R v Huirua
[2018] NZHC 1568
•28 June 2018
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
I TE KŌTI MATUA O AOTEAROA TAURANGA MOANA ROHE
CRI-2017-087-000232
[2018] NZHC 1568
THE QUEEN v
REDMOND HUIRUA
Hearing: 12 and 13 June 2018 Counsel:
H J Sheridan for Crown
R M Adams for Defendant
Judgment:
28 June 2018
JUDGMENT OF BREWER J
This judgment was delivered by me on 28 June 2018 at 11:00 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Pollett Legal (Tauranga) for Crown Adams Hesketh (Tauranga) for Defendant
R v HUIRUA [2018] NZHC 1568 [28 June 2018]
Introduction
[1] On 7 February 2017, a masked man attempted to rob Julians Berry Farm and Café in Whakatane armed with a shotgun. The shotgun was fired during the incident and bystanders were injured by ricochets.
[2] The next day, Mr Huirua confessed to Police that he was the offender. He told Detective Constable Hill:
I only did it to get some money for my Mum. They’ve been broke for so long. I didn’t really plan it. I didn’t know that lady would grab the gun. I just panicked alright. I am really sorry.
[3] In a subsequent interview, recorded by DVD, Mr Huirua told Detective McKenzie:
My intentions weren’t to fucken go down and fucken scare people. Just wanted some money. Just a quick cash.
Just so I can help put some of my family members out.
Had my inspection today at mine and my partner’s house. Needed to fix some windows...
That done that Julians Berry Farm. I apologise to that … the lady that was pushing me. When I planned things out I didn’t fucken, I never planned that any lady would fucken come up towards me and fucken … with a gun pointing her. Aw I don’t even know if I pointed it at her. Pretty sure I didn’t…
[4]Further details were provided by Mr Huirua during the rest of the interview.
[5]Mr Huirua now faces seven charges:
(a)Receiving;1
(b)Theft;2
(c)Discharging a firearm with reckless disregard;3
1 Crimes Act 1961, s 246(1). As per s 247(a), the maximum penalty is imprisonment for a term not exceeding seven years.
2 Section 219(1)(a). As per s 223(d), the maximum penalty is imprisonment for a term not exceeding three months.
3 Section 198(2). The maximum penalty is imprisonment for a term not exceeding seven years.
(d)Unlawfully carrying a firearm;4
(e)Aggravated wounding x 2;5 and
(f)Aggravated injuring.6
[6] Mr Huirua does not want the police officers to give evidence of what he said at his forthcoming trial on those charges. His argument is that what he said was unreliable and unfairly obtained. It is inadmissible.7 This Judgment decides whether the evidence is admissible.
[7] The case for Mr Huirua is: when he was arrested he was under the influence of methamphetamine. He had not slept for a week, had smoked some methamphetamine shortly before the Police arrived, but was “coming down” from a period of heavy use. He was very tired. Detective McKenzie offered him inducements to confess, insinuated himself into his confidence, and put him in a state where he made a false confession using details previously told to him by the Detective.
[8] It is common ground that at the Whakatane Police Station Mr Huirua was spoken to by Detective McKenzie for more than two hours before the commencement of the DVD interview. During that period, Mr Huirua denied participation in the incident, and spoke at length about his personal situation and the life tragedies he had experienced recently.
[9] The confession to Detective Constable Hill occurred while Detective McKenzie was out of the room inquiring, at Mr Huirua’s request, as to what charges would be brought against Mr Huirua. The recorded interview occurred after he returned and told Mr Huirua about the charges, following which Mr Huirua said he had told Detective Constable Hill he had done it.
4 Arms Act 1983, s 45(1)(a). The maximum penalty is imprisonment for a term not exceeding four years or a fine not exceeding $5,000 or both.
5 Crimes Act, s 191(1)(a). The maximum penalty is 14 years’ imprisonment.
6 Section 191(2). The maximum penalty is seven years’ imprisonment.
7 See Criminal Procedure Act 2011, s 101(2).
Issues
[10]The principal issues I have to decide are:
(a)Has the Crown proven, on the balance of probabilities, that the circumstances in which the statements were made to the police officers were not likely to have adversely affected their reliability?8
(b)If not, were the statements improperly obtained?9
(c)If so, should the statements be excluded?10
The evidence
[11] I heard the evidence of seven witnesses. The first three (Mr Huirua, Detective McKenzie and Detective Constable Hill) gave their versions of the circumstances leading up to the DVD interview. The remaining four witnesses were experts called to give their opinions on how the circumstances may have affected Mr Huirua during this period in Police custody. Mr Lascelles and Professor Schenk were called on behalf of Mr Huirua. The former spoke primarily of Mr Huirua’s intellectual capacity. The latter is an expert on the effects of methamphetamine on the brain. The Crown called Ms Breen and Dr McMinn; the former to comment on the reliability of Mr Huirua’s admissions and the latter to comment on Professor Schenk’s evidence. I will summarise the evidence and then discuss it in the context of the issues.
Mr Huirua
[12] Mr Huirua said he started using methamphetamine 10 years ago when he was 17 years of age. In the months before his arrest, he was smoking “probably a half or gram or near” each day. He had not eaten or slept in the week leading up to his arrest. That took place on 8 February 2017 at about 8:30 am. He had smoked methamphetamine about an hour before he was arrested.
8 Evidence Act 2006, s 28(2).
9 Section 30(2)(a).
10 Section 30(2)(b).
[13] Mr Huirua said he was taken to Whakatane Police Station and kept in a holding cell for half-an-hour or an hour before he was taken to the interview room with Detective McKenzie. Mr Huirua said:
I remember being first put in there, when I first went in I said that – if it was alright if I could go back to my cell for a sleep, ‘cos I, I know how it operates in that interview room because I’ve been down that road before. I asked if I could see my lawyer and that’s when he made me feel that if I didn’t comply with him that, um, well he gave me a deal that if I didn’t comply he was going to pull my partner in and have my parents’ address raided, that’s when I first go in there. That’s what he was laying on me.
[14] Mr Huirua was asked by Ms Adams, his counsel, how the methamphetamine was affecting him. He said:
A.Oh, through the lack of sleep, yeah, yeah, nah, I was gone, I was out the gate.
Q. Was there anything said about food?
A.Yes, I asked if I could have something to eat. John [McKenzie] told me if I was to get this interview over and done with that he would get me McDonalds and a visit from my family.
Q. What did you feel about the McDonalds?
A.Oh, at the time I hadn’t eaten all week, yeah, it was like gold at that time.
Q. What did you feel about the visit that he talked about?
A.Well, I knew, I knew it was wrong of me to admit to something I didn’t do, but I knew I was gonna be put in custody because I have a cousin, Gabriel Kingi, that went through the same process. So I knew that if I went through what he wanted me to do then I would get this visit, this last visit with my family.
Q. Was there any talk about who you would have your family visit with?
A. He told me any of my family that wanted, that turned up.
[15] Mr Huirua went on to say that he repeatedly denied he was the offender but told the Detective he knew who was. The following passage of examination-in-chief is relevant to the issues I have to decide:
Q. What was his tone when he is talking to you, what is he like?
A.His tone changed, yeah, I can’t, yeah, his tone of his voice like he come off friendly, then he also come off threatening, too, what I can remember.
Q. Tell me about the friendly?
A.He invited me to trust him and to be honest and that he, he used this other person as an example to put on me that if I just be honest with him, tell him where the gun is and help him out with this that I would be a charge of less, oh, with more small charges which was possession of a firearm and discharging in a public area. He asked me if I wanted to pray before we started this, he asked me if we wanted to pray when we finished it.
Q.You mentioned a reference to your missus, your partner, what did he say about your missus?
A.Well, these are his words again, he tells me, “Look, we know that you have given the firearms and whatever to your partner to hide, so if you don’t comply with me, we’re gonna have her pulled in too and charged.”
Q. Did he say what she would be charged with?
A. I can’t remember what the charge was, but those were his words. I remember them clearly because that’s how what I meant about feeling threatened.
Q. How did that make you feel, what he said about your missus?
A. Well, at the time and the state I was in, when he had mentioned about pulling her in, I really felt like just me getting arrested is hard enough and him wanting to bring her in will just make my life and her life a bit worser than it already is.
Q. You said that there was a reference to your parents, what was that?
A. Yeah, he also said that he was gonna have my family home raided for evidence in this case, oh, for what I was arrested for.
[16] Mr Huirua went on to say there was talk of trust and, because he had “heaps of problems going on in my life due to the loss of a few of my close friends due to me and my partner’s problems”, he “poured my heart out to him about all my lost ones that have fallen”.
[17] Mr Huirua said Detective McKenzie told him about another offender he had dealt with and for whom he had repaid honesty by obtaining reduced charges. He implied that could be done for Mr Huirua.
[18]Ms Adams’s questioning continued:
Q. How long do you think that you were in this interview room?
A. Couple of hours at least.
Q. How were you feeling by now?
A.Fatigued. I was in and out of, in and out of consciousness. I remember him telling me that, “Look, if you’re not gonna, if you’re not gonna help me out here, I’m gonna walk out and you’ll be dealt with another detective that won't be as lenient as him.”
