R v DH Ca215/02
[2002] NZCA 384
•18 July 2002 26 July 2002
| ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT UNTIL COMPLETION OF TRIAL |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA215/02 |
THE QUEEN
V
DH
| Hearing: | 17 July 2002 |
| Coram: | McGrath J Robertson J Gendall J |
| Appearances: | P J O’Driscoll and C J Milnes for the Appellant J C Gordon and S J Bonnar for the Crown |
Judgment: Reasons for Judgment | 18 July 2002 26 July 2002 |
| REASONS FOR JUDGMENT OF THE COURT DELIVERED BY MCGRATH J |
Introduction
The appellant is charged first with conspiracy to commit aggravated robbery, secondly that, while armed with an offensive weapon, he attempted to rob a driver who delivered takeaway food, and thirdly with attempting to be an accessory after that fact to murder. At the time of the alleged offending the appellant was aged 15 years. Six of his co-accused face additional and more serious charges, including murder. He appeals against a decision of a High Court Judge granting a Crown application for orders admitting as evidence at his trial statements he made to the police during the course of an interview concerning the alleged offending.
We heard this appeal on 17 July 2002 along with another appeal by an accused facing differing counts at the same trial. The trial was scheduled to commence on 22 July. The other appeal also raised issues of admissibility of an accused person’s statement to the police. After reflecting overnight on the submissions we had heard, we announced on 18 July that this appeal was dismissed and that the appellant’s statements should be admitted on the basis decided by the High Court Judge. As foreshadowed we now give our reasons.
Factual background
The Crown says that the appellant is one of a group who decided to rob a driver who delivered takeaway food. On 9 September 2001 a member of the group placed a telephone order for delivery of takeaway food with KFC. When the driver arrived, and the members of the group realised she was a young woman, they did not proceed with the intended robbery. Three days later on 12 September a number of members of the group put the plan into effect, and on that occasion a male driver delivering takeaway food was fatally injured. The appellant was not part of the group who are alleged to have implemented the planned robbery on that occasion.
On 15 September 2001 the appellant was interviewed by the police, initially as a witness rather than as a suspect. At this point he acknowledged that he had been present during the 9 September incident but denied being a participant in any way.
After the appellant had completed making his first statement, the police were informed of his active participation in the intended robbery of the KFC driver. Constable Lemota resumed his discussions with him, warning the appellant he was now a suspect. When notified of his rights under the Children Young Persons and Their Families Act 1989 (the Act), including his rights to a lawyer and a support person, the appellant indicated his wish to have his mother present. She came to the police station with a friend. The appellant then made a second written statement to the police, in her presence, implicating himself as a look-out during the incident on 9 September. The alleged events of 9 September form the basis of the first two counts faced by the appellant.
The Crown case in respect of the third count is that subsequent to the interviews, on 19 September 2001, the appellant assisted others in an unsuccessful attempt to dispose of a baseball bat used in the robbery of 12 September. As a result the appellant was indicted, as well, on a charge of being an attempted accessory after the fact to murder.
High Court judgment
No criticism was made before the High Court Judge of the procedures followed by the police in taking the first statement. It was accepted by the appellant’s counsel that at that time the appellant was assumed by the police to be only a witness to the offending of others. There were however inculpatory aspects to this statement in which the appellant admitted he was in the immediate vicinity at the time of the KFC incident on 9 September 2001. He also admitted knowing of the intention to use a baseball bat during the subsequent incident and that a baseball bat had been used to strike the driver who died of the injuries inflicted on him during the robbery. The latter admissions were relevant to the attempted accessory charge. The first statement was admitted by the Judge with excisions of passages recording admissions to the appellant by his co-accused concerning the alleged robbery on 12 September.
Counsel for the appellant challenged the admissibility of the second statement at the trial on the ground that the appellant’s right, under s215(1)(f) of the Act, to consult with and make his statement in the presence of a lawyer, had not been complied with. The Judge accepted the evidence of Constable Lemota that he advised the appellant at appropriate times that he could consult a lawyer. The constable went on to explain to the appellant that he could speak to a lawyer, that the police had a duty list of solicitors available or, if he wished to use his own lawyer, he could use the yellow pages or a phonebook. The Judge found, on his assessment of evidence of the constable and the appellant, that it could not be denied “that at a broad level (the appellant) knew it was open to him to have a lawyer”. In response to the submission that this was inadequate for a person in the position of the appellant, who was diffident about involvement in procedures of that kind and would have the difficulty in his mind about payment for a lawyer, the Judge held there was no duty to facilitate exercise by a suspect of the right until the suspect indicated a desire to exercise it. In support of that proposition he cited R v Kepa (CA214/99, 1 July 1999) and R v Mallinson [1993] 1 NZLR 528, 531 as decisions of this Court which were binding on him.
