R v Hall

[2007] NZCA 405

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA242/07 [2007] NZCA 405

THE QUEEN

v

CURTIS RICHARD HALL

Hearing:         27 August 2007

Court:            Glazebrook, Baragwanath and Heath JJ Counsel:       N G Cooke for Appellant

M D Downs for Respondent

Judgment:      11 September 2007         at 11.30am

JUDGMENT OF THE COURT

ALeave to appeal is granted and the appeal is allowed, but only to the extent of the further excision from the interview of the passage set out at [19].

BNot to be published in news media or on  Internet or other publicly accessible database until final disposition of trial.

R V HALL CA CA242/07  11 September 2007

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No

Introduction  [1] Background  [6] The Judge’s findings  [26] Should the Judge have excluded the whole of the interview?               [34] Should there be further excisions?  [38] Result  [42]

Introduction

[1]      It is alleged that Mr Hall was the driver of a getaway car in an aggravated robbery committed by a Mr Steven Martin on a Tauranga video store on 5 April

2006.  He faces one charge of aggravated robbery.

[2]      Mr Hall applies for leave to appeal against a pre-trial ruling of Judge Ingram, which  held  that,  subject  to  a  number  of  excisions  being  made,  a  video-taped interview of Mr Hall was admissible in evidence against him.

[3]      Mr Hall submits that the whole of the video interview is inadmissible.   He asserts that it was either influenced by oppression, in terms of s 29 of the Evidence Act 2006, or alternatively that it was unfair in terms of s 30 of that Act.   If that submission is not accepted, he argues that two further passages should have been excised from the video.

[4]      The issues therefore are:

(a)       whether the Judge should have excluded the whole of the interview;

or

(b)       if not, whether further excisions should be made.

[5]      Before  turning  to  these  issues,  we  set  out  the  background,  including  a summary of the video interview, and the Judge’s findings.

Background

[6]      Mr Hall was first spoken to by the police when they were in the course of executing a search warrant at a property where Mr Martin and Mr Hall shared a caravan.   Mr Hall initially denied any knowledge of the robbery but, after a time, admitted knowing that Mr Martin was involved.  Mr Hall agreed to provide a witness statement to that effect at the Tauranga police station.

[7]      Upon arrival at the station, the detective involved was advised that Mr Martin alleged that Mr Hall had been involved in the robbery.  When this allegation was put to him, Mr Hall admitted that he had driven the getaway car.   He was cautioned, informed of his rights and he agreed to be interviewed on video.  No issue is taken as to the propriety of the police actions up until this point.

[8]      The video interview begins by the detective confirming the above events with Mr Hall.  The detective then reminded Mr Hall of his rights, including his right to consult and instruct a lawyer without delay and in private and to refrain from making any statement.  Mr Hall was told that the interview would be recorded and may be shown in evidence.  Mr Hall confirmed that he understood his rights and that he did not need a lawyer.  He volunteered that he wished to “come clean”.

[9]      The interview then turned to the build up to the aggravated robbery.  Mr Hall said that, around 6pm, Mr Martin had asked him if he had enough petrol to drive Mr Martin around the block.  When Mr Hall had asked why, Mr Martin said “don’t worry, just drive” and that is what he did.  Mr Hall said, with regards to the robbery, that Mr Martin “did not exactly tell me”.

[10]     Mr Hall then described being told to put a “hoodie” on and keep it up.  He later said that he had understood that to mean “slightly up sort of just, just covering my face”.  Mr Martin had then asked for a red bandanna or red balaclava “to try to pin it on the Mongrel Mob”. Later, Mr Hall described searching for Mr Martin’s red bandanna/balaclava and, when they could not find it, Mr Hall gave Mr Martin a “red coat  thing”  which  Mr Martin  wrapped  around  under  his  hoodie.    Mr Hall  also described Mr Martin getting a grey bag out of the closet to take with them.