Q. How did that make you feel?
A. Well, like I said before I was in a confused state and how his personality had changed more than once, that my brain was just ticking over like, “Oh, he’s – he wants to help me because he said ‘trust him’,” but then the other of me is saying, “Nah,” and there’s another side of me saying, “Yeah because he said he’s gonna get my family a visit after I finish, finish complying with him and he also said that he’ll get me McDonalds, whatever I wanted, that my – and my partner wouldn’t be pulled in.” So that’s on my brain at the time, too. And also I don’t want them – my family’s house to be put on – I don’t want my family to go through a raid due to all the tragedy that’s been going on in our family, so when he’s telling me that he’s going to walk out – he said this like more than once anyway, maybe about three times that he was going to walk out. Not once did he walk out. There was a time that I remember when he did say, “Oh, I’m going to walk out.” But then I’ve told him, ‘No.”
Q. Why did you tell him no, why did you tell him not to walk out?
A.Because I felt if he’d walked out that – ‘cos he had told me that I – to deal with someone that’s not lenient as him and I wouldn't get that visit, I wouldn’t get that McDonalds.
[19] Mr Huirua was cross-examined by Mrs Sheridan for the Crown. Mr Huirua accepted the methamphetamine he smoked an hour or so before his arrest woke him up and its effects lasted for perhaps an hour-and-a-half to two hours. He said that when he started talking with Detective McKenzie, the methamphetamine kept him “aware”. He was then asked:
Q.You said earlier that during your discussion with Detective McKenzie you went in and out of consciousness, what did you mean by that?
A. Like, awake and then drowsy, falling asleep, looking around. Sometimes I look around and it will hit me that I’m in the police station, but when I was going like, falling asleep and yeah, it’s pretty much just falling asleep.
Q. Okay. And how many times do you say that happened, falling asleep?
A. Over and over again.
Q. And you sort of demonstrated that your head would drop?
A. Yeah. Like, that’s what I remember.
Q. And did Detective McKenzie say anything about that?
A. He was saying a lot, he was saying a lot while I was talking, I can’t – that’s the point in time in the interview room that I don’t remember. All I just remember is that him standing up and getting ready to walk out and then he will stop and sit back down because I’ve just noticed that he’s about to walk out and I’ll try my hardest to come to sit up and stay straight and talk to him. So I was fighting myself just to, just to keep my head up. At the time I didn’t really understand a lot of things he was saying.
[20] Mrs Sheridan then confronted Mr Huirua with his failure to reveal to Mr Lascelles (who interviewed Mr Huirua on 26 April 2017) a number of the allegations he made in his evidence to me. These were:
(a)Mr Huirua did not tell Mr Lascelles he asked for a lawyer and was refused.
(b)He did not tell Mr Lascelles that Detective McKenzie told him that if he did not comply, his partner would be pulled in for questioning and possibly arrested or charged.
(c)He did not tell Mr Lascelles that Detective McKenzie offered lesser charges for compliance.
[21] Overall, Mr Huirua accepted he did not tell Mr Lascelles about these things, but maintained they occurred. The following passage is relevant:
Q. So this was a pretty long time ago and you were a bit sleepy, a bit paranoid, is it possible that you are mistaken about some of the things you say Detective McKenzie told you?
A.No, I can remember what he has said. Those, like I said before, I can only remember so much and those are the things I remember the most.
Q. And you remember him inviting you to be honest?
A. Yes.
Q. He just wanted the truth, didn’t he?
A.Like I said before, I was saying “yeah” then to comply with him, to get what I wanted.
Q. But he –
A. Because nothing really mattered, at that time all I wanted was a sleep, see my family and food.
Q. But he made it clear to you that he just wanted you to tell the truth and be honest?
A. Yep.
Q. And that’s why you agreed to do the interview and tell them what had happened the previous day?
A. Yes. I was lying through my teeth and I told them that …
[22] Mrs Sheridan put to Mr Huirua details he had given in his interview. These included the clothing he was wearing, his association with a silver Subaru motor vehicle, the shotgun being full length and that it was pointing straight down when discharged. Mr Huirua’s response was that he made up these details, or adopted details put to him by Detective McKenzie. For example:
Q.In this case we have witness statements confirming that the offender was wearing a red hoodie, a red item across his face and dark pants, it’s just luck that you made up that detail and it was exact right?
A. He’s explained to me – he’s explained to me of what the person was wearing.
[23] Mr Huirua told Mrs Sheridan he could not really remember the conversation he had with Detective Constable Hill. Indeed, he cannot “really remember his presence being in that room”. He accepted, however, he might have told the Detective Constable that he was the offender, but he has now forgotten that he did so. However, he denied telling Detective Constable Hill he did not know the lady would grab the gun and he just panicked. I found that denial unconvincing since Detective Constable Hill’s notes recorded the matter and in the DVD interview Mr Huirua gave a similar account.
[24] Mr Huirua repeated that he found Detective McKenzie’s attitude in the DVD interview to be different to the more caring and empathetic attitude he displayed before the interview. He accepted he was perhaps feeling a bit paranoid and he was still feeling the effects of the methamphetamine he had smoked that morning.
[25] I asked Mr Huirua questions arising from his criminal record, which made it clear that being interviewed by the Police was not novel for him. Mr Huirua told me he had given a DVD interview once before and that he knew that after making the recorded interview he would be held in custody. He told me the difference between the first DVD interview he had done and the subject interview was that for the former he was not under the influence of drugs.
Detective McKenzie
[26] Detective McKenzie gave evidence that he was tasked with interviewing Mr Huirua. He spoke to him in the interview room. He explained that he wanted to talk to Mr Huirua about the incident at Julians Berry Farm, cautioned him and explained his rights. He then went through and explained the evidence the Police had gathered pointing to Mr Huirua being the offender. The Detective said he did not give Mr Huirua details about the clothing the offender was reported to be wearing, nor details about the type of firearm that was used. The explanation about Police evidence was very general.
[27] The Detective said he showed Mr Huirua a photograph of him as the driver of a silver Subaru vehicle. This was taken from CCTV footage at a service station. Mr Huirua acknowledged he was the driver of the vehicle.
[28] Detective McKenzie denied that Mr Huirua asked, at any stage, to speak to a lawyer. His evidence continued:
Q. Thank you, perhaps if you can continue telling us about your discussions with him?
A. So, Mr Huirua then asked what was going to happen to him. I explained to him that he was going to be charged with offences relating to what I had advised him, that we would be looking to remand him in custody and that he would be facing a prison term as an outcome for that. I invited him to be honest about his involvement
in those matters and to consider the victims and in particular I was referring to the people that had been shot by ricochets from the shotgun, instead of just thinking about himself. Mr Huirua –
Q. Sorry, so did you tell him that people had been injured by shotgun pellets?
A. Correct.
Q. Yes?
A. Yeah and that, and that was just I wanted him to focus from being concerned for his plight and to consider the people who had been in the café that day and had been considerably traumatised by that event.
Q. And you also mentioned explaining to him that he was going to be charged with offences.
A. Yeah.
[29] Detective McKenzie confirmed that Mr Huirua denied involvement but said he knew about the silver Subaru and that it was another person who was the offender. Mr Huirua did not want to name that person.
[30] Detective McKenzie also said Mr Huirua had a problem with trusting police officers and there was considerable discussion about Mr Huirua’s personal problems. Detective McKenzie said he explained to Mr Huirua that he lived by his faith as a Christian and confirmed he was wearing a ring with the word ‘Jesus’ on it during the interview. He said there was a very brief discussion around faith.
[31] The Detective said that, eventually, he felt an impasse had been reached and he told Mr Huirua that they “should just leave things at that point”. The Detective stood up, gathered his materials, and went to the door of the interview room to leave. Mr Huirua asked him to stay because he wanted to keep talking:
He confirmed that he did want to keep talking, he said that, “He did want to be honest, but found it hard to trust people.” And as a result he was looking for something to trust on – he said he wanted to know what charges that he was going to be facing, so at that point I said, “Well look I’m happy to go away and speak to my supervisors to find out what they’ll commit to charge- wise. So at 11.45 am I left the interview room to find out – to find someone to come and sit in with the defendant while I went to speak to the supervisors. At that point I saw that Detective Constable Hill was actually monitoring my interview, I wasn’t aware that he’d actually been there, that hadn't been arranged when I went into the room and so he sat in with the defendant while
I went and spoke to Detective Inspector Loper, and Detective Senior Sergeant Standon to confirm what charges they intended to lay in relation to Mr Huirua.
[32] Detective McKenzie was asked about his techniques in interviewing suspects. He emphasised that he treats suspects as human beings in a normal respectful manner:
Q.Now would you accept that your demeanour became intimidating at any point during those dealings?
A. Most definitely not, I mean, I don’t police that way and so I’d challenge that very strongly because it’s just not how I choose to police. I mean it’s an extremely ineffective way to interview people. It is, you know, I watch things like CI and then I see other police forces interview that way, that’s not part of the New Zealand policing culture, certainly not how we’re trained. It’s not the way that I choose to deal with people and intimidation, intimidation doesn’t work, we’re dealing with people often who have grown up in gangs, have grown up in hard environments and are used to intimidation, and they’re used to – it’s water off a duck’s back, it is not effective tool and so it’s not part of my – it’s not part of how I police.
[33]As to Mr Huirua’s demeanour:
A.He was very changeable, he was clearly – in my view he was coming off the effects of methamphetamine. He’d probably, in my terminology, been on a bender for some extended period of time and was coming down off that, so I was seeing extremely paranoid behaviour, so a sort of normal cycle you’ll see where – in speaking to someone you’ll build trust and you’ll take some steps forward and then you’ll go right back to the start as a person goes through their cycles of paranoia. I’ve seen a lot of nervous body twitches and movement and hyperactivity which indicated the same sort of effect, so I was going through a rollercoaster with him in terms of sometimes he’d be very calm and very – would relate very easily and other times I was dealing with someone who was very irrational and very erratic and so, and so having a intimidatory response to a person who’s rational is like lighting a fire under them. And so I just remained calm in how I spoke to him to try and just keep moderating or bringing him back to a more stable position. I mean this is not the first time I’ve dealt with a person of this nature and so that, that needing to be just calm to help him calm, which he did. He would respond to that.
