R v D HC Auckland T013830

[2002] NZHC 221

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY T013830

BETWEEN THE QUEEN
Applicant

AND D
Respondent

Counsel: K Glubb for Applicant
P L Borich for Respondent

Judgment: 15 March 2002

ORAL JUDGMENT GLAZEBROOK J

Solicitors: Meredith Connell, P O Box 2213, Auckland for Applicant
Rice Craig, P O Box 72 440, Papakura, Auckland for Respondent

Introduction

[1] This is an application in respect of two statements that have been made by Mr D to the police, the first one on 16 July 2001 and the second on 1 August 2001. The defence considers that these statements are inadmissible because of an inducement or inducements being given.

[2] The application also relates to a portion of the video interview of S and a further portion of the video interview of N. The Crown, however, accepts that the portion of the interview of N dealing with pornographic magazines is not relevant and highly prejudicial and therefore that will be edited out.

Alleged Inducement

[3] Dealing with the first issue, the decisions I need to make have recently been set out in the case of R v Potae [2000] 3 NZLR 375. I must first consider whether an inducement existed - that is whether the words or conduct of the police officers might logically have inclined a suspect falsely to admit guilt. If such an inducement existed I then need to consider whether, although the inducement was logically capable of inducing a false admission of guilt, it was in fact likely to have done so. I note importantly that this is judged by the effect on the person confessing and not on the intention or purpose of the person making the alleged inducement.

[4] I have heard today from both police officers involved, Detective Constable Lupi, Detective Sergeant Carr as well as from Mr D. Both police officers in their evidence were adamant that no form of inducement was given and in particular denied that Mr D was told to plead guilty and if he did he would get help.

[5] The evidence of Mr D first of all was that the first statement, the July statement, was basically correct in its recording of the matters discussed - see notes of evidence p 26 lines 14 to 15. His evidence also appears to have been that the second statement correctly recorded all the questions asked by the Detective Constable and that it also recorded his answers. What was not recorded was his question posed five or six times during the interview as whether his answers were what the Detective Constable wanted him to say - Notes of Evidence, p 30 lines 12 to 15 and p 29 lines 37 to 38, and p 30 lines 5 to 6. Mr D indicated at lines 5 to 6 that when he asked whether that was what she wanted him to say, Detective Constable Lupi would basically ignore what he said. This was consistent with her evidence as to her ignoring the questions he asked her, although I note Detective Constable Lupi does not accept he asked this question during the second interview at any time.

[6] Looking a bit more closely at Mr D’s evidence, his evidence appears to be that he had been offered a video interview on the first occasion. His evidence also was that he asked a number of times over the first and second interviews whether he was being arrested and was told he was just being interviewed. Detective Constable Lupi’s evidence was he did not ask this at any stage. He also says that he was asked whether he required a lawyer or not. He said he was told it was up to him. Again this is denied.

[7] In terms of that first interview there does not seem to be an allegation at that stage that the Detective Constable had made any inducement in terms of the suggestion that Mr D would be offered help if he pleaded guilty. In the first interview it was suggested that Detective Sergeant Carr made the suggestion to him. Detective Sergeant Carr denied that in his evidence.

[8] In terms of the second video statement, Mr D’s evidence was that he had tried before that interview to explain to Detective Constable Lupi his difficult family situation with the children of his partner and that further she did not seem particularly interested in this. He said, in answer to a question, that he was not mixing that up with the first occasion where a number of matters about his family situation were recorded in his first statement.

[9] In terms of what was said by Detective Constable Lupi before the interview, Mr D indicated she had gone over the first interview with him. Her evidence was that she had done that in private rather than discussing it with him but that she had discussed with him the fact that the two interviews would sit together. Their evidence thus appears to be at one on that point.

[10] Mr D then says that Detective Constable Lupi told him, before she started recording in written question and answer form, that it was best for him to plead guilty and that he would get some help - Notes of Evidence p 29, lines 23 to 24. He says that he was referring to the help he needed for the “kids” at home rather than help in respect to the grandchildren. When asked whether Constable Lupi had said anything else prior to putting pen to paper he said she might have but he could not think of anything else - Notes of Evidence p 29, lines 32 to 34.

[11] What we have then basically is an allegation that Detective Sergeant Carr offered him help during the first interview and that Detective Constable Lupi offered him help before starting the second interview. We also, however, interestingly (at p 30 lines 24-26) have a statement from Mr D that he was “under the impression” he would get some sort of help for the things he had been going through with the “kids” not the grandchildren.

[12] In terms of the allegation in respect of Detective Carr, Detective Carr’s evidence was that he had only spoken to Mr D after the interview had finished. Mr D’s evidence was that it was part way through the interview. Certainly, therefore, any alleged inducement at best only relates to the second part of the interview, if indeed it was interrupted half way through (rather than the whole interview). The allegation in respect of Detective Constable Lupi is that the inducement was allegedly repeated before the second interview.

[13] Having heard from the police officers as well as having heard from Mr D, I prefer the evidence of the police constables in this regard. I do not consider that Mr D was offered help and in particular I can see no reason why the police officers would have offered help with the children as against the grandchildren. In any event it does not seem help that was likely to be available. Indeed, as Detective Constable Lupi says, the police would have had no power to help with any of the matters he was telling them about.

[14] Even if Mr D had “got the impression” he would get some sort of help it is difficult to see that this would have inclined him to admit guilt falsely. Logically, even if the inducements had been made, in the circumstances it is difficult to see how that would have led to a false admission of guilt.

[15] I note that the Crown asked me to examine the statements themselves to see whether in fact they were true or not or whether they fitted in with the other evidence. For present purposes Mr Borich’s submission is accepted that this is not an appropriate exercise. The test is whether an inducement was in fact likely to have led to a false admission, not whether the confession was false or not. I make no finding in respect of that issue and I have put it out of my mind in coming to the decision I have.

[16] The decision therefore is that there was no inducement given and, even if there had been statements to the effect that Mr D might get help, these were not likely to have led him to falsely admit guilt. I am conscious that this is judged on the effect on the person confessing and I have taken into account Mr D’s obviously quite difficult family situation in coming to the view that I have.

Video of S

[17] Moving on to the second matter in respect of the portion at p 22 of the video transcript. I note first this links up with evidence that is to be given by N at p 12 of her transcript. Her evidence will be that some indecent touching had happened and she ran out immediately and asked S whether she saw what he did and that she had said to keep it a secret. This can be seen either as part of the res gestae or recent complaint evidence. The evidence of S on p 22 matches with N’s evidence and confirms that was in fact what N said.

[18] Therefore there seems no reason at all why this evidence should be excluded, although obviously it would be subject to the normal warnings in respect of recent complaint evidence, - that is, that the fact N said it had happened did not mean that it did happen and that the evidence was only there to show consistency.