R v Fawcett
[2021] NZHC 2406
•14 September 2021
THIS JUDGMENT HAS BEEN REDACTED TO COMPLY WITH
SUPPRESSION ORDERS MADE BY GENDALL J DURING THE 2014 TRIAL OF THE DEFENDANT AND AS MODIFIED BY DUNNINGHAM J IN A JUDGMENT DATED [25 FEBRUARY 2022]
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2012-004-005233
[2021] NZHC 2406
THE QUEEN v
MAUHA FAWCETT
Hearing: 14 to 25 September 2020 and 8, 9 June 2021 Appearances:
M N Zarifeh and B Hawes for Crown
C W J Stevenson, K H Cook and J V Kane for Defendant
Judgment:
14 September 2021
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 14 September 2021 at 2 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
R v FAWCETT [2021] NZHC 2406 [14 September 2021]
Contents
Introduction........................................................................................................... [1]
The alleged offending........................................................................................... [6]
Events leading to Mr Fawcett’s arrest................................................................. [14]
The first decision on admissibility....................................................................... [21]
The diagnosis of foetal alcohol spectrum disorder.............................................. [25]
Cognitive function [32]
Adaptive function [33]
Attention [36]
Memory [37]
Executive function [39]
Suggestibility and confabulation [42]
Conclusion [46]
The interviews..................................................................................................... [47]
Interview - 2 January 2009 [48]
Interview - 31 March 2009 [56]
Interview - 28 June 2009 [61]
Interview - 29 June 2009 [71]
Interview - 28 July 2009 [75]
Interview - 10 August 2009 [82]
Interview - 11 August 2009 [92]
Interview – 16 September 2009 [97]
Interview – 28 January 2010 [111]
Interview – 29 March 2012 [116]
Overview of the Crown’s position..................................................................... [122]
Overview of the defence position...................................................................... [133]
The alleged breaches of appropriate police practice......................................... [139]
Breach of the Chief Justice’s Practice Note on Police Questioning [141] Deprivation of right to speak to a lawyer [154]
Other deceptive police behaviour [158]
Failure to ensure caution was understood [162] Exclusion of statements influenced by oppression under s 29................................................ [168]
The law [168]
The defendant’s submissions on the application of s 29 [175]
Crown submissions [180]
Discussion [193]
Exclusion of unreliable evidence under s 28..................................................... [225]
The law [225]
The defence submissions on exclusion for unreliability [227]
The Crown’s submissions on the application of s 28 [251]
Discussion [276]
Exclusion under s 30......................................................................................... [302]
Exclusion under s 8........................................................................................... [306]Result................................................................................................................. [309]
Introduction
[1] On 18 December 2008, Mellory Manning was working as a sex worker on Manchester Street in central Christchurch. At 10.43 pm she sent a text from the top end of Victoria Street. It was the last text she would send. Her body was discovered in the Avon River the next morning. Her watch had stopped at 10.59 pm. In that 16 minute interval Ms Manning had been raped and brutally murdered.
[2] A police investigation into the murder commenced immediately. One of the lines of enquiry involved the Mongrel Mob. A young prospect for the Mob, the defendant Mauha Fawcett, was interviewed on a number of occasions. In an interview conducted on 10 August 2009, while under caution, he made seemingly damning admissions about his involvement in her murder. Although he subsequently changed his story and denied involvement, he was charged with murder in 2012. In March 2014, following a jury trial, he was found guilty as a party to murder.
[3] Between his conviction and his appeal, Mr Fawcett was diagnosed as suffering from foetal alcohol spectrum disorder (FASD). Given the relevance of this to the reliability of his apparent confession, the Crown conceded the appeal should be allowed. The Court of Appeal agreed, saying the diagnosis of FASD was “highly material”1 and the case had certain parallels with Pora v R.2 However, as the Court of Appeal noted, the Crown did not concede that Mr Fawcett’s police statements were inadmissible, saying “[t]hat will be an issue for the retrial”.3
[4] The admissibility of those statements was addressed in this hearing. Mr Fawcett disputes their admissibility under a number of provisions in the Evidence Act 2006.4 Consequently, the Crown has applied for a pre-trial order that the evidence of the statements he made under caution is admissible at his trial.5
[5] At issue is whether the evidence should be held inadmissible on any of the grounds raised by Mr Fawcett.
1 Fawcett v R [2017] NZCA 597 at [24].
2 Pora v R [2015] UKPC 9, [2016] 1 NZLR 277.
3 Fawcett, above n 1, at [23].
4 Evidence Act 2006, ss 7, 8, 27, 28, 29 and 30.
5 Under s 101, Criminal Procedure Act 2011.
The alleged offending
[6] To give the legal issues some factual context, it is necessary to set out a brief summary of the Crown case and Mr Fawcett’s alleged involvement in it.
[7] Manchester Street in central Christchurch is a well-known haunt of sex workers. At the time of the murder, the Aotearoa Chapter of the Mongrel Mob gang was active on Manchester Street and was requiring sex workers to pay a percentage of their earnings for the night to the gang in return for being able to stand in that area and have the protection of the gang. Mr Fawcett was a prospect for the gang and was usually seen in the company of A, who was a patched member of the gang.
[8] On the evening of 18 December 2008, Mellory Manning was working on Manchester Street, reaching her corner of Peterborough and Manchester Street at around 9.15 pm. She had two clients in quick succession and was dropped back to her corner by the second client at around 10.20 pm. Shortly after that she approached the Salvation Army van, which was near the Peterborough Street corner, for some condoms. She was last seen on her corner by two people at around 10.35 pm, but she was not there when one of those people returned at around 10.45 pm.
[9] Mr Fawcett was also on Manchester Street that night. He and another patched gang member, B, had some cannabis with a sex worker, C, in their car that evening. Mr Fawcett said to C that Ms Manning “owed” them. Cell-phone analysis shows that at 10.43 pm, Mr Fawcett received a call on a cell-phone that police attribute to being used by him or A, and it shows he was on or near Kilmore Street at the time. The phone moved from one sector of a cell-phone tower to another during the call which indicates he was moving during that call. The phone was then turned off and not turned on again until shortly after 11 pm.
[10] The Crown case is that Ms Manning was transported to the Mongrel Mob gang pad at 25 Galbraith Avenue, in Avonside, a short distance from the central city. Once there, she was attacked by a number of people, with a number of weapons. The evidence of Dr Martin Sage, the forensic pathologist, showed she had received the following life threatening injuries:
(a)blunt force head injuries;
(b)manual strangulation;
(c)three stab wounds on her chest; and
…
There was also semen found in Ms Manning’s vagina from an unidentified male designated as “Male B”.
[11] The Crown asserts that Mr Fawcett participated in this attack on Ms Manning, along with other gang members. Ms Manning’s body was then dumped into the Avon River near the gang pad. The evidence is that her watch (which stopped at
10.59 pm) would have stopped shortly after entering the water and two witnesses say they heard a splash in the vicinity at around 11 pm.
[12] When Ms Manning’s body was found the next morning in the river, she had no underwear on and her footwear was missing. Her underwear was located in her handbag. The clothing on the upper half of her body contained a variety of grass seeds, including from a grass known as rip gut brome, which was consistent with her having been attacked in a wasteland area such as Galbraith Avenue (which was full of rip gut brome). Pollen grains found in her nasal passage were subsequently analysed by a palynologist as having fungal hyphae attached to it suggesting she took her last breath close to a damp area. However, the results were relatively inconclusive as to where she took her last breath.