Q. Did he remain awake and alert throughout your dealings or were there periods of sleepiness?
A. There were periods of where he would be looking to dose off, so he would go from almost disconnecting from the interview and then he would come back to states of hyperness, so yeah there was extremes in his, in his manner.
[34] Detective McKenzie said he did not notice anything about Mr Huirua that gave him concern about Mr Huirua’s intellectual ability. During the first part of the interview, the Detective thought Mr Huirua was stalling or evading talking about the offending.
[35]Detective McKenzie was asked:
Q. Is there any reason why this discussion was not recorded on DVD or recorded in a formal question and answer format?
A.He just hadn’t got to a stage of being willing to take part in that process, so –
THE COURT:
Q. Had you asked him?
A. I indicated that I wanted to take a statement from him and that I wanted to talk about those matters and then the discussions fell off into the things that we have said, so denials of the offence and I said, you know, that I would like to put to him the evidence that we had talked about but it was just, “Well, I haven't done it, I’ve – someone else has done it,” and so then we would follow that line or the talking about the family, the weights that were on his shoulders, there were all these things that were being –
Q.So it is your practice to record an interview with a suspect only if they are confessing?
A. It is practice if they are willing to undergo that and –
Q. But had you asked him whether he would talk to you with the camera on?
A.Ah, I had asked him in terms of making a statement and that I’d like to do that. I can’t recall specifically, “Would you like me to turn the video on now?” Um, I’m not sure, the question is in a more general
–
Q.Well, I have seen the records of hundreds of interviews in my time and very seldom since the DVD process has come in have I seen a discussion that went on for two hours before the camera is turned on, is that normal in Whakatane?
A.The nature of the conversation that went on covered predominantly what was going on in his personal life around the, the weights that he described that he was carrying in terms of his – the death of people that were close to him and so a lot of those things weren’t – they’re not an interview subject. They are stuff that he is managing in his personal life in terms of deciding, you know, “Do I want to talk about this matter?” He is saying, “Well, no, I haven't done it.” If he’s
saying, “No, I haven't done it,” there isn't an interview, if he is not wanting to have that discussion.
EXAMINATION CONTINUES: Ms Sheridan
Q.So just to clarify in response to His Honour’s question, is it your practice to speak to suspects before you commence a DVD interview?
A.Well, yes, the process starts with advising a person what they are being talked to about and obtaining their details and then inviting them to take part in an interview and then that can go off into a range of different paths. It can be, “No I don’t want to be spoken to,” “No, I don’t want to be spoken to on record,” “What's going to happen to me if I speak to you?” So some people, when they see the video, they straight away, “No, I don’t want anything to do with that, but I’m happy to talk to you,” so it’s assessing how he wants to process forward from that point.
Q.And in this case when you raised the prospect of taking a statement, what was his reaction to that?
A. Well, that’s what I’ve said is he has just started saying things like, “Look, I didn’t do it, someone else has done it,” and that things that I have outlined in relation to family concerns and weights so that is where the conversation has led from that point. So he wasn’t interviewed and challenged through that time. He wasn’t taken through the detail of the case as you would in an interview, he was talked to about whether he would like to take part in an interview, but the – because of the paranoia and erratic nature of how he was, we went over a range of other topics.
Q.So for that off-camera discussion from 9.38 to 11.45, what proportion of that was spent talking about Mr Huirua’s personal matters, completely unrelated to the investigation?
A. I would say well in excess of three-quarters.
[36] Detective McKenzie was questioned about inducements which Mr Huirua had referred to. He accepted it was quite possible Mr Huirua asked for a meal at some point. His answer, in accordance with normal practice, would have been that a meal would be provided after the interview, but there was no discussion about a specific meal. He denied he offered Mr Huirua McDonalds. The Detective accepted Mr Huirua might have been provided with a McDonalds meal, as he said he had. The Detective has checked and found McDonalds meals were brought back to the Police Station that day because Armed Offenders Squad personnel were in Whakatane and meals were being brought in from McDonalds for them. He concluded it is quite possible someone might have given Mr Huirua a McDonalds meal.
[37] Detective McKenzie denied there was any discussion around Mr Huirua’s partner or parents being questioned by Police and possibly charged. He said it is likely Mr Huirua’s partner may have been mentioned:
It’s likely that it would have been mentioned that they would be talked to, but that – because that’s normal process, they are people that are part of the inquiry, I understand his partner may have been at the address when he was arrested and a search warrant, I understood, was going to be executed at that address, so that likely would have been mentioned that these people will be spoken to as part of the inquiry.
[38] Detective McKenzie denied he at any stage suggested to Mr Huirua his family might be treated differently if Mr Huirua cooperated. All he was doing was outlining the scope of the inquiry and he could not control what might happen outside the interview room.
[39] Mrs Sheridan asked the Detective whether there was any discussion regarding a visit from Mr Huirua’s family members. The Detective said:
I believe there was, he indicated a lot of distress around what had occurred affecting the family situation and that in relation to the deaths that I’ve mentioned and that he’d like to see them, and I said that can be facilitated. There was no, “if you do this then I’ll do this,” it was – I mean it’s again very normal to have visits at police stations and so that was raised by him and I said, “Yes I should be able to arrange that for you.” And it was, so I arranged a visit, I certainly arranged a visit with his father that afternoon.
[40] Detective McKenzie denied there was any discussion about the case being passed to another officer and said he never put any pressure on Mr Huirua to engage in a formal DVD interview. The Detective made the point, to the contrary, that he had given up on the idea of there being a DVD interview and was on the verge of leaving the interview room when Mr Huirua asked him not to leave and to find out what charges he would face. When he returned to the interview room to tell Mr Huirua about the charges he would face, Detective Constable Hill left without saying what Mr Huirua had admitted to him:
He then asked me if Detective Constable Hill had told me what he had said, and I said, “No.” He said – the defendant said that he’d been honest and admitted his involvement in the Julian Berry Farm incident, so at that point I invited him to undergo a video interview, and he agreed to do so. So that was commenced.
[41] Detective McKenzie also denied he told Mr Huirua cooperation might result in lesser charges, giving as an example another offender who had received lesser charges for being compliant. The Detective made the point he had no influence over the charges.
[42] In cross-examination, the Detective denied Mr Huirua had asked if he could go back to his cell and go to sleep. He said if Mr Huirua had asked to see a lawyer, then he would have arranged a telephone call to the lawyer.
[43] Detective McKenzie confirmed Mr Huirua’s evidence that he commenced the interview by describing the evidence the Police had of Mr Huirua’s involvement in the offending, told him he would be remaining in custody and that he would receive a prison sentence. Detective McKenzie denied he had given Mr Huirua the details about clothing and other matters which Mr Huirua said he used in the course of making his allegedly false confession.
Detective Constable Hill
[44] Detective Constable Hill is stationed in Whakatane. He was briefed to assist with the investigation into the incident at Julians Berry Farm. However, he was stood down when news arrived that Mr Huirua had been arrested. He decided, on his own initiative, to monitor the interview. Detective McKenzie did not know he was there. The Detective Constable made some general notes of the discussion between Mr Huirua and Detective McKenzie, but did not take detailed notes.
[45] Detective Constable Hill described the point at which Detective McKenzie decided there was no point in continuing the interview and got up to leave the room. The Detective Constable went into the interview room while Detective McKenzie was away consulting with his superiors about the charges Mr Huirua would face:
Q. What was Mr Huirua’s demeanour when you went in?
A.He was a bit emotional, he was sitting on the floor – soon after I went in he got off the chair and sat on the floor and was talking.
Q. What happened?
A.He talked, I made a few notes. I was really in a babysitting capacity to be fair, it’s not – yeah, it wasn’t my enquiry or I wasn’t driving things in terms no decisions were mine to make. So to speak.
Q. Did you ask him questions?
A. No I did not ask him questions.
[46] The Detective Constable’s evidence was that Mr Huirua got off his chair, sat on the floor and made the admissions which I quote at [2]. Those admissions were not made in response to any questions from Detective Constable Hill. He at once made a record of the admissions in his notebook. However, he did not offer Mr Huirua the opportunity to read his notes.
[47] When Detective McKenzie returned, the Detective Constable left the interview room and went back to the monitoring room. He monitored the interview recorded on DVD. He was asked by Mrs Sheridan:
Q. Now how did the – how did Detective McKenzie’s demeanour in the recorded DVD interview compare with what you observed of his demeanour before it had started recording?
A.Well of course it’s an interview so they’re both actually sitting up at a desk, no one’s sitting on the floor or – I guess people are sitting up together. Probably the manner of the conversation stays the same, but you’re asking questions I guess rather than just conversing, if that changes anything. But, yeah in terms of tone or anything I think there wasn’t anything discernible for me, anyway.
Q.So during the time that you were monitoring from 9.50 to 11.45 and then again from 12.12 until the commencement of the DVD, at any stage did you hear Detective McKenzie, offer the defendant anything in return for undergoing an interview?
A.No, no. No they didn't leave for any cigarettes or like there was no – they were in the room as far as I – yeah, well they were, because I was there, so yeah.