[11]     On  being  asked  when  the  robbery  had  first  been  mentioned,  Mr Hall answered “ah upon arriving at [the video store] he told me”.  Asked whether he had any suspicions when he was asked whether he had enough gas in the car to drive around the block he replied “ah yea I was a bit sketchy”.  Asked what he thought that Mr Martin was talking about Mr Hall said “ah at that stage I was thinking he wanted me to drive him up to possibly one of the stores up the road”.  Mr Hall said that they did not talk about the robbery before getting in the car and that Mr Martin “didn’t tell me what he was doing directly until we got to [the video store]”.

[12]     After ascertaining who was in the caravan with them while Mr Martin and Mr Hall were making their preparations and some more discussion about what they were wearing, the detective returned to the question of what discussion there had been before Mr Hall and Mr Martin got in the car.  Mr Hall insisted that Mr Martin told him nothing at all about where they were going.  When challenged on this, Mr Hall answered that he thought they were going to visit a friend.   This, naturally, was received by the detective with a degree of scepticism, given the earlier evidence of the pair kitting themselves out with hoodies and a bandanna/balaclava substitute for Mr Martin to “pin it on the Mongrel Mob”.

[13]     A passage of questioning then occurred that was mostly of a leading nature, where the detective frequently interrupted Mr Hall’s narrative and cross-examined him.  Judge Ingram found that many of the questions asked at this point went beyond what can be regarded as fair, effectively putting words in the mouth of Mr Hall; namely that he knew well enough in advance what Mr Martin had been planning. The Judge was satisfied that Mr Hall did not want to convey that impression at that

point in the interview.   He held that portion of the interview to be inadmissible

(including Mr Hall’s assertion that he thought they were going to visit a friend).

[14]     In the course of the next part of the interview, the detective asked if Mr Hall had seen, before leaving the caravan, that Mr Martin had a knife.  He received the reply that Mr Martin had been out to Mr Hall’s car (where the knife was) and slipped it under his hoodie but Mr Hall was unaware of this until they stopped at the video store.  Mr Hall reiterated that he and Mr Martin had had no discussion about what they were going to do before leaving in the car.   He said that he thought that Mr Martin had just seen someone “who had pissed him off in the past” and he thought they were probably going to beat that person up.  It was at that stage that another  passage  excised  by  the  Judge  occurred.    The  detective  in  that  excised passage suggested that Mr Hall was inventing things.

[15]     Mr Hall was asked again whether he knew they were going to do a robbery of some description and he replied “no not until … we stopped … outside [the video store]”.  Mr Hall agreed that that was the very first time that they both discussed it. He then described how they drove up the road where he was told to park across the road just past the video store “so she could not see the car”.  He clarified that the “she” he was referring to was “the female that was working” in the store.  Mr Martin had told him after the robbery that the store attendant had been female.

[16]     Once they were outside the store, Mr Martin told Mr Hall to stay in the car and turn off the ignition and the lights.  Just before Mr Martin left the car, he “sort of slipped [the knife] down his hand so he could easily access it”.   The following passage then occurred:

Detective Wright:       Right and so…

Mr Hall:  That’s when I was fully aware he was going to

Detective  To rob it and you had some discussion on exactly what he was going to do? [Emphasis added]

Mr Hall:  No, I decided I did not want to know what he was going to do um at that stage. At that point I was scared

Detective:                  Of what?

Mr Hall:  Steven [Martin]. Um as he is quite physically strong and with a weapon I did not want to anger him in any way to endanger myself so I just kept quiet, he went in, come back out and he goes “damn it there’s some people in there.”

[17]     Mr Hall then described how Mr Martin got out of the car and walked across the road to check the store.  Mr Martin saw that there were people in the store and came back and sat in the car.  Mr Hall was then instructed to watch the drive by the store and to tell Mr Hall when the car left.  Mr Hall adjusted his side mirror so he could do this.  A blue Holden then parked behind them and Mr Martin told Mr Hall to drive around the block, which he did.  By the time they had driven back to the video store, the blue Holden had left.

