R v J Ca122/02
[2002] NZCA 356
•29 May 2002
| NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. |
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA122/02 |
THE QUEEN
V
[M J J]
| Hearing: | 23 May 2002 |
| Coram: | Blanchard J Hammond J Gendall J |
| Appearances: | P L Borich for Appellant J C Pike for Crown |
| Judgment: | 29 May 2002 |
| JUDGMENT OF THE COURT DELIVERED BY GENDALL J |
The appellant awaits trial on two counts. He is charged that, together with [P M] and [M W], he wounded a person with intent to cause grievous bodily harm and, secondly, that he alone assaulted a female.
He made two statements to the Police at Papakura three days after the events relevant to the charges. His second statement was ruled admissible by a District Court Judge after an application by the Crown under s344A of the Crimes Act 1960 which is the subject of this appeal.
Essential background facts
The charges against the accused and others arise out of events that occurred on the evening of 8 July 2001 at Auckland. The Crown’s case is that three men, Messrs [M], [W] and [J], acting with a motive of revenge, went to an address at Papakura and set about beating and kicking a male victim using weapons such as wooden bars, a baseball bat, fists and boots so as to leave him grievously injured. It is the Crown’s case that the victim was attacked with a baseball bat and another weapon, and punched and kicked to the extent that he lost an eye in the attack and suffered cranial and facial fractures. In the course of this alleged joint exercise the Crown alleges that the appellant also set about assaulting [J]’s de facto who was a relative/friend/associate of the male victim.
After the event the appellant’s cell phone was found at the scene and he, together with other alleged co-offenders were interviewed. He was contacted by telephone and he told the Police that he had not been involved, was not present; and had lent his phone to Mr [M].
The following day, 11 July 2001, the appellant was interviewed at the Papakura Police Station. At that time only he and the co-accused Mr [M] were being spoken to. Both men were interviewed at approximately the same time, although it appears as though the interview with the appellant commenced earlier at 10.00am. A further person, later to become a co-accused, namely [M W], was being interviewed generally at the same time although his interview commenced later than that of the accused, namely at 12.20pm.
In the course of the initial interview the appellant was regarded at that stage as a possible witness only. It was the wish of the interviewing officer that the appellant give some explanation for the presence of his cell phone at the scene of the crime. During the course of the interview the appellant said that he knew Messrs [M] and [W] and was with them in the car driven to the scene of the attack, but that he became separated from them and knew nothing of it. He said that he saw fighting on the ground, generally in the presence of the accused [W] who had a piece of wood with which he was striking a person lying on the ground. The accused disassociated himself from any of the actions that were taking place. He said that he had his cell phone and said that, although he had earlier stated that he had not gone to the address where the incident occurred, he thought he had lent his phone to his friend but wanted others to come forward without him being put in a position where he had to inform upon them. He was asked whether he saw anyone with a softball bat at that stage (the significance being that a softball bat was found at the scene) but the transcript does not indicate that he answered. He said he saw a stick being used but did not see a softball bat.
Although the interview with the accused initially commenced on the basis of his being a possible witness, at this stage the officer administered a warning to the accused as to not being obliged to say anything, but made it clear that he was not under arrest. Although the officer referred to the New Zealand Bill of Rights Act he did not actually give advice in terms of s23. Thereafter there was further questioning of the accused generally along the lines that the [M W] had claimed or made certain allegations implicating the appellant. These were denied by the appellant. All of those matters in the first statement arising from [M W]’s statement were ruled inadmissible by the District Court Judge based upon the prosecution’s concession that there may have been an infringement of the principles in R v Halligan [1973] 2 NZLR 158 (CA). No challenge is made to the admissibility of the remaining parts of the accused’s first statement.
