R v Fukushima CA128/04
[2004] NZCA 430
•13 September 2004
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA128/04 CA130/04 CA134/04 CA170/04
THE QUEEN
v
RYU FUKUSHIMA MASATO FUJITA NOBU OSHIMA RYUJI HIRAKI
Hearing: 8 July 2004
Coram:McGrath J Hammond J O'Regan J
Appearances: C B Cato for Appellant Fukushima A D Couchman for Appellant Fujita
R M Mansfield for Appellant Oshima R A Harrison for Appellant Hiraki
J C Pike for Crown Judgment: 13 September 2004
JUDGMENT OF THE COURT DELIVERED BY O’REGAN J
R V FUKUSHIMA And Ors CA CA128/04 [13 September 2004]
Table of Contents
Paragraph Number Appeals [1] General Factual Background [4] Ryu Fukushima Facts [28] Issues [45] High Court decision [46] Submissions for Mr Fukushima [50] Crown Submissions [57] Discussion Arrest or detention [59] Understanding of rights [65] Unfairness [73] Masato Fujita
Facts [79]
Issues [90]
High Court decision [91]
Submissions for Mr Fujita [93]
Crown submissions [96]
Discussion [98]
Nobu Oshima
Facts [105]
Issues [116]
High Court decision [118]
Submissions for Mr Oshima [120]
Crown Submissions [124]Discussion
Detention [126]
Access to lawyer [147]
Unfairness [153]
Ryuji Hiraki
Facts [159]
Issues [167]
High Court decision [168]
Submissions for Mr Hiraki [176]
Crown submissions [180]
Discussion [182]
R v Shaheed [190]
Decision [191]
Appeals
[1] The four appellants have applied for leave to appeal against pre-trial rulings made in the High Court by Frater J under s344A of the Crimes Act 1961. The Judge ruled in respect of all appellants that statements made by them to the police were admissible at their trial for murder. The Judge rejected arguments on behalf of the appellants that the statements should be ruled inadmissible on various grounds, including breach of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), breach of the Judges’ Rules or unfairness.
[2] The appellants were charged along with a number of others. The High Court Judge also dealt with s344A applications in relation to three other accused persons. She dismissed those applications and ruled that the evidence of their interviews with the Police was inadmissible at the trial. There was no appeal against those rulings. Counsel told us that they have since been discharged under s347 of the Crimes Act.
[3] Foreshadowed s344A applications in relation to two other accused persons did not proceed after their counsel resolved matters with the Crown before the commencement of the High Court hearing.
General Factual Background
[4] Frater J set out an extensive narrative of the factual background, and there was no challenge to its accuracy, though in some cases counsel challenged the inferences drawn by the Judge from the facts as outlined in the narrative. We therefore largely adopt her summary in the statement of facts which follows, and in the statements of facts relating to individual appellants, which appear later in this judgment.
[5] In the early hours of the morning of Wednesday 26 February 2003, Nozumu Shinozaki, a 22 year old Japanese student at the Columbus Academy at West Harbour, Auckland, died at the Academy. The Crown alleges that the appellants and others assaulted him, and that his death resulted from the injuries sustained in those assaults.
[6] The Academy was established in New Zealand by a Korean, known to the students as Mr Kanamori. It was a place where young Japanese students, both male and female, who had experienced difficulties in Japan, were sent.
[7] Mr Shinozaki suffered from Asperger’s syndrome. As a result, he lacked normal social inhibitions and had difficulty getting on with others. He was responsible for a series of small fires in and around the Academy premises. The fact that the fires were ongoing and the perpetrator was unknown had caused much anxiety in the community. Others had come under suspicion. At the regular 7.00
a.m. meeting of the staff and students on 25 February 2003, Mr Shinozaki admitted starting a fire which occurred in January 2003, and apologised for what he had done. However, some of his fellow students did not believe his apology was sincere. Late that night those affected met to discuss their concerns in a room at the Academy, which we will call the studio. When he returned home from work at around midnight on 25/26 February, Mr Shinozaki was taken to the studio to meet with them.
[8] The Crown alleges that over the next three hours or so each of the appellants (along with a number of others) participated in a prolonged assault on Mr Shinozaki which involved punching and kicking his face and body, and that his death resulted from that assault.
[9] Mr Shinozaki lost consciousness at about 3.00 a.m. and an ambulance was called. Ambulance officers arrived half an hour later, but were unable to revive him. They called the police, who arrived at 3.43 a.m.
[10] The first police officers on the scene were uniformed officers from the Henderson Police Station. The ambulance officers directed them to the deceased, who was lying on the floor of the studio. Mr Fukushima was on his knees beside him. Other people were milling around. Attempts had been made to clean up the studio but there was still a lot of blood around the body.
[11] Sgt Atkins took charge. First he sought the co-operation of those present. He explained to them, in English, that he wanted everyone away from the scene and
directed them not to discuss with others what had happened. They complied, moving first onto the driveway in front of the studio and then, when rain began to fall, into a nearby garage. He also designated an officer to guard the scene. Others were assigned to obtain everyone's details and ascertain their competency in English. Another officer was responsible for the comfort of those in the garage.
[12] Sgt Atkins then spoke to one of the students, who was near the garage doors, and asked him what had happened. He told him that there had been a fight between about 12.30 a.m. and 1.00 a.m. and another, more aggressive argument, around
3.00 a.m. He could not remember who was involved but identified at least one person in the garage who was not involved. Mr Kanamori then intervened, speaking first with the student in Japanese and then, with the assistance of an employee of the Academy, Ms Yamashita, with Sgt Atkins. One or other of them advised that Mr Kanamori's lawyer, Mr Hart, had been spoken to and had advised them not to say anything.
[13] Staff from the Waitakere CIB arrived at 4.46 a.m. They were led by Detective Sergeant Free. Sgt Atkins briefed Detective Sergeant Free on what had transpired during the previous hour or so, and Detective Sergeant Free then assumed control. As he was not wearing uniform, he identified himself to Mr Kanamori and had a brief conversation with him. Ms Yamashita acted as interpreter.
[14] Ms Yamashita also translated when Detective Sergeant Free spoke to the people in the garage. As he recalled, he told them that:
(a)A person had died there that morning;
(b) It was a serious matter and he was asking for everyone's co-operation to find out what had happened;
(c) He wanted everyone to come back to the Police Station to speak to the police to find out what had happened;
(d)There would be interpreters available at the Police Station; and
(e) There would be lawyers available for anyone who wanted legal advice.
[15] Ms Yamashita did not remember translating anything about the availability of interpreters or lawyers. Detective Sergeant Free acknowledged that he did not mention that lawyers would be available free of charge through the Police Detention Legal Assistance Scheme. Nor did he say that they were under no obligation to return to the Police Station, or advise them of their right to silence. He said he was not attempting "to give them their Bill of Rights".
[16] Several police vehicles arrived and, shortly after 5.00 a.m., 18 of the 19 people in the garage were transported to the Police Station. Mr Kanamori did not go. On Detective Sergeant Free's directions, Mr Fukushima and Mr Oshima, who were seen to have blood on their clothing, were transported separately from the others. This was said to have been for the purpose of preventing cross-contamination.
[17] At the Police Station, Detective Senior Sergeant Sutton was in charge. As there were no CIB investigative staff on duty at that time of the morning, a general CIB call-out was organised. This involved investigative staff being called in from their home addresses, in some cases outside the Waitakere CIB area.
[18] At the same time Detective Senior Sergeant Murray endeavoured to arrange for sufficient interpreters to be present to assist with the interviewing process. None was available at the Police Station when the people from the Academy first arrived.
[19] Most of these people were taken into the police bar/training area on the second floor of the Police Station, where Detective Constable McIntosh spoke, in English, with each one individually, and obtained their details.
[20] Interviewing officers were immediately allocated to Mr Fukushima and Mr Oshima and their interviews commenced immediately. Detective Constable Small talked with Mr Fukushima and Detective Garrett with Mr Oshima.
[21] At about 6.15 a.m., Mr Fukushima gave Detective Constable Small a piece of paper on which he had written the names of all the people that were in the studio area at the Academy. He listed ten people as "fighting" and four others as "not fighting". All the appellants were included in the names of those fighting.
[22] This list was given to Detective Senior Sergeant Sutton at 6.20 a.m. He immediately advised Detective Constable Hyland-Mills (the officer assigned to interview another of the students) but it appears that Detective Garrett was not told about the list. An hour or so later, Detective Senior Sergeant Sutton instructed Detective Constable McIntosh to give Bill of Rights advice and to caution those who were still waiting in the bar area, which he did, albeit in English.
[23] The first three of five interpreters used that morning arrived at the Police Station at 5.40 a.m., and relatively soon thereafter began work. Mr Oshima, Mr Fujita and Mr Hiraki used an interpreter when being interviewed. Mr Fukushima said that he asked for an interpreter, but his request was not acted upon.
[24] Only Mr Fukushima spoke with a lawyer before he was arrested, but not before he had made an incriminating statement.
[25] Mr Hart attended at the Academy and spoke with Mr Kanamori for half an hour or so before 10.00 a.m. He was at the Police Station by about 10.30 a.m. Mr Fukushima was the only one of the appellants that he spoke to there.
[26] At some time on 26 February 2003, the appellants and a number of others from the Academy were charged with assault. The murder charge was substituted later.
[27]The case for each appellant is considered in turn.
RYU FUKUSHIMA
Facts
[28] Mr Fukushima was 22 years old at the time of Mr Shinozaki’s death. He had been in New Zealand for about three and a half years and had attended school and university here.
[29] Mr Fukushima said that, after the arrival of the police at the Academy, he was directed by police officers to move first to the driveway, and then into the garage. He said that, because he was told to do this by the police, he did not believe he had any choice or that he was free to leave the garage until told otherwise. During the hour or so that he remained in the garage he sat quietly. He also cried. He remembered Ms Yamashita giving the group certain instructions about going to the Police Station, but was unable to remember the details of what she said.