[13] More significantly, in July 2009, the palynologist, Dr Mildenhall, identified very rare mutated pollen grains from a rip gut brome grass plant on Ms Manning’s clothing which matched a sample taken from plant material at the Galbraith Avenue gang pad. Further investigation found more of these pollen grains in Ms Manning’s cardigan, skirt and underwear and at 25 Galbraith Avenue. This evidence strongly suggested that these items of clothing had been “in direct and possibly forceful contact
with a flowering grass or grasses carrying two-pored grass pollen at 25 Galbraith Avenue”.6
Events leading to Mr Fawcett’s arrest
[14] A week or so after the homicide, Mr Fawcett left Christchurch and travelled up to Nelson. However, he crashed his car on 30 December 2008 in Blenheim and was subsequently taken into custody for breach of bail.
[15] Mr Fawcett was interviewed by police on 2 January 2009 in Nelson. There was both an unrecorded interview (save for a notebook summary), and then a formal recorded interview which was undertaken that evening. These were the first of a number of interviews which took place in various ways over the ensuing three years, and which are set out more fully in a subsequent section of this decision.7
[16] In the interviews conducted on 2 January 2009, Mr Fawcett gave detailed, albeit somewhat inconsistent, accounts of what he did on 18 December 2008. None of them suggested he had any knowledge of Ms Manning, let alone was involved in her murder, and many details in those accounts would be subsequently shown to be false.
[17] Mr Fawcett was next spoken to by Detective Senior Sergeant AB and Detective CD on 31 March 2009 at Waikeria Prison. At that stage it was considered Mr Fawcett could assist with information about the Aotearoa Chapter of the Mongrel Mob’s potential involvement in the Manning murder. … There were further interviews by these police officers with Mr Fawcett on 28 and 29 June 2009 and 28 July 2009 (the non-suspect interviews).
[18] The Mongrel Mob was not, however, the only potential suspect in the Manning investigation at that stage. Other leads were being followed, including Ms Manning’s partner, Kent Gorrie, who had an extensive criminal history, a regular client of hers who owned a car that matched the description of the car which was seen to pick her
6 D C Mildenhall Report on Pollen Analysis of Soil, Plant and Other Items. Association with Operation Dallington (GNS Science) at [99].
7 At [47]-[121] of this judgment.
up that evening, and a former partner of Ms Manning, Malcolm Chaston, who had convictions for rape and other crimes of violence.
[19] While the police deny Mr Fawcett was being interviewed as a suspect in the non-suspect interviews, defence counsel say what occurred in the course of those interviews was highly relevant to the fairness and reliability of the statements Mr Fawcett subsequently made.
[20] Mr Fawcett was first interviewed as a suspect by Detective Inspector Tom Fitzgerald on 10 August 2009. He was cautioned and given advice as to his rights under the New Zealand Bill of Rights Act 1990 (BORA) (his “Bill of Rights”). He made a number of damning admissions in this interview. He was then interviewed again on two further occasions in 2009, then again in early 2010, and once again on 29 March 2012 (the suspect interviews). His narrative in these suspect interviews continued to change and he withdrew his admissions of direct involvement. After the interview on 29 March 2012, Mr Fawcett was arrested and charged with murder and kidnapping.
The first decision on admissibility
[21] The admissibility of his suspect interviews was the subject of a pre-trial ruling which issued on 9 December 2013.8 Their admission was challenged in reliance on both ss 28 and 29 of the Evidence Act. McKenzie J had regard to both the non-suspect interviews and the suspect interviews, but concluded “[t]he suspect interviews were conducted in circumstances which made it clear to the defendant that they were of a different kind from the [non-suspect] interviews”.9
[22] The Judge held that the terms in which the involvement of Detective Inspector Fitzgerald was introduced in the course of the last non-suspect interview “did not give rise to an expectation that the suspect interviews would not be used”, and there was
8 R v Fawcett [2013] NZHC 3266.
9 At [32].
nothing in the way the interviews were conducted which resulted in unfairness to the defendant.10 Indeed, MacKenzie J said:11
His answers were carefully weighed before he gave them. There were, as I have described, many long pauses in the course of the interviews. Detective Inspector Fitzgerald made skilful use of those silences as an interview technique. My viewing of the videos indicates to me that many of the pauses suggest that the defendant was giving careful consideration to whether or not he would answer the questions. The pauses do not indicate that improper advantage was being taken of the defendant.
[23] The Judge dismissed the suggestion that there was oppression under s 29, saying there was “no evidential foundation for conduct or treatment of the type described in s 29(5) or a threat of such”.12 He then turned to the question of whether the circumstances in which the statements were made were likely to have adversely affected their reliability under s 28. He concluded the circumstances were not likely to have adversely affected the reliability of the statements made in those interviews and did not lead to those statements having been improperly obtained.13 Accordingly, he ruled the statements made in the suspect interviews admissible.14
[24] I now must revisit that decision in light of what is now known about Mr Fawcett’s neurological disability, and about the circumstances which can give rise to false or unreliable confessions, to see whether that evidence leads to a different conclusion on the question of admissibility.
The diagnosis of foetal alcohol spectrum disorder
[25] Dr Valerie McGinn, a clinical neuropsychologist who has completed specialist training in the diagnosis and treatment of FASD, provided an updated report to the Court. It explains why Mr Fawcett is diagnosed as suffering from FASD and discusses the impairments that he exhibits and how they may have impacted on the reliability of his statements to police.15
10 At [32].
11 At [32].
12 At [23].
13 At [36].
14 At [36].
15 She had completed an earlier report in 2016 for the purpose of Mr Fawcett’s appeal.
[26] Her report was reviewed by Dr Andrew Immelman, a psychiatrist, and by Ms Ingalise Jensen, a clinical psychologist. While they detected some minor discrepancies in how Mr Fawcett was scored on some tests, and questioned whether Mr Fawcett was impaired in all the areas identified by Dr McGinn, they nevertheless concurred with her diagnosis of FASD.16
[27] Dr McGinn explains that the term FASD is used to describe impacts on the brain and body of individuals who are prenatally exposed to alcohol during pregnancy. She says it is a lifelong disability and individuals with FASD may experience challenges in their daily living and need support with motor skills, physical health, learning, memory, attention, emotional regulation and social skills. However, each individual with FASD is unique and has both areas of strength and challenges.
[28] Prenatal alcohol exposure causing central nervous system damage can produce a range of neurocognitive deficits, including difficulties with “executive control”. Symptoms of this deficit can include difficulties in planning, organising, learning from past mistakes, linking cause and effect, anticipating consequences and understanding the perspective of others. That puts persons with FASD at increased risk for adverse outcomes, including mental health problems, disruptive school experiences and trouble with the law.
[29] Research also shows that the deficits carried by FASD pose significant obstacles to the fair treatment of persons with FASD in the criminal justice system. Importantly, an individual with FASD may not have a measured IQ in the impaired range, but can still have discrete deficiencies, and their level of adaptive function (being the behaviours necessary for people to live independently and function safely and appropriately in their daily life), tends to be significantly reduced.