[18]     Mr Hall then volunteered the following:

Um we parked up, he told me to continue watching to make sure to see if the car had left.  Um when the car left he told me to, told me to wait here, the second I go out of sight turn the car back on, leave the lights off.  Because my car is a very silent car.  And he went in, looked around, he was looking around, there was very little traffic on the road when he went in.  He went in,

30 seconds later he was, he’d come running, come running back out and told me to drive.  Um we went …

[19]     After Mr Martin came running back, Mr Martin got into the front passenger seat and told Mr Hall to go.   The detective asked what words Mr Martin used, receiving the answer “go”.  The detective then repeated the word “go” and continued as follows:

Detective:                  Go. Mr Hall:       Yep.

Detective:                  Go [spoken in a forceful tone]. Mr Hall:    Yeah.

Detective:                  Drive [spoken in a forceful tone]. Mr Hall: Yep.

Detective:                  Get out of here [spoken in a forceful tone]. Mr Hall:  Yeah.

Detective:                  That sort of… Mr Hall:    Yes.

Detective:  …commanding go was it.

[20]     Mr Hall then described driving away from the video store and Mr Martin’s state of mind - “he was pretty happy at that stage, he was happy about what he had done”.  He also said that Mr Martin had told him that the assistant in the video store was scared and that “she just handed over the till”.  Mr Hall sniggered while he was describing that.   He admitted that he had also laughed at the time “because my adrenaline was pumping”.   Mr Hall explained that they had  gone back into the caravan and Mr Martin had put the bag in the closet.

[21]     Mr Martin then told Mr Hall to change his tyre because the space saver was an identifiable mark on the car.  There then comes a passage in which the detective asked a series of leading questions directed to Mr Hall’s motivation in changing the tyres.  This was the third passage excised by Judge Ingram.

[22]     Mr Hall then described he and Mr Martin deciding that they would go for a walk because they were “quite buzzing”.  Mr Hall describes going down to the beach with some friends and concocting a story that they had been at the beach for two hours because one of their friends had a sore ankle.  Before they went to the beach, Mr Martin had tipped the notes out of the bag, counted them and given them to one of the friends to put in her wallet.  Mr Hall said that he had picked up the $2 coins so that they could buy some cigarettes and something to eat and that he had counted the coins.

[23]     When they were down at the beach, he and Mr Martin went into the water to “disguise our scent I suppose”.  Mr Martin had said that “he did not want the dogs tracking him”.  When they returned from the beach, they saw the police outside the video store.  They spoke to a woman from the nearby takeaway store and acted as if they were shocked about the robbery, as they had discussed doing down at the beach. They then  went  home,  subsequently going out  and  coming  back  home  again  a number of times.

[24]     The final outing was at 5am to “make it look like that we had gone to do some, do work”.  They were going to tell their landlady that they had been paid for cleaning up after a party, so that she would not be suspicious at being paid their arrears in rent in $5 notes.  Mr Hall said that he was pretty excited about the money

and that it was the best money he had ever made for “a minute job”.  Later he said that the money was in fact all Mr Martin’s, although they had spent some on shared food and cigarettes and Mr Martin had cleared up Mr Hall’s rent arrears as well as his own.

[25]     Mr Hall was given the opportunity at the end of the interview to say anything else that he wished to say.  He said that he did not need to see the tapes again as “I am happy with what I said.”

The Judge’s findings

[26]     The Judge heard evidence from both the detective and Mr Hall.  He was of the view that the detective was endeavouring to carry out his job to the best of his ability  within  the  limits  imposed  by  law  and  that  he  was  well  aware  of  his obligations to conduct the interview fairly.   In his view, the detective was, with considerable patience,  doing his best to elicit some meaningful  answers  from  a suspect  who  was  giving  contradictory  and  sometimes  obfuscatory  answers  to obvious questions.