Mr Lascelles
[48] Mr Lascelles is a registered clinical psychologist in private practice. He has extensive experience in the assessment of criminal offending and preparation of reports assisting the Courts, the Parole Board and other agencies. Mr Huirua was referred to him by his previous counsel for a psychological assessment focusing on Mr Huirua’s cognitive abilities, his mental state at the time of his interview with the
Police, and whether Mr Huirua was influenced by Detective McKenzie’s alleged advice to participate in the interview.
[49] On 26 April 2017, Mr Lascelles administered to Mr Huirua the IQ test known as the Wechsler Adult Intelligence Scale – Fourth Version. His full-scale IQ was 72. This is classified as being in the borderline range and is lower than 97 per cent of his peers. Mr Lascelles emphasised that this was just a snapshot of Mr Huirua’s ability at that time. Due to the limited nature of his brief from Mr Huirua’s counsel, Mr Lascelles did not obtain the background information – such as school records – which might have allowed him to make a diagnosis about Mr Huirua’s overall intellectual characteristics.
[50] Mr Lascelles gave, in his report dated 12 June 2017, the following relevant conclusions:
49. Mr Huirua was likely to have been in a vulnerable mental state at the time of the interviews with Police, due to chronic sleep deprivation and a period of binge use of methamphetamine. This would have affected his ability to make rational decisions that would be in his best interest, and reduced his ability to resist inducements that might alleviate his distress at that time.
…
51.If Mr Huirua’s allegations of being offered inducement to participate in video interview is correct, I would expect him to have been substantially influenced by this. Mr Huirua was under a degree of physical and mental stress that is markedly higher when compared to others not experiencing the effects of sleep deprivation and continuous methamphetamine use. He is also functioning intellectually at a level well below the majority of others of his age.
[51] Mr Lascelles gave other conclusions, but I did not find those substantially helpful since they are within the scope of my appreciation of the evidence and depend upon my findings.
[52] In answer to questions from me, Mr Lascelles agreed that Mr Huirua’s oral skills as exhibited when giving evidence before me were not consistent with what Mr Lascelles would expect in terms of the ability he measured. He hypothesised there has been some significant recovery in cognitive function since his assessment.
[53] In cross-examination, Mr Lascelles made the point that if Mr Huirua’s tested IQ result was valid, then his ability to appreciate his rights, make appropriate decisions and respond to inducements or threats, might be impaired. This, in Mr Lascelles’s view, would be quite secondary to his state of sleep deprivation and the effects of methamphetamine.
Professor Schenk
[54] Professor Schenk has a PhD in experimental psychology. Her research area is the psychopharmacology of drugs of abuse. Her evidence concerned the effects of methamphetamine on the brain, the reliability of Mr Huirua’s statements and his ability to make decisions.
[55] Professor Schenk told me the general preponderance of the literature is that chronic exposure to methamphetamine results in cognitive deficits that are very persistent and are consistent with some of the brain damage that is also a product of chronic methamphetamine use. There can be problems with recall and episodic memory. Mr Huirua’s condition during his Police interviews was affected by his methamphetamine use that morning and also because he was suffering some of the effects of withdrawal of methamphetamine. Professor Schenk referred to the DVD interview during which Mr Huirua appeared to be confused and, in her opinion, cognitively impaired. Professor Schenk endorsed the description of Mr Huirua’s demeanour and behaviour by Detective McKenzie as being “quite consistent with the effects of withdrawal from methamphetamine”.
[56] Professor Schenk drew attention to the difference in performance suggested by the testing conducted by Mr Lascelles and the way in which Mr Huirua conducted himself giving evidence. That suggests recovery through abstinence from the results of Mr Huirua’s methamphetamine use.
[57] Professor Schenk was asked how sleep deprivation fits into the cognitive effects of methamphetamine use. First, the Professor was explicit that the effects of methamphetamine are to produce arousal in brain systems that keep a person awake and so, by continuing to take methamphetamine, Mr Huirua would have necessarily been sleep deprived for a long period of time. There is a number of consequences of
this, and cognitive dysfunction is one of them. That is independent of the effects of methamphetamine use.
[58] Professor Schenk was asked how the process of withdrawal affects a person. Her answer was:
Well I think again the literature – you have to be careful in terms of interpreting the literature, it would depend on the extent of methamphetamine use, how long the person had been using, how much they had been using and the period of abstinence. And that’s where there becomes some confusion, but certainly in acute abstinence as we observed in the video, that would be exactly what we saw, which was period of alertness, followed by periods of confusion followed by periods of dozing off, or up and down as everybody has suggested.
[59] As a consequence, the literature suggests the ability to make decisions is severely compromised. Mr Huirua’s statements would have, potentially, been confused.
[60] Professor Schenk was careful to qualify her evidence by saying that methamphetamine use affects different individuals differently. The preponderance of data says there is at least a mild cognitive deficit and in some people there is a very strong cognitive deficit. There are many variables.
[61] Professor Schenk also accepted a proposition I put to her that one way of testing whether memory is distorted is to compare what the person says with extrinsic evidence as to what occurred.
Ms Breen
[62] Ms Breen is a clinical psychologist, in private practice, with extensive experience. Her brief was to provide an opinion on Mr Lascelles’s psychological assessment of Mr Huirua and to comment on the reliability of Mr Huirua’s admissions in all the circumstances.
[63] Ms Breen made the point that the snapshot of Mr Huirua’s intellectual ability produced by Mr Lascelles is just that. Without the context of Mr Huirua’s life functioning prior to the testing, it cannot be put into any real context. Further,
Mr Lascelles did not administer the standard Gudjonsson suggestibility scale that would have been useful to the inquiry as to whether Mr Huirua was likely to be susceptible to suggestive questioning in a formal interview situation.
[64] Ms Breen made a general point that the lower a person’s IQ, the more suggestible they are. But, again, the level of suggestibility varies with the individuals. People with much lower IQ scores than Mr Huirua can be not at all suggestible, while others with higher IQs can be highly suggestible. The method of questioning can be important because people are more likely to give reliable accounts if they are interviewed using open questions rather than closed questions. In this case, having viewed the DVD recorded interview, her opinion is the questioning was open and in accordance with good practice for questioning an intellectually compromised person. Further, the DVD interview shows Mr Huirua’s ability to contradict Detective McKenzie, and to make known his desire to stop the interview from continuing.
[65] In cross-examination, Ms Breen accepted that the literature around interview reliability identifies factors with the potential to impact interview reliability. They include borderline IQ, drug use, drug withdrawal, sleep deprivation, and the use of inducements or coercion. The length of time of interview and the person’s ability to concentrate are other factors which bear on reliability.
Dr McMinn
[66] Dr McMinn is a consultant psychiatrist who has worked for over 15 years as an addiction specialist. His brief was to review Professor Schenk’s evidence and to give consideration to Ms Breen’s comments.
[67] Dr McMinn reviewed the specialist literature referred to by Professor Schenk. Largely, he did not take issue with the Professor’s overall conclusions as to the preponderance of the literature, but he emphasised there is a difference between a psychopharmacological approach and a real-life approach:
Professor Schenk has written from the perspective of a well-informed psychopharmacology researcher. I would approach the topic from more of a clinical perspective, drawn from seeing patients who use methamphetamines in ways similar to how Mr Huirua appears to have done.
This difference of perspective does not fundamentally conflict with anything in Professor Schenk’s summary of the literature. However, it does lead me to temper my opinion on Mr Huirua’s arrest interview with a familiarity about how people who have been using methamphetamines commonly perform.
…
As a clinician, I would feel happy to interview a patient who had been using methamphetamines, and expect to gain useful information. I would consider whether there were deficiencies in the patient’s performance in the interview, and try to make sense of these. However, I would examine for a number of different causes. There are many causes with more strongly supported evidence for significant cognitive deficits than the use of methamphetamines. In particular, these are intellectual disability from birth; head injury; sleep deprivation; acute mental illness; temporary or permanent effects from alcohol; etc.
Overall then, in my view, Professor Schenk’s review of the literature is broadly accurate, but has a focus that does not easily address the uncertainties concerning how much methamphetamines interfere with human cognitive performance in real life settings.
[68] Dr McMinn endorsed Ms Breen’s discussion of the Gudjonsson suggestibility scale. He added that Professor Gudjonsson found that previous experience of prison was associated with reduced likelihood of confession.
[69] Dr McMinn gave evidence that he quite frequently interviews prisoners who are affected by the chronic use of methamphetamine. In the main, he gets coherent accounts from them and expects to get coherent accounts. Of course, as a clinician, he makes sure he first ensures the prisoner is appropriately oriented in time and space, and is able to understand the purposes of the interview. Dr McMinn had not seen the DVD recorded interview and so could not comment on it.
[70] In cross-examination, Dr McMinn accepted that sleeplessness can cause cognitive deficits. The preponderance of the literature is that mild cognitive decline accompanies methamphetamine use, but improvements can follow abstinence.
[71] It was put to Dr McMinn that his ability to obtain coherent accounts from prisoners affected by chronic methamphetamine use is greater than that of a lay person because of his clinical experience. However, Dr McMinn emphasised he is simply more experienced than more junior clinicians and that others, including the Police and the Courts, could also have the necessary expertise.
[72] In re-examination, Dr McMinn described in a general way his approach to interviewing those affected by chronic methamphetamine use. He reassures the prisoners and endeavours to put them at ease. He engages with them to obtain trust, and this includes reassuring them that information they give will be confidential. He makes them feel comfortable and adopts a non-confrontational approach using simple and direct language.
The DVD interview
[73] The DVD interview starts at 12:31 pm and ends at 1:25 pm; a duration of 54 minutes.