[30] Detective Constable Small arrived at the scene at 5.05 a.m. He was briefed by Detective Sergeant Free and introduced to Mr Fukushima who was standing on the driveway. They had a brief conversation during which Detective Constable Small ascertained Mr Fukushima's details and they talked about how long he had been in New Zealand and his studies here. Detective Constable Small said that that was the extent of their conversation. Mr Fukushima said it went further. He said that he told Detective Constable Small that he would like an interpreter but that Detective Constable Small said he did not need one because his English was good enough.
[31] Mr Fukushima was then taken back to the Police Station. Detective Constable Small drove the car and Mr Fukushima sat in the front passenger seat next to him. Mr Oshima and another officer sat in the back seat.
[32] Following their arrival at the Police Station at 5.25 a.m., Detective Constable Small took Mr Fukushima directly to an interview room where, Mr Fukushima said, he repeated his request for an interpreter. He said Detective Constable Small ignored the request and, for the next half hour continued to talk to him. It was not disputed that during this time Mr Fukushima was visibly upset. Detective Constable Small
said he was trying to console him. A discussion of about 25 minutes took place but was not recorded. Mr Fukushima said that Detective Constable Small told him he understood how sad he was that he had lost a friend but urged him, for his sake, and, in order to solve the problem, to talk to him. Mr Fukushima said that despite not wanting to, he eventually talked to Detective Constable Small because he thought he was obliged to comply with instructions from the police.
[33]Detective Constable Small recorded in his notebook the following exchange:
Q. What happened at the address tonight?
A. We were just talking.
Q. Who?
A. All friends. Some from the house and homestays. We stay up talking and then go to gym [the studio] and talking, argument started and we fight. Then talking. Argue. Then fight. Then talking. Argue, then fight. All of a sudden Nozomu fall over and breathe heavy, and we call 111 ambulance. There were about 14 of us at the gym talking. When we were in the gym about 10 of us including me and Nozomu were fighting.
[34]He noted that Mr Fukushima was “very upset and slow talking" and that, at
6.05 a.m. "BOR and caution given and explained at great length". Mr Fukushima was then asked "do you understand" and responded "hmm yeah". Detective Constable Small asked who was, and was not, fighting in the studio and Mr Fukushima said he would write their names. He then wrote down ten names of those said to be fighting and four names of those present, but not fighting. Detective Constable Small recorded this in his notebook. He recorded that he gave the list to Detective Senior Sergeant Sutton at 6.20 a.m.
[35] After a cigarette break Detective Constable Small told Mr Fukushima that he would like to take a statement; Mr Fukushima said it was "okay". Detective Constable Small's notes then record that the Bill of Rights advice was explained again and Mr Fukushima told that:
because he was involved in fighting with Nozomu he is involved in some way in causing his death. That he will most likely be charged and go to Court as a result of Nozomo dying. Because I want to talk to you about it this is why I give you your rights and you can talk to a lawyer if you want to.
[36] The statement then began. However, after the preamble to the statement was recorded Mr Fukushima told Detective Constable Small that his English was poor and he wanted an interpreter. The statement was then stopped at 6.59 a.m. while they waited for an interpreter to become free. At that point it is recorded that:
"Ryu appeared to have a good understanding of English at the beginning which deteriorated as time progressed."
[37] Detective Constable Small said that while they were waiting he read the notes back to Mr Fukushima. Mr Fukushima signed the first page and a couple of alterations at the top of the second, but halfway down the reading of the second page, indicated that he did not want to sign anything further.
[38] Mr Fukushima disputed that the checking took place at that time. He accepted that he may have said that he understood the rights advice given to him, but asserted that while he knew the words, he did not necessarily understand what they meant. He said he understood that if he did not want to talk he did not have to, but did not understand the rest. He did not know the word lawyer, so did not understand at all what the interviewing officer was talking about. He said he initially refused to give a statement, but subsequently agreed to, despite not knowing what it was. He asked for an interpreter because when Detective Constable Small was talking about the rights, he did not understand them. Even with the assistance of the interpreter he did not understand.
[39] Mr Fukushima's version of the checking was that after the first part of the interview was over, Detective Constable Small suggested they check if there were any mistakes in what was recorded and asked him to sign the notebook if there were none. He said that, as he was reading through and they got to the point concerning rights, he said:
"I don't understand that part". "Because I don't understand by myself I need an interpreter" I said. Then the Policeman said "that's not possible" and I thought if I understood the words I would be okay. So I thought a dictionary would help so I asked for a dictionary. Then he said there was no dictionary. "If that's the case I don't understand what is written here."
[40] Mr Fukushima then asked for an interpreter. Ms Delowe, a Japanese interpreter, eventually became free at about 9.00 a.m. She had been involved in interviews with other students from the Academy.
[41] The Bill of Rights advice was then repeated at about 9.04 a.m. The difference was that, this time, it was translated. Mr Fukushima again confirmed that he understood the rights, but then asked whether he could "wipe" what he had previously told the police, and start again.
[42] Detective Constable Small's notes record: "Treated as a witness. The BOR given and explained the Court will decide if invalid."
[43] After that Detective Constable Small asked Mr Fukushima to participate in a videotaped interview. He agreed. It began at 9.34 a.m. but ended almost immediately. This time, after he was advised of his rights, Mr Fukushima said that he wanted to speak with a lawyer and named the lawyer acting for the Academy. When told that that was Barry Hart, he indicated that he wanted to speak with him. The interview was then stopped.
[44] Mr Hart was not available until 10.30 a.m. After speaking with him, Mr Fukushima said that he did not wish to make any further statement to the police. He was then arrested.
Issues
[45]Three issues arise in respect of Mr Fukushima’s appeal:
(a) Was Mr Fukushima arrested or detained prior to questioning commencing in the police interview room? The answer to this question determines whether his rights under s22 and s23 of the Bill of Rights were triggered;
(b) Did Mr Fukushima understand the rights actually given to him once he became entitled to them? This requires consideration of his need for an interpreter;
(c)Should the evidence be excluded on general grounds of unfairness?
High Court decision
[46] In respect of the first issue, Frater J found that there was no communication or manifestation by the police of an intention to apprehend or hold Mr Fukushima, sufficient to constitute arrest before the advice was given. Accordingly, the s22 and s23 rights were not triggered and there was, therefore, no arbitrary detention or an obligation on the police to advise Mr Fukushima of his rights earlier than they had.
[47] On the second issue the Judge found that while Mr Fukushima’s comprehension of complex ideas in English was limited, he would have presented as one of the more articulate among the Academy residents and able to understand English well. Detective Constable Small was, thus, entitled to infer that Mr Fukushima understood his rights. The Judge did not accept Mr Fukushima’s assertions that he asked for an interpreter at least twice before one was eventually sought.
[48] The remaining issue was whether the evidence should be excluded on grounds of unfairness, namely because of Mr Fukushima’s general distress and tiredness and the absence of any comprehensive record of the conversation between the officer and Mr Fukushima prior to the commencement of the interview. The Judge found that Detective Constable Small dealt with Mr Fukushima appropriately and fairly and was duly aware of his distress and concerned to establish a rapport with him. In relation to the failure to record, the Judge said the situation needed to be considered in a commonsense way. She accepted that it was unrealistic to expect every conversation between a police officer and a potential witness who may become a suspect, to be recorded. She said a failure to record the interview was not a ground for a finding of unfairness in this case.
[49] Frater J also found there was no breach of r 2 of the Judges Rules. That finding was not challenged in this Court.
Submissions for Mr Fukushima
[50] Counsel for Mr Fukushima, Mr Cato, submitted that the High Court had determined the first issue (whether the police detained or arrested Mr Fukushima) on too narrow a basis. He said the Judge referred only to whether there was communication or manifestation by the police to apprehend or hold Mr Fukushima sufficient to constitute an arrest. In counsel’s submission, the test for detention laid down in Everitt v Attorney General [2002] 1 NZLR 82, whether the suspect had a reasonably held belief induced by police conduct that he or she is not free to leave, ought to have been applied. He said this test, in particular the emphasis it places on the suspect’s perception of the circumstances, appropriately reflects policy behind the rights, namely the protection of those unfamiliar with the criminal justice process.
[51] Mr Cato submitted that the circumstances were such that Mr Fukushima would have had a reasonably held belief induced by police conduct that he was not free to leave. He argued that the police actions from the time of arriving at the Academy were authoritative and contained directions or instructions of various kinds. These actions, it was submitted, were sufficient to induce in a person of Mr Fukushima’s age and background, a reasonably held belief that he had to remain and co-operate with the police. Thus, in counsel’s submission, Mr Fukushima was detained before he was taken to the Police Station, and thus arbitrarily in breach of s22, and without being given his rights in breach of s23. He said that, to avoid these breaches, the police should have been mindful of the ages and backgrounds of Mr Fukushima and his peers and informed them that they were not under arrest. Alternatively, Mr Cato submitted that the group should have been given a “global Bill of Rights warning”.
[52] Mr Cato submitted that the High Court misdirected itself on the second issue of whether the Mr Fukushima understood his rights. He submitted that Detective Constable Small could not have properly assessed Mr Fukushima’s English speaking
ability in the short time he spent with him, and given that for most of this time Mr Fukushima was in a state of distress. Further, it was submitted that the Judge was wrong to determine the issue of whether Mr Fukushima understood his rights by considering whether Detective Constable Small was entitled to infer that Mr Fukushima had understood. He said the pertinent question was whether Mr Fukushima had in fact understood his rights.
[53] Counsel cited R v Mallinson [1993] 1 NZLR 528 at 531 in support of that argument. He submitted that the onus of establishing actual understanding rests on the Crown and that this ought to be proven beyond reasonable doubt. He said that to meet the Mallinson standard, where there is reason to believe English is not the first language of a suspect, the police must offer the suspect access to an interpreter in the language of his or her choice before questioning commences.
