R v G HC Wanganui CRI 2006-083-1985
[2007] NZHC 650
•13 July 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY
CRI 2006-083-001985
THE QUEEN
v
G
Hearing: 14 June 2007
Appearances: C P Brosnahan and R B Crowley for Applicant
AJF Perkins for Crown
Judgment: 13 July 2007
JUDGMENT OF COOPER J ON s 347 APPLICATION
This judgment was delivered by Justice Cooper on 13 July 2007 at 9.00 a.m., pursuant to
r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.Copy to:
AFD Cameron, Crown Solicitor, PO Box 680, Wanganui
Meredith Connell, Crown Solicitors, PO Box 2213, Upper Shortland Street, Auckland.
R V G HC WANG CRI 2006-083-001985 13 July 2007
[1] The accused faces trial on an indictment containing one count. It alleges that at Wanganui, on 28 June 2006, she wilfully attempted to pervert the course of justice by concealing a cellular phone belonging to one Shonavae Wiari. Ms G practices at the Criminal Bar in Wanganui. Ms Wiari was her client at the time of the alleged offending and the events took place in an interview room at the Wanganui Police Station.
[2] The accused now applies pursuant to s 347 of the Crimes Act 1961 for an order that she be discharged upon the grounds that there is insufficient evidence upon which any properly directed jury could convict her of the alleged crime.
Background facts
[3] Ms Wiari was amongst those who the police suspected of involvement in the aggravated robbery of the premises of the St Johns Club in Wanganui, which occurred on the evening of 23 June 2006. At approximately 3.25 p.m. on 24 June
2006, Detective Constable Kelly executed a search warrant at Ms Wiari’s residential address in Wanganui. Having done so, she returned to the Wanganui Police Station, together with Ms Wiari and conducted a video taped interview with her. In the course of that interview, Detective Kelly told Ms Wiari that the police believed that she had been involved in the robbery. According to Detective Kelly, she also told Ms Wiari that the police were interested in text messages recorded on her cellphone.
[4] On 28 June 2006 Ms Wiari left a message on Detective Constable Kelly’s answer phone at the police station. Detective Kelly rang Ms Wiari on her cellphone and was requested to visit her at her home address to speak to her. Detective Kelly went to the address and according to her evidence, again informed her that the police were interested in her cellphone and its “text message content” leading up to the time of the aggravated robbery. She said that she informed Ms Wiari that she would be back in touch with her “once the text message content from her cellphone was received by police from Telecom”. The information was received from Telecom on the morning of 28 June 2006 and at approximately 3.00 p.m. on that day, having made enquiry as to her whereabouts, Detective Kelly went to Ms Wiari’s mother’s address where she had ascertained Ms Wiari would be present.
[5] Once there, she asked Ms Wiari, “you know what it’s about” and the latter answered, “yes, the text messages”. Detective Kelly asked Ms Wiari to accompany her to the Wanganui Police Station and she did so. Her mother also travelled to the police station and soon after they arrived Ms G was called in response to Ms Wiari’s request that she be contacted.
[6] At about 4.30 p.m. on that day, Detective Constable Kelly entered an interview room at the police station where Ms G , Ms Wiari and her mother were waiting. She says that she made it very clear that the police had new information concerning Ms Wiari’s involvement in the aggravated robbery as a result of the text messages from her phone on the night of the robbery. She says that she then left the interview room while Ms Wiari spoke with Ms G . After a time, Ms G asked Detective Constable Kelly to return to the interview room to be told that Ms Wiari did not wish to make any further statement to the police. Ms G then said:
I assume Shonavae may now be charged and possibly kept overnight.
[7] According to her written brief, the Detective Constable responded that she needed to confirm with her superior, Detective Senior Sergeant Bensemann as to whether she would be released at that stage, and she left the interview room for that purpose.
[8] That evidence was expanded as a result of her cross-examination at depositions, when the following exchange took place:
Sometime later Ms G invited you in?… Yes.
And you were advised that Ms Wiari didn’t wish to make a statement to the police at that stage?… That is correct.
That was confirmed by Ms Wiari?… That is correct.
And Ms G then said that she assumed that Ms Wiari may now be charged and possibly kept overnight?… That is correct.
And in response to that you had this discussion about the fact that you had already talked with your supervisor?… Yes.
And that [Ms] Wiari may possibly be released tonight?… That is correct.
And charged at a later date?… That is correct.
You had an empathetic discussion with Ms Wiari about the mutuality of children and things like that?… That is correct.
And while making it clear this needed to be checked with your supervisor you also said it had already been discussed with the supervisor?… That is correct.
It would be fair for them to believe that things looked favourable in terms of being released and charged at a later date?… I had told them that it had to be confirmed but that would be fair.
And I think you joked about getting some promise from Ms Wiari that she wouldn’t skip town something like that?… That is correct.