[27]     Mr Hall’s evidence before him, on the other hand, did not impress the Judge. It was contradictory and he appeared on a number of occasions to be attempting to avoid answering questions which were inconvenient.   There were many lengthy pauses before he would answer sometimes quite straightforward factual questions that revealed the inconsistencies in his evidence.   The Judge found that, to the limited extent that there was a discrepancy between Mr Hall’s evidence before him and that of the detective, he preferred the evidence of the detective, even after making appropriate allowances for the disparity in age and experience.  (Mr Hall was

18 at the time of the interview).

[28]     Turning to the video interview itself, Judge Ingram considered that Mr Hall was relaxed and calm during the interview.   The Judge was left with a clear impression from the interview as a whole that Mr Hall was not overawed or fearful and that he was fully in control of all his emotions throughout the interview.   He found  that  Mr Hall  was  articulate,  possessed  of  a  wide  vocabulary  and  clearly

capable of both understanding ordinary English and expressing himself accurately and  thoughtfully.    The  Judge  said  that  he  had  no  hesitation  in  concluding  that Mr Hall knew exactly what he was doing when he told the detective that he wished to come clean and that he wanted to tell the detective about his own part in the robbery.

[29]     The Judge also held that Mr Hall fully understood his rights and that his participation in the interview was voluntary.  The Judge was satisfied that this was a case where Mr Hall volunteered to make a statement and that no pressure was put on him  at  all  to  make  the  statement  that  he  made.    Mr Hall  wanted  to  make  the statement and was generally endeavouring to be as helpful as he could.  Although he did not wish to admit that he knew in advance of Mr Martin’s intention to carry out armed robbery, during the course of the interview he did admit that on more than one occasion.  The Judge said that he did not overlook the fact that Mr Hall was 18 years old but he was satisfied of his ability to understand the process, the nature of his rights and the questions he was being asked and the nature of the jeopardy that he faced.

[30]     The Judge found, however, that the detective had inadvertently overstepped the benchmark of fairness  in relation  to  some portions  of  his  questioning.    He pointed out, however, that the questioning occupied some 50 pages of transcript, and

46 pages of it were unobjectionable.   The passages that the Judge excised on the grounds that they were unfair were passages where the detective was expressing his own view of what must have occurred and on Mr Hall’s motivation as well as his personal scepticism of Mr Hall’s account of what occurred.  The Judge pointed out, however, that some questions which might at first sight appear unfavourable to Mr Hall were nevertheless answered by him in a way which turned the question to his own advantage.

[31]     The Judge found that the detective had inadvertently fallen below the proper standards of questioning techniques in the excised passages because his patience was being tried by Mr Hall’s somewhat elliptical answers from time to time.  The Judge was aware that the detective was under some pressure of time on that particular day because of other inquiries.

[32]     The Judge then considered, using the balancing test in R v Shaheed [2002]

2 NZLR 377 (CA), whether the unfairness exhibited in the excised portions would justify the exclusion of the whole interview or only the offending portions. The Judge held that the excised passages were overly leading and he could not exclude the possibility that Mr Hall was agreeing with a strongly put proposition, rather than giving a true account of his thoughts and actions. The interest of justice thus required their exclusion.

[33]     On the other hand, the Judge considered that the balance of the interview was entirely voluntary in the sense that it contained an accurate account of what Mr Hall was endeavouring to tell the detective.  The Judge was satisfied that the detective’s prime motivation was to ensure that Mr Hall had an opportunity to give his account of what had occurred and that the interview was conducted in a generally appropriate manner.  There was no outrageous conduct on the part of the detective and nothing that would require the exclusion of the remainder of the interview in order to condemn the detective’s conduct.  The Judge was satisfied that the interests of justice rendered the balance of the interview admissible.

Should the Judge have excluded the whole of the interview?