About an hour and three quarters later the accused was given his first statement to read. He was cautioned and properly advised of his rights under the New Zealand Bill of Rights Act 1990. He indicated he wished to add to the earlier statement. The officer asked him whether there was “something further you would like to add to your earlier statement”. Thereafter a question and answer interview, of quite short duration, occurred but in which the appellant stated that he thought he had kicked a victim on the ground three times around his leg or foot, that a softball bat was held by the co-accused “[M]” [W]; that there was a woman at the scene but he did not really notice her or go towards her; and that he did not smash any car windows at the address. He said he saw them being broken after he was walking away and that someone had a bat and was facing the cars. When asked why he did not tell the officer that in his first statement, his response that he was only saying or identifying “who had the stick beating the guy up”, but he denied during the incident hitting anyone or anything with a softball bat.
The admissibility of the second statement was challenged on the general basis of unfairness. The Judge ruled it admissible as there was no breach of Rule 8 of the Judges’ Rules, nor of the New Zealand Bill of Rights Act 1990, and no unfairness.
Appellant’s contentions
Counsel for the appellant bases his challenge to the admissibility of the second statement on the ground of unfairness. Encompassed within that general submission he submitted that there was an inaccurate reporting by the Police to the accused of the content of the statement of the co-accused [M W] during the taking of the accused’s first statement; such inaccuracy tainted the second statement; there was a failure to properly advise the appellant pursuant to the New Zealand Bill of Rights Act when taking the first statement; unfair Police conduct occurred in the form of threats to arrest or charge the accused; and there was a failure to inform the appellant as to the change of his status as between a witness/suspect to be charged. These grounds generally represent cumulative factors which counsel submitted made it unfair for the second statement to be admitted in evidence. The matter was not argued before the District Court Judge or us on the basis of considerations of s20 of the Evidence Act. At the voir dire the appellant did not give evidence.
Fairness
The essence of the appellant’s argument is that during the taking of the first statement the interviewing officer communicated or paraphrased, it is said incorrectly, the essence of some of the allegations being made by the co-accused [M W]. Counsel argued that, as a consequence, the appellant made certain statements and later went on to say things in his second written statement, based upon such erroneous advice.
It is quite clear that during the taking of the accused’s first statement Mr [W]’s statement had not been completed. The interviewing officer did not know of its full content and of course could not give the full written statement to the appellant. There were discrepancies such as advising the appellant that [W]’s claims were that he had to use a softball bat to strike the victim, on the ground, and another man and smash windows on motor vehicles. In fact it later became apparent from [W]’s written statement that his claim was that the appellant had used a baseball bat on him ([W]) and a wooden plank upon one man and an axe and a piece of wood upon the victim on the ground. This was not precisely accurate, the difference being in the relating of [W]’s account through identifying the weapon allegedly used. There was a further discrepancy, namely that [W] had said to the Police that the female victim was beaten and punched by the appellant, whereas the Officer told the appellant that [W] had said that she was hit by the baseball bat held by the appellant. Later, and before the taking of the appellant’s second statement, the full written statement of the co-accused [W] became available (but was not given to the appellant).
Any reference to what [M W] said in his statement has already been deleted from his first statement so as to accord with Halligan. The only answer which suggested an admission in the second statement, said by counsel to be of any moment in the sense it might have caused the appellant difficulty, was the statement about kicking the victim on the ground. It is quite improbable that this answer was affected to any extent by the discrepancy concerning which weapon(s) the appellant was said by [M W] to have been holding, namely a plank and an axe, rather than, as advised by the interviewing officer, a baseball bat. We therefore cannot see how anything material in the accused’s second statement would have been different if a strictly accurate account of what [W] had said had been conveyed to the appellant. We add that any suggestion of trickery on the part of the Police cannot be supported.
The Bill of Rights Act 1990
Mr Borich accepted that there had been no breach. It is abundantly clear not only from the transcript of the Police statements but also the evidence, not challenged in any material way at the voir dire, that during the first interview the appellant was cautioned. He was not charged nor in custody so as to invoke the New Zealand Bill of Rights Act 1990. He was told he was not under arrest and he has not suggested that he thought he was detained. After the expiration of about one and half hours, and prior to his volunteering to give his second statement to clarify his involvement, he was told of his rights. The second statement, although no doubt following upon a reading by the accused of his first statement, nevertheless was preceded by a Bill of Rights Act warning. Mr Borich’s point was that there was some flow-on effect in the second statement from the absence of Bill of Rights Act advice during the first statement. But there was no obligation to give such advice at that time.
