantly depressed and expressing a wish to kill herself. The fact that by then, she had been arrested on suspicion of murder may well have had a significant impact on her mental state.
[13] As to each of these four propositions in paras 16-19, Dr Barry-Walsh in cross-examination said that he did not disagree with any of them.
Submissions
[14] Counsel for the accused in oral submissions accepted that the issue for this Court was reduced to the narrow point that given Ms Clayton’s psychiatric background, and given her mental condition on the day of the interview, whether the police breached their obligations under s 23(1)(b) of the New Zealand Bill of Rights Act when, after they had been unable to contact Mr Herd, (Ms Clayton’s preferred lawyer) they failed to provide her with a list of other lawyers and failed to invite her to choose a lawyer from that list to give her legal advice. Essentially, therefore, the accused says the police either improperly accepted what appeared to be Ms Clayton’s waiver of her right to consult a lawyer or that such was not a true waiver in the circumstances. In the alternative, counsel submits that Ms Clayton’s statement should be rejected as unfairly obtained because it was obtained in circumstances where she did not have the mental capacity to adequately decide whether to obtain legal advice or waive her rights to legal advice.
[15] The accused, in support of the proposition that she had not validly waived her right to a lawyer, points to the evidence of Dr Barry-Walsh as to her vulnerability and propensity to be dependent on others to resolve crises. She submits that I should conclude she was suffering from severe depression at the time of the interview and that this level of depression significantly affected her capacity for decision making. Thus, the accused says, the police obligation to facilitate access to a lawyer was a heavy one which could only have been discharged on the particular facts of this case if the police had refused to accept the accused’s apparent waiver of her right to a lawyer, and instead provided her with a list of other lawyers whom she could contact. The accused says that this failure to facilitate her entitlement to access to a lawyer was effectively a breach of s 23 of the New Zealand Bill of Rights Act.
Discussion – s 23(1)(b)
[16] My conclusion is two-fold. Firstly, I am not satisfied that there is in fact further evidence of substance as to Ms Clayton’s mental health beyond that which both Miller J and the Court of Appeal had access to. I consider,
therefore, that I am bound by the conclusions of the Court of Appeal and on that basis, therefore, there was compliance with s 23(1)(b) of the New Zealand Bill of Rights Act and Ms Clayton’s video statement to Detective Orr would be admissible. Secondly, even if it could be argued that there was further factual material about Ms Clayton’s mental health relevant to her rights under s 23(1)(b) of the New Zealand Bill of Rights, which Miller J and the Court of Appeal were unaware of, I would not reach a different conclusion than Miller J about compliance with s 23(1)(b).
[17] Firstly, the evidence of Dr Barry-Walsh that the accused was anxious and vulnerable. The doctor’s evidence was that because of Ms Clayton’s past psychiatric difficulties she may have been more vulnerable because she was depressed and this depression may in turn have meant she “acted with less than sound judgment” during the course of the videotaped interview. However, Dr Barry-Walsh accepted there was no evidence to support this proposition. Ms Clayton’s interview did not show a woman who was overtly depressed, indecisive or indeed having any difficulty in dealing with the questioning. Obviously this interview, as both psychiatrists pointed out, was not a psychiatric interview to discover whether she was severely depressed. However, where severe depression is present some manifestation would have been inevitable. Dr Barry-Walsh accepted that his concern came down to the police “taking due care and cognisance of her mental health problems” when they interviewed her. He accepted, however, he could find no evidence that Ms Clayton’s psychiatric state prevented her from understanding advice about her rights and the exercise of those rights. Dr Barry-Walsh had suggested that Ms Clayton may have transferred positive feelings onto the interviewing officer and may have been eager to please him, and this may in turn have affected her decision making capacity. There was in fact no evidence to support this proposition. And finally, Dr Barry-Walsh accepted that, while Dr Kusel, who saw the accused on the night of the video interview concluded she was “significantly” depressed, the fact that she had, by then, been arrested for murder may have had a significant effect on her observed mental state. I note Miller J had access to Dr Kusel’s report.
[18] In considering submissions on whether the accused’s right to consult and instruct a lawyer was effectively extended Miller J recorded that one of the grounds upon which it was alleged there was a failure to facilitate that right was “Ms Clayton’s mental condition”. He found [39] the evidence satisfied him that Ms Clayton understood her rights and there was nothing in her mental health which affected this understanding. In my view, there is nothing in the evidence of Dr Barry-Walsh which adds anything of substance to the information upon which Miller J reached his judgment as to whether there had been a s 23 breach. The doctor’s evidence of Ms Clayton’s vulnerability and anxiety is nothing more than a general observation about what Ms Clayton may have been feeling at the time of interview. Even if she had those feelings, there is no evidence at all that they prevented her from exercising any of her rights. Nor was there any evidence, or certainly no additional evidence (since Miller J’s hearing) that Ms Clayton was “severely” depressed at the time of her interview. The only factual material to support that possibility was Dr Kusel’s evidence that later that night after interview and arrest Ms Clayton was “significantly” depressed. This was information known to Miller J and the Court of Appeal.