[34]     At the hearing we watched the video interview.  We are satisfied having done so that there is no evidential foundation for any allegation that the statement was influenced by oppression.  Section 29 of the Evidence Act thus has no application. In this regard we are fully in agreement with the Judge’s findings of fact in relation to  the interview.  We  agree  that  Mr Hall  was  relaxed,  articulate  and  capable  of providing, and did provide, a coherent narrative of events.  Mr Hall did not hesitate to contradict the detective if he considered that the detective had misunderstood or misconstrued any of his statements.

[35]     Further,   the   detective’s   stance   during   the   interview   was   not   at   all intimidating.    He sat  back  in  his  chair,  and  usually asked  questions  in  a  calm measured tone.  Even in the passages that were excised by the Judge, it was largely the content of the questions rather than the tone which was objectionable.  The only

time the detective used a forceful tone was in the passage set out at [19] but this was used to re-enact how the detective thought Mr Martin had spoken.

[36] We also do not consider that s 30 of the Evidence Act has any application. Apart from one further passage (discussed below at [41]), we, like Judge Ingram, see no unfairness in the remainder of the interview. The passages excised by the Judge in no way taint the rest of the interview. The excised passages contained cross-examination in respect of admissions that had already been made by Mr Hall earlier and voluntarily and mainly occurred in response to answers provided by Mr Hall that the detective was quite justified in regarding with scepticism - see in particular, the passage described at [12] above. While the detective should not have expressed that scepticism in the way he did, any concern in this regard is met by the excisions.

[37] The admissions in the remainder of the interview were made by Mr Hall in full knowledge of his rights and the consequences of making his statement. They were given both spontaneously and in response to proper questioning from the detective and sometimes in some detail - see, for example, the passage quoted at [17] above. Apart from prevaricating about his knowledge of Mr Martin’s intentions before they left the caravan, Mr Hall gives the impression on the video of wanting to give a full and frank account of his actions. We accept, as did Judge Ingram, that he was voluntarily “coming clean”. There is no question but that Judge Ingram was correct to hold that the remainder of the interview is admissible in evidence.

Should there be further excisions?

[38] Mr Cooke, on behalf of Mr Hall, took particular objection to two further passages in the interview. The first occurred about half way through the interview and is set out at [16] above. Mr Cooke submitted that it was unacceptable for the detective in that passage to have interrupted Mr Hall and finished his sentence by adding “to rob it”.

[39]     We agree that the interruption was inappropriate.  The fact that it was made shows the detective’s impatience.  In fact, Mr Hall was in the process of completing

his sentence and did not give the impression that he was searching for the words to do so.   Even had Mr  Hall  been  searching  for  words  to  complete his  sentence, however,  he  should  have  been  left  to  do  so.    The  detective  should  not  have completed Mr Hall’s answer for him.

[40]     On the other hand, Mr Hall had the opportunity to contradict the detective (as he had done on previous occasions) and he did not.  Further, Mr Hall had already, on three  earlier  occasions,  volunteered  the  information  that  he  had  known  of Mr Martin’s intentions once outside the video store and that the robbery had been discussed between them at that point - see at [11] and [15] above.  The detective was therefore not supplying anything that had not already been admitted by Mr Hall.  In these  circumstances,  while  the  detective  should  not  have  completed  Mr Hall’s sentence, we do not consider it necessary to excise the comment.

[41] We do, however, consider that the second passage highlighted by Mr Cooke should be excised. This is the passage at [19] above. Mr Downs, for the Crown, responsibly conceded that this excision should be made because the detective was effectively, by the forceful manner in which he was speaking, giving evidence rather than allowing Mr Hall to give his account of what had happened. It was thus not truly the statement of Mr Hall. We agree.

Result

[42]     For the above reasons, the appeal is allowed but only to the extent that the further passage set out above at [19] is excised from the interview.  Apart from that passage and those passages excised by Judge Ingram, the video interview is admissible in evidence.

Solicitors:

Crown Law Office, Wellington