It was a friendly empathetic type of discussion?… Yes it was.
So it would be understandable that they would gain the impression that the chances were good that that was going to be the outcome?… That would be fair.
You left the room at that stage with the three in it?… Correct.
And went and talked to Detective Bensemann?… Detective Senior Sergeant
Bensemann, yes.
[9] After Detective Constable Kelly had left the room for the second time, another police officer, Detective Constable Gleeson, learned that Ms G was in the interview room, which was next door to his office. He had been trying unsuccessfully to contact her that day by telephone about another one of her clients who was due to appear for a depositions hearing in July 2006. He left his office for the purpose of enquiring of Detective Senior Sergeant Bensemann what time the day’s debriefing would begin. His evidence was that as he walked into the hallway he noticed that the “interview in progress” light was on, outside the interview room. He then looked through a viewing hole in the door to establish if Ms G was still in the interview room. On doing so, he saw Ms G , Ms Wiari and her mother seated around the table in the interview room. He then saw one of the women hand to the accused a small object. The accused took it from the other’s hand and placed it in her black handbag which was beside her on the table. She then closed the zip on the handbag. Detective Constable Gleeson then continued to Detective Senior Sergeant Bensemann’s office, and advised him that he had seen one of the women in the interview room hand an item to the accused that she had then placed in her handbag.
[10] Both Detective Senior Sergeant Bensemann and Detective Constable Kelly gave evidence about the events that then transpired. In his evidence in chief, the former said:
At 5.00 p.m. on Wednesday 28 June 2006 I met with Detective Constable
Kelly, Detective Sergeant Kirby and Sergeant Forlong in my office.
The purpose of this meeting was to discuss whether Shonavae Wiari would be arrested that evening.
During this discussion Detective Constable John Gleeson entered my office and brought a matter to my attention.
At 5.10 p.m. I entered the Wanganui CIB video interview room with
Detective Constable Brenda Kelly.
When I entered the room I recognised the accused, Debbie G , seated on the left-hand side of the interview table.
I now identify the accused, Debbie G , in Court today.
Seated on the right-hand side of the interview table, furthest away from the door was Shonavae Wiari.
Seated on the right side of the table closest to the door was an adult female, whom I understood to be Shonavae’s mother.
Detective Constable Kelly spoke directly to Shonavae Wiari.
Detective Constable Kelly said to Miss Wiari, “To be fair to you, we have a number of questions that we need to ask you in relation to your involvement in the aggravated robbery of the St John’s Club. Are you prepared to answer any of those questions?”
Shonavae replied, “No I’m not.”
Detective Constable Kelly said, “You are now under arrest for aggravated robbery.”
Detective Constable Kelly then provided Shonavae with the short caution and her Bill of Rights.
Detective Constable Kelly then said, “Pursuant to arrest I will now be seizing your cellphone, give me your phone.”
Shonavae replied, “I do not have it.”
Detective Constable Kelly said, “I’ve seen you with it, I’ve been watching you texting on it in this room, where is it?”
The accused, G , interjected and said, “On what grounds are you seizing the phone?”
I replied, “We are seizing the phone pursuant to arrest.”
Shonavae stated, “I do not have the phone on me.”
As Shonavae said this she placed both her hands into her sweatshirt pockets and indicated that they were empty.
Detective Constable Kelly said, “I have seen you with the phone and I want it, where is it now?”
Shonavae did not answer this question.
The accused then said, “It is her own personal property. You don’t have any authority to take it.”
I said, “Yes we do Debbie. The phone can be seized pursuant to arrest.” Shonavae momentarily looked at the ground and then looked directly at the
accused.
There was a pause for a number of seconds.
I then said, “Debbie?” in questioning manner and again there was a silent pause for a few seconds.
I said, “Come on Debbie, at the very least this is an ethical issue.”
As I was completing this sentence the accused interrupted and said, “I have it.”
The accused then bent over and picked up her dark coloured handbag from the floor beside her.
She unzipped the handbag and took our of it a silver coloured cellphone. While handing the cellphone to me the accused stated, “I thought we were
leaving, you told us she would be leaving.”
Detective Constable Kelly replied, “I told you it had been discussed but it was to be confirmed.”
I said, “As far as I’m aware, at no stage were you ever told that she was definitely leaving, that was really stupid Debbie.”
The accused replied, “Well she told us (referring to Detective Constable
Kelly) we would be leaving.”
I said, “No, that is not the case at all.”
I then asked Detective Constable Kelly to take Shonavae downstairs. I said to the accused, “I’ll be following through with this Debbie.” The accused replied, “Do what you like.”
I then escorted the accused from the Police Station.