[74] Mr Huirua’s demeanour is as described by Detective McKenzie in relation to the earlier interview. In particular, Mr Huirua is at times agitated and at times passive and/or obviously drowsy. At one point, he leaves the interview table and removes his upper clothing abruptly. He then occupies a corner of the interview room. His oral fluency is noticeably less than when he gave evidence before me.
[75]Almost at the outset, there is this exchange:
MOkay. So… I’ve been through and um explained your rights to you but I’m going to go through that again.
H Do I s… can… do I still get that visit?
M We’ll sort out um… we’d have to sort a visit after we’ve had… H Just sort it out.
M…Court today. Yeah we’re happy to sort out a visit for you after we’ve had Court today.
H Just like my Missus or someone?
MYeah we can arrange that. So all of that stuff though we’ll deal with after. Alright? So at the moment…
H But you can’t… promise me that.
MWell no, I’ve said that I will sort out a visit for you after we dealt with this okay? So after Court… then I’ll arrange a visit for you.
[76] Detective McKenzie informs Mr Huirua again of his right to remain silent and his associated rights. It is clear Mr Huirua understands those rights and agrees to participate in the interview.
[77] Detective McKenzie then summarises the previous interview, the events that led him to seek advice from his superiors on the charges Mr Huirua would face, and his return to the interview room. There follows an exchange which is indicative of a degree of confusion on both sides. The Detective, I infer, expected a straightforward interview following Mr Huirua’s admission. Mr Huirua was uncomfortable:
M …
So I’ve come back and advised you about that um and when I came back and you advised me that you had talked to um Detective Hill and told him about your involvement in that crime; ah the Berry Farm, and that when I… and then when I’ve sat back down in here you have um… you’ve said that you’ve done it because of ah I think there were money problems with your Missus and just needed some money.
H (Shakes head)
M I might have misunderstood exactly what you said. H (Shakes head)
MSo… apart from my summing up, that last thing egs… is that a corre… is that what has happened between you being arrested here and the start of this video?
H No.
M Okay so…
H So that’s not what I’ve… what I told you.
M What… sorry what I’m saying is I might have misunderstood that last portion. Well what did you tell me?
H Yeah I did it.
M And the reason that you did it? H This just feels awkward this.
M Yeah I… I understand that. H Fuck. (Shrugs)
M I guess if you focus on me and talking to me about what has occurred.
H I thought we were being real with each other. That’s what I f… thought.
M Yeah so… at the moment we’re talking about what occurred at Julians Berry Farm, what occurred at Gull. And so I’m just trying to find the facts of what you remember, your involvement of this matter okay?
H This place is just thing that’s all. I didn’t realise this will be the process.
M So what did you think it would be sorry? I… H Cos when me and you were speaking…
M Yeah.
H … you just wanted the truth.
MYeah and but that’s what I’m asking for now is just the truth of what you say occurred. That’s what I’m asking for, is you to tell me your own words about what happened yesterday.
HHow come you never told me this would happen before I spoke to you?
MSo I… I’m con… I’m confused. Because I’m… I’m… all I’m doing is what we talked about was that… we’d start the video and re… just record your story. So…
H Before then…
M So…
H Before you shot upstairs and came back.
M Okay so… I’m not sure what you’re saying. Tell me cos I’m… I’m confused. I’ve not… I mean…
H Aw fuck… there it’s on your ring.
MSo you’ve pointed to my… my ring about Jesus yeah? So what… what is your wanting to say about that? So I’ve p… I’ve… you’ve seen my ring and I’ve said that you know that’s the way I Police is with integrity, according to what I believe.
So… sorry I’m c… I’m confused. I’m not sure… H ***
M What…
H Aw I’m just thinging…
M Yeah.
H… ah Jon… just… feels awkward that you’re not being the person you were just before. That’s all.
M What…
H Before this camera. I don’t see why… just keep it real.
M Sorry I… I’m… all I’m… all I’m trying to do is just ask what has occurred. Okay? What you remember, what you saw. So nothing’s changed. I’m just simply now trying to understand…
H Now I’m looking like a dumb fucken…
M Well no you’re not. We’re just… I… you… you are also trying to understand. Okay? So at the moment… all I’m asking is what occurred because… we’ve… we’ve got to the stage where you’ve said, yeah I did it and I wanna tell about what happened. But we haven’t talked about that okay. Have we? We haven’t talked about actually what you did?
H On this camera we haven’t.
M Yeah. And we haven’t talked about what you did off the camera. H Yes we have.
M Well not to me you didn’t. H Ah just before.
MWell I… you… all you’ve said that I recall is… yes I did it and there was some stuff you said about I think your missus or that? But I might be remembering that wrong.
H Come on Jon bro. Fuck.
MIf I misun… have I… if I’ve misunderstood I’m sorry but I don’t… I… all…
H Fuck. You gonna be a cunt to me now aye? Jon
M Ah…
H Through all of our honesty and…
M Sorry?
H Thought we were on about honesty.
M Yeah so… I… we’ve somehow got very confused. H Yeah.
M So all I’m, all I’m…
H Cos I’ve just got this vibe that you’ve just… just turn to a whole completely different person. That sort a fucken makes me step back a bit from you.
[78] At this point, I infer, the Detective realises Mr Huirua might not want to answer questions on camera about the Julians Berry Farm incident. He gives Mr Huirua the opportunity to halt the process:
MOkay. I suggest what we do… if, if… you’re uncomfortable is we just stop. Okay. Because I… I haven’t changed or done anything. There’s obviously a misunderstanding. And I’m… I’m more confused than you. Okay so… if… if you don’t want to continue and tell your story that’s fine. Then we’ll finish here. So this is… this is your opportunity… you’ve got the opportunity to tell us. Cos I have not been through with you and talked about what you did.
Okay? So if I’m misunderstanding you in that I’m sorry.
But… the recollection that I have is when I came back into the room with Jason, after Jason had been in here, is that you um said, “Did Jason tell you what I told him?” I said, “No”. Cos I hadn’t talked… Jason had been sitting in here. So I haven’t talked to Jason about what you have told him while I was out speaking to the bosses. I’ve come back in and you’ve said that um, you wanted to make a statement and you wanted to talk about what you had… or you wanted to truth about what you’d done. And then there was a quick sentence said about what you’d done. But not any detail that I can recall. You may have, but I… I just don’t recall. Okay. And so… at the moment… I’m just asking you do you want to tell that story or not?
If you’re… if you’re uncomfortable, if you feel I’ve changed or I’m playing games then we’ll just finish that’s fine.
Okay all I’m here to do is to go through your recollection, your story of what occurred. Okay?
So… I’m not quite sure what you’re reading. I think you’re over- reading things but I don’t um… so do you want to talk about what happened at Julians Berry Farm yesterday or not?
H (Long pause) it’s just hard.
MYeah it is hard. This is stuff that is difficult to talk about. And I get that. But this is your chance to… instead of putting yourself first, put the victims first. This is a chance to acknowledge and honour them. So… if you want to do that, now is an opportunity to do that. If you don’t want to do that, then we can finish here.
This is your choice, that you’ve… you’ve been between this this morning. This has been what you’ve been doing. Is that one minute of you’ve told me yes I want to talk about it.
H Well I already have.
M Well, who did you do… H To…
M Who… what did you…
H To that other Mister and you, just before.
M Wh… if… if you did… ya…
HYou can’t… I was gonna fuck… it’s gonna fuck my head… nah it has kind a made me over think shit. I feel like he fucken pushing my right in to do this.
M Okay well I… if that’s how you feel… what’s say we finish it here?
Because I’m not here to do that.
H And… n… eah.
M And so if you wanna… H Okay.
M If you wanna talk you can. If not we’ll just finish it. H And is… this is just finished from here?
M Yup. If you wanna finish it we’ll finish it. If you wanna talk about it… it’s your free choice. Okay.
H Fucken rat shit.
[79]Mr Huirua does not take the opportunity to end the interview:
MWell I… I’m sorry. I’m just… you know, I’m trying to make it as clear as I can. But… um… yeah…
H *** (Puts head down on table)
M What do you want to do? H Make things right.
MOkay well let’s do that. Let’s keep it simple and just make things right by the people for yesterday.
H My heart goes out to all those people.
M Okay. Well… let’s talk about that. H It honestly does.
M When you, when you went there, what did you mean to happen? H Well…
MSo you said your heart goes out to all those people. What did you… what did you… when you went there, what was your thoughts?
H Not to hurt anyone.
MSo what… what was your plan in and around how you were going to do things?
H Far…
MLike what… what had been your th… thoughts about what… about how it was gonna go?
HJust needed some money. Fucken… honestly just needed some money (Takes tissue out of tissue box)
[80]Mr Huirua goes on to make, among others, the admissions I quote in [3].
[81] Mr Huirua then refers at some length to events of his life which occupied so much of his previous discussions with Detective McKenzie. The Detective brings the interview back to the offending and Mr Huirua talks about why Julians Berry Farm was chosen, and the vehicle he used. He then gives a description of the shotgun and its ammunition, and their origin.
[82] It is clear Mr Huirua was uncomfortable answering questions about the offending and on more than one occasion he said, “that’s enough, man”, or words to that effect. Nevertheless, he kept answering questions. At about 1:12 pm, there is this exchange:
M Well I’m asking you your recollection… H Yeah.
M … of what… what… what happened at the point you had the… H Nah fuck man that’s enough ow. Can we end this?
M So…
H You said.
M Can we… can we j… can we just finish up with this. H You said ow Jon.
M Well nah I didn’t say anything. I said… H We could…
M We’re gonna the story.
H Before you were going to end it before.
M So w…
H We could just finish it before. Why can’t we just do this now?