The Judge also placed considerable emphasis on the advice to the appellant that the duty list of solicitors was available and the general explanation given to the appellant’s mother, who was his supporting adult, that a lawyer could be obtained. She and the appellant had also had the opportunity to pool their ideas on the subject before the interview commenced. The Judge held that there was a sufficient explanation of the right to a lawyer to be in compliance with s215(f) of the Act. He accordingly held the second statement to be admissible at the trial.
Submissions
Mr O’Driscoll submitted that compliance with the rights of the appellant as a young person , under s215(f) of the Act, should be assessed subjectively by the Court in terms of what he understood. It was necessary, he argued, that any choice made not to have access to a lawyer was an informed one. He also referred us to passages of the evidence of the appellant, called in support of the objection to admissibility, as casting doubt on that factor.
Mr O’Driscoll went on to argue that if the right to legal consultation was to exist in a real sense a young person needed to be told of the existence and the availability of applicable systems of legal assistance and told in particular that legal advice would come free of cost to the suspect. He supported his submissions for an interpretation of s215 along these lines by reference to a number of international instruments including the United Nations Convention on the Rights of the Child 1989 (Articles 3(1), 37 and 40(3)) and the International Covenant on Civil and Political Rights (Articles 14 and 24). He referred also to R v Shriek [1997] 2 NZLR 139, 159, R v Ali (CA259/99, 22 November 1999) and Brydges v R [1990] WWR 220, 238-239. In each of these decisions there is some discussion of whether communication, as part of the advice of the right to counsel should include reference to legal assistance schemes that are provided without cost.
In his submissions on behalf of the Crown Mr Bonnar put considerable weight on some observations of a Full Court of this Court in R v Ali (CA259/99, 8 December 1999). The Court said in that case that complaints of breaches of rights “must be invested with an air of reality and be grounded in the evidence” (para 24). The Court in Ali went on to say it was not appropriate for the Court to engage in hypothetical exercises. The Crown argued these observations were directly applicable in the present case. Counsel also referred us to passages in the evidence of Constable Lemota in which he referred to the extent to which the appellant was advised of his rights as was his mother who was present to support him. Mr Bonnar submitted that there was no indication in the evidence of any wish at all to consult a lawyer such as would have prompted further action.
Discussion
The Crown must prove the facts necessary to establish admissibility of a statement under s221(2) on the balance of probabilities (R v S (1997) 16 FRNZ 102, 107). In his evidence in chief at the voire dire Constable Lemota said:
I asked him if he understood the fact that he didn’t have to make a statement about his involvement and he confirmed he understood this, I then explained he could speak to a lawyer and went on to explain we had a duty list of solicitors available or if he wanted to use his own lawyer he could use the yellow pages or a phonebook basically which are the 3 sources of lawyers we offer to anyone we are dealing with. I then went on to explain that if he did consent to making the statement which he agreed that he was happy to give he could make that statement in the presence of a lawyer and also explained the nominated adult, mother, parent guardian role. (The appellant) pretty much stated that he would like his mother to be present…
and shortly after:
…do you recall now whether you specifically mentioned whether any such lawyer’s services would be provided free of charge or not? I don’t recall saying you can have a lawyer for free but I definitely remember that at the time I reiterated his rights and ensured that he understood a lawyer was available, a list was available and that the whole time he remained with police or the whole time he was dealing with me he could utilise those services at any time.
and then
…at any time during your contact with the accused that day did the accused indicate to you in any way that he wished to have access to a lawyer? At no time did he request a lawyer.
The constable also noted that the appellant’s mother did not wish to speak to a lawyer at that stage.
In cross-examination of Constable Lemota:
Would you regard it as important for the exercise of that right for them to know that the lawyers can come on duty are free? I actually when I speak to them I ensure they know they can contact a lawyer, no 2 ways about it, whether I said to (the appellant) you can call a lawyer for free I honestly can’t recall whether I said that but I certainly know when I spoke to (the appellant and his mother) they knew they could contact a lawyer and we had a list available to them or they could use the phonebook to contact any person they wanted.
and later:
Although checklist point 6 says to explain in language appropriate to age and understanding that a person is entitled to consult with a lawyer, you’ve given evidence that you actually explained that right further by telling people that there was a duty list available and that if they want to use their own lawyer they can use the yellow pages or phonebook? I tell them there is a duty list available and if they want to call a different lawyer or someone else there’s a phonebook available, that’s correct.