[11] Detective Constable Kelly gave evidence to the same effect. She said that having returned to the interview room with Detective Senior Sergeant Bensemann, she told Ms Wiari that there were a number of questions that they needed to ask her in relation to her involvement in the aggravated robbery of the St Johns Club. She then asked Ms Wiari whether she was prepared to answer those questions, and on being told that she was not, she informed Ms Wiari that she was under arrest for the aggravated robbery of the Club. After advising Ms Wiari of her rights and cautioning her, detective Constable Kelly advised her that she would be seizing the phone pursuant to the arrest. Her evidence continued:
She told me that she did not have her phone.
I then stated that I knew she had her phone as I had seen her with it and texting on it in the interview room.
She told me that she did not have it on her.
As she said this she placed both her hands in her sweatshirt pockets and indicated that they were empty.
I said to her that I had seen her with the phone and I wanted it. I then asked her where it was now.
Ms Wiari did not answer.
The accused said, “It is her personal property. You don’t have authority to take it.”
Detective Senior Sergeant Bensemann said, “Yes, we do. The phone can be seized pursuant to arrest.”
I remained looking at Ms Wiari.
There was a pause of several seconds.
She dropped her eyes to the ground and then looked at the accused.
Detective Senior Sergeant Bensemann then said to the accused, “Come on
Debbie at the very least this is an ethical issue.” The accused said, “I have it.”
The accused then produced Ms Wiari’s cellphone from her personal handbag and handed it to Detective Senior Sergeant Bensemann.
The accused looked at Detective Senior Sergeant Bensemann and said, “I
thought we were leaving.”
She then looked at me and said, “You said we were leaving.”
I told the accused that it had been discussed, but it was to be confirmed.
[12] The accused was plainly concerned about the events that had transpired. She went straight away to see another lawyer practising at the criminal bar in Wanganui, Mr Lowe, to discuss what had happened. Mr Lowe was called to give evidence at the depositions hearing. The relevant questions and the answers that he gave were as follows:
Can you tell us what she said to you… she told me that she had just come from an interview at the Police Station with Shonavae Wiari and that the interview had also involved Shonavae’s mother.
Did she tell you who the police officer involved was… initially Brenda
Kelly but then subsequently Brenda Kelly and Chris Bensemann.
Did she indicate to you whether or not there had been an earlier interview of Shonavae Wiari… yes she indicated that there had been a previous interview. I can’t remember whether she told me that involved her or not.
Can you continue… she was upset and to me seeking reassurance more than anything else. She said that during the interview process Brenda Kelly had left the room, that at that stage Shonavae was not under arrest. I’m not sure of the sequence but I recall she said that an indication had been given that she wasn’t going to be arrested on that occasion, but while Brenda Kelly was out of the room Shonavae gave some items to her mother, one of which was a cellphone and that Debbie asked if she could have the cellphone and she took the cellphone and put it in her handbag.
Did you ask Debbie what she intended to do with the cellphone… I did and she said that she wanted to have a look at it, to see what was on it.
In relation to what… as I understood matters, the phone was relevant to text messages that Shonavae had sent in connection with the St Johns Club robbery.
Did you ask Debbie whether or not there had been a search warrant in relation to the phone… one of the things we discussed was whether or not there was any compulsion for the phone to be handed over, in other words what the basis for it being seized was and I understood that no request had been made by the police for the phone prior to Debbie putting it in her bag, there was no other order or warrant requiring that the phone be handed over.
Can you continue with what Debbie said to you about who came back into the room… sure, Brenda Kelly and Chris Bensemann came into the room. The mood had changed, by that I mean prior to that when it was just Brenda Kelly she had been chatty and pleasant. When Chris Bensemann and Brenda Kelly came into the room the mood was aggressive. Shonavae was placed under arrest. Chris Bensemann demanded the telephone.
Did Debbie tell you what she said to Bensemann… she said that he demanded it of her and she was a bit taken aback because she didn’t know how he would know that she’d taken possession of the phone. She said to
him something like “on what basis” in other words on what basis did you want the phone. He said “pursuant to arrest”. She queried that and he repeated that he was entitled to the phone pursuant to Shonavae’s arrest.
Did Debbie tell you how she felt at the time of the request for the cellphone… bullied, that his tone and demeanour was very aggressive. She felt bullied into handing the phone to him and she did hand the phone to him. He said to her “I’m very disappointed in you Debbie” or something to that effect.
What was Debbie’s primary concern in seeing [sic] that evening directly after leaving the Police Station having handed over the phone to Bensemann… about the manner in which it had been demanded of her. She had wanted to see what was on the phone herself as Shonavae’s representative. The things we talked about were what if anything could be done about it then and there and my conclusion was nothing.
[13] Mr Brosnahan maintained that the evidence of what transpired between the accused and Mr Lowe was part of the res gestae, and because it showed her state of mind immediately after the conclusion of the interview at the police station, it was relevant to the accused’s conduct during the interview.