[54] Mr Cato said Mr Fukushima is prejudiced on this issue by the fact that there was no record of exactly what was said to Mr Fukushima when he was given his rights. He said Mr Fukushima’s questions as to the meaning of delay and whether he could have a lawyer in the videotaped interview demonstrated that he was not fully conversant with his legal position.
[55] Counsel referred to what he called the Judge’s failure to address the issue of whether there had been a breach of Mr Fukushima’s right to silence. The implication of this was that the admission was not made freely, and if it is not excluded under s23(4) of the Bill of Rights, it should be excluded on grounds of unfairness. In counsel’s view the fact Mr Fukushima was ‘suddenly’ co-operative and ready to make an admission following the unrecorded 25 minute discussion with Detective Constable Small suggests that pressure was put on Mr Fukushima, during this period, to consent to an interview. In particular, counsel contended that Detective Constable Small told Mr Fukushima that he should consent to the interview out of friendship for the deceased.
[56] Counsel submitted that the failure to record the conversation preceding the interview prejudiced the defence on this issue of whether the admissions were made freely. Counsel submitted that contrary to the assertions of the police, it would not
have been impractical or difficult to record the conversation, by using, for example, a hand-held tape recorder, which Mr Cato noted are cheap and readily available to police. Counsel submitted that the period in which a suspect is deciding whether or not to submit to police questioning is a critical one and discussions during this period must be recorded. He referred to R v Koops (2002) 19 CRNZ 309 at [18]-[20] in support of that submission.
Crown submissions
[57] Counsel for the Crown, Mr Pike, submitted that the High Court Judge was correct in finding that Mr Fukushima was neither detained nor arrested prior to the commencement of the interview. For the definition of arrest counsel cited R v N (1998) 16 CRNZ 162 at 167 (affirming R v Goodwin [1993] 2 NZLR 153). The definition requires deprivation of the accused person’s liberty and, on the part of the police, a claim to the exercise of a legal authority. Counsel submitted that the police must communicate to the detainee the exercise of the power to detain. Applying this test, counsel argued that there was no evidence of any manifestation of legal authority in relation to Mr Fukushima, nor was there any suggestion that Mr Fukushima co-operated with the police because of a mistaken belief that he was under arrest. Counsel submitted that equally there was no detention, and that in any event, there was no evidence that the various admissions were a product of detention, citing R v Te Kira [1993] 3 NZLR 257.
[58] On the second issue of whether Mr Fukushima understood his rights, Mr Pike submitted, citing Mallinson, that only where there are objective indicia that a suspect does not appear to understand the rights given to him, must the police take additional steps to ensure understanding of the rights. Here, counsel contended that the police were faced with nothing from which it might be reasonably supposed that Mr Fukushima, when he said that he understood his rights, did not in fact understand those rights. In any event, whether Mr Fukushima in fact, understood his rights, counsel argued, is not a Bill of Rights issue but may give rise to fairness issues.
Discussion
Arrest or detention
[59] The High Court Judge found, as a matter of fact, that there had been no communication or manifestation by the police of an intention to apprehend or hold Mr Fukushima sufficient to constitute an arrest up until the time at which the Bill of Rights advice was given to him. At the time that he made his admission of involvement in the fighting, he was not detained (and therefore not arbitrarily detained) and there was no obligation to advise him of his s23 rights. The Judge accepted that there were grounds for suspicion at the time Mr Fukushima was taken to the Police Station (presumably because there was blood on his clothing). But she said there was at that stage insufficient basis for him to be arrested and charged, and the police had not made up their mind to charge him at that time.
[60] We are satisfied that all of these findings were open to the Judge on the evidence before her.
[61] We have considered carefully Mr Cato’s submission that actions by the police could have led Mr Fukushima to have a reasonably held belief induced by police conduct that he was not free to leave. He pointed to the instructions given by police officers to those assembled in the garage, which he said were authoritative, and the later steps which led to Mr Fukushima being taken to the Police Station for questioning. He placed particular emphasis on the fact that Mr Fukushima was a foreigner with limited experience of New Zealand and distressed at the time.
[62] Mr Cato accepted that he could not challenge the Judge’s factual finding that there had been no communication or manifestation by the police of an intention to apprehend or hold Mr Fukushima sufficient to constitute an arrest in terms of R v P [1996] 3 NZLR 132. But he said that the present case could be distinguished from R v P because no directions or orders had been given by the police in that case, whereas the police had acted in an authoritative and directive manner from the time of their arrival at the Academy in the present case.
[63] We are unable to accept Mr Cato’s submission, in the light of the Judge’s findings of fact. It is clear that Sgt Atkins sought co-operation from those present at the scene upon arrival, and sought to protect the crime scene. But his objective was co-operation rather than detention. Similarly, Detective Sergeant Free specifically asked for co-operation, and expressed a desire for those present in the garage at the Academy to come back to the Police Station for questioning. Although Mr Fukushima and Mr Oshima were transported separately from the others, this was said to have been for the prevention of cross-contamination. There is nothing in the police conduct to indicate that Mr Fukushima and Mr Oshima were otherwise treated differently from the other persons present at the Academy. In our view, the facts of this case do not support the contention on behalf of Mr Fukushima that the police conduct in this case induced a reasonably held belief on the part of Mr Fukushima that he was not free to leave, and was obliged to speak with police about the matter at the Police Station.
[64] Accordingly, we reject the first ground of appeal raised on behalf of Mr Fukushima.
Understanding of rights
[65] Mr Cato submitted that Mr Fukushima had insufficient English to understand properly the Bill of Rights caution provided to him by Detective Constable Small at
6.05 a.m., even though Mr Fukushima told Detective Constable Small that he did understand those rights.
[66] The Judge had before her evidence from Mr Fukushima of his experience of living in New Zealand since 1999, attending both school and university and participating in courses conducted in English. Mr Fukushima said he had limited understanding of English, and this was supported by evidence from a senior lecturer in Japanese, Rumi Sakimoto. She said that, for someone who had been in New Zealand for three or four years at a relatively young age, Mr Fukushima’s English was not very good. She said that Mr Fukushima could probably get by in an every day situation, but that when things became a bit more complicated or abstract he would have difficulty in understanding. However she accepted in cross-examination
that it was possible that Mr Fukushima could have understood a Bill of Rights caution if the Rights were explained to him in a simplified form.
[67] The Judge rejected Mr Fukushima’s evidence that he had asked for an interpreter at least twice before one was eventually sought. She also found that Detective Constable Small had no reason to believe that Mr Fukushima did in fact understand the rights given to him by Detective Constable Small when Mr Fukushima said that he did. She also noted that when Mr Fukushima eventually consulted with Mr Hart, no interpreter was involved.
[68] Mr Cato argued that the present case was similar to Mallinson, and that there were circumstances calling for further inquiry. In that case, this Court said at 531:
Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused’s answers at face value. If following advice as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights. But more than a bare statement of the s23(1)(b) right and a bare acknowledgement of understanding is likely to be required where, for example, the person arrested is intoxicated or under drugs or appears to have a mental or physical disability which could interfere with his or her comprehension of the rights.
The crucial question is whether it was brought home to the arrested person that he or she had those rights. That is not the same question as whether the police were justified in assuming that he or she did understand them. To look at it simply from the perspective of the police officer would mean that the person arrested who did not in fact understand the position would not be able to make an informed choice with respect to the exercise or waiver of the guaranteed right.
[69] Mr Cato said that more than a “bare statement” is required in this case because of Mr Fukushima’s youth, limited English and cultural background. He said these are disabilities that are analogous with those of a person who is intoxicated, under drugs or appears to have a mental or physical disability to which this Court referred in Mallinson.
[70] Mr Cato suggested that the Judge had, contrary to Mallinson, asked the question as to whether the police were justified in assuming that Mr Fukushima understood his rights, rather than determining the real question, which was whether it was brought home to Mr Fukushima that he had those rights. In our view, the Judge
was doing no more than taking Mr Fukushima’s answer that he understood his rights at face value, on the basis that there were no circumstances in the present case calling for further inquiry, and no reasons not to take his answers at face value. She was entitled to reach that conclusion on the evidence before her, and there is no basis for our interfering with her findings.
[71] Mr Cato noted the increasing number of foreigners now in New Zealand, many of whom have limited understanding of English. He said, in view of this, the Court should give a clear message that, in cases where there is reason to believe English is not the first language of a suspect, the police should offer the suspect access to an interpreter in the language of his or her choice before any questioning commences. In our view, there is no call for such a generalised approach. There will be many for whom English is a second language who will have sufficient English to understand their rights without more. The matter is best left on the basis outlined in Mallinson, where the focus is on the degree of understanding of the particular accused person, and whether the Crown has proved that the person understood the substance of his or her s23(1)(b) rights.
[72] We therefore reject the second ground of appeal raised on behalf of Mr Fukushima.
Unfairness
[73] The High Court Judge found that Detective Constable Small dealt with Mr Fukushima appropriately and fairly and that he properly treated Mr Fukushima as a witness until the time of his making admissions.
[74] Mr Cato said that the Judge had not resolved the conflict in the evidence between Mr Fukushima and Detective Constable Small as to whether Mr Fukushima attempted to exercise his right of silence. Mr Fukushima’s evidence was that he had said to Detective Constable Small that he did not want to talk, and had then said that if he and Detective Constable Small were going to talk, he would like an interpreter. Detective Constable Small denied that Mr Fukushima had said he did not want to talk, and it is notable that the Judge rejected Mr Fukushima’s evidence that he had
asked for an interpreter at this stage. In view of the Judge’s finding on that aspect, and her finding that Detective Constable Small had treated Mr Fukushima fairly, we conclude that she did not accept that Mr Fukushima had said that he did not want to talk at the commencement of the interview with Detective Constable Small.
[75] We turn now to Mr Cato’s criticism of the police for not using a hand held tape recorder or conducting a videotaped interview. He said that the defence was prejudiced by the fact that 25 minutes of the discussion between Detective Constable Small and Mr Fukushima was not recorded, and that the precise words used by Detective Constable Small in giving Mr Fukushima his rights were not recorded either.