[30] The neurocognitive vulnerabilities suffered by persons diagnosed with FASD are relevant to the way they cope with comprehension of their legal rights given at the commencement of a police interview, and their ability to respond to the pressures of
16 In her report Ingalise Jensen stated the assessment of FASD in adults is “always complicated and it may well be Mr Fawcett has FASD”. However, in her opinion additional testing was required to be sure of the diagnosis. At the hearing she accepted Mr Fawcett has FASD.
such interviews. Specifically, people with FASD are commonly observed to exhibit the following behaviours:17
·too easily led by others;
·deficient risk perception (“does not foresee potential danger”);
·impulsivity;
·unaware of the consequences of behaviour;
·poor attention span;
·inability to understand the subtleties of communication;
·poor judgement in whom he/she trusts;
·love to be the centre of attention;
·people-orientated (“reaches out to people”);
·overly friendly with strangers;
·enjoy talking but the act of talking is more important than the content;
·like to talk about unrealistic subjects;
·try hard and want to please others;
·miss the fine points or subtleties in communication.
[31] Dr McGinn explains the Canadian guidelines for the diagnosis of FASD have been adopted in New Zealand and these were the guidelines followed for Mr Fawcett’s diagnosis. Essentially, they require evidence of prenatal alcohol exposure and pervasive brain dysfunction, which is defined by having severe impairment in three or more of the following neurodevelopmental domains:
·motor skills;
·neuroanatomy/neurophysiology;
·cognition;
17 Being behaviours listed in the article: Natalie Novick Brown, Gisli Gudjonsson and Paul Connor “Suggestibility and Foetal Alcohol Spectrum Disorders: I’ll Tell You Anything You Want To Hear” (2011) Spring Journal of Psychiatry and Law 39 at 43.
·language;
·academic achievement;
·memory;
·attention;
·executive function including impulse, control and hyperactivity;
·affect regulation;
·adaptive behaviour, social skills or social communication.
Cognitive function
[32] The overall results of the WAIS-IV18 test administered in May 2020 found Mr Fawcett to be functioning in the Low Average range intellectually, with his Full Scale Intelligence Quotient (IQ) of 80, falling at the ninth percentile for his age. Thus, in terms of overall ability, Mr Fawcett functions within normal limits, but Dr McGinn said he showed large discrepancies between his abilities which, in itself, is indicative of brain impairment. For example, his non-verbal skills were significantly better than his verbal skills. His verbal comprehension composite score was initially measured as being at the fifth percentile, being borderline, while his perceptual reasoning composite score put him at the 45th percentile, and was average. While a subsequent review of scores by Ms Jensen resulted in a slight increase to the verbal comprehension score, there was a similar degree of discrepancy between his perceptual reasoning score and his processing speed score, and this degree of difference is found in only 1.8 per cent of the population. For this reason, Dr McGinn (and Dr Immelman who reviewed the report), concluded that Mr Fawcett had an impairment in this domain.
Adaptive function
[33] Dr McGinn also concluded that Mr Fawcett’s adaptive function was impaired. She noted that individuals with FASD typically have adaptive function that is lower than their intellectual function. The primary source of information for Dr McGinn
18 Wechsler Adult Intelligence Scale – 4th edition (Australia and New Zealand adaptation).
was an interview with Ms Alexia Georgakaki who worked with Mr Fawcett during the time he was working with Atareira, an organisation which provides housing and other support services to vulnerable people.
[34] He was rated by Ms Georgakaki as impaired across all areas evaluated, including communication, community use, functional academics, home living, health and safety, leisure, self-care, self-direction and social skills. She said he was more like a 12 to 13-year-old in his interests and level of help needed. He has not been capable of attaining independent living and required ongoing support. He was scored as impaired across all areas of the daily living rating and below 99 per cent of others of his age.
[35] Both Dr Immelman and Ms Jensen had some reservations about the reliance on one person’s view, that of Ms Georgakaki, to reach this conclusion on adaptive functioning, and Ms Jensen pointed out aspects of Mr Fawcett’s history which suggested at least some competence in this area (for example, having a driver licence, and having the ability to carry out financial transactions). However, I am satisfied that the overall picture of Mr Fawcett’s history, including the difficulty he has coping in unstructured environments (for example, when on bail without close supervision), supports the finding that he is significantly impaired in this domain.
Attention
[36] Dr McGinn concluded that Mr Fawcett’s attention was intact. His performance in attention-related tasks in the 2020 WAIS-IV assessment varied from impaired to low average and she observed “[h]e was able to sit still and focus on thinking tasks for up to 2 hours at a time. He was not easily distracted when assessed in a quiet room at both times of assessment”.
Memory
[37] Dr McGinn then assessed Mr Fawcett’s verbal and visual memory with three tests.19 Dr McGinn concluded as a result of these tests that Mr Fawcett shows
19 California Verbal Learning Test – 2nd edition (CVLT 2) Wide Range Assessment of Memory and Learning – 2nd edition (WRAML 2); Story Memory, Rey Complex Figure Test).
“significant verbal memory deficits”. That is a conclusion which Ms Jensen takes issue with. Ms Jensen’s interpretation is that Mr Fawcett’s recall (immediate and delayed) for new verbal information is average, but he is slow to learn this information. While his immediate recall of stories was poor, he retained this information 30 minutes later.
[38] Dr McGinn’s conclusions appear to be based on tests which involved immediate recall of two short stories, and recall of a 16 item list. He initially scored poorly in both tests. After three practice trials he could still only recall five items from the 16 item list, putting him at the first percentile. However, with more repetition, his score improved to place him at the 32nd percentile. Dr McGinn concluded that Mr Fawcett was “markedly slow to apprehend and learn but can with a lot of repetition”. Many of the other scores she discussed put him in a range from just above impaired through to showing average skills on the WRAML220 working memory tasks. It is not clear to me why Dr McGinn scored him as impaired in this domain, when in general, his scores put him as above impaired through to average.
Executive function
[39] Executive function, that is, the thought processes of judgement, reasoning, planning and organising, as well as adjusting to changing situational demands, are said by Dr McGinn to be significantly affected by “neurological insult” including prenatal alcohol exposure. On testing, she says Mr Fawcett showed significant deficits in many aspects of executive brain function.
[40] Dr McGinn then gave some examples of tests on which Mr Fawcett scored poorly. When asked to explain the meaning of common sayings on the Proverbs task of the D-KEFS,21 he showed no evidence of being able to think abstractly. For example, when asked to explain the common proverb “too many cooks spoil the soup”, he responded “just one person for the cooking”. His responses indicate he interprets things at face value and cannot appreciate underlying or implied meaning. His score
20 Wide Range Assessment of Memory and Learning-Second Edition.
21 Delis-Kaplan Executive Function System.
for abstraction was the lowest available and below 99.9 per cent of adults, and accuracy was also impaired (at the first percentile).
[41] He also scored in the impaired range on the D-KEFS 20 questions task, which required Mr Fawcett to ask yes/no questions to narrow down and then find the item that had been selected from a page of items illustrated. He also scored in the impaired range on the D-KEFS colour word interference task where he was asked to switch between two different rules as to whether he was reading a word, or the (different) colour of the word (for example, the word “red” presented in the colour green). He took significantly longer to do this than would be expected (second percentile). Dr McGinn assigned an impairment in this range although, as Dr Immelman points out, he scored much better in other areas, including performing in the high average range (86th percentile) on the D-KEFS Tower test which involved planning ahead to reach a goal in a practical task.