Evidential sufficiency
[14] I did not discern any difference between counsel as to the appropriate approach on an application such as the present. In R v Flyger (2000) 18 CRNZ 264, at [13] the Court of Appeal said:
… a Judge should not normally make an order for discharge pursuant to s 347(3) where there is before the Court evidence which, if accepted, would as a matter of law be sufficient to prove the case.
[15] Then, in Parris v Attorney-General [2004] 1 NZLR 519 it was said at [10]:
The use by the Flyger Court of the word “normally” tends to suggest that there may be some circumstances in which a s 347 order may be made when the evidence is sufficient in law to prove the case. That cannot be so, unless the justification for the s 347 order is something other than insufficiency of evidence. We think this is what the Flyger Court must have meant. If the evidence is sufficient in law, if accepted, to prove the case, the Judge should leave the case to the jury and not withdraw it on evidentiary grounds.
[16] As Mr Perkins put it, this effectively removed the qualifying word “normally” from the Flyger formulation of the test, in a case of this sort. Later, in Parris, the Court observed (at [13]):
There should be a s 347 discharge when, on the state of the evidence at the stage in question, it is clear either that a properly directed jury could not reasonably convict, or that any such conviction would not be supported by the evidence. In most cases these two propositions are likely to amount to much the same thing.
[17] Again, at [14] the Court emphasised:
It is vital, however, to appreciate the proper compass of the word “reasonably” in this context. The test must be administered pretrial or during trial on the basis that in all but the most unusual or extreme circumstances questions of credibility and weight must be determined by the jury. The issue is not what the Judge may or may not consider to be a reasonable outcome. Rather, and crucially, it is whether as a matter of law a properly directed jury could reasonably convict. Unless the case is clear–cut in favour of the accused, it should be left for the jury to decide. If there is a conviction this Court on appeal has the reserve power to intervene on evidentiary grounds. The constitutional divide between trial Judge (law) and jury (fact) mandates that trial Judges intervene in the factual area only when, as a matter of law, the evidence is clearly such that the jury could not reasonably convict or any such conviction would not be supported by the evidence.
[18] Flyger and Parris are, of course, binding on this Court and must be applied in disposing of the present application. I think it is inherent in those decisions, and indeed axiomatic, that, in deciding whether as a matter of law a properly directed jury could reasonably convict, it must be assumed that the notional jury would only convict if satisfied beyond reasonable doubt that the prosecution had proved the essential ingredients of the offence; and that it would not be so satisfied if the facts were not such as to justify that conclusion without speculation.
Attempting to pervert the course of justice
[19] The present charge has been brought under s 117(e) of the Crimes Act. That provides that every one is liable to imprisonment for a term not exceeding 7 years who:
wilfully attempts …to obstruct, prevent, pervert, or defeat the course of justice in New Zealand or the course of justice in an overseas jurisdiction.
[20] Mr Perkins for the Crown accepted that the crime alleged against the accused requires proof of both an action which has the tendency to pervert the course of justice (the actus reus) and an intention to pervert the course of justice (the mens
rea). In this respect, he referred to both R v Rogerson (1992) 174 CLR 268 (a decision of the High Court of Australia) and the Court of Appeal’s decision in R v Meyrick (CA513/04, 14 June 2005).
[21] Mr Brosnahan pointed out that police investigations do not themselves form part of the “course of justice” for the purpose of the offence charged. For that proposition he referred to what was said in R v Rogerson by Mason CJ, at 276:
But police investigations do not themselves form part of the course of justice. The course of justice begins with filing or issue of process invoking the jurisdiction of a court or judicial tribunal or the taking of a step that marks the commencement of criminal proceedings ….
In this respect, it is important to note that the expression “the course of justice” is synonymous with the expression “the administration of justice”. In no relevant sense do the police administer justice, notwithstanding that they investigate crime, institute prosecutions (where appropriate) and assist in bringing prosecutions. As Lord Blackburn pointed out in Coomber v. Justices of Berks [(1983) 9 App Cas 61, at p 67] “the administration of justice, both civil and criminal, and the preservation of order and prevention of crime by means of what is now called police” are separate functions and not one single function….
[22] However, in expressing the law in that way, Mason CJ acknowledged that he was departing from what the New Zealand Court of Appeal had held in R v Kane [1967] NZLR 60, at 64, adopting remarks of Lord MacDermott in R v Bailey [1956] NI 15 at 26:
But the administration of public justice, particularly in the criminal sphere, cannot well be confined to the processes of adjudication. In point of principle we think it comprehends functions that nowadays belong, in practice almost exclusively, to the police, such as the investigation of offences and the arrest of suspected persons; and we see no good reason for regarding these preliminaries as beyond the scope of the category we are now considering.