[76] The Judge accepted that it was desirable that interviews conducted after a suspect is detained in terms of s23(1)(b) are accurately recorded, preferably by video. We agree. But she found that it was unrealistic to expect every conversation between a police officer and a potential witness who may become a suspect to be recorded, particularly in the extremely difficult circumstances prevailing at the time of the interview with Mr Fukushima. We agree with her finding on that aspect as well. We accept Mr Cato’s submission that notes of anything said by Mr Fukushima should have been taken by the officer: in that respect we agree with the comment made by Blanchard J in R v Koops at [18]. But Koops was a case of a single suspect who had already been the subject of a police search, and was being questioned as a result of that search. The present case was one involving a large number of witnesses to a homicide, all of whom were foreigners, and many of whom required interpreters. Until the police had some idea of the circumstances leading to the homicide, there was no basis to identify who were suspects and who were merely witnesses or, indeed, those who were not involved in either capacity.
[77] We are not persuaded that there is any basis for a finding contrary to the Judge’s finding that Mr Fukushima was treated fairly by Detective Constable Small, and in those circumstances the argument based on unfairness fails.
[78] Accordingly, we grant leave to appeal to Mr Fukushima, but dismiss the appeal.
MASATO FUJITA
Facts
[79] Mr Fujita turned 20 a few days after the death of Mr Shinozaki. He had resided in New Zealand for five years.
[80] Unlike the other appellants, Mr Fujita did not give evidence in the High Court. The Judge heard evidence from the officer who interviewed Mr Fujita, Detective Constable Norris, and the Japanese interpreter, Ms Delowe.
[81] Detective Constable Norris gave Mr Fujita his rights in accordance with the Bill of Rights in an interview room at the Police Station at 10.07 a.m. This was recorded in his notebook. He also cautioned him. Ms Delowe was present and acted as interpreter. There was then the following exchange between them:
Q. Do you understand your rights?
A. Roughly.
Q. What does he not understand?
A. I do not know a lawyer.
Q. We can provide a free list of lawyers if you do not know one. Are you happy to make a statement?
A. Yes.
Q. Are you happy to make a statement on video?
A. Yes.
[82] They then proceeded through to a video suite on another level of the Police Station, where a videotaped interview was recorded. Subsequently, Ms Delowe's translations of the English questions into Japanese and Mr Fujita's answers in Japanese have been translated into English. The transcript prepared by Pacific International Translations (NZ) Ltd was produced as an exhibit. It records the following dialogue at the very beginning of the interview:
Interpreter: You don't have to say anything if you don't want to, but anything you do say will be kept as evidence.
Mr Fujita: Yes.
Interpreter: Do you understand that? Mr Fujita: Yes.
Interpreter: If you want to talk to a lawyer, tell us that you want to talk to a lawyer immediately, and you can talk in private with the lawyer.
Mr Fujita: Yes.
Interpreter: You have the right to refuse the interview, to refuse to make a statement.
Mr Fujita: Yes.
Interpreter: Do you understand those rights? Do you understand your rights that we've just explained?
Mr Fujita: Yes.
[83] An extensive interview then took place. The transcript runs to about 23 pages. Mr Fujita admitted taking part in the assault on the deceased.
[84] The interview concluded at 11.06 a.m. At 11.18 a.m., Mr Fujita was arrested and charged with assaulting Mr Shinozaki. The caution and rights advice were then repeated and Mr Fujita again acknowledged that he understood them.
[85] Detective Constable Norris accepted that, when Mr Fujita indicated, at the beginning of the interview, that he understood "roughly", that was not good enough. He appreciated that it was necessary to clarify just what he did not understand. He said that was why he offered to provide Mr Fujita with "a free list of lawyers", if he did not know one. He knew that there was a legal aid duty roster scheme operating 24 hours a day at the Police Station at that time, that access to advice was by phone and that access to a lawyer in accordance with the scheme was free to the person who used it. He said that by advising Mr Fujita of the availability of a "free list", he intended to alert him to his ability to access a lawyer under this scheme. He did not ask Mr Fujita whether he would like to have a look at the list or whether he would like to ring a lawyer. He did not believe that he was required to do so.
[86] Detective Constable Norris denied that, by some of his answers in the videotaped interview, Mr Fujita was endeavouring to exercise his right to silence. He said that he believed that he understood what he was being asked.
[87] Detective Constable Norris said he thought that, despite the events which had led to him being brought to the Police Station, Mr Fujita appeared "very stable and unfazed by what was going on". He said he was unaware that Mr Fujita had been awake for 24 hours or more at the time of the interview.
[88] Ms Delowe’s evidence was of limited assistance. The Judge said her recollection of the finer detail of what was said or done in the interview with Mr Fujita was “understandably hazy”. (She had been involved in a number of different interviews on the day in question).
[89] Ms Delowe was asked by the counsel for the Crown about the Japanese words she would have used to translate Detective Constable Norris’s reference to a "free list of lawyers". She said that a direct translation of the phrase meant "lawyers chosen by the State" and that that meant exactly the same as legal aid lawyers. She said she was aware that a legal aid system, with lawyers paid by the State, operated in Japan.
Issues
[90] The sole issue relating to Mr Fujita is whether there was a breach of s23(1)(b), namely, whether the advice of his rights concerning access to a lawyer was effectively communicated to him.
High Court decision
[91] Frater J accepted that Mr Fujita’s position was virtually identical to that of the accused in R v Schriek [1997] 2 NZLR 139. In that case, the accused, after being advised of her right to a lawyer, responded, “don’t have a lawyer”. The Judge found that Mr Fujita’s response, “ I do not know a lawyer”, indicated, as had the accused’s
response in Schriek, that Mr Fujita may not have properly appreciated, or may have been confused about, the nature of his rights.
[92] The Judge then proceeded to consider whether the steps taken by Detective Constable Norris were sufficient to rectify the position. She accepted that Detective Constable Norris’s next statement, that “a free list of lawyers could be provided”, was ambiguous. However, she found that the subsequent repetition of the rights advice in Japanese was unambiguous and that this effort to rectify the position distinguished the case from Schriek. In the Judge’s view, Mr Fujita would have been aware at the outset of the videotaped interview that legal aid lawyers would be provided, and the evidence was, therefore, admissible.
Submissions for Mr Fujita
[93] Counsel for Mr Fujita, Mr Couchman, submitted that Detective Constable Norris did not inform Mr Fujita about the existence of the Police Detention Legal Assistance (PDLA) scheme in a manner that would meaningfully assist his understanding of his right to immediate legal advice (citing Schriek and Mallinson).
[94] Mr Couchman contended that the ambiguous advice given by Detective Constable Norris “tainted” the rights advice given subsequently. He argued that there was insufficient time between the time at which the ambiguous advice was given and the time at which the advice was repeated for the misunderstanding to be properly rectified.
[95] Mr Couchman also stressed the fact that Mr Fujita was not asked if he wished to exercise his rights after he was advised of them. Counsel referred to R v Ji [2004] 1 NZLR 59, in which a failure to make such an inquiry attracted negative comments from this Court. He contended that Detective Constable Norris ought to have placed a copy of the list of lawyers in front of Mr Fujita to specifically direct Mr Fujita to his right to legal advice and demonstrate the immediacy of the right.
Crown submissions
[96] Mr Pike argued that Mr Fujita could not, having chosen not to testify, realistically hope to establish a breach of any right he might have had.
[97] Mr Pike also contended that, in any event, the issue of whether the s23 right was effectively communicated does not arise because Mr Fujita was not under arrest. Schriek could be distinguished, as in that case the s23 issue was determined on the basis that the accused was under arrest. This point had been conceded in the lower court. If, however, Mr Fujita was entitled to his rights, Mr Pike argued that Detective Constable Norris’s efforts could be distinguished from those of the officer in Schriek, as Detective Constable Norris showed he was aware that his initial answer was not good enough and took steps to remedy the situation.
Discussion
[98] It is clear that the original exchange in the interview room, before Detective Constable Norris, the interpreter and Mr Fujita moved to the video interview room, was inadequate. Mr Fujita’s reply to the question as to whether he understood his rights, “I do not know a lawyer” is effectively the same as the response given by the suspect in the Shriek case. And the reference to “free list of lawyers” was not only ambiguous, but was followed immediately by the question “are you happy to make a statement?” to which Mr Fujita answered “yes”. Mr Couchman described this as a “double barrelled” question, and we agree: Detective Constable Norris moved on to the question about making a statement before he had had any kind of response to the comment that a free list of lawyers could be provided.
[99] The essential issue is, therefore, whether the subsequent explanation of rights given in the video interview room before any incriminating statements were made effectively remedied the deficiency in the earlier exchange.
[100] This again involves a consideration of R v Mallinson. Mr Couchman’s argument was that, in view of the answer given by Mr Fujita in the first exchange that he did not know a lawyer, his statement in the video interview room that he
understood his rights should not have been accepted at face value. We do not accept that submission. In this case the Bill of Rights advice was given to Mr Fujita in Japanese by a qualified interpreter, and he indicated that he understood what was meant. There were none of the language difficulties which were said to have characterised the situation in relation to Mr Fukushima. Thus, in our view, there were no circumstances “calling for obvious care and further inquiry” in terms of the decision of this Court in Mallinson. Because the advice was given to Mr Fujita in his own language, it could not be said that he was a person suffering some kind of disability which would interfere with his comprehension of the rights. In our view, there is no basis for treating a person who has English as a second language as a special case, or characterising such a person as being under a disability in Mallinson terms, if rights are effectively communicated to the person.