As to “change in status” from witness to suspect
It was submitted that there was a failure to advise the appellant of his rights and caution sufficiently early during the first statement when he was no longer regarded as a witness but a possible suspect. It was argued that once the appellant’s status as a witness changed to that as a suspect he should have been advised that he was a suspect and, because he was not, there was deceptive conduct. We reject that submission.
If there is some trickery or deception engaged in by the Police then questions of propriety and fairness will arise. See for example R v Dahl (CA76/93, 21 May 1993). That was a case where the Police had already made a firm decision that an accused be charged and he and his lawyer were duped into entering into a further and second video interview with the accused thinking that he was merely a witness, as had earlier been conveyed to him by the Police, but in fact the aim of the interview was in part to elicit incriminatory responses. It was a case involving trickery. No such element arises here. The Police Officer made it clear to the accused during the first interview that he was not under arrest but was “required as a witness”. The remaining passages in that statement have been excluded under Halligan principles. A decision made before the taking of the second statement, that the accused would be charged, does not give rise to unfairness or trickery where, as here, a caution and proper Bill of Rights Act advice was given.
Threats or inducements?
The appellant submitted that the Police secured both interviews through threats or inducements made or offered to the appellant on three occasions. In general terms it was argued that the “threat” was that the appellant would be charged with some crime related to the attack unless he was able to give an explanation as to why his cell phone was found at the scene. Counsel argued that threats were made after the accused had been spoken to on the telephone and the Police Officer said that the accused was told of the:
Seriousness of what happened and how he had reached the point that we knew some people were involved but we are now trying to determine what each individual did.
And:
“I would have no problem charging everyone and letting the Court decide” where people admitted what they did but others “fudged on what they did.”
It is said that prior to the taking of the first statement a similar threat was made. Obviously those statements could be seen to be “threats” in the normal meaning of that word. But they are different to the usual type of threats or coercion that Courts usually have to deal with, namely threats to charge others unless an accused makes a statement. What was being said was more to state the obvious, namely that in the absence of a satisfactory explanation for the presence of an incriminating piece of evidence identifying the accused at the scene of serious crime, charges against that accused would have to follow. It is rather more an invitation or offer to an accused to provide an explanation which might exculpate (rather than incriminate) him from obvious involvement or connection with the crime.
Any suggested “threats” made to the appellant were therefore natural observations that a charge would follow unless incriminating evidence was the subject of an innocent explanation. If statements of this kind must nevertheless be classified as “threats”, they are hardly such as to bring the terms of s20 of the Evidence Act 1908 into play as they were not such as to be likely to lead to an untrue confession. As was said in R v Potae [2000] 3 NZLR 375 at 380:
Promises and threats are apt to incline suspects to accept guilt when they are not guilty;
whereas in this case the statements to the Police Officers were more likely to incline the appellant to provide some exculpatory explanation for the presence on an item (the cellphone) which placed him, despite his denial, at the scene of the crime.
Whilst the making of any sort of “threat or inducement” is not to be encouraged, the Court should not be too purist and ignore realities. Evidence existed in this case which might have justified the accused being charged with a crime. An invitation or request to provide an explanation for the existence of such evidence – failing which a charge would have to follow – was not such a threat or inducement of a kind that can properly be criticised as unfair Police behaviour. More importantly, we are satisfied the Judge was right to think that what the accused was told was not likely to induce him to make an untrue admission.
Conclusion
The Judge was required to exercise his discretion in determining whether, overall, it was unfair to admit in evidence the second statement. For the foregoing reasons we are satisfied there was no unfairness and this being an appeal against the exercise of the trial Judge’s discretion we are not disposed to interfere, it not being shown there was any error in principle or exercise of the discretion on any erroneous basis. It follows that the appeal must be dismissed.
Solicitors
Crown Solicitor, Wellington
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