[23] In R v Meyrick, the Court of Appeal said at [42]:
The “course of justice” undoubtedly includes the administration of justice by publicly established tribunals, see, for instance, Rogerson. It is sometimes said that the “course of justice” extends to cover police investigations. There is no doubt that criminality attaches to actions which have the tendency (and are intended) to adversely affect court proceedings (or indeed prevent such proceedings being commenced) even though those actions are in the context of police investigations, and occur prior to proceedings being commenced, see, for instance, R v Kane [1967] NZLR 60 and R v Sharpe [1938] 1 All ER
48 at 51. But the fact remains that the tendency and intention which are
critical must be addressed to actual or contemplated proceedings before publicly constituted tribunals, a point which emerges clearly from Rogerson.
[24] The Court of Appeal went on to refer to difficulties that can arise where actions, otherwise lawful, are nevertheless impugned because of the intention with which they are committed. However, it impliedly treated the decision in R v Kane as still representing the law in New Zealand, referring to it at [44] as an instance where an offence had been committed notwithstanding the fact that, at the relevant time, legal proceedings were not in train.
[25] There are passages in the judgments in R v Rogerson to the same effect. Mr Brosnahan properly drew them to my attention. For example, at 277, Mason CJ observed:
The fact that police investigation stands outside the concept of the course of justice does not mean that, in appropriate circumstances, interference with police investigation does not constitute an attempt or a conspiracy to pervert the course of justice.
It is well established at common law and under cognate statutory provisions that the offence of attempting or conspiring to pervert the course of justice at a time when no curial proceedings are on foot can be committed….That is because action taken before curial or tribunal proceedings commence may have a tendency and be intended to frustrate or deflect the course of curial or tribunal proceedings which are imminent, probable or even possible. In other words, it is enough that an act has a tendency to frustrate or deflect a prosecution or disciplinary proceedings before a judicial tribunal which the accused contemplates may possibly be instituted, even though the possibility of instituting that prosecution or disciplinary proceeding has not been considered by the police or the relevant law enforcement agency.
[26] At 280, Brennan and Toohey JJ observed:
The course of justice is perverted (or obstructed) by impairing (or preventing the exercise of) the capacity of a court or competent judicial authority to do justice. The ways in which a court or competent judicial authority may be impaired in (or prevented from exercising) its capacity to do justice are various. Those ways comprehend, in our opinion, erosion of the integrity of the court or competent judicial authority, hindering of access to it, deflecting applications that would be made to it, denying it knowledge of the relevant law, or of the true circumstances of the case, and impeding the free exercise of its jurisdiction and powers including the powers of executing its decisions. An act which has a tendency to effect any such impairment is the actus reus of an attempt to pervert the course of justice.
[27] And, at 284, Brennan and Toohey JJ wrote:
As the courts exercise their necessary and salutary jurisdiction to hear and determine charges of offences against the criminal law only when their jurisdiction is invoked, an act which has a tendency to deflect the police from invoking that jurisdiction when it is their duty to do so is an act which tends to pervert the course of justice. Subject to a limited discretion not to prosecute, it is the duty of the police to prosecute when offences are committed.
Defence submissions
[28] In his written submissions filed before the hearing, Mr Brosnahan identified three potential ways in which the accused’s uplifting of the cellphone could have had a tendency to pervert the course of justice. He referred first to the possibility that the police had been in lawful possession of the cellphone at the time, the accused having knowledge of that lawful possession. As to this point, however, there was no attempt by the Crown to assert that the police had already been in possession of the cellphone, although Mr Perkins did submit that the police were entitled to seize the phone and that the accused would have been aware of that entitlement. That was the second possibility acknowledged by Mr Brosnahan.
[29] The third was that the cellphone was likely to have evidentiary significance, that the accused recognised that likely significance, and had taken the cellphone for that reason.
[30] Mr Brosnahan pointed out that the accused had in fact taken the cellphone prior to Ms Wiari’s arrest. He argued that it was reasonable for the accused to have gained the impression that there was a very good chance that Ms Wiari was not going to be arrested that night. Essentially, that was based on Detective Constable Kelly’s indication that although she would have to check the position with Detective Senior Sergeant Bensemann, Detective Constable Kelly said that she had in fact already spoken to him. The possibility that she would in fact be released and charged at a later date was actually raised by the Detective Constable in response to the accused’s comment that she assumed that Ms Wiari “might now be charged and possibly kept overnight.” Further relevant evidence is recorded at [8] above, ending with the Detective Constable’s acceptance of the proposition, put to her by Mr Brosnahan, that it would be understandable that they (the accused, Ms Wiari and her
mother) would have gained the impression that there was a good chance that Ms
Wiari would be released and charged at a later date.