Suggestibility and confabulation
[42] Dr McGinn administered the Gudjonsson Suggestibility Scale – second version (GSS2) to Mr Fawcett in 2016. This test involved reading a fictitious narrative to Mr Fawcett then asking him to listen carefully and report everything that he could recall about the story. Fifty minutes later, he was asked to repeat everything he could remember about the story, to provide a delayed recall measure. He was then asked 20 questions based on the contents of the story. Fifteen of the questions were loaded with misleading suggestions, while five were true questions used to conceal the real purpose of the scale, which is to measure how much he was likely to give into, or yield to suggestive questions. After asking the 20 questions, negative feedback was then given, indicating he had made a number of errors and that it was necessary to go through the questions again and try to be more accurate. This provided a measure of “shift”, being the extent to which he changed his answers once such pressure was applied. The GSS2 also provides a measure of confabulation, which is the unintentional fabrication of information to fill in the gaps that are not in keeping with the truth.
[43] Testing showed Mr Fawcett’s immediate recall of the story was only five pieces of information, putting him below the third percentile. His delayed recall was only three pieces of information, putting him at the third percentile. At both immediate recall and at delayed recall, Mr Fawcett made three distortions of facts and three fabrications. This was more than two standard deviations above the mean. It suggests that he has significant memory impairments and, when he cannot remember, he is prone to make something up.
[44] When asked the 20 questions after a 50 minute delay, Mr Fawcett yielded on all 15 of the suggestive questions and, at the second questioning, he yielded to 12 of the 15 suggestive questions. After being provided with negative feedback he shifted response on nine out of 15 questions. His total suggestibility score was 24 compared with 7.5 being normal. This indicated he was more suggestible than 99 per cent of the general population. As Dr McGinn concluded:
Overall he is highly suggestible raising a significant risk that he will acquiesce, confabulate (distort or fabricate information) and change his accounts of factual events in the face of suggestive questioning and negative feedback. The above results suggest that things Mr Fawcett has reported need to be verified against other forms of evidence rather than being accepted as factual or able to be relied on.
[45] Dr Immelman agrees with that conclusion, though notes that the more important question is how much to extrapolate from this result. As Professor Gisli Gudjonsson, who developed the GSS2, says:
… while high scores on a suggestibility test indicate a potential risk factor during a police interview, such scores do not constitute definitive evidence of unreliability in isolation nor do they provide evidence that a confession is necessarily false.22
Conclusion
[46] Overall, and despite the queries Dr Immelman and Ms Jensen have about the sufficiency of the information to support the impairment in adaptive functioning, I accept that Mr Fawcett has impairments in that domain as well as in the domains of cognition and executive functioning. I note while Ms Jensen is less confident in
22 Dr McGinn does not score him as impaired in general intellectual ability, performance abilities and scholastic ability.
concluding there is an impairment in adaptive functioning and in the memory domain and Dr Immelman felt unable to comment on whether there was impairment in the memory domain, at the hearing both accepted Mr Fawcett has FASD. Accordingly, I accept Dr McGinn’s conclusion that Mr Fawcett suffers from FASD, and I must consider the interviews in light of how they would have affected someone with Mr Fawcett’s specific cognitive disabilities.
The interviews
[47] Central to the defence case was the need to consider all the interviews, not just those from 10 August 2009 onwards, in order to appreciate what counsel for Mr Fawcett says were the pressures, suggestions, and influences which could have operated to produce a false confession. For that reason, the Court listened to or watched all the interviews that had been recorded with Mr Fawcett. Defence counsel then addressed the Court after each interview identifying what they saw as:
(a)the pressures Mr Fawcett faced in the interview (whether from the interviewer, internal circumstances, or other external pressures);
(b)the material introduced in each interview which potentially “contaminated” subsequent interviews; and
(c)the statements made by Mr Fawcett which were, in defence counsel’s submission, demonstrably false.
Because the content of these interviews is integral to the defence submission that the subsequent confessions were false, it is important to provide an overview of how each interview proceeded and what was said or done which might be relevant to the reliability of the subsequent admissions.
Interview - 2 January 2009
[48] The first video interview was conducted on 2 January 2009, approximately two weeks after Ms Manning’s body was found. Mr Fawcett had left Christchurch and was in Nelson where he had been picked up in the early hours of the morning for
breach of bail. Mr Fawcett appeared in the Nelson Court that morning, then was taken to the Nelson Police Station for issue of a bail bond.
[49] However, prior to the video interview another interview was conducted which was of some duration. At approximately 11.40 am, Detective Bryan Gillespie and Detective Vaughan Sweetman took Mr Fawcett to an interview room and read him his Bill of Rights. Notebook records were then made of the interview which followed, but they are brief. After asking him about his accident in Blenheim, and who was with him, they discuss his movements on 18 December “informally” and he is told that they were interested in speaking to him in regard to the murder of Mellory Manning as he was known to spend time on Manchester Street. What follows are “four hours of general conversation” during which time a McDonald’s Big Mac meal and cigarettes are provided to Mr Fawcett.
[50] During this conversation Mr Fawcett gives two versions of his movements on 18 December, although both involve being on Manchester Street that evening. He readily discusses his involvement with the Mongrel Mob and his role looking after the sex workers on Manchester Street. He voluntarily provides details of three different phone numbers that he was using. Neither version of events given by Mr Fawcett suggest any involvement in Ms Manning’s death.
[51] At around 3.00 pm, advice comes in that Mr Fawcett is suspected of being involved in a handbag theft and a street robbery. When Detective Gillespie says he wishes to speak to Mr Fawcett regarding the theft, Mr Fawcett becomes agitated. He is subsequently arrested and held in custody.
[52] Detectives Gillespie and Sweetman then decide to speak to Mr Fawcett again. He is provided cigarettes and Coca Cola and is described as “calm and co-operative”. At 9.46 pm a video interview is commenced which lasts for approximately one hour and 20 minutes.
[53] In this first recorded interview, Mr Fawcett appears relaxed and co-operative. He is advised of his Bill of Rights in the standard form and told that the detectives want to talk to him in regard to the murder of Mellory Manning. Mr Fawcett again
gives an account of his movements on 18 and 19 December 2008. He confirms he was on Manchester Street that night and his job was to “look after” the girls on Manchester Street. He is asked if he knows Mellory and he says he does not think so, and he would not have spoken to her. He has, however, met Kent Gorrie, who is her partner. When asked why he left Christchurch, he said “I know I’m probably due for a hiding, and I just wanna, wanna cool down a bit you know”. When asked if that has anything to do with Mellory Manning he denies that it does and says he does not know what happened to her.
[54] His account of what happened on 18 and 19 December includes picking up A from work at at around 4 pm and taking him to his appointment with community probation. He then went to a couple of addresses in the suburb of Shirley and saw his friend D, a sex worker, at an address in ... Once it got dark, he then headed to Manchester Street where he recounts cruising around, and filling up with petrol. He says at around midnight he dropped A off at his girlfriend’s place on the corner of … and ... He then goes to a girlfriend, and stays at her place. He drops her off at work
… in central Christchurch in the morning and then takes a friend to court. It was when he picked his friend up that he says he heard on the scanner the police talking about blocking off the streets in an area around the corner from the gang pad. Later that day he drove to the roadblock and his reaction was “that looks like a homicide”.