[101] Mr Couchman suggested that Mr Fujita should have been advised of the existence of the PDLA scheme in a manner that would meaningfully assist his understanding of the right to immediate legal advice before any questioning took place. He drew support for that submission from this Court’s decision in R v Ji where it was said at para [39]:
R v Mallinson, decided over a decade ago, found at p 531:
“… there is no duty on the Police when informing persons arrested of their right to a lawyer to go on to give advice designed to facilitate the exercise of that right.”
There is a question whether advice as to the existence and availability of legal assistance such as the PDLA scheme amounts merely to facilitation, or whether it is integral to the existence of what this Court referred to in Mallinson at p 530 as a:
“…fair opportunity for the person arrested to consider and decide whether or not to exercise that right.”
It seems to the majority of the Court that the latter view is more consonant with an appreciation of the realities of detention, and with the principle of access to justice acknowledged by the Legal Services Act 2000.
[102] We do not accept that the law has reached the point that advice as to the existence of the PDLA scheme is a prerequisite to police questioning. Section 23(1) of the Bill of Rights sets out in clear terms the requirements stipulated by Parliament, which, of course, reflect the terms of international instruments. Section 23(1)(b)
says a detainee shall have the right to consult and instruct a lawyer without delay and to be informed of that right. In some circumstances, fairness requires more than bare compliance with s23. However, we do not think that there is a general requirement to provide details of particular schemes for the provision of legal advice in all cases. In the circumstances of this case, we do not consider that a failure to give such an explanation amounted to a breach of s23.
[103] We are not persuaded that there are any grounds to depart from the decision reached by the High Court Judge. That conclusion makes it unnecessary for us to consider the Crown’s submission that there was no arrest or detention in this case. It appears that the High Court Judge proceeded on the basis that there was such an arrest or detention, and it was suggested to us that this point may have been conceded in the High Court.
[104]We grant leave to appeal to Mr Fujita, but dismiss the appeal.
NOBU OSHIMA
Facts
[105] Mr Oshima was 19 years old at the time of the incident. He had been in New Zealand since he was 17, and had lived at the Academy for all of that time.
[106] On the night of 25/26 February 2003, Mr Oshima assembled with the others at the Academy in the driveway and later in the garage. He said he assumed that he was not able to leave and, because of something somebody said to someone else, that they could not talk to each other.
[107] He and Mr Fukushima, both of whom had blood on their clothing, were driven back to the Police Station by Detective Garrett and Detective Constable Small. It was obvious to Detective Garrett that Mr Oshima did not have a good grasp of English, and he therefore arranged for an interpreter to be present at the
Police Station to assist with the interview with Mr Oshima. They left the Academy at 5.10 a.m.
[108] At about 5.40 a.m., the interpreter, Ms Delowe, arrived at the interview room, where Detective Garrett and Mr Oshima were waiting.
[109] With the assistance of the interpreter, Detective Garrett cautioned Mr Oshima and advised him of his rights under the Bill of Rights. He then explained the situation and reasons for speaking to him.
[110] Thereafter there was the following exchange which Detective Garrett recorded in his notebook:
Homestay father said he would need a lawyer. Asked if he can speak through lawyer instead of interpreter?
Advised he can have lawyer present but interpreter will also be present. Asked who lawyer is?
Don't know. Homestay father has/is arranging one. He will be here tomorrow. Later on this morning perhaps.
We cannot wait until tomorrow to talk to your lawyer. You can pick one lawyer from this. Given call out legal list for 26 February 2003.
[111] Mr Oshima took the list and examined it. Having done so, he said: "I will not pick one from list. I will go ahead with interview without lawyer." He was then asked whether he would undertake a videotaped interview. He agreed.
[112] Before that commenced, the interpreter read through Detective Garrett's notes and signed them correct. Detective Garrett then asked the interpreter to read his notes to Mr Oshima. She did this and he agreed that they were correct. He then countersigned the record in Detective Garrett's notebook beneath the words in English: "Notes read to me by interpreter. I agree they are correct."
[113] The Japanese translation of Detective Garrett's questions during the videotaped interview and Mr Oshima's responses, have been translated into English. The videotaped interview got underway at 6.26 a.m. At the outset there was a discussion about access to a lawyer, which is recorded in the transcript as follows:
Interpreter: At this point in time, I don't yet know whether or not you are a suspect in this matter. Although I don't yet know whether you are a suspect, as a precaution on the part of the police, I will now read you two of your rights.
Interpreter: You have the right not to speak if there is something that you don't want to say.
Interpreter: Whatever you say will be recorded on this tape and kept for evidence.
Interpreter: Did you understand what I've just said? Oshima: Yes.
Interpreter: You have the right to call and consult a lawyer. You can talk with just the lawyer, in private and with no delay. You have the right not to make this statement if you don't want to. Do you understand?
Oshima: Yes.
Interpreter: From the viewpoint of the police, we really want to find out what happened this morning at your place.
Interpreter: The notes taken by the police regarding the situation up to the present time have been read to you?
Oshima: Yes.
Interpreter: Your homestay father has arranged a lawyer for you, but that lawyer hasn't contacted the police yet. You don't know who that person is.
Oshima: I don't know who it is, but it's Nozomu's lawyer. Interpreter: Who is Nozomu?
Oshima: The person who died.
Oshima: He had been coming to this police station. Interpreter: That lawyer?
Oshima: No, Nozumu.
Interpreter: Please explain why he had to come here. Mr Oshima: He caused a small problem.
Interpreter: Your lawyer, your homestay's lawyer, is coming later, but we don't know when that will be.
Oshima: It will be soon.
Interpreter: You don't know whether or not he is coming, or when, right? Oshima: Yes.
Interpreter: We gave you the list of lawyers, didn't we. Because you don't know when that lawyer will come ...
Oshima: Uh huh.
Interpreter: We told you that you could choose someone from that list and call them.
Oshima: Uh huh.
Interpreter: Right, you haven't chosen a lawyer from that list, so you agree that it's OK to conduct the interview without a lawyer, and to record it on video?
Oshima: Yes.
Interpreter: Is that correct? Oshima: Yes.
[114] Detective Garrett then continued his questioning of Mr Oshima. Mr Oshima acknowledged he was present at the meeting at which Mr Shinozaki died. He also admitted being involved in assaulting Mr Shinozaki. First he admitted punching him, as he was one of the people who was wrongly suspected of lighting the fires which Mr Shinozaki had, in fact, lit. As more details emerged, he also admitted that he was also involved in the fighting and he kicked the deceased. He said that that explained the splatters of blood on the lower part of his trousers. He said he kicked Mr Shinozaki with both his knee and his foot.
[115] At the conclusion of the interview Mr Oshima was arrested and charged with assault. Later the charge was changed to one of murder.
Issues
[116]Two issues were raised on appeal in respect of Mr Oshima:
(a) Whether Mr Oshima was detained before he was, in fact, advised of his rights and cautioned, and thus, whether the ss 22 and 23 rights were triggered;
(b) Whether in the circumstances there was an obligation on the police to facilitate his access to a lawyer:
(i)by making enquires as to the availability of his “homestay father’s” lawyer;
(ii)by providing further details of the free legal assistance scheme, in addition to offering him the names of those lawyers.
[117] During argument, counsel for Mr Oshima, Mr Mansfield, also argued that Mr Oshima’s statement should be ruled inadmissible on grounds of unfairness.
High Court decision
[118] On the issue of whether Mr Oshima was detained, Frater J was not satisfied that he was detained at any point until he arrived at the Police Station and the interviewing officer obtained sufficient information to form good grounds to suspect that he was implicated in the assault. The Judge acknowledged that Mr Oshima might have felt, earlier, constrained to comply with the directions of the police, but found that Mr Oshima went to the Police Station willingly.
[119] On the second issue the Judge said that best police practice in the situation would have been to make inquiries to facilitate contact with a lawyer of choice. While it might be best police practice, however, the Judge found that there was no obligation to do so under s23. Likewise, in respect of the free legal assistance scheme, the Judge found there was no obligation to spell out what the legal assistance scheme meant. Mr Oshima said in evidence that some of his objections to accessing lawyers on the list were concerns about payment, but the Judge noted that he did nothing to convey that concern to the police and accordingly, the Schriek threshold was not met.
Submissions for Mr Oshima
[120] Counsel for Mr Oshima argued that Mr Oshima was detained. He said the High Court had accepted and held that Mr Oshima was detained at the time he arrived for the purpose of the police interview at the Police Station.
[121] On the second issue, Mr Mansfield accepted that Mr Oshima could not name the lawyer he was expecting. But he said that, after Mr Oshima made reference to his homestay father as the person organising the lawyer, Detective Garrett had an obligation to make inquiries as to the whereabouts of Mr Kanamori and attempt to ascertain the lawyer’s details. He said simple inquiries could have been made at the Police Station using the information Mr Oshima had given Detective Garrett regarding the lawyer’s previous representation of the deceased. Counsel contended that there was no acceptable explanation, such as urgency, for Detective Garrett’s failure to make inquiries to facilitate access to the lawyer of Mr Oshima’s choice.
[122] In addition, Mr Mansfield argued that, in the circumstances, Detective Garrett had an obligation under s23 to advise Mr Oshima that the legal assistance scheme is free. He said Mr Oshima was not, given his background, in a position to know how the scheme operated. He said there was therefore no genuine waiver of the right to counsel by Mr Oshima, because it was neither informed nor voluntary. It was clear, counsel said, that Mr Oshima still desired the assistance of a lawyer, despite the fact this was not expressly conveyed. Only in the face of urgings from Detective Garrett, and Detective Garrett’s instruction that they could not wait, did Mr Oshima agree to proceed with the interview without legal advice.
[123] Mr Mansfield also objected to the admissibility of Mr Oshima’s statement on the grounds that it was obtained unfairly. This submission was advanced on the basis that the police should have taken greater steps to facilitate Mr Oshima’s right to a lawyer, particularly in light of Mr Oshima’s youth, his limited ability to speak and understand English and his lack of experience with the New Zealand legal system.