[31] In R v Meyrick the Court of Appeal held that an accused could only be guilty of the offence if conscious of the tendency of his or her actions to defeat the course of justice. That raises the issue, in a case of this sort, of whether the accused has knowledge of the likely evidential significance of an item of property that the accused has taken, thereby removing it from the materials available to the police in investigating a crime (see Meyrick at [46]-[48]). In reliance on the judgments of Mason CJ, and Brennan and Toohey JJ in R v Rogerson, Mr Brosnahan submitted that where, as in the present case, the alleged perversion of the course of justice arises from the taking of an item that might be of interest to the police in their inquiries, the test should be whether taking the item would have the result of depriving the Court of knowledge of the true circumstances of the case. He contended that that would not be the case here because all that was necessary for the Crown’s case against Ms Wiari was proof of the cellphone’s number and of the text messages sent from and received by the cellphone. The absence of the cellphone would not deny the Court knowledge of the relevant facts. The police could prove a link between Ms Wiari and the texts without needing to produce the cellphone, and as a consequence the uplifting of the cellphone did not have a tendency to pervert the course of justice. He argued that in the circumstances, no reasonably jury properly directed could find that there was a tendency to pervert the course of justice arising out of the accused’s actions.
[32] Finally, he emphasised that the offence charged requires proof of a specific intent to pervert the course of justice by denying the trial court knowledge of the true circumstances of the case. Here, Mr Brosnahan argued that there was no evidence that the accused intended to deprive the Court of the cellphone. He emphasised that the reason she had taken it was that she wanted to examine it, to see what was on it. She had asked the police to let her have copies of the material that they had obtained from Telecom’s records, but that had been denied her. As Detective Senior Sergeant Bensemann admitted in cross-examination, that information had been withheld because of the police view that it was tactically important that the information not be shared with the accused while they attempted to elicit her version of events.
[33] On the other hand, Mr Brosnahan submitted there may often be reasons for an accused’s lawyer to want to assess information available to the police other than by direct questioning of his or her client. Here, one of the reasons for taking the phone, had been the accused’s desire to examine its contents for herself. It will be recalled that part of Mr Rowe’s evidence was to the effect that the accused had told him she wanted to have a look at the phone herself, to see what was on it, in relation to text messages that Ms Wiari had sent in connection with the robbery. Mr Brosnahan submitted that in the circumstances, the evidence did not exclude as a reasonable possibility the accused’s innocent explanation. He contended that any jury acting reasonably, and having been properly directed, must entertain at least a reasonable doubt as to the accused’s guilt.
Crown submissions
[34] For the Crown, Mr Perkins suggested that the best way of approaching the matter was on the basis of the six questions that had been posed by the trial judge, and approved by the Court of Appeal, in R v Spratt (CA142/05, 8 September 2005). The questions are set out at [15] of the judgment of Goddard J writing for the Court. They are:
[12] The first question is this, did the accused do the act alleged? That is, did he dispose of the sample?
[13] Secondly, did the accused intend to do that act, did he intend to dispose of the sample? For example it could have been an accident. He has to have intended that.
[14] Third, had the course of justice commenced at that time? …
[15] Next question, did the accused know the course of justice had commenced? That is, did he know the police were conducting an investigation which might result in a prosecution?
[16] Fifth, did he know that the evidence disposed of was likely to be used in any prosecution?
[17] And lastly, did he intend that that should not occur?
[35] Mr Perkins submitted that there could be no doubt in the circumstances of this case, as to the first two questions. Plainly, the accused had taken the phone and intended to do so. Mr Perkins submitted further that the course of justice had
commenced for the purposes of the charge under s 117(e) at the time the accused took possession of the cellphone. Mr Perkins next referred to s 57A of the Police Act 1958, which authorises the general search of persons in custody and the seizure of personal property found in their possession. He submitted that, having arrested Ms Wiari, the police were entitled to take possession of the cellphone, had it still been in her possession. The same right arose on arrest at common law, a position preserved by s 57A(5) of the Police Act. However, he submitted that the question whether the police actually had authority to demand the phone from the accused is irrelevant to the charge which she faces. In essence, that charge alleges an attempt by her to wilfully deprive the police of possession of the phone and proof of the offence would not turn on whether or not the police were in fact able to take the phone from her as a matter of legal right. He argued that if there was an offence, it occurred, and had been completed, by the time that she actually handed over the phone.
[36] Mr Perkins emphasised that as a practising criminal lawyer, the accused would have known that it is entirely normal for the police to want to seize as an exhibit the source item from which incriminating evidence derives. He contended that if the police had not seized the phone on 28 June, it would have been possible for her to claim that she had lost the phone at some point and someone else had sent some of the incriminating messages in the days before the robbery occurred. Although in the 24 June video interview Ms Wiari had identified her cellphone number and acknowledged sending one or more text messages to an individual that was linked to the aggravated robbery, Mr Perkins contended that Ms Wiari might claim that what she had said in the video interview was not true, that she had been covering for someone else, or that what she had said had been said under pressure from unnamed sources. He argued that seizure of the phone from her would make it more difficult for her to resile from her earlier statement, or seek to shift the blame.