[19] The interview given by Ms Clayton to Detective Orr illustrates Ms Clayton was not severely depressed. Dr Brinded identified the symptoms of severe depression as including extremely low mood to the point of despair or hopelessness, and where a person might come to the point where they do not believe that anything they say or do is going to improve the situation. In this situation decision making would be affected because with severe depression pathological indecisiveness is typically present. Neither Dr Barry-Walsh nor Professor Brinded suggested there was any evidence, having viewed the several hours of videotape of Ms Clayton’s statement that Ms Clayton suffered from severe depression during the interview. No doubt she was feeling vulnerable. No doubt she was anxious. That would hardly be an uncommon state for someone being interviewed about a homicide given she knew she was involved in the events. It is clear that Ms Clayton has suffered in the past and probably suffered at the time of the interview from depression. Dr Barry-Walsh did not claim that she suffered from severe depression at the
time of the interview. The interview itself makes it clear that she was not suffering from severe depression. In fact there is no evidence to support the proposition that any depression that she may have been suffering from at the time of the interview had any effect whatsoever of her decision making that day.
[20] As the Court of Appeal said when dealing with the appeal from Miller J:
[35] . . . 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).
[21] Even if it could be said that this Court has some additional information about Ms Clayton’s mental health state, in my view it is not of such significance to affect the conclusion reached by the Court of Appeal. The extent of Ms Clayton’s vulnerability and anxiousness may have been somewhat greater than an interviewee who was not suffering from depression. This aspect of Ms Clayton’s mental state may not have been the subject of explicit evidence before Miller J. However, Dr Barry-Walsh accepted there was no evidence that any heightened vulnerability or anxiousness on Ms Clayton’s behalf at interview had any effect on her understanding of her rights or in the exercise of those rights whether her decision to choose to have a lawyer or a decision to waive her rights.
[22] Before the video, she had her entitlement to a lawyer explained to her. She said at the time she understood that advice. There is no evidence that she had
any limited understanding or was too distracted to appreciate what was being said to her. At the video interview her entitlement to legal advice was repeated. Ms Clayton confirmed she understood that advice. Immediately after the repetition of the advice the detective began questioning Ms Clayton about the “incident”. Ms Clayton, however, interrupted the detective and said she wanted to ask about a lawyer. She did not, therefore, passively accept the questioning but asserted her entitlement. She asked the detective for his advice about whether she needed a lawyer.
[23] Counsel for the accused in submissions made much of the fact that Ms Clayton asked the detective’s advice about access to a lawyer. Counsel suggested that this supported the claim that Ms Clayton was indecisive and in turn illustrated the effect her depression had on her decision making. I reject that submission. It is common for accused persons when faced with s 23 advice to ask the interviewing officer what they think. In this case the officer properly said he could give no advice and the decision was entirely Ms Clayton’s. Far from further indecisiveness which may have supported counsel’s submissions, Ms Clayton immediately elected to get legal advice. When told a list of lawyers would be provided from whom she could choose, she identified a lawyer she wanted to speak to. When the interviewing officer told her that the lawyer was not available after enquiry, she interrupted the officer and said they could carry on with the interview and if she needed a lawyer she could ring one. The officer confirmed she could ring for a lawyer at any time and asked twice for Ms Clayton’s confirmation that she was happy to continue with the interview in the absence of legal advice. She gave a clear answer in the affirmative. Once again this sequence of evidence illustrates clear and decisive decision making with an ability to identify alternative options if required. The detective was careful to ensure Ms Clayton’s decision was not simply acquiescence but a clear waiver.
[24] The interview Ms Clayton gave was detailed and coherent. Ms Clayton did not, during the interview, passively accept propositions by the interviewer if she did not agree with them. If she was uncertain about details, she said so. Ms Clayton’s mental health was discussed including what medication she
was taking and her adherence to her medication regime. There was no suggestion by her during the interview, nor any evidence during the interview that she was in any way affected by her mental state. That proposition was asserted by Professor Brinded and accepted by Dr Barry-Walsh. I agree with it. While I accept also the limitation both psychiatrist expressed that the interview with the detective was not an interview to explore her mental health as I have previously observed if she had been suffering from severe depression or vulnerability or anxiousness sufficient to affect her decision making it would have been self evident. It was not.
[25] I am satisfied that Ms Clayton’s decision to waive her rights to legal advice was a “free and voluntary assent” (see R v Taylor [1993] 1 NZLR 647 CA). The detective did all that reasonably be expected of him in giving advice and facilitating access to a lawyer. Ms Clayton understood her rights and had the mental capacity to exercise those rights. I am satisfied, therefore, that s
23(1)(b) was complied with.
Unfairly obtained evidence
[26] Ms Clayton also sought to exclude her statement on the basis that it was unfairly obtained. The grounds supporting this submission was essentially the same as those raised by counsel for Ms Clayton pursuant to s 23(1)(b).
[27] For the reasons given, I am satisfied there was no unfairness in obtaining the statement from her. I am therefore satisfied that Ms Clayton’s video statement to Detective Orr is admissible and I grant the s 344A application.
“Ronald Young J”
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