To be fair you don’t recall telling them that the duty lawyers are free? That is correct.
The appellant himself also gave evidence at the voire dire. The relevant passages are:
Did Constable Lemota tell you that a list of lawyers was available and that the whole time you were with the police or you were dealing with him you could utilise those services at any time? No.
Did you have a lawyer with you when you were speaking to Constable Lemota? No.
Why didn’t you get a lawyer? Because I didn’t know you could get one.
If you had known that there was a free lawyer available would you have wanted one? Yes.
Why? Not sure.
and:
So you know roughly that a lawyer is there to help someone in trouble. Yes.
Three sections of the cross-examination of the appellant complete the evidential picture:
And what are the words that you had the right to talk to a lawyer, what do those words mean to you? I had rights to talk to a lawyer.
Did the policeman tell you that you could talk to a lawyer in private? No.
Are you sure or you can’t recall or are you saying definitely he never told you that? I can’t remember.
And he told you that you were allowed to have something with you, do you remember that? I can’t remember.
You see the policeman tells us that when he told you your rights and you have agreed with Mr O’Driscoll that he then asked whether you understood your rights and you said yeah, that was your evidence, and that was right wasn’t it, when the policeman asked you if you understood your rights you told him you did didn’t you? Yes.
and then
And the words that the lawyer and your mother, father or a nominated adult can be with you during the taking of the statements what does that mean? I could have a guardian next to me.
And your mum was there wasn’t she? Yes.
And (a friend of the mother) was there as well? Yes.
And then the question do you understand your rights, and the answer yes, do you agree that was the question and answer you gave? yes.
You never ever said to the policeman on that day at any time that you wanted a lawyer to come did you? no.
Your mother never ever said to the policeman while you were there that she thought a lawyer should be got for you did she? I’m not sure.
and finally:
Have you heard about what’s called legal aid? Yes.
Had you heard about it back in September last year? No.
Do you remember the policeman talking about a list of lawyers that they had? I can’t remember.
You can’t remember, the policeman has told us that he did mention that list, we need to be sure whether you are saying that he never mentioned it or that he might have mentioned it but you can’t remember, which is it? I can’t remember.
The crucial issue is whether it was brought home to the appellant by Constable Lemota that he had a right to consult with a lawyer and have the lawyer present, along with his mother, during the police interview if he decided to participate in one. At the time of interview he was 15 years old but, as the Judge pointed out, the purpose of the presence of his mother, under the scheme of protection in the Act, is intended to compensate for his immaturity both in understanding his rights and helping him to decide whether to exercise them. In this instance the police also permitted the mother to have a friend of her own present at the interview. The scheme of the provisions in Part IV of the Act dealing with rights of children and young persons when questioned, and the admissibility of their statements, comprise a code of special protection for them in recognition of their vulnerability during police investigations. The need for such a regime is recognised in Article 40(3) of the Convention on the Rights of the Child, 1989.
The evidence at the voire dire clearly established to the satisfaction of the Judge that the police had a “duty list” of lawyers who were prepared to give advice to suspects being questioned. It is also clear that the appellant was informed of the existence of that panel. Had he given any indication that he wished to avail himself of that right it is clear that the police would have facilitated the appellant to do so. The Judge also found that in broad terms he understood his rights and had the opportunity to pool his ideas on the subject with his mother before answering questions. We see no reason to disturb those findings. Nor is there anything in the evidence at the voire dire which causes us concern that the appellant had a misunderstanding as to the scope of the fundamental right of which he was being informed. The manner of explanation by the police indicated the service of a lawyer would be available if desired to advise the appellant on his personal situation even though he did not know a lawyer who might do so.
Nothing in the evidence indicates the appellant or his mother had concerns about cost or indeed any other practical impediment to the exercise of the appellant’s rights to legal advice. In the absence of any credible expression of such a concern over cost, or other perceived impediment, the inference to be drawn from Constable Lemota’s explanation that a “duty list” of lawyers available is that the choice to have his mother present to advise and support him and not to avail himself of legal assistance was made by the appellant in the full awareness, following an effective explanation, of his rights.
In our view this is not a case in which realistically there is any cause for concern that the appellant, or his mother, may have believed they were unable to exercise the appellant’s right to a lawyer because they could not afford one. Indeed there was nothing in the evidence at the voire dire which provided a factual foundation for the contrary proposition. It was accordingly unnecessary in the circumstances for the Court to go on to consider the question of whether the police should have said in express language that the appellant would not have to pay for the lawyer if he got one.
The sole ground of challenge to the High Court Judge’s decision accordingly fails and for that reason we dismissed the appeal.
Solicitors
Crown Law Office, Wellington
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