R v Johnson
[2007] NZCA 9
•16 February 2007
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT IN THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED
IN THE COURT OF APPEAL OF NEW ZEALAND
CA436/06 [2007] NZCA 9
THE QUEEN
v
KAREN LOUISE JOHNSON
Hearing: 12 February 2007
Court: Robertson, Ronald Young and Venning JJ Counsel: D D Vincent for Appellant
M F Laracy for Crown
Judgment: 16 February 2007 at 3 pm
JUDGMENT OF THE COURT
A The appeal is dismissed.
BOrder prohibiting publication of the judgment in the proceedings (including the result) in news media or on the internet or other publicly accessible database until final disposition of trial. Publication in law
report or law digest permitted.
R V JOHNSON CA CA436/06 16 February 2007
REASONS OF THE COURT
(Given by Venning J)
Introduction
[1] The appellant is for trial in the District Court at Wellington on a charge of injuring her partner with intent to injure. In a pre-trial ruling on 13 November 2006
Judge Mackintosh ruled admissible two statements made by the appellant to the police on the night of the incident. The appellant appeals against the decision in relation to the second of the statements.
Background
[2] At 7.16 p.m. on 5 March 2006 Constables Smith and Toseland went to a property at Stokes Valley in response to a call to the police made by the complainant. Constable Smith spoke briefly to the complainant who was in the garage. The complainant said he had been stabbed in the thigh by the appellant. Then at
7.20 p.m. the constable went to the door of the property. He asked the appellant to come out on to the deck. She did so. Constable Smith took the appellant’s details and advised her of her rights pursuant to the New Zealand Bill of Rights Act 1990 (NZBOR). Constable Smith recorded that he gave that advice at 7.22 p.m. While Constable Smith was recording that time in his notebook the appellant said to him:
I stabbed him, alright. He deserved every bit of it. He’s a bully. You can write that down.
[3] At that point Constable Smith gave the appellant a short caution. He told her that she was not obliged to say anything unless she wished to do so and that anything she did say would be taken down in writing and could be used in evidence.
[4] The appellant was asked to return to the Lower Hutt Police Station. She agreed. The appellant then spent some time locating shoes for the trip as she was
barefoot. At 7.32 p.m. the police officers and the appellant left for the police station. Before leaving the property the appellant was handcuffed.
[5] During the course of the journey to the police station the appellant, who was sitting in the back of the car with Constable Toseland, made a number of statements including:
I stabbed him, ooooh. He had it coming, okay.
What goes around comes around.
I could have rung the Police or I could have taught him a lesson. He should have kept his hands to himself.
You know why I did what I did, he threw a candle at me and it hurt me.
The statements were volunteered. Constable Toseland recorded the admissions in her notebook.
[6] The car trip back to the police station lasted between 10 and 15 minutes. At
8.10 p.m. Constable Toseland commenced a video interview with the appellant. She gave the appellant her rights again and also cautioned her at the outset of the interview. During the course of the video interview the constable put the statements the appellant had made in the police car to her.
The factual findings
[7] The Judge found as a matter of fact that, even though the appellant had been drinking prior to the incident, at the time Constable Smith gave the appellant her rights at 7.22 p.m. she understood them and chose to waive her right to silence by making the voluntary admission she made at that time. The Judge also found that when the appellant was again given her rights at the police station she clearly understood them and again chose to waive them.
[8] Although neither of the police constables could recall handcuffing the appellant the Judge accepted the appellant’s evidence that she was handcuffed before being placed in the police car and so was in de facto custody.
The appellant’s case
[9] The appellant no longer challenges the admissibility of the statement made to Constable Smith when he first arrived at the property. The appellant maintains her challenge to the admissibility of the statements recorded by Constable Toseland in the police car on the way to the station and that part of the video statement that followed during which the appellant confirmed those statements.
[10] Mr Vincent submitted that when the appellant was handcuffed she was detained for the purposes of s 23 of the NZBOR and at that time the police should have restated her rights to her pursuant to s 23. In his submission, the failure to do so rendered the subsequent admissions to Constable Toseland in the police car inadmissible. As an additional argument Mr Vincent submitted that the Judge’s Rules also required the constable to caution the appellant when she first began to make the statements in the police car.
[11] While the appellant has made a number of other admissions as to the fact of the stabbing, counsel submitted that the evidence in issue was relevant to the issues of intent and self defence and was potentially damaging to the appellant.
The Crown response
[12] For the Crown Ms Laracy submitted that there was no need to give a further NZBOR warning when the appellant was handcuffed and placed in the police car to be taken to the station because the earlier NZBOR advice given by Constable Smith remained operative. Ms Laracy also submitted that the failure to comply with the Judge’s Rules was not an additional breach but simply a “repackaging” of the appellant’s argument and submitted that the appellant understood her rights when initially advised of them and in the circumstances they remained operative and had
been waived by the appellant. Ms Laracy submitted that it was well within the exercise of the Judge’s discretion to rule the statements admissible.
Discussion
[13] Given the Judge’s finding that the appellant was handcuffed before being placed in the police car, the appellant was at that time detained for the purposes of s 23 of the NZBOR. She was entitled to be given her rights under that section. Two questions arise. Was the earlier caution still operative, and, if it was, was the appellant in a position to make a valid waiver of her rights to silence and counsel?