MCan… can w… I just want to clarify this bit about the gunshot and then we can start to finish okay?
H This is making me fuck I’m s…
M So can you tell me about the gunshot? Like where was that pointed? H The ground.
MSo can you… I don’t… is it pointed… like what was… why did you shoot that shot?
HCos I just wanted that lady to get away from me. So she didn’t get hurt.
M What had she done to you? H She told me to get out.
M Did she touch you?
H I can’t really remember if she pushed me or just trying to yeah… I’m
****
M Did she push you or did you push her?
H Nah she pushed… I’m pretty sure she pushed me but I dunno. I don’t blame her anyway. I don’t blame her at all. Fuck I take my hat off to her. She’s a hero.
M(Clears throat) So were you trying to show her that you were serious by discharging the gun?
H I dunno.
M Do you remember saying something like that? I’ll show you I’m serious?
H I dunno.
M (Clears throat) So when you pointed… H What was her words?
M I think that they’ve said that you said something to that effect, I’ll show you I’m serious like get away I’ll show you I’m serious, something like that.
H If I did say that I fucken… (Chuckle) obviously didn’t mean it, because if… if I was serious… I probably would have fucken shot them but I didn’t.
MSo when… when you… when you shot… the gun at the ground, can you sort of demonstrate to me like what angle it was from you? Like where you pointed the gun.
H Like that (Demonstrates) like straight down. Like that (Demonstrates)
M So straight down?
H Yeah just (Stands up, takes jacket off and demonstrates) M Okay.
[83]Just after 1:16 pm, there was this exchange:
H …
Could I have a feed now ow Jon?
MThat’s um going to be a… available as soon as we’re finished here okay.
H I think I’m… I’ve had enough.
MCan… can we just have a couple more minutes and finish? Is that alright?
H Fuck… I’m getting fucken agitated aye ****
MYeah I… I… I und… I understand that okay. What… what I’m trying to do is… is give the right information. The people have said some stuff and I just want to hear what you have to say okay?
So I’m not trying to wind you up, but I am trying to understand your side of the story okay. Aft… after you shot that shot into the ground, what did you do then?
H Walked up to the register just looked at it and walked out.
M Did you try to open it? H Nah.
M How come?
HCos I was in shock. Didn’t realise I just fucken done that and that was… so I just thought to myself aw fuck I’m gonna get the fuck outta here man. What the fuck am I up to? I think that shot woke me up too. Like freaked me out. Wasn’t my intentions to shoot… shoot it off. But aw f… aw fuck meant business anyway.
MDid you get anything at all from the place though? Did you take any food or anything?
H Nothing cos it’s all fucken f… all for nothing really. But it must be a reason behind it. Everything happens for a reason. I think that’s why I’m fucken here aye… I think I fucken need to get to prison and straighten out a bit. Fuck.
M Do you remember what you were wearing when you were in there? H Red.
M Red what?
H Red clothes.
M Do you remember the particular items of clothing? H Red hoodie, red scarf, black pants.
M Did you have anything over your head?
H A hoodie. Come on Jon. Can we end this now?
M We’re very close. H This.
M We are close okay. I’m just tidying everything…
H … and the… the… and I took off. And just took off out towards Texas.
[84] The Detective did not end the interview. It continued. Shortly after 1:20 pm, Detective McKenzie began to ask Mr Huirua about another incident which involved a firearm being presented at a person at a Gull petrol station:
MThe incident at Gull um just tell me quickly about that… with the… with the gun that you pointed at Derek Hurkman.
H Fuck… dunno… can’t even remember.
M What was that over?
HJust got a bad meth habit. How come… how come your words that you told me don’t get recorded Jon?
M Which words?
HAw… neh mind. I’ll just shut up. Fuck… that’s what I’m saying anyway.
M S…
H So I have the right to remain silence really.
M Yeah y… you do. If you don’t wanna an… y… H Yeah nah that’s enough.
M Okay. So… I just want to check in terms of the… the Gull situation… H Nah. Fuck that’s enough bro.
[85] Nevertheless, Detective McKenzie continued to ask questions for a short period and Mr Huirua continued to answer them. The Detective then ended the interview.
Discussion
[86] It is trite to say a person who has been arrested and detained by the Police has civil rights which underpin our system of justice. Among them is the right to silence.11 A person detained by the Police does not have to answer questions. In this case, Mr Huirua, a man of some significant experience with being in Police custody, was
11 New Zealand Bill of Rights Act 1990, s 23(4).
told more than once what his rights are and I am satisfied he understood them. He does not take issue with that. But the law also recognises that, in a number of circumstances, what a detained person chooses to say might be unreliable.12 In Mr Huirua’s case, his level of intellectual functioning and the effects of prolonged methamphetamine use, including associated sleep deprivation, are said to make his admissions unreliable.
[87] The law also recognises that admissions can be improperly obtained.13 That is to say, although a detained person may understand his rights and choose to make admissions, the reason for him making that choice can be because of improper Police conduct. In this case, threats relating to his family being subjected to searches and possibly charges, inducements of food and a family visit, and questioning while Mr Huirua was not in a proper state to be questioned, are all alleged as meaning his statements were improperly obtained and should not be used in evidence against him. Further, the Chief Justice has issued a binding Practice Note which, relevantly, prescribes how Police should record interviews and directs that those interviewed must be given the chance to comment on, or add to, notes taken of what they said.14 It is submitted the Police did not comply with these aspects of the Practice Note, and this is unfair.
Reliability
[88] I am satisfied there is an evidential foundation for the issue of whether Mr Huirua’s statements to Detective McKenzie and Detective Constable Hill are reliable. I must, therefore, exclude either or both unless I am satisfied on the balance of probabilities that the circumstances in which they were made were not likely to have adversely affected their reliability.15
[89]In making this inquiry, I must take into account:16
12 Evidence Act, s 28.
13 Section 30(5).
14 Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297, r 5.
15 Evidence Act, s 28(2).
16 Section 28(4).
(a)Mr Huirua’s physical, mental and psychological condition when the statements were made;
(b)Any pertinent characteristics of Mr Huirua including any mental, intellectual or physical disability;
(c)The nature of the questions put to Mr Huirua and the manner and circumstances in which they were put; and
(d)The nature of any threat, promise or representation made to Mr Huirua.
[90] The inquiry is focused on the circumstances in which the statements were made rather than on whether the statements were in fact reliable. Nevertheless, the majority of the Supreme Court in R v Wichman stated that:17
[84] … the “circumstances in which the statement was made” encompass the nature and content of the statement and the extent to which those circumstances affected the defendant. We are also of the view that congruence (or the reverse) between what is asserted in the statement and the objective facts and the general plausibility (or otherwise) of the statement are relevant
…
(Footnotes omitted)
[91] Although not based on s 28 of the Evidence Act 2006, Pora v R is instructive.18 There, the Privy Council found Mr Pora’s confessions to be unreliable because they were “frequently contradictory and often implausible”,19 and this, in combination with his recent diagnosis of foetal alcohol spectrum disorder, gave rise to a real risk of a miscarriage of justice.
[92] Ms Adams submits the exchanges recorded in the DVD interview, which must be considered as a consequence of the over two hours of informal interview preceding them, indicate that Mr Huirua misapprehended the purpose of the DVD interview, and Detective McKenzie misrepresented its nature and purpose. The opportunity to
17 R v Wichman [2015] NZSC 198, [2016] 1 NZLR 753. The Court of Appeal adopted this approach in Lyttle v R [2017] NZCA 245 at [41] and Walker v R [2017] NZCA 188 at [58].
18 Pora v R [2015] UKPC 9, [2016] 1 NZLR 277.
19 At [58].
provide a statement, Ms Adams submits, was couched as an opportunity to make things right for the victims and honour them.
[93] I do not accept this submission. As the passages I have quoted show, the DVD interview took place only because, when Detective McKenzie returned to the interview room having inquired as to the charges which would be brought, Mr Huirua told him he had been honest with Detective Constable Hill and that he was the offender. The exchanges at the beginning of the interview do tend to show that Mr Huirua did not understand why he was being asked to repeat what he had said to Detective Constable Hill and to Detective McKenzie about the offending. But Detective McKenzie explained why he wanted to carry on with a recorded interview and gave Mr Huirua the chance to end it. Mr Huirua went on to answer questions. Mr Huirua was not a neophyte in this situation. He had been interviewed by Police on previous occasions and had previously given a DVD interview. He had served terms of imprisonment. In any event, when it comes to reliability, he was being asked to tell the truth.
[94] Ms Adams submits it is apparent Mr Huirua was uncertain as to details on key factual issues. She points to the passage I quoted about the description of the shotgun and the ammunition. Ms Adams points out Mr Huirua went on to say he threw the shotgun off a bridge and burned the clothes he was wearing at a particular beach. The shotgun was not found, nor was any trace of the clothing, burned or otherwise.
[95] Ms Adams relies on the evidence of Mr Lascelles as to Mr Huirua’s intellectual capacity, and Professor Schenk’s evidence as to Mr Huirua’s cognitive deficits arising from chronic sleep deprivation and acute withdrawal from methamphetamine.
[96]Ms Adams also relies on Mr Huirua’s evidence of inducements and threats.
[97] I do not accept Mr Huirua’s evidence Detective McKenzie offered inducements or made threats. First, Mr Huirua has no inherent credibility because of his criminal background and his obvious interest in having his admissions ruled inadmissible. Second, I think it is telling that he did not say anything about these
matters to Mr Lascelles, a sympathetic and professional interviewer who Mr Huirua knew had been engaged by his lawyer.