[55] Mr Fawcett appears generally relaxed and co-operative throughout this interview. There are occasional pauses but they are not particularly noticeable. When questioned about the murder, he suggests there may be a “serial killer” at work, referring to the murder of Tisha Lowry, another Christchurch sex worker who was missing, presumed dead, at the time of the interview.
Interview - 31 March 2009
[56] The next recorded interview is the first of what [I refer to as the “non-suspect interviews”]. At the time, Mr Fawcett was in Waikeria Prison. Specifically, he was considered to be able to assist with information on the Mongrel Mob’s potential involvement in … Operation Dallington …
Operation Dallington was the code name for the Mellory Manning murder investigation. Detective Senior Sergeant AB and Detective CD were assigned to … interview him while he was in prison.
[57] In the first of these interviews the officers introduce themselves as detectives from Christchurch. Mr Fawcett says he was told they wanted to talk to him about his safety, and they respond “[y]eah. Sure brother, that’s why we’re here. We’ve fucking haven’t just flown up from Christchurch for just to chew the fat with you, so um, we’re here for a reason. …”. They go on to say that he was “in a power of shit” and they had “some big concerns” for him once he was out of custody. When Mr Fawcett says “youse a freaking me out mate”, he is told to “[j]ust relax, … [w]e’re not fucking here to put you through the mill, interview you, not interested in that shit. We’re here to chew the fat with you. …”. The conversation continues, emphasising the fact he is at risk, with one officer saying “[t]here is some serious heat coming your way” and that Mr Fawcett has got to make some “serious decisions”.
[58] In the ensuing conversation Mr Fawcett acknowledges that he had got “hidings” and “knives pulled on me” from other gang members. He also says he received the Mongrel Mob bulldog tattoo on his cheek because “they had heaps of prospects running away at the time, in jail … [a]nd they sought of just wanted to make an example of me”. The officers reinforce the extent of the threat that he faces, saying “you’ve had the bashes already but we’re not, we’re not talking bashes here” and that members of the gang (A, E23 and F24) were not happy that Mr Fawcett had “[d]one a runner” from the gang and that they “think you know too much”. They refer to “the girl in the drink” and claim everyone else was “pushing the shit” to Mr Fawcett. At a later point in the conversation they pose the question “[a]re you going to be the next one in the river?” and Mr Fawcett agrees this is probable. They respond saying “we can work through that and avoid all that shit”, and that they are there to help him.
[59] There is an extended conversation regarding Mr Fawcett’s knowledge of, and connection to, various gang members and sex workers. However, it is Mr Fawcett who volunteers “I heard some nasty stuff going around at our meetings” and when
23 E.
24 F.
asked “what’s this shit you were hearing?”, he replies “[s]ome killings”. He then voluntarily shifts the discussion to the topic of Ms Manning’s murder and talks about listening on a scanner and hearing police “doing a homicide scene” near the gang pad. He also volunteers that he saw Kent Gorrie, Mellory Manning’s partner, the night before the murder, and says that this “chick, she owed” and had been “given heaps of time to pay up”. He also acknowledges that he had not told the full story to the police who interviewed him in Nelson.
[60] The officers provide Mr Fawcett with a phone number to contact them if he wanted to. However, the offers of help were conditional, with the officers saying “[f]or us to help you, you’ve got to fucking help us”, and “it’s a two-way thing man”. He is also warned not to tell anyone about their conversation “[d]on’t tell your mum, don’t tell your lawyer, don’t tell … any cunt”.
Interview - 28 June 2009
[61] The same two police officers meet with Mr Fawcett in a holding cell at Rotorua on 28 June 2009 and, again, record their discussion. This interview is notable for its length, running for five hours from approximately 3.50 pm.
[62] Again, the conversation frequently touches on the danger Mr Fawcett faces from the Mongrel Mob. The theme is first introduced by Mr Fawcett himself who says he is worried about getting bail because “[f]ucking cunts are all fucking pulling guns on me …” and that he had death threats from the Mob. That theme is picked up by the officers saying “you can’t keep running”, “they’re all bloody throwing it the Muck’s way”,25 and “I don’t want you ending up in a similar fate to this girl”.
[63] The officers … emphasise that they can help Mr Fawcett saying they want to “sort this shit out for you and us” and “if there’s something you’re, that you’ve done and you wish you hadn’t done, just don’t panic okay we’ll just work, we’ll step through it okay”.
25 Mr Fawcett’s nickname is “Muck Dog”.
[64] At this point in the interview, Mr Fawcett transitions from being very frank and talkative to having a number of lengthy pauses in the conversation. However, he goes on to make a number of inculpatory statements. These include that he heard Ms Manning owed money to the Mob. He says “[t]here was a plan and it was specified for her”, and goes on to say “I knew the plan and fuck that’s why I feel bad and I know I’m in the spotlight”.
[65] During the discussion he indicates that he had the following involvement. He says that he was asked to pass a phone to Ms Manning on the street. She took the call, and when she “gave [his] phone back she started crying”. He also said he was required to man the scanner which could listen in to police conversations and “see if any police were in the area at that time”. He alleges he saw her being picked up in a blue station wagon by one of the boys from the Mob, and he also acknowledges cleaning and wiping down the blue station wagon that picked up Ms Manning.
[66] Part way through this discussion the officers indicate that the “people who are investigating this” may want to come and see him, but that was “[n]othing to do with us”. They say they think he knows something about the girl, and he “can’t just keep running [his] whole life”. They suggest they can offer him a new life “New Zealand’s not big enough”, and they can get the tattoo off his face but “there’s a lot of hoops to go through”. They say “I don’t want you ending up in a similar fate to this girl”. They also refer to the possibility of a reward for assisting, saying it would be “more folding than you would have ever seen in your life”. They assure Mr Fawcett that “[w]e’ll look after you”. He then reiterates that Ms Manning owed money and when asked whether it was him who picked her up in the car, he says “oh fuck man [pause] fuck I didn’t think she was going to die though bro”. When asked again whether he picked her up or whether someone else did that, he says “[f]uck. That’s still party eh. Fuck that’s still involvement eh, doing all that, eh?”. He makes further indications that he thinks he is in trouble, asking at one point whether “[y]ouse are going to arrest me?”
[67] At the conclusion of the discussion, Mr Fawcett is given strict instructions not to say anything to anyone else, “it’s about you now ya safety, alright?” The officers go on to say “don’t tell your lawyer fucken everything about this either?”
[68] Part way through this interview, and after Mr Fawcett says he was tasked with being “[s]omeone to watch out” using a scanner and cell-phone, the officers take a break allowing one of them to contact the officer in charge and receive guidance on continuing with the interview. Detective Inspector Greg Williams, who at the time was the officer in charge of the Mellory Manning murder investigation, explains that he was rung by one of the officers, Detective AB, asking whether Mr Fawcett should continue … given he had said some things which were potentially incriminating, in particular, Mr Fawcett’s statement that if he helped pick her up, he was “a party”. Detective Inspector Williams said, as far as he was concerned, Mr Fawcett was “still [not a suspect]” as none of what he was saying was corroborated or warranted a caution at that point in time. Specifically, he said:
My view at that point in time was there wasn’t sufficient to caution or charge Mr Fawcett with anything and at that point he was still a person of interest and I directed the Detective to carry on.