Crown submissions
[124] Mr Pike argued, contrary to what was submitted by counsel for Mr Oshima, that the finding of fact in the High Court was that Mr Oshima was not detained before he was advised of his rights and cautioned. Nor, the Crown contended, was Mr Oshima arrested for the purposes of s23(1)(b). Because of the critical role of s23 and the greater likelihood of excluded evidence if the rights are breached, the concept of arrest, Crown submitted, requires an objective test. He said that there was no evidence that, at the material time, Mr Oshima was charged or under arrest. Accordingly the rights under s23(1)(b) were not engaged and the issue of whether there is a right to counsel of choice, does not arise.
[125] However, on the issue of whether the right to counsel was properly facilitated, Crown counsel contended that Mr Oshima knew he could pick any lawyer from the list shown to him. He said that, if Mr Oshima had reservations about the cost of the lawyer or about speaking to the police without a lawyer, he did not convey those reservations to Detective Garrett.
Discussion
Detention
[126] The argument on the detention point in this Court was not extensive, because Mr Mansfield suggested that the Crown had conceded that Mr Oshima was detained. We can find no record of that in the Judge’s decision, and it appears to be inconsistent with the fact that the Judge specifically identified it as an issue which required her decision. That can be contrasted with the situation in relation to Mr Hiraki, where the Judge expressly recorded that the Crown had conceded that Mr Hiraki was detained at the relevant time.
[127]The test for a detention was expressed in the following terms in Everitt at [7]:
In general terms, whether someone is detained within the meaning of s22 of the Bill of Rights may be determined by a “mixed objective/subjective test:
does the suspect have a reasonably held belief, induced by police conduct, that he or she is not free to leave” (R v M [1995] 1 NZLR 242 at p 245). A commonsense and practical approach is called for and something more than a temporary check on a citizen’s liberty is required.
[128] That test was also adopted by this Court in R v Koops at [14]. There was no dispute that it was the correct test.
[129] Applying that test in the present case requires a consideration of what belief Mr Oshima had, and what police conduct induced him to hold it.
[130] Consistently with her findings in relation to the other appellants, the Judge found that Mr Oshima went to the Police Station willingly, and was therefore not arrested or detained when he arrived at the Police Station. In our view, that was a finding that was available to her on the evidence and there was no serious challenge to it. So it is necessary to identify conduct on the part of the police subsequent to Mr Oshima’s arrival at the Police Station, but before he was formally arrested, that could have led him to hold a reasonably held belief that he was not free to leave the Police Station. We have been unable to locate evidence of any such conduct. Nor do the circumstances of the interview give rise to that inference. Accordingly we conclude that Mr Oshima was not detained or arrested until he was formally charged (i.e. after the videotaped interview had concluded).
[131] Frater J found that Mr Oshima became subject to detention after his arrival at the Police Station, though the precise point at which this occurred is not specified. The Judge said (at [268]) that she was not satisfied that Mr Oshima was detained “until he arrived at the station and the interviewing officer obtained sufficient information to form good grounds to suspect that he was, in fact, implicated in at least an assault on Mr Shinozaki”.
[132] The difficulty with the finding on detention in the High Court is that it is not clear from the finding as to what gave rise to the detention and thus when Mr Oshima’s detention actually commenced. The application of the test the Judge adopted does not appear to lead to a conclusion that Mr Oshima was detained at the commencement of the videotaped interview at 6.26 a.m., when the exchange with Detective Garrett as to Mr Oshima’s desire to consult a lawyer took place. But the
Judge does not make an explicit finding to that effect. And the Judge does not state what conduct on the part of the police or circumstances could have induced Mr Oshima to hold a reasonably held belief that he was detained if he had no such belief when he arrived at the Police Station about an hour before the interview began.
[133] When considering this issue in relation to other suspects, the Judge attributed some importance to the receipt, by the officers conducting interviews of those suspects, of Mr Fukushima’s list of those involved in the attack. For example, in relation to the accused Mr Nishide, the Judge found that there had been no detention at the time of his arrival at the Police Station, for essentially the same reasons as she reached a similar conclusion in relation to Mr Oshima. But she said (at [194]):
The situation changed, however, once Det Snr Sgt Sutton gave Det Cons Hyland-Mills the list prepared by Mr Fukushima. At that stage Mr Nishide was definitely a suspect and would not have been free to go, s23(1)(b) and
(4) of the Bill of Rights advice came into operation. The accused should have been advised immediately of his right to consult and instruct a lawyer. There is no reason or excuse why he was not. He was definitely at risk of incriminating himself if he continued talking and that is exactly what he then proceeded to do.
[134] It is not clear that that analysis applies the Everitt test. But, even if one were to apply that test in Mr Oshima’s case, there does not appear to have been any similar basis for Detective Garrett to treat Mr Oshima as a suspect. There is no evidence that Detective Garrett received the list of those who were present at the time of the attack on Mr Shinozaki which had been prepared by Mr Fukushima and given to Detective Constable Small at about 6.15 a.m. The evidence was that this list was given to Detective Senior Sergeant Sutton at about 6.20 a.m., but there is no evidence that Detective Garrett was told about it (although other interviewing officers were).
[135] At the beginning of the videotaped interview, Detective Garrett is recorded as having said to Mr Oshima that he did not know what Mr Oshima’s involvement in the circumstances were, and that he did not know whether Mr Oshima was a suspect or not in the inquiry. He said that he was erring on the side of caution in reading Mr Oshima his rights. There is nothing in the evidence in the High Court which indicates that those statements did not represent the actual position at the
commencement of the interview. That supports the likelihood that Detective Garrett did not have the list of names prepared by Mr Fukushima when the interview began.
[136] There is nothing in the record of the videotaped interview which indicates that the list came into Detective Garrett’s possession at any stage. Accordingly, it seems clear that the interview was conducted on the basis, at least initially, that Detective Garrett was seeking information from a witness, rather than interrogating a suspect. Even if Detective Garrett did receive the list, it is hard to identify what conduct on Detective Garrett’s part, either before or during the interview, could have induced a reasonably held belief on the part of Mr Oshima that he was detained.
[137] The fact that Detective Garrett undertook the interview with the formality of a videotaped record and after reading Mr Oshima his rights would not, in itself, convert a willing presence into a detention. As Richardson J (as he then was) said in R v Dahl CA76/93 21 May 1993 at p 8 of his judgment:
A police officer may reasonably give a caution and offer the opportunity of legal advice and representation as a matter of precaution. It is not implicit that in doing so the officer is intending to arrest the person concerned then and there. There is nothing in the evidence to support the argument that the caution and the advice of the right to a lawyer or anything else which was said or done made it clear that Dahl was being deprived of his liberty.
[138] Cooke P and McKay J left open the question of whether an arrest had occurred in the Dahl case, though McKay J said he inclined to the same view as Richardson J. We adopt the analysis of Richardson J, and apply it to the present case.
[139] The Koops case had some similarities to the present case. Ms Koops was found to have gone to the Police Station willingly, in response to a request from a police officer to do so. It was found that her presence at the Police Station was not, initially, a detention. However, during informal questioning (which had not been preceded by any Bill of Rights caution), Ms Koops volunteered that she had engaged in trading of morphine sulphate tablets. This Court determined that that admission led to a change in the tenor of the interview and that, once that occurred, Ms Koops probably believed that she would no longer be permitted to leave the Police Station if she chose to do so. Ms Koops had maintained that she was of such a belief
throughout the interview, and the Court accepted that evidence so far as it related to questioning after the admission of trading morphine sulphate tablets was made. The Court said at [16]:
The police had thus created a situation akin to one in which a suspect is told that they are not free to leave. There was accordingly a situation of detention.
[140] Mr Pike argued that Koops was wrongly decided, because there had been no police conduct which induced any belief on the part of Ms Koops that her previous freedom to leave the Police Station had been terminated. Thus, he argued, the mixed objective/subjective test adopted in Everett and cited in Koops was not, in fact, satisfied in that case.
[141] Whether that is the case or not, there is a further difficulty in the present case in determining when the change occurred that converted Mr Oshima’s willing presence in the Police Station to a detention. In the absence of any evidence that Detective Garrett was given the list of names prepared by Mr Fukushima, it is not possible to conclude that awareness of the information in the list (implicating Mr Oshima) caused this change. The situation differs from that relating to Mr Nishide, to which we referred earlier.
[142] So, even if the test were applied in the same way as it was in Koops, the change would need to be at the point at which Mr Oshima first admitted his involvement in the attack on Mr Shinozaki. That would be an event which would be analogous with the admission of trading in morphine sulphate tablets made by Ms Koops. However, the Judge found that all of Mr Oshima’s statement was inadmissible. An application of the Everitt test in the same way as in Koops (i.e. as outlined above) would lead only to the inadmissibility of that part of Mr Oshima’s statement which occurred after he made the initial admission.
[143] In the Koops case, the Court did not point to a particular action on the part of the police which induced the reasonably held belief of detention on the part of Ms Koops. It may be that Ms Koops’ own admission was found to have satisfied the Everitt test (we express some doubt that it could have, as it was not “police
conduct”). Even if that were so, it is difficult to see what police conduct could have induced such a belief on the part of Mr Oshima in this case.
[144] In the Koops case, the police officer was undertaking an informal discussion with Ms Koops and the tenor of that discussion obviously changed when she made an omission of serious offending. It seems that it was this change in the tenor of the discussion which led to the change of a voluntary presence at the Police Station to a detention. But in the present case, the interview which was being conducted was clearly being undertaken with formality from the outset, with a view to obtaining information about the offence which had led to the death of Mr Shinozaki. A Bill of Rights caution had been given (even if inadequately, to which we will come later). There does not appear from the transcript of the videotaped interview to have been any event which could be said to have changed the tenor of the discussion. So there appear to be significant differences between this case and Koops.
[145] In our view the present situation is analogous with that in R v P. In that case Eichelbaum CJ said, after describing the circumstances (at 137):
The appellant may have regarded himself as not free to go but viewed objectively, nothing said or done by the police induced or justified such a conclusion. Thus the question of the appellant’s entitlement to rights under s23 did not arise, notwithstanding that as a matter of caution the police informed the appellant of them.