[37] He then referred to Detective Constable Kelly’s evidence of speaking to Ms Wiari to advise her that the Police were interested in the text message content of her cellphone, something that had been repeated at the outset of the interview once they arrived at the Police Station. Then, when Detective Constable Kelly had briefly left the interview room, there was evidence that the accused had told Ms Wiari that if she
was arrested, the cellphone would be taken from her. Mr Perkins contended that the accused’s advice in that respect was significant in so far as the necessary mens rea of the offence is concerned. He argued that it confirmed what would indeed be obvious to someone in the accused’s position, i.e. that the police were very interested in the cellphone and its contents and would seize it upon Ms Wiari’s arrest.
[38] In the circumstances, he argued that it was plainly open for the prosecution to contend that Ms G took possession of the phone in order to deprive the police of it, and in fact to prevent the police seizing it upon Ms Wiari’s arrest. He argued that the fact that it became uncertain as to whether or not Ms Wiari would be arrested that day did not alter the position. That is so because at the time that the accused took possession of the phone, she knew that her client might be arrested and she knew that, if she was, the police would seize the cellphone if it was still in her possession.
[39] Mr Perkins also relied on the evidence of Detective Constable Kelly and Detective Senior Sergeant Bensemann to submit that even after Ms Wiari had been arrested, the accused chose not to disclose that she had the phone until effectively compelled to do so by the circumstances. He contended that she had been clearly reluctant to yield it up. She did not know at that point that Detective Constable Gleeson had seen the phone being handed over. Mr Perkins submitted that the accused had effectively left her client in the invidious position of trying to explain why she was not handing over the phone. Again, he submitted that this was relevant to the accused’s intent at the time.
[40] In so far as the defence assertion that the accused had taken the phone for the purpose of examining its content was concerned, Mr Perkins submitted that the prosecution would be entitled to highlight:
a) her failure to yield up the phone when it was requested from her client;
b) the fact that she had not offered that explanation at the time when the phone was demanded; and
c) her awareness that her client had just been arrested, so that she would know at that point that she would obtain discovery of the text message information in due course.
[41] Mr Perkins submitted that all of those considerations favoured the inference that the accused had intended to pervert the course of justice.
Discussion
[42] Mr Perkins analysed the relevant issues in accordance with the framework suggested by the Court of Appeal’s approval of the series of questions raised by the trial judge in [15] of R. v Spratt. I agree that that is an appropriate way to approach the case.
[43] I have no difficulty in accepting Mr Perkins’ submission that the course of justice had commenced for the purpose of the charge under s 117(e) of the Crimes Act at the time the accused took possession of the cellphone. Although Ms Wiari had not been charged at that point, it was plainly in contemplation on all sides that she would imminently be charged, if not that day then subsequently. Further, she was to be charged in relation to a robbery in respect of which there was relevant inculpatory text message information on her cellphone.
[44] Further, I think it is inevitable that the accused must have known that the course of justice had commenced at that point. She knew the police were conducting an investigation into Ms Wiari’s actions and that it was likely to result in a prosecution. Since there is no doubt that she took the phone, and that she intended to take the phone, the first four questions posed in the Court of Appeal’s judgment in R v Spratt are satisfied.
[45] Notwithstanding Mr Brosnahan’s submission to the contrary, I also consider that a jury could properly infer on the facts of the present case that the cellphone might be important in the prosecution. I would not think it necessarily decisive on this point that the key information about the content of the text messages would be available from Telecom’s records as well. Possibly also there might well be
significance in the police being able to prove that the phone was in Ms Wiari’s possession at the time of the police interview on 28 June, as Mr Perkins contended. However, it is difficult to place much weight on that consideration given that Detective Constable Kelly had in fact rung Ms Wiari on the cellphone earlier that day (see [4] above), so the jury would be entitled to infer that she had the phone throughout.
[46] I consider that there is force in Mr Perkins’ submission that, as an experienced criminal lawyer, the accused would have appreciated that the phone would be likely to be seized as part of the police investigation. In this respect, I do not overlook the fact that it is reasonably common for the courts to receive evidence in prosecutions about the content of text messages sent to and from cellphones when the phone itself is not produced as an exhibit. I assume that that practice occurs as a result of cooperation and agreement between the prosecution and the defence. But the relevant events here occurred at a comparatively early stage of the investigation, and at a time too when, although the accused knew that the police had received information from Telecom, she did not know what the information was or, I infer, whether the police would in fact have had reasons that might have made the phone important for their case. I consider that it is sufficient for the purposes of the approach set out in R v Meyrick, and the fifth question raised at [15] of R v Spratt, that the accused knew that the police were interested in the phone and the text messages that had been sent or received using it.