[98] I accept the evidence of Detective McKenzie as to the empathetic approach he takes to interviewing suspects and to the way he interviewed Mr Huirua. As the DVD interview makes clear, Detective McKenzie is a determined interviewer. But there is nothing to suggest he would so depart from accepted Police practice as to offer inducements or make threats in order to obtain admissions. Further, Detective McKenzie did not know, during the informal part of his interview with Mr Huirua, that he was being monitored by Detective Constable Hill. The Detective Constable made broad notes as to what was said in that part of the interview and did not report hearing threats or inducements. Finally, there were no admissions made during the informal part of the interview. It was the Detective who was going to end it, and it was Mr Huirua who wanted to continue it on the condition that he was first told what charges he was going to face.
[99] I do not discount the possibility that for Mr Huirua, the prospect of a meal and a visit from family members (both of which he had been told would be available at the end of the interview or after he had appeared in Court) might not be substantial inducements for him to carry on with the interview. Equally, they could have been substantial inducements to bring the interview to an end.
[100] I accept Mr Huirua, in the DVD interview, is uncertain of some of the details of the offending. But, unlike Mr Pora, the details are not contradictory and implausible. Given the evidence of the experts, including the evidence about the intellectual level at which he was functioning, it would seem detailed and fluent descriptions might not be expected.
[101] Mrs Sheridan referred me to witness statements contained in the agreed bundle of documents. No issue was taken with those statements. They tend to enhance the reliability of what Mr Huirua said in the DVD interview by being consistent with what he says:
(a)The offender is described as wearing red and black. Mr Huirua says he was wearing a red hoodie, red scarf and black pants.
(b)The offender is described as leaving in either a grey or silver Subaru. Mr Huirua says he was in a silver Subaru.
(c)The Crown evidence is the offender signalled to a female and male who had children with them by sounding his horn, waving his arms and saying, “get your kids out”. Mr Huirua said that when he was driving in, he saw a man followed by a woman and children. He said he thought he would give them a warning not to go in. He told the Detective he said, “get your kids outta here bro, bro get your kids outta here”.
(d)Witnesses say the offender used a full-length shotgun. This is consistent with what Mr Huirua says.
(e)The Crown’s evidence is the offender was challenged by a female customer who pushed the offender and the gun away from the direction of the staff members. This is consistent with the various statements by Mr Huirua as to “the lady that was pushing me”.
(f)The offender was described by Ms Adams, the female who confronted him, as pointing the gun down towards her feet before it was discharged. This is consistent with Mr Huirua’s description of the shotgun pointing straight down when he discharged it.
[102] Mr Huirua explained these consistencies by saying he either made up his evidence or adopted details given to him in the informal part of the interview by Detective McKenzie. I do not accept that evidence. I accept that Detective McKenzie gave only the most general description of the offending when outlining the Police case against Mr Huirua. To do otherwise would be a complete breach of interview practice. No sensible police officer tells a suspect details of the offending. It is the eliciting of such details from the suspect that gives probative value to them. Detective Constable
Hill did not notice anything remarkable about the informal part of the interview and made no notes of any such details being offered.
[103] I accept Mr Huirua’s mental and physical state could reduce the reliability of his admissions. He was clearly tired and, as the effects of the methamphetamine he had smoked prior to his arrest wore off, increasingly affected by the symptoms of methamphetamine withdrawal. However, this must be seen in context. First, his statement to Detective Constable Hill was spontaneous and unelicited. I have already found he was not subject to improper inducements or threats and was not repeating details provided to him by Detective McKenzie.
[104] I accept Dr McMinn’s evidence that people experiencing methamphetamine withdrawal symptoms are capable of coherent conversations. I accept Professor Schenk’s evidence that the preponderance of the expert literature is to the effect that prolonged methamphetamine use can cause cognitive difficulties. I accept Mr Lascelles’s evidence that his examination of Mr Huirua some two months after this interview gives a snapshot of his intellectual state at the time and that it would seem he has made a significant recovery because of his enforced abstinence from methamphetamine use. However, I also accept Ms Breen’s evidence as to the danger of extrapolating Mr Lascelles’s findings into Mr Huirua’s real life capabilities at the time.
[105]As to Mr Huirua’s real life capabilities, I place some reliance on:
(a)The events he was asked to describe had occurred on the previous day and were not complex.
(b)Mr Huirua’s account of what he did is simple and has significant corroboration by other evidence.
[106] As to the DVD interview, the questions asked by Detective McKenzie used simple language and were open-ended. The Detective was encouraging free narrative, and used focused questions to clarify particular points.
[107] Initially, Mr Huirua was given clear opportunities to end the interview. He continued to answer questions. Subsequently, he did ask for the interview to stop and Detective McKenzie carried on. However, I think that is a matter that goes to the next issue I have to decide rather than to reliability.
[108] I conclude the Crown has proven, on the balance of probabilities, that the circumstances in which the statements were made to the police officers were not likely to have adversely affected their reliability.
Were the statements improperly obtained?
[109] A prosecutor cannot offer evidence against a defendant which is improperly obtained unless a Judge finds that to exclude the evidence would not be proportionate to the impropriety.20
[110] The first inquiry is whether there is an evidential foundation for the improper obtaining of the statement made to Detective Constable Hill and the statements made in the DVD interview with Detective McKenzie. I find there is such a foundation, and the Crown does not argue otherwise. My reasons for this finding are made obvious in the discussion following.
[111] For the purposes of this case, the statements will be improperly obtained evidence if they were obtained in breach of Mr Huirua’s rights under the New Zealand Bill of Rights Act 1990 (NZBORA) or if they were obtained unfairly.21 In considering fairness, a Court must22 have regard to the Chief Justice’s Practice Note on Police Questioning (the Practice Note).23 The Practice Note was issued on 16 July 2007.
[112] Ms Adams submits the statements were improperly obtained because, effectively, Mr Huirua’s right to silence provided for by s 23(4) of the NZBORA was breached. Additionally, the statements were obtained unfairly because r 5 of the Practice Note was not complied with:
20 Evidence Act, s 30(4).
21 Evidence Act, s 30(5)(a) and (c).
22 Section 30(6).
23 Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006), above n 14.
Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording, unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on audio tape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.
[113] I take Ms Adams’s argument on the breach of Mr Huirua’s right to silence as resulting from the overall circumstances. That is to say, although he was properly informed of his right to silence, and understood it, he was worn down during the preliminary interview which lasted over two hours. The wearing down of his ability to continue to exercise his right to silence was exacerbated by:
(a)The interview method adopted by Detective McKenzie. Essentially, that Detective McKenzie ingratiated himself by speaking of trust, touching on his Christian faith, and encouraging Mr Huirua in this process to speak candidly and at length about his difficult life history. This created in Mr Huirua a false impression as to the purpose of the interview and what would happen if he admitted his involvement in the Julians Berry Farm incident.
(b)Mr Huirua’s limited intellect.
(c)The effects of prolonged sleep deprivation on Mr Huirua.
(d)The cognitive deficits caused by Mr Huirua’s prolonged exposure to methamphetamine and his withdrawal symptoms.
[114] I turn first to the statement made to Detective Constable Hill. I do not find there was a breach of Mr Huirua’s right to silence. He made no admissions during the preceding unrecorded interview with Detective McKenzie. It was the Detective who brought that part of the interview process to an end. He thought there was no point in continuing given Mr Huirua’s repeated denials of direct involvement in the offending. He was on the point of leaving the interview room when Mr Huirua (who does not
dispute this point) called him back. It was Mr Huirua who then dictated what happened next. He said he wanted to continue talking but he needed something first, and that was to know what charges would be brought against him. He already knew that charges would be brought and he wanted to know their nature. At Mr Huirua’s request, Detective McKenzie left the interview room to consult his superiors. Mr Huirua expected him to return and tell him what the charges would be. Detective Constable Hill went into the interview room to keep Mr Huirua company. He did not ask Mr Huirua any questions at all. Mr Huirua chose to make the statement to Detective Constable Hill, and the Detective Constable made an immediate note of it.
[115] Under these circumstances, and accepting the factors referred to by Ms Adams may have made Mr Huirua more susceptible to giving the statement than he otherwise might have been, there is no breach of his right to silence.
[116] I have the same view of the admissions made by Mr Huirua in his DVD interview. He was, at the outset, reminded of his right to silence and his associated rights. He understood them. This is demonstrated by his requests towards the end of the interview for it to be brought to an end. He specifically referred to his right to silence.
[117] I accept the Detective, towards the end of the interview, did not at once accede to Mr Huirua’s indications that he had had enough. He continued to ask questions, but they were open-ended questions and Mr Huirua continued to engage. The key details giving context to what he had said to Detective Constable Hill had, largely, already been given.
[118] There is, however, a clear breach of r 5 of the Practice Note. Detective Constable Hill never gave Mr Huirua the opportunity to review his notes of the statement. Mr Huirua was not given an opportunity to correct any errors or to add anything further. He was not asked whether he wished to confirm the notes as correct by signing them.
[119] Similarly, the procedure adopted by Detective McKenzie was in breach of r 5 of the Practice Note up until the time he commenced the DVD interview.
[120] A breach of the Practice Note does not necessarily mean that evidence has been obtained unfairly.24 The breach is a relevant consideration that must be taken into account when considering whether evidence has been unfairly obtained.25
[121]However, as the Court of Appeal stated in Richards v R:26
[18] Any analysis of whether or not evidence has been unfairly obtained necessarily requires the court to consider whether there is a causative link between the conduct that is alleged to be unfair and the obtaining of the evidence in question …
[122] There is an issue as to causation in cases where r 5 of the Practice Note is breached because any breach comes after the decision to speak.