[146] We find, contrary to the finding of the High Court Judge, that Mr Oshima was not arrested and detained at the time of the videotaped interview, and his rights under s23 of the Bill of Rights were not therefore triggered. His appeal on Bill of Rights grounds must therefore fail. We will, however, set out our views on the other point on appeal raised by Mr Mansfield.
Access to a lawyer
[147] The starting point for this analysis is the statement in R v Mallinson that the police have no duty, when informing persons arrested of their rights to a lawyer, to go on to give advice designed to facilitate the exercise of that right. But it is notable that the Court said almost immediately after making that statement (at 531):
But any duty to facilitate the manner of its exercise is not triggered until there is an indication by the person arrested of the desire to consult a lawyer. What, if anything, is then required of the police will depend on the particular circumstances.
[148] The present case is unusual in that Mr Oshima indicated that he wanted to talk to a particular lawyer who had been nominated by Mr Kanamori, but was unable to tell Detective Garrett the name of this lawyer. However, he gave information about the lawyer which would have allowed him to be identified after reasonably simple inquiries. First, Mr Oshima told Detective Garrett that the lawyer had been nominated by Mr Kanamori, so an inquiry of Mr Kanamori would have revealed who the lawyer was. Second, he said that the same lawyer had acted for the deceased, Mr Shinozaki, in relation to previous incidents which had involved the police. So, again, a relatively simple inquiry on the part of Detective Garrett would have revealed that the lawyer was Mr Hart.
[149] Detective Garrett said in evidence that he had not been aware that Mr Hart had represented Mr Shinozaki previously, and that he had not made inquiries as to whether any lawyer had contacted the police in connection with the matter. He mentioned that he saw that there was a possible complication in the fact that Mr Hart had acted for the deceased, but, of course, it was not for him to decide whether it was appropriate for Mr Hart to act for Mr Oshima.
[150] The High Court Judge found that a discussion with Detective Senior Sergeant Sutton would have led Detective Garrett to find out that Mr Hart was Mr Oshima’s lawyer of choice. She said that it would have been best practice for Detective Garrett to have done this, but that there was no obligation to pursue inquiries about a lawyer of choice.
[151] There appears to have been no cogent reason provided for the decision to proceed with the interview without making any effort to contact the lawyer nominated by Mr Oshima or to attempt to identify exactly who that lawyer was. In many situations, it will be appropriate for police not to delay an interview attempting to follow up information which may lead to the identification of a named lawyer, or to continue attempts to contact that lawyer if he or she is unavailable. But we believe that, in the present situation, where Mr Oshima had identified a lawyer
whom he wanted to consult but was able only to describe rather than to identify him, and unable himself because of language difficulties to take the matter further, the police officer ought to have tried to identify the lawyer and contact him. The exchange between Detective Garrett and Mr Oshima illustrates that Mr Oshima was confident that Mr Hart would be arriving soon, and knew that this was the lawyer which Mr Kanamori had organised for him.
[152] This was a situation where Mr Oshima had indicated his desire to consult a lawyer, and had provided sufficient information to make it reasonably apparent to the police after minimal inquiries who the lawyer of choice was. In our view, the police ought to have made those inquiries and to have attempted to contact Mr Hart so that he could advise Mr Oshima. If such inquiries had been made and had yielded no result, or if Mr Hart had not been contactable, then the steps taken by the police to provide a list of lawyers may have been adequate. But in the circumstances of this case, we conclude that the failure of the police to take the steps necessary to identify and attempt to contact Mr Hart involved a failure to recognise adequately Mr Oshima’s s23 rights. Accordingly, if we had found that Mr Oshima had been detained at the time of the videotaped interview, then we would have ruled that a breach of s23 had occurred.
Unfairness
[153] Mr Mansfield argued that the evidence obtained from Mr Oshima during the videotaped interview should be ruled inadmissible on the grounds that it was obtained unfairly. We do not accept that submission.
[154] The interview took place in circumstances where the interviewing officer was unaware that Mr Oshima was a suspect, and the questioning took place on the basis that he was a witness. There was nothing unfair in the way in which the questions were put to Mr Oshima, and the interview was videotaped. Mr Oshima was not detained at the relevant time.
[155]Mr Mansfield referred us to the decision of this Court in R v Tuhua
CA272/88 22 November 1988. But that was a case where the accused person had
been brought in to the Police Station and was in custody and was being questioned as a suspect in an overbearing way by a detective who did not record all of the questions and answers. It has no similarity to the present case.
[156] Mr Mansfield also relied on R v Pulemoana CA402/93 11 November 1993. In that case, the Court said that, where there remained a risk that a person did not understand the right to consult with a lawyer, the wise approach would be to arrange for the suspect to be seen by a lawyer. However, the Court upheld the trial Judge’s finding that the accused person had given a valid waiver of the right to a lawyer in that case, notwithstanding the fact that there was evidence that the accused, who was Niuean, had limited understanding of the explanation given to him about a lawyer. In the present case, where all communications with Mr Oshima were conducted through a Japanese interpreter, the concern expressed by a Court in Pulemoana simply does not arise.
[157] We are satisfied that there is no basis for excluding Mr Oshima’s statement on the ground of unfairness, and we therefore reject this ground of appeal.
[158]We grant leave to appeal to Mr Oshima but dismiss his appeal.
RYUJI HIRAKI
Facts
[159] Mr Hiraki was 26 years old when the incident at the Academy happened. But he had been in New Zealand for only seven months. He was not proficient in English.
[160] After the police arrived at the Academy, Mr Hiraki waited with the others in the garage. Eventually he was taken to the Police Station. Mr Hiraki waited in the bar at the Police Station until shortly before midday when he was introduced to Detective Drake and Mrs Martin, an interpreter.
[161] Detective Drake, Mrs Martin and Mr Hiraki then went into a small interview room where Detective Drake cautioned him and advised him of his rights under the Bill of Rights. She recorded in her notebook that she had said:
You have the right to consult and instruct a lawyer without delay and in private. You also have the right not to make a statement but any statement you do make can be used in evidence.
[162] Mrs Martin translated this advice but there is no record of the Japanese words used. Mr Hiraki said to Detective Drake that he understood his rights and agreed to Detective Drake's request that he be interviewed on videotape. The High Court Judge found that Mr Hiraki did not request a lawyer. The videotaped interview began at 12.14 pm.
[163] Detective Drake commenced the videotaped interview by setting out the reason for the interview. She repeated the caution and Bill of Rights advice given earlier. However, not all her words were translated into Japanese. To highlight the differences a transcript was prepared recording both the English dialogue audible on the videotape and Mrs Martin’s translation into English of what was said in Japanese and an English version of her Japanese translation of Detective Drake’s questions and Mr Hiraki’s replies.
[164] An excerpt from the transcript was set out in the High Court judgment and for convenience we set it out below. The words shown in italics are the English words used; those in roman type are the translation from Japanese into English by Pacific International Translation (NZ) Ltd. Mrs Martin accepted that it was correct except for the phrase "receive a variety of support from". She said, and it was not disputed, that it should read "consult with".
[165]The excerpt is as follows:
"Q Okay. And the reason for the interview today is about what happened in the early hours of the morning at home. Is that all right?
INT The reason for taking today's statement is in order to ask about events relating to what happened early this morning.
A Yes.
Q Okay. Right. You've been given your rights a few times today.
INT I believe your rights have been explained to you several times today, is that right?
A Yes.
Q But for the sake of the video, I'm going to do it one more time.
INT Because this video is recording now, please allow us to repeat that once again.
A Yes.
Q So you've got the right to consult and instruct a lawyer without delay and in private.
INT You have the right to nominate a lawyer and to [receive a variety of support from] / [consult with] that person.
Q And you have the right to refrain from making any statement.
INT Next, you may exercise your right to remain silent, and not reply, in this statement.
Q And any statement you now make to me will be recorded on video. INT However, the video recorded here today will be used as evidence. Q Do you understand those rights?
INT Have you understood? About your rights? A Yes
Q Okay. Right. Obviously this is being video interviewed so we need to keep our voices up so everyone can be heard. I know you're tired ...
INT Please speak up a little for the video. I understand that you are tired, but please raise your voice a little.
A Okay.
Q Okay. So tell me -- tell me what happened.
INT Can you please give us an outline of what happened? A Yes."
[166] In the course of the interview, which finished at 1.06 pm, Mr Hiraki admitted kicking the deceased in the back at least three, but "never more than five", times. At
1.20 pm, Mr Hiraki was arrested and charged with assaulting Mr Shinozaki.
Issues
[167]Three issues arise in respect of Mr Hiraki:
(a) Whether the right to a lawyer without delay and in private was communicated to Mr Hiraki;
(b) Whether Mr Hiraki was made sufficiently aware of the jeopardy or the nature of the charge he faced before he waived his right to a lawyer;
(c) Whether sufficient weight was given to Mr Hiraki’s language difficulties and cultural differences in the assessment of the first two issues.
High Court decision
[168] On the issue of whether there was effective communication of the right to legal advice, Frater J found, referring to Mallinson and R v Piper [1995] 3 NZLR 540, 543, that it was unnecessary to mention specifically that the right to access to a lawyer could be exercised without delay and in private. The Judge said the critical question was whether, in all the circumstances, it could be inferred that Mr Hiraki was aware that, if he wanted to consult a lawyer, he could do so immediately. She found there was no indication in Mr Hiraki’s evidence that timing was a problem for him, and that his only concern appeared to be that, because of language difficulties, he would not be able to communicate with a lawyer. The Judge noted that this concern was not conveyed to Detective Drake and found it was clear that steps would have been taken to assist Mr Hiraki immediately if he had indicated a wish to consult a lawyer. Accordingly the Judge found Mr Hiraki waived his right to consult with a lawyer.