[47] However, it is at the last of the questions posed in R v Spratt, that the real difficulty for the prosecution arises here. That question would ask, on the facts of this case, whether the accused took the phone intending to deprive the prosecution of the evidence which it either represented (the fact that Ms Wiari was in possession of the phone at the date of 28 June) or contained (the text messages).
[48] It is important to focus on the circumstances that existed at the time that the accused took possession of the phone. She knew, of course, that the police were interested in the text messages able to be traced to the phone. I have already held that she would also have known that the police were likely to want to take possession of the phone for the purposes of the investigation and prosecution.
[49] However, when she took possession of the phone she may well have thought that the phone would not be requested until a later point, when Ms Wiari was in fact arrested. Detective Kelly left the interview room having implied, subject to the approval of Detective Senior Sergeant Bensemann (but noting that she had already spoken to him on the matter), that there would be no arrest that day and that Ms Wiari would be released overnight. In the context of Mr Perkins’ emphasis on the importance of the phone for the purposes of the police investigation, it is relevant to take into account the facts that Detective Constable Kelly had interviewed Ms Wiari on 24 June telling her that the police were interested in text messages recorded on her cellphone and had mentioned the text messages both when initially speaking to Ms Wiari on 28 June and later in the interview at the police station on that day. Yet the police had not at any stage asked for the phone to be handed over. Instead, they had approached Telecom and gained from them the information that they wanted about the content of the text messages.
[50] Up to the stage when Detective Constable Kelly left the interview room to seek Detective Senior Sergeant Bensemann’s final approval for release of Ms Wiari overnight there had been no mention of the police wanting to take possession of the phone on that day. In the circumstances, it is possible that the accused could well have thought that the phone would not be seized until a later stage.
[51] Mr Perkins underlined the apparent significance of Ms Wiari’s evidence that the accused had told her, in Detective Constable Kelly’s first absence from the interview room, that if she was arrested, the cellphone would be taken from her. It is correct that Ms Wiari gave evidence to that effect in response to a question put to her as to whether anything had been said about the cellphone when Detective Constable Kelly was out of the room. In cross-examination, however, she explained that she had a range of personal items with her at the interview, including keys, her niece’s volleyball gear, her earrings and the cellphone. She accepted that the accused’s statement might have been to the effect that all of her personal items would be taken consequent on her arrest. All of the items had been handed over, initially to her mother, for her safe keeping. If that had been said, it would put the matter in a different context; it would mean that the cellphone had not been singled out for special treatment at that stage.
[52] I accept that the accused later requested the cellphone, but here her explanation for having done so needs to be taken into account. According to Mr Rowe’s account of what the accused said immediately after the interview at the police station, she had wanted to check for herself what was on the phone. The context was, of course, that the police had not been willing to let her see the information that had been received from Telecom. That meant that the accused could only become acquainted with the content of the text messages by either asking her client Ms Wiari or checking herself on the telephone. I accept Mr Brosnahan’s submission that there may well be sound reasons for defence counsel in this position wanting to examine the phone herself, rather than to seek information direct from her client.
[53] In part of his argument, Mr Perkins emphasised the fact that when Detective Senior Sergeant Bensemann had entered the interview room with Detective Constable Kelly and the latter asked Ms Wiari for the phone, some time elapsed before the accused admitted that she had the phone and handed it over. It appears from the evidence, however, that the time that elapsed was very short. Events that had until then been anticipated had undergone a sudden change of course. The right of the police to seize the phone from Ms G herself was not clear and in the circumstances of what must have been considerable pressure, I do not consider that such delay as occurred in handing over the phone supports the Crown’s case that the accused acted with intent to pervert the course of justice.
[54] In accordance with the Court of Appeal decisions in R v Flyger and Parris v Attorney-General, the question that must be asked at this stage is not whether I would convict or acquit the accused. Rather, the question is whether as a matter of law a properly directed jury could reasonably convict. As I have said above, that involves the assumption that the properly directed jury could be satisfied beyond a reasonable doubt that the prosecution had proved the essential ingredients of the crime of attempting to pervert the course of justice.
[55] Having considered the position, I have reached the view that a properly directed jury could not be satisfied beyond a reasonable doubt that the accused had acted with the necessary intent. In my view, the jury would inevitably be left with a
reasonable doubt based on the accused’s innocent explanation for wanting to examine the phone and the circumstances as they existed when she took possession of it.
Result
[56] That being the conclusion I have reached, the accused’s application is granted. Pursuant to s 347(1) of the Crimes Act 1961 I direct that the accused not be arraigned on the indictment, and that she be discharged.
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