[69] He also explained that … [at that point] … they “wouldn’t be charging Mauha Fawcett with any crime”. By way of example, he said that Mr Fawcett gave a detailed account of his involvement in a burglary at an address where he and other gang members stole a significant amount of cannabis. Mr Fawcett was not charged with that offending.
[70] Towards the end of the interview, the officers asked Mr Fawcett what he thought happened to Ms Manning after she got picked up. He says “I reckon G and them fucken dealt to her eh?” They ask him whether he had done anything else. He says “nah” but then “[f]uck! I’ve just put myself in the shit eh?”. They ask him to confirm what he has told them is 100 per cent the truth. He says “I don’t know who, who killed her mate, but I know, fa – I know, when I put it all together, fuck! I believe that G did do her mate”. He then says “I don’t know if that’s put me here as a fuck party, to fucken murder or some shit, oh” but the officers respond saying “[w]e’re miles away from any of that arena … [i]f what you’re tellin’ me’s the truth, is that right?” He confirms it is. … They again warn him “don’t tell your lawyer fucking everything about this either”.
Interview - 29 June 2009
[71] On the following morning, again in a Rotorua holding cell, the officers interview Mr Fawcett for a further one hour and 18 minutes. … They … return to the topics of the previous night’s discussion, ostensibly seeking clarification of certain points. When asked whether B was at the meeting on the evening of 18 December, Mr Fawcett changes his story and says B was at the meeting. They also press him for details of the blue car used to pick up Ms Manning which he now suggests more confidently might be a Honda Accord station wagon, when he had previously suggested might have been a Ford or Toyota motor car.
[72] Mr Fawcett reiterates the account of Ms Manning taking the phone call on the phone that he passes to her and her being in tears, and then being picked up by a client. He reiterates that it is A who picked Ms Manning up. When the officers say “so was she just supposed ta be bashed or something or just?”, Mr Fawcett concurs saying “[y]eah, I think that was it. Just given a hidin’”. But then B adds “… the next day I hearing somethin’ over the scanner and … next minute A’s you know, and the old bro fucken uh … you know nothink”.
[73] Towards the end of the discussion, Mr Fawcett embarks on an unprompted and detailed account of him, E and F, entering a property in Gloucester Street where they took large quantities of cannabis and where he “swiped about $600”. That led to him getting a hiding from F and being threatened with being stabbed.
[74] Finally, he again recounts what he did on the night of the 18 December and does not yield or shift on who he stayed with that night, despite being challenged on it by the officers. The interview ends with the officers reminding Mr Fawcett that if something is bothering him to call them …
Interview - 28 July 2009
[75] The next interview occurs a month later at 5.30 pm, again in a Rotorua holding cell. This time it is Mr Fawcett who introduces the theme of his safety being threatened, saying “[t]he wardens are out there trying to help me get my tattoo taken off my face” because the Mongrel Mob were still threatening him. He also explains
that he has voluntarily segregated himself because of the fear of the Mongrel Mob, saying he had refused to go into the yard because “[t]here’s Mongrel Mob members down there and I’m not going in there”. As the discussion progresses, the officers explain that they had been working through what he said last time, but there were some things which “we didn’t really quite understand” and which they wanted to “clear up”.
[76] It is at this point in the interview that the officers introduce their connection to their boss, Tom, who is a Detective Inspector, saying:
I think we said to you right from the start it’s about honesty and we, us being up front with you … we have a guy that sits above us … our big boss … who we trust … he’s basically our gate keeper in terms of ah, with what we do … at some stage you’ll meet him um, that’s Tom.
[77] They go on to emphasise that Mr Fawcett is “not out of the woods!” and that other people involved are “going to squeal”, and “we don’t want … them all squealing a different story to you”. They then prompt Mr Fawcett, saying “you might have left some stuff out when you talked to us last time about what might have happened but you can’t leave it out tonight”.
[78] Mr Fawcett again refers to the meeting which occurred between gang members on the evening of the 18th, though he now doubts that B was there and repeats the story that Ms Manning owed the gang money. Mr Fawcett says that G was “amped as” and gave him an “evil look” and he knew “something was serious” and “it was wrong”.
[79] He is shown a map of the central city to assist him in describing his movements that night and he gives another detailed and animated account of what he did on 18 December. Again, he repeats the story of giving the phone to Mellory and of her crying saying “fuck I haven’t got your money bro, I aint got your money yet bro” as she handed it back. He repeats the instruction from A to keep an ear out on the scanner. He says at the time, he “just put it all together … [t]hat fucking chick owes some money. Fuck what are these cunts up to? Fuck are they raping her; or are they bashing her or what, I don’t know”.
[80] He repeats that she was picked up by a station wagon which he thinks A was in. However, when probed about what happened between that point and her death, he
becomes markedly uncomfortable and silent. Despite being encouraged to be truthful and honest and to “[t]ake us through that part of it”, he says nothing more than “[n]ah, it was like they were trying to set me up bro”. He then recounts driving back to the gang pad the following morning and seeing the road being taped off and the police caravans and tents being set up. When the officers returned to the topic of involvement, he denies having anything to do with putting Ms Manning in the river, or with disposing of evidence, including potential weapons afterwards. His only involvement was cleaning the car.
[81] Towards the end of the interview, the officers emphasise that he cannot talk to anyone about them, nor can he tell any lawyers about this, having earlier explained that the lawyer “might represent other people that that are Mob”. The interview concludes with them reminding Mr Fawcett … that they would work with him “under the radar” and rely “on our big boss, Tom” and that they could “look to working through … immunity options”.
Interview - 10 August 2009
[82] The first formal interview is undertaken on 10 August 2009 by Detective Inspector Tom Fitzgerald. Detective AB, … uplifts Mr Fawcett from the Rotorua custody centre and takes him to the police station. He records the following in his notebook; “outline intend to introduce [Detective Inspector Fitzgerald] as previously discussed” and notes “nil problems with this occurring”. He spends around an hour with Mr Fawcett, providing him with refreshments during this time.
[83] This is the first evidential interview and Mr Fawcett is read his Bill of Rights at the outset of the interview. After each of his rights is read out, he is asked if he understands it and he confirms that he does by saying “yes”. He then confirms that he is happy to talk to him without a lawyer.
[84] Detective Inspector Fitzgerald says he wants to talk to Mr Fawcett about Mellory Manning because he knows what happened to her, which Mr Fawcett confirms.
[85] Mr Fawcett then embarks on a lengthy and almost uninterrupted account of what happened on the night of 18 December with virtually no prompting from Detective Inspector Fitzgerald. He explains his connection to the Mongrel Mob, particularly A, and their work on Manchester Street. He covers the meeting of the Mongrel Mob in Woodham Road on the evening of the 18th where G talked about Kent’s girl owing him some money. He says that he went to Manchester Street that evening and he saw Mellory. A then rings him on a phone A provided and asks Mr Fawcett to give the phone to Mellory. When he takes the phone back, she is crying “like she had been given the hard word or something”. He then gets a ring from A who says he is “coming down Mancester [sic] now in that car” and she jumps in the car with him. A tells Mr Fawcett to meet him at the pad.
[86] When he gets to the pad he “just drove straight in the shed … but by then I was too late”. He describes A knocking her out by punching her, G arriving and the car radio being on at that time. He says “I thought they were raping her up there or something”. He then said the body was in the back of the car. He is then told to park up the street and to flick his lights if he sees anyone coming and says A must have “been chucking the body out”. He says he had “like a gut instinct, … and my stomach sort’ve of like just dropped … and I knew straight away … this girl’s dead”. He then recounts his movements for the balance of the night and the next day without any prompting from the interviewer.