[123] This led the Supreme Court in R v Chetty to state that “the lack of a direct causative connection between non-compliance with r 5 and the making of the admissions does not necessarily mean that the admissions should not be excluded”.27 The Court of Appeal, in Denney v R, concluded:28
[31] … we acknowledge that the Supreme Court said in R v Chetty that “there must almost always be a causative link between the unfairness and the impugned evidence”. But the Supreme Court conceded that cases might exist where this analysis is not appropriate. We consider that the usual causation analysis is not applicable in the circumstances of this case where the breach of the Practice Note occurred after Detective Ralph obtained the statement in issue from Mr Denney. In these circumstances we think it preferable to focus on the true nature of the consequences of Detective Ralph's breach of r 5 of the Practice Note. That consequence was that Mr Denney was denied the opportunity at the time he was speaking to Detective Ralph to correct what Mr Denney says was a misunderstanding on the part of Detective Ralph, and was left to challenge the accuracy of Detective Ralph's record within the context of the proceedings. This detrimental consequence aligns exactly with the interest r 5 of the Practice Note was designed to protect — avoiding dispute as to what was said in an interview.
(Footnotes omitted)
[124] Here, Detective Constable Hill’s breach of r 5 of the Practice Note came after Mr Huirua had made the incriminating statement to him. On the other hand, Detective
24 Richards v R [2014] NZCA 520 at [16].
25 At [16].
26 Richards v R, above n 24.
27 R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [54].
28 Denney v R [2017] NZCA 80.
McKenzie’s breach of r 5 preceded the incriminating statement made to Detective Constable Hill and the statements made during the DVD interview.
[125] In any event, I must focus on the “true nature of the consequences” of the breaches of r 5. Rule 5 is aimed at avoiding disputes about the circumstances in which admissions are made and the content of the admissions. The Supreme Court, in R v Chetty, stated that r 5 also “has a prophylactic function, in the sense that some forms of possible police impropriety are unlikely to occur if a video or audio tape record is being kept of an interview”.29
[126] In this case, it is not argued that the statement to the Detective Constable should have been recorded on video (it was spontaneous), nor that the Detective Constable’s notes are wholly inaccurate. Therefore, I do not find that the breach of r 5 in this particular instance is causative of unfairness.
[127] However, Detective McKenzie’s breach of r 5 allowed for over two hours of conversation between the Detective and Mr Huirua to go unrecorded. It required me to make findings of credibility against Mr Huirua in deciding what was discussed. That is causative of some degree of unfairness to Mr Huirua.
[128] Furthermore, the concept of unfairness in the context of admissions is wider than breach of NZBORA rights and wider than observance of the Practice Note. As Dobson J commented in R v Roper, “[w]hat might constitute requisite unfairness in the obtaining of evidence … is intensely fact-specific, and potentially open-ended”.30 I must consider whether the statements made to the police officers were unfairly obtained having regard to all the circumstances of the interview.
[129] I have found that the statements made to the police officers by Mr Huirua were not obtained by the inducements and/or threats of which Mr Huirua gave evidence. I have rejected his evidence on this point.
29 R v Chetty, above n 27, at [39].
30 R v Roper [2012] NZHC 1855 at [27].
[130] What I am left with is the fairness of Police interviewing at such length a man who was clearly sleep deprived and who was clearly suffering from methamphetamine withdrawal. Mr Huirua was under arrest and he was going to be charged regardless of whether he made admissions in the interview. Detective McKenzie was quite candid with Mr Huirua about that at the outset of the interview.
[131] My overall conclusion is that Mr Huirua’s ability to make proper choices as to what he told the Police was lessened by his condition during the course of the interview process. His condition was apparent to Detective McKenzie in two respects: he was sleep deprived and he was suffering from the effects of methamphetamine withdrawal.
[132] The failure by both Detective McKenzie and Detective Constable Hill to comply with r 5 of the Practice Note means the Court is handicapped in its assessment of the interview process on Mr Huirua given these circumstances.
[133] In my view, Detective McKenzie should not have prolonged the first part of the interview. He should have, from the outset, sought Mr Huirua’s consent to the interview being recorded on DVD. If Mr Huirua consented, then the recording of the interview should have commenced immediately. However, regardless, once it became clear that Mr Huirua was greatly fatigued and that he was affected by methamphetamine withdrawal symptoms, and was not inclined to make admissions, then the interview should have been terminated. Mr Huirua should have been charged and returned to the Police cells. I emphasise I do not hold that Mr Huirua should not have been interviewed. He was not incapable. But he should not have been interviewed for more than two hours without a video record being made. Of course, Mr Huirua might have wanted to have his say over those two hours. But, because r 5 was not complied with, I am handicapped in deciding that. That is objectively unfair for Mr Huirua.
[134] The portion of the interview which was recorded by DVD makes Mr Huirua’s fatigue and symptoms apparent. The way he appears in the DVD is just as Detective McKenzie described his demeanour in the unrecorded portion of the interview. He was clearly in an impaired condition.
[135] I conclude that the statements Mr Huirua made to Detective Constable Hill and to Detective McKenzie were improperly obtained because they were obtained unfairly.
Should the statements be excluded?
[136] That is not the end of the matter. I now have to determine whether or not the exclusion of the evidence is proportionate to the impropriety. I must do that by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.31
[137] Section 30(3) of the Evidence Act contains a list of non-exhaustive factors that I may take into account:
(a)the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b)the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c)the nature and quality of the improperly obtained evidence:
(d)the seriousness of the offence with which the defendant is charged:
(e)whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f)whether there are alternative remedies to exclusion of the evidence that can adequately provide redress to the defendant:
(g)the impropriety was necessary to avoid apprehended physical danger to the Police or others:
(h)whether there was any urgency in obtaining the improperly obtained evidence.
[138] First, I have not found Mr Huirua’s right to silence was breached. The nature of the impropriety is the unfairness of subjecting a defendant with apparent and recognised disabilities to prolonged questioning when those disabilities render the defendant more likely to choose to make statements against his interest. This is exacerbated by a failure to record the greater part of the interview resulting in the
31 Evidence Act, s 30(2)(b).
Court being less able to assess the effects of the disabilities and how Police questioning may have played upon them.
[139] I do not find that either Detective McKenzie or Detective Constable Hill deliberately took advantage of Mr Huirua’s apparent disabilities. There is no bad faith here. To them, Mr Huirua understood his rights and was capable of giving a coherent account of what was, factually, a very simple incident. He appeared to want to talk, indeed to talk at great length. He just did not want to talk about the incident, other than to say he did not take part in it but knew who did. No admissions were made during the lengthy unrecorded initial interview with Detective McKenzie. The statement made to Detective Constable Hill was spontaneous and not elicited by Detective Constable Hill. The Detective Constable did not give Mr Huirua the opportunity to verify or add to his notes, but neither does Mr Huirua seriously challenge their accuracy.
[140] The admissions made to the police officers were made in circumstances not likely to have adversely affected their reliability. I have already discussed the application of s 28 of the Evidence Act. It is not the reliability of the admissions which is in issue, it is whether Mr Huirua should have been put in the position where they were made.
[141] Mr Huirua faces serious charges involving the taking of a loaded shotgun into a public café during work hours with the intention of committing robbery. The shotgun was discharged and bystanders were wounded through ricochets. There is a very real, and obvious, public interest in bringing the offender to account. However, there was no urgency in obtaining the evidence. The Police had sufficient evidence to arrest and charge Mr Huirua. He was not, at that point, an ongoing danger.
[142] In all the circumstances, I have decided that to exclude the evidence of Mr Huirua’s statements to the police officers would not be proportionate to the impropriety.
[143] First, Mr Huirua’s condition was not so extreme that he did not understand his rights. Nor was he incapable of exercising them. His condition meant, especially as
time went on, he was more susceptible to choosing to make admissions than would otherwise be the case. Intoxication, or impairment because of drug use, is not a ground in itself for an interview being unfair. In each case it is a matter of effect and degree.
[144]I have excluded improper inducements or threats as being present.
[145] The breaches of the Practice Note were serious. The failure to record the first part of the interview meant I had to decide issues of credibility over the allegations of inducements and threats. I did not have the same advantage as I had with the recorded part of the interview in evaluating how Mr Huirua’s condition might have been impacted by the questioning. However, the credibility issues were straightforward. The recorded portion of the interview was consistent with Detective McKenzie’s description of the unrecorded portion of the interview. The accuracy of Detective Constable Hill’s notes was not seriously in issue.
[146]The circumstances do not make the admissions unreliable.
[147] The admissions are an important component of a case where public safety was put in extreme jeopardy.
Other matters
[148] Ms Adams made a submission that I should consider excluding the statements under s 8 of the Evidence Act. This requires a Judge to exclude evidence if its probative value is outweighed by the risk it will have unfair prejudicial effect or needlessly prolong the proceeding. In the circumstances I have discussed, I do not think s 8 is applicable.
[149] I also considered a point not raised by Ms Adams. It is whether Mr Huirua’s condition, which arguably affected the choices he made, could be said to have breached his right to consult and instruct a lawyer.32
32 New Zealand Bill of Rights Act 1990, s 23(1)(b).
[150] I decided not to seek submissions on the point. There is no evidential basis for a lack of understanding of this right or how to exercise it. The evidence of the experts is general and does not raise a real risk in this regard.
Decision
[151] The Crown’s application to admit as evidence in Mr Huirua’s trial the statement he made to Detective Constable Hill and the statements he made in his DVD interview with Detective McKenzie is granted.
Brewer J
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