[169] On the second issue, the Judge affirmed that, where an accused person is detained under any enactment, he or she must be made sufficiently aware of the jeopardy he or she faces so as to be able to make an informed decision as to whether to speak to a lawyer. Without this awareness, the accused cannot be said to have
validly waived his right to a lawyer. The Judge detailed the facts of two cases in which the jeopardy issue had been considered.
[170] In the first, R v Robinson CA 16/97 12 May 1997 an inmate of Paremoremo Prison was savagely attacked. He was beaten about the head with an iron bar and stabbed with a putty knife. He was admitted to an intensive care unit, and was seriously ill for a long time but ultimately survived the attack. Immediately after the attack the police and prison authorities investigated the incident. All prisoners who might have known anything about the attack, including the accused, were interviewed. The accused was re-interviewed a few days later and three weeks after that. By that stage the police had formed a view that he had wielded the iron bar and that another prisoner had used the knife. After being given the standard caution and Bill of Rights advice he made an explicit confession. He argued that he was not made sufficiently aware of the jeopardy or the nature of the charge he faced when he waived his right to consult a solicitor before the final interview. The Judge found that the accused well knew he was in jeopardy of a significant charge arising out of what he knew to be a serious attack on the victim. The argument that the accused thought he was faced with something like a common assault, the Judge said, was untenable, and thus, the waiver of the right to counsel was said to be valid.
[171] A second case, R v Coleman HC AK T024701 28 January 2004, Potter J, concerned an accused facing 15 charges of alleged sexual offending against his former partner during the period 1993 to mid 1996 and again in November 2001. Mr Coleman had suffered a serious head injury in 1997. The detective was aware of this and that "he wasn't the full quid". He accepted that he appeared not to understand the full gamut of the allegations but believed that notwithstanding that, he understood his rights. In the course of the interview he specifically asked to know what he had been charged with.
[172]In the circumstances, Potter J held, at para [43] that:
...Without a general understanding that the allegations covered that timeframe, as well as 2001, the accused did not have sufficient information to understand the jeopardy he faced when he waived his right to seek assistance from a lawyer. It may have been sufficient in the case of a normal person that he was informed only of the name of the complainant and the
general nature of the charges, but given the difficulties of the accused in receiving and processing information, and in managing timeframes in his mental processes, more care was needed to enable the accused to comprehend the general extent of his jeopardy when he decided to dispense with counsel.
[173] Counsel for Mr Hiraki, Mr Harrison, submitted in the High Court that the facts of the present case were distinguishable from those in Robinson and more akin to those in Coleman, where the accused was under a disability. Counsel said Mr Hiraki was not told that he could well be facing serious charges as a result of Mr Shinozaki's death or even that he was being interviewed as a suspect and could well be charged. To that extent, counsel argued, the nature of the jeopardy he faced was not made clear to Mr Hiraki.
[174] Counsel had submitted in the High Court that those difficulties were compounded by several factors: first that Mr Hiraki was a stranger to New Zealand, having been here only seven months; secondly the rights advice that he was given was deficient: no more than basic rights were given and nothing was explained to him in any detail; thirdly there was the fact that he was very tired, having had only a couple of hours sleep during the previous 30 hours or so. It was also relevant, counsel said, that the police in this case were at great pains to say that no-one was a suspect at the Academy. That situation changed only after everyone returned to the Police Station and the police received from Mr Fukushima the list of those present when the assault took place.
[175] The High Court Judge noted that Detective Drake had admitted to having known at the outset of the interview that Mr Hiraki was a suspect. However, she found that Mr Hiraki waived his right to legal advice, knowing the jeopardy he faced. In support of this finding the Judge emphasised the fact that Mr Hiraki was aware of the seriousness of the situation, in particular, that Mr Shinozaki had died and that he, Mr Hiraki, had had some involvement in his death. It was fanciful, the Judge said, to suggest that he did not then believe that he was at risk of being charged in relation to the death.
Submissions for Mr Hiraki
[176] Mr Harrison contended that Mr Hiraki was not made aware, either by being directly informed or from the tenor of the interview, that the right to a lawyer could be exercised without delay. Counsel emphasised Mr Hiraki’s lack of familiarity with the New Zealand legal system and the fact he did not speak English. He said that, while a New Zealand citizen might infer from the advice given that he or she could consult with a lawyer without delay, this assumption cannot be made so readily in the case of a foreign national who has only been in the country a short while.
[177] Mr Harrison sought to distinguish Mr Hiraki’s case from R v Grant (1992) 8 CRNZ 483, in which the Court found circumstances surrounding the giving of rights advice implied the accused’s right to a lawyer could be exercised without delay. He said that case was distinguishable from the present case because, in Grant, the accused was already arrested, was in custody and was a repeat offender, and more information relating to the right had been given than in the present case.
[178] On the second issue Mr Harrison submitted that Mr Hiraki was treated more in the manner of a witness than a suspect and that accordingly it was not brought home to him that he was liable to be arrested at the conclusion of the interview. Counsel sought to distinguish this case from R v Robinson on the basis that the suspect in that case had been advised that the assault was a serious one and that serious charges could be laid, and further, was a long term prisoner and presumably a New Zealand born citizen. In the present case, Mr Hiraki had not been informed he was a suspect. Rather, he had merely been told the reason for the interview was to ask about what had happened early that morning and that the videotape could be used as evidence, but not that it would be used as evidence against him.
[179] Mr Harrison said the officers ought to have taken extra care to ensure Mr Hiraki fully understood his rights and the purpose of the interview, in light of the fact that Mr Hiraki was a foreign nation, spoken to via an interpreter and was tired. Counsel submitted that these aspects brought Mr Hiraki within the Mallinson category of persons for whom extra care was required.
Crown submissions
[180] Mr Pike submitted that, again, there was no detention or arrest so that s23 was not engaged. He said this meant that the issues of whether Mr Hiraki’s rights were properly communicated to him and whether the waiver of his right to counsel was effective, do not arise. Mr Pike submitted that the Crown wrongly conceded in the High Court that Mr Hiraki was detained from the commencement of the videotaped interview, as there is nothing in Detective Drake’s evidence to support this conclusion.
[181] In any event, counsel submitted that Mr Hiraki’s argument that the waiver of counsel was uninformed was met on the facts by a clear finding that Mr Hiraki knew all he needed to know to make an informed choice. The Crown reiterated what the High Court Judge had said in relation to this issue, namely that Mr Hiraki was involved in some way in a concerted attack on the victim who he knew at the time to be dead. Further, the ambit of his possible jeopardy was not known to the police, and it is implied, could not then been communicated at time he was given his rights - the range of options being from assault to murder.
Discussion
[182] Having carefully considered the arguments put forward by Mr Harrison, we find ourselves in agreement with the High Court Judge on all issues, for essentially the same reasons.
[183] The Judge expressly rejected Mr Hiraki’s evidence that he had said he wanted to speak with a lawyer prior to the interview commencing. She said that she preferred the combined evidence of Detective Drake and Mrs Martin to that of Mr Hiraki.
[184] It was unfortunate that the Japanese translation of Detective Drake’s statement that Mr Hiraki had the right to consult and instruct a lawyer “without delay and in private” was only incompletely translated. However, the Japanese translation “you have the right to nominate a lawyer and to consult with that person” made it
clear to Mr Hiraki, before the interview began, that consultation with a lawyer was an option open to him. The Judge correctly applied the decision of this Court in Mallinson, where Richardson J said at 531 that no precise formula was required, so long as the content of the right was brought home to the person arrested.
[185] In view of the Judge’s finding that Mr Hiraki had acknowledged that it was explained to him that he had the right to call a lawyer and that he did not have to answer questions he did not want to answer, she was entitled to conclude that the right had been effectively communicated in this case. There was no indication in Mr Hiraki’s evidence that he did not understand that he was entitled to a lawyer immediately, or that the right was exercisable only after he had answered questions. In those circumstances, the Judge was entitled to find that there had been sufficient compliance with s23 in this case.
[186] Nor do we think that there is any substance to Mr Harrison’s submission that special consideration needs to be given in this case because of the fact that Mr Hiraki was a foreign national. The exchanges between the police officer and Mr Hiraki were all translated into Japanese for him, and indeed it was only because of the translation that the omission of the reference to rights being exercised “without delay” occurred.
[187] On the second issue, we agree with the High Court Judge that Mr Hiraki was aware of the seriousness of the situation he was in. Detective Drake had told him that he was being interviewed about the events relating to what happened that morning, and Mr Hiraki knew that those events had led to the death of Mr Shinozaki. It was clear that he was present when Mr Shinozaki had been subject to a beating and, as his subsequent answers showed, had participated to some extent. In those circumstances, the Judge was entitled to conclude that Mr Hiraki was well aware of the jeopardy he faced when interviewed. In the words of this Court in R v Robinson, he was “possessed of sufficient information to enable him…to make an informed decision as to whether to speak to a lawyer”.
[188] The last point raised by Mr Harrison was that there had been insufficient attention given in the High Court to the fact that Mr Hiraki was a Japanese citizen
with very limited English and only seven months also experience of living in New Zealand. He said this meant that this was a case where the circumstances called for obvious care and further inquiry, to use the words of Richardson P in Mallinson. In our view the steps taken by Detective Drake, ensuring that all communications with Mr Hiraki were through a properly qualified interpreter, overcame that disability. We do not believe that additional steps were necessary in the circumstances of this case.
[189]Accordingly, we grant leave to Mr Hiraki’s to appeal but dismiss the appeal.
R v Shaheed
[190] Counsel raised as an issue the application of the balancing test in R v Shaheed [2002] 2 NZLR 377 in the event that a breach of the Bill of Rights was established in respect of any of the appellants. In view of our findings that there was no breach in respect of any of the appellants, it is not necessary for us to address that issue.
Decision
[191]We grant leave to appeal to all four appellants but dismiss their appeals.
Solicitors:
Crown Law Office, Wellington
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