[87] Once Detective Inspector Fitzgerald attempts to get clarification of some aspects of the account, there are longer pauses. The detective emphasises that “[y]ou’ve got to tell me the full truth”. In response to these questions Mr Fawcett says that he and A were there first and A punched her then started taking her clothes off and raping her on the ground. G and F turned up and Mr Fawcett let them in the gate. He said G and F were “fried and they were just amping” and it was “just like a blood bath really”. G then used a pole to kill her.
[88] He denies that he hit her, saying he didn’t want to look. He says F grabbed her boots and chucked them into a bag. He says he knew she was dead then as she was lying on plastic which was covered in blood. G and F then took off and A disposed of
the body while he kept watch for any cars coming. He says A rang him, he gave the all clear and A dumped the body. A then told him to clean down the blue car.
[89] At this stage of the interview there is a break while the detective changes the tapes. When recording resumes, the detective reminds Mr Fawcett that he has the right to consult and instruct a solicitor. Mr Fawcett says he understands those rights and confirms he is happy to carry on speaking. The detective asks Mr Fawcett for more detail about the weapons used and where this all happened, and Mr Fawcett says it happened in the shed at the gang pad. He then describes G and F hitting her. He says that was when he realised “what’s really going on, fuck someone’s dying here”. He then says that “G gave me the pole” and told him to hit her. He says “I just hit the body I just shut my eyes and hit her”. He explains that the body was wrapped in plastic and a tarpaulin. He then cleaned the car, walked back to town, got his car and dropped A off at his girlfriend’s place … He says that he did not see G, F or A after that night.
[90] Towards the end of the interview he again emphasises that he did not think they were going to kill her, just rob her. When questioned about the weapons, he can only recall a pole and a hammer being used and no other weapon. When asked who raped her he says it was A who raped her, and he didn’t see anyone else rape her. He says he had a Telecom phone which he communicated with A with.
[91] He is asked at the end if there is anything else he wants to say and he answers “[n]o that’s my full statement Tom”, and he says that he feels that everything is “[s]lowly coming to the end”, and that he “[j]ust want[s] to get it all over and done with now”.
Interview - 11 August 2009
[92] The following day Mr Fawcett was brought across to the Rotorua police station for a further interview, this time with Detective Senior Sergeant Brian Archer. The interview begins at 1.29 pm and lasts for just over an hour and three quarters. Again, Mr Fawcett is read his Bill of Rights and is asked whether he understands those rights which Mr Fawcett confirms.
[93] Detective Archer explains that he wants to go over some timings now that he has had a chance to review telephone data from the evening. He checks with Mr Fawcett what phone numbers he was using at the time and he then refers Mr Fawcett to printouts of telephone data from the night of Ms Manning’s murder. Mr Fawcett is referred to various messages and asked who he is texting, but often the text does not assist him in recalling exactly what was happening or who the text was from. He agrees his phone was off for part of the night and says he thinks it went flat, but he then agrees that it came back on at about 11.09 pm and says, in explanation, that he “might have swapped batteries with A.” He says that the crime would have occurred before his phone was going again at 11.10 pm.
[94] Mr Fawcett then gives an explanation of his movements following A dumping the body, suggesting they both drove back to Cashel Street and then, from there, to Shirley. He is then referred to texts about meeting someone at Riccarton which were sent to and from the phone he was using, but says he “can’t remember that”. He then says he took the car back to the pad and walked back to town where his car was parked. He says he went to stay with a girl in Nursery Road, but it also could have been at … place in Durham Street, or another place in Fitzgerald Avenue, or another place in Shirley.
[95] Part way through the discussion the tape needs to be changed and Mr Fawcett is again provided with his Bill of Rights which he again confirms he understands and that he is happy to continue. By now, he appears to recall going to Riccarton, but is still having trouble trying to piece together what his movements were that evening by reference to the extensive text data he is being shown. He then adds a further detail of possibly driving to Lyttelton that night. He confirms the phones he had were Telecom phones and that he had been given the phone he was using by A.
[96] There are clear inconsistencies between the data Mr Fawcett is being shown and his narrative of what occurred that night and he has obvious difficulty linking the two. He confirms this at the end, saying “[j]ust yeah it’s a bit hard for me to recall everything really”.
Interview – 16 September 2009
[97] On 16 September 2009 there is a further formal interview of just over four hours where Mr Fawcett is interviewed by Detective Inspector Fitzgerald at the Rotorua Police Station. Again, Mr Fawcett is read his Bill of Rights before the interview commences and he confirms he understands them and is happy to talk.
The combination of Pora’s frequently contradictory and often implausible confessions and the recent diagnosis of his FASD leads to only one possible conclusion and that is that reliance on his confessions gives rise to a risk of a miscarriage of justice. On that account, his convictions must be quashed.
[289] The evidence given in this case by Dr McGinn sought to draw comparisons with the case of Teina Pora. Dr McGinn says “as the clinical neuropsychologist who investigated the nature of any neurodevelopmental disabilities of both Mr Pora and Mr Fawcett, I found Mr Fawcett to be more highly suggestible and to confabulate more markedly than Mr Pora”. However, that conclusion seems to rely solely on the test results of the testing using the Gudjonsson Suggestibility Scale (GSS2). As already explained, I am not persuaded that suggestibility was in action during the non-suspect and suspect interviews to such a degree that Mr Fawcett’s account was tainted from the outset.
[290] However, Mr Fawcett is clearly not a reliable historian and, even where one might assume he is doing his best to tell the truth, his account is unreliable and I consider this is as a consequence of his FASD. When he gives his 10 August interview, which is the account relied by the Crown to charge him, his account evolves over the course of the interview and there are many elements which demonstrably cannot be correct.
[291] For example, the evidence of telecommunications polling data identifies numerous difficulties with Mr Fawcett’s evidence. These include that Mr Fawcett cannot have used a Telecom phone to communicate with A while he was on
69 Pora v R, above n 2.
70 At [55].
71 At [58].
Manchester Street and then to have passed it to Ms Manning as there was only one potentially relevant Telecom phone number being used during the relevant time in the Kilmore/Peterborough Street area and later in the Galbraith Avenue area, and this cannot be the one being used by Mr Fawcett because he was texting from his own phone at the same time as one of the calls on the other Telecom phone. Furthermore, between 10 pm and 11.15 pm on that night, there were no phone calls on the Telecom network between a person in Galbraith Avenue and a person in Kilmore Street.
[292] He also cannot have been talking on the cell-phone with A near the Avon River to confirm that the road was clear while A was dumping the body as analysis of calls in the area on both the Telecom and Vodafone networks showed no clear examples a phone call was made “between two points on the river or with the [Galbraith Avenue] pad”. In addition, his description of his movements in the hours after the body was disposed of, are simply not corroborated by the telecommunications polling data.
[293] More importantly, his account of the attack itself is at odds with the objectively verifiable evidence. He recalls Ms Manning was unclothed but the forensic evidence shows she was clothed during the attack with only her underwear and boots removed and this is how her body was found. His evidence of who raped her is at odds with the presence of semen from the unidentified Male B and the absence of semen from A whom he said raped her. The account also fails to include any part of what happened which would have led to seeds being embedded in her clothing. Indeed he describes the attack as occurring inside the gang pad. Thus, while I consider there is potent evidence supporting the fact that she was murdered by the Mongrel Mob at the gang pad perhaps in retribution for not paying money she owed to the Mob, I simply cannot be satisfied, largely because of his neurodisability, that Mr Fawcett was reliable in his description of what happened that night and in particular on his involvement in it.
[294] In this regard, this case differs from that of Teina Pora. There, a subsequent review by Rodney Hansen, CNZM QC, concluded that the account given by Mr Pora was entirely false and Mr Pora was probably innocent.72 Here, there is a considerable body of evidence, which suggests that Mellory Manning was uplifted by the Mongrel
72 Rodney Hansen CNZM QC Report for Minister of Justice on Compensation Claim by Teina Anthony Pora (Ministry of Justice, March 2016).
Mob and then killed at Galbraith Avenue. This includes evidence that Mongrel Mob members had been taxing street sex workers prior to the murder and A and Mr Fawcett were seen on the street on the evening of the murder.
[295] It also includes the evidence from Dr Mildenhall regarding the presence of the rare aberrant pollen grains on Ms Manning’s clothing which matched those found at the Galbraith Avenue address, which is powerful evidence to support her having been attacked at Galbraith Avenue. I reject the suggestion that Dr Mildenhall said she could not have been murdered at Galbraith Avenue. On the contrary, he simply concluded that the nasal washings were inconclusive as to the place of death. Dr Mildenhall said he could not prove or disprove whether she took her last breath at Galbraith Avenue and that in “each of those localities that I looked at, she could have taken her last breath there”. However, he maintained that the discovery of the two-pored rip gut brome pollen grains was rare and it was highly likely that it came from a plant or plants growing at 25 Galbraith Avenue.
[296] The limited timeframe for Ms Manning to be uplifted from Manchester Street, raped, killed and deposited in the river also supports the murder taking place at Galbraith Avenue, and Mr Fawcett’s own behaviour, as corroborated by other witnesses, suggests he was at least witness to something which disturbed him enough that it prompted him to leave Christchurch without any obvious plan for where he was going or what he was doing.
[297] However, evidence which supports the scenario that Ms Manning was uplifted and killed by Mongrel Mob members, is not directly corroborative of Mr Fawcett’s role as a murderer. The police relied on his statement on 10 August, where he admitted striking Ms Manning with a pole, as sufficiently reliable to charge him with murder. However, having considered all the relevant evidence, I am not satisfied, on the balance of probabilities, that Mr Fawcett’s statement is reliable, primarily because of his neurodisability, and his consequent inability to give an account of what occurred that night that is objectively reliable.
[298] Even when it might be seen that Mr Fawcett is doing his best to tell the truth, which is the assumption the Crown has about his 10 August statement, there are, as I
have pointed out, clear anomalies and errors. There is no independent, verifiable evidence of Mr Fawcett’s direct participation in the murder.
[299] In that regard, neither N’s evidence, nor J’s evidence satisfies me Mr Fawcett’s statement is reliable. Both have their own issues as to reliability, and there is no independent evidence to support their accounts such as Ms Manning’s blood being found on his shoes, or telecommunications data which confirms a trip to N’s place that night. In any event, the version relayed to N differs from Mr Fawcett’s 10 August statement as it includes the use of samurai swords as weapons, and Mr Fawcett stabbing Ms Manning, details one would expect Mr Fawcett to have included in his 10 August account if that was his best attempt at giving a truthful account of the evening.
[300] Without such independent evidence, I am simply not satisfied, on the balance of probabilities, that Mr Fawcett’s account of his involvement in the murder is reliable. He has, with equal force, on different occasions denied knowing she was going to die and denied being involved in hitting her. In that regard I note that both Dr Immelman and Dr McGinn acknowledged it was not possible to say which of Mr Fawcett’s statements were based on reality and which were an artefact of his brain damage. He may intentionally lie, tell the truth, or confabulate, and in such cases it would be important to look for corroboration of his account.
[301] Given Mr Fawcett’s neurodisability which makes him an unreliable historian even when he is endeavouring to tell the truth, and without solid corroborating evidence of his involvement, I consider Mr Fawcett’s FASD adversely affected the reliability of his statements and I am satisfied they should be excluded on this ground.
Exclusion under s 30
[302] While the primary thrust of the defence submissions was that the statements fell to be excluded either under s 28 or 29, Mr Stevenson also argued that if they fell to be considered under the residual powers under s 30 to exclude statements which were unfairly obtained, it would be “inevitable” that they would be excluded.
[303]Section 30 provides as follows:
30 Improperly obtained evidence
(1)This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—
(a)the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
(b)the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.
(2)The Judge must—
(a)find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b)if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.
(3)For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a)the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b)the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c)the nature and quality of the improperly obtained evidence:
(d)the seriousness of the offence with which the defendant is charged:
(e)whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f)whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:
(g)whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h)whether there was any urgency in obtaining the improperly obtained evidence.
(4)The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5)For the purposes of this section, evidence is improperly obtained if it is obtained—
(a)in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
(b)in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
(c)unfairly.
(6)Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the Police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.
[304] In R v Wichman, the Supreme Court observed that s 30 should not be treated as conferring a broad discretion to exclude defendant’s statements for reasons addressed in ss 28 and 29.73 However, concerns as to reliability, and thus the cogency or otherwise of the evidence in question, may be relevant to the application of s 30, and in particular s 30(4) insofar as aspects of police conduct which may be relevant to the reliability assessment, may also be relevant to the fairness assessment.
[305] As I have excluded the statement under s 28, I do not need to consider this issue. I simply note that the matters covered in the submissions on oppression are also relied on to say the evidence was improperly obtained. Had I not had fundamental concerns about the statements’ reliability because of Mr Fawcett’s FASD, coupled with the lack of evidence corroborating his involvement, I doubt that the statements could be considered improperly obtained under s 30, and I would not have to consider the balancing exercise in s 30(2)(b). However, if the balancing exercise was being considered, the obvious problems regarding the quality of the evidence would be a powerful factor pointing to its exclusion.
73 R v Wichman, above n 54, at [69].
Exclusion under s 8
[306] Finally, defence counsel referred, in passing, to s 8 of the Evidence Act which, as the Supreme Court in Wichman said:74
states a fundamental, over-arching principle, but does not indicate the circumstances relevant to a court’s consideration of whether probative value is outweighed by prejudicial effect, as ss 28, 29 and 30 do.
[307] In Wichman it was held that a s 8 evaluation of the evidence in issue “must be carried out in a way which is consistent with the operation of the later sections”.75 It was also noted that ss 28 and 8, “in the context of the Act as a whole, proceed on the basis that residual risks of unreliability, which do not warrant exclusion under either of those two sections, “should be addressed by the Judge in the course of the management of the trial”.76
[308] However, again, I do not need to consider exclusion under s 8 as I have held the statements should be excluded under s 28 given the circumstances in which they were made have adversely affected their reliability.
Result
[309] The defendant’s statements to the police are excluded under s 28 Evidence Act 2006.
Solicitors:
Raymond Donnelly & Co., Christchurch C W J Stevenson, Barrister, Wellington K H Cook, Barrister, Christchurch
J V Kane, Barrister, Wellington
74 At [69].
75 At [69].
76 At [70].
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