[14] In R v Williams CA101/00 31 July 2000 it was held that in certain circumstances the earlier advice may not be spent but may remain operative even where the arrest follows the advice. In Williams the appellant was suspected of having been involved in a drive-by shooting. An armed offenders squad was despatched to his home in the early hours of the morning. The appellant was required to lie face down on the ground, had flexi cuffs applied to him and was searched for weapons by an armed offenders squad member. The armed offenders squad officer gave him his rights under the NZBOR and administered a caution. The appellant was then walked a short distance and passed into the care of a detective. The appellant was then told by the detective that he was arrested on suspicion of involvement in the shooting incident. The Court upheld the Judge’s conclusion that the earlier advice was not spent but remained operative so that it was not necessary for the rights to be restated.
[15] Constable Smith gave the appellant her rights at 7.22 p.m. She was handcuffed and placed in the police car at 7.32 p.m., 10 minutes later. Immediately after the appellant had been given her rights and had made the statement to Constable Smith, she was asked to return to the police station. She then got her shoes and was led down to the police car.
[16] While it might have been better practice for Constable Toseland to have restated the rights to the appellant when she was handcuffed at the car, the handcuffing for the trip to the station was part of the one episode following the initial
advice given by Constable Smith. It was no more than 10 minutes after that advice. As in Williams, in the circumstances of this case we consider the earlier advice was still operative at this time.
[17] That leaves the issue of whether the waiver was valid. The point was considered by this Court in R v Jones CA312/92 16 July 1993. The appellant was suspected of the importation of cocaine from the USA. The police intercepted a parcel containing cocaine. They later searched the appellant’s property and found documentary evidence supportive of the importation. They also found cannabis plant material. Jones was taken to the police station. At the outset of his interview, which began at 11.08 a.m., Jones was given a general warning in terms of the NZBOR. The detective initially questioned him about the cannabis. The interview then led on to questions about the documents found at the accused’s home and his connection with the USA. There was then a break between 11.40 a.m. and 11.58 a.m. for coffee. On resumption of the interview the appellant was told that police had intercepted a parcel containing cocaine and that a co-accused had said he had given it to the accused, who had opened it in front of him. At that stage the appellant made a number of inculpatory remarks. The majority of the Court held that the initial NZBOR advice was adequate and applied for the duration of the interview.
[18] The majority of the Court identified the issue as whether or not the appellant had sufficient information to appreciate the nature and extent of the jeopardy he was in arising from his situation. That is also the essential issue in the present case. Was the appellant still aware of her rights and sufficiently aware of the jeopardy that she was potentially in at the time she made the statements now complained of (some 10-
15 minutes after she had been given her rights)?
[19] The particular circumstances of the situation before the Court will be determinative. In Jones both the President (in his dissenting judgment) and Richardson J referred with approval to the following passage from the decision of McLachlin J, R v Smith (1991) 63 CCC 3d 313, at [28] (SCC):
The question reduces to this: in this case was the accused possessed of sufficient information to make his waiver of counsel valid? To my mind, to establish a valid waiver of the right to counsel, the trial Judge must be satisfied that in all the circumstances revealed by the evidence the accused
generally understood the sort of jeopardy he faced when he or she made the decision to dispense with counsel. The accused need not be aware of the precise charge faced. Nor need the accused be made aware of all the factual details of the case. What is required is that he or she be possessed of sufficient information to allow making an informed and appropriate decision as to whether to speak to a lawyer or not. The emphasis should be on the reality of the total situation as it impacts on the understanding of the accused, rather than on technical detail of what the accused may or may not have been told.
(emphasis added)
[20] A number of relevant considerations were outlined by Hardie Boys J (with whom Gault J concurred) in the Jones decision at 4:
There may, for example, have been a substantial lapse of time, or the intervention of obviously distracting events; or the second line of inquiry may have been so entirely disassociated from the first that the suspect was effectively ambushed. In such cases, the circumstances may speak for themselves. They may of themselves provide an evidential base for a conclusion that a failure to repeat the advice meant that s 23(1)(b) was not complied with. The need for such an evidential base applies as much to a claim of breach of right by a failure to repeat advice as it does to a claim that no advice was given at all.
[21] In the present case the appellant was well aware why the police had been called. She had stabbed the complainant. Without any prompting from the police she admitted to such at the outset when first spoken to by Constable Smith. The appellant did so immediately after she had been given her NZBOR advice. She was then given a short caution. On the Judge’s findings she understood both but waived her rights at that time. She was then asked to return to the police station. The delay between the advice being given at 7.22 p.m. and leaving for the police station 10 minutes later was largely because the appellant was looking for shoes. The focus of the enquiry did not shift. The appellant understood what she was to be spoken to about and how serious the situation was. In the course of her evidence on the voir dire the appellant said:
I thought I was going down to the station to be interviewed and spoken to. I didn’t realise when I got down to the car and I was handcuffed, that perhaps I was in a lot of trouble basically.
And later when cross-examined whether she was happy about getting in the car she said:
A.I was willing to go, I just – I was just – I got a shock when I had the handcuffs put on me. It was up – I didn’t realise up until then that I was in a lot of trouble. I mean you know, in front of my neighbours, people – you know.
Q. So the point that you were in the car onwards you considered that you were potentially in – in some trouble?
A. Mmm, mmm.
[22] The appellant had a fair understanding and appreciation of the situation that she was in. She was aware of her rights, knew the jeopardy she was in, but chose to waive her right to silence in the police car just as she had earlier chosen to waive the rights when she was given them at her home. She did so freely and without any pressure from the police officers in the car. The appellant’s statements in the police car were not elicited by the constable through any formal interview but rather were volunteered by the appellant. The appellant’s waiver of her rights was valid. There was no need for the officer to repeat the caution.
[23] During the course of his written submissions Mr Vincent also challenged the accuracy of the admissions recorded by the Constable during the trip to the station. However, the transcript of the video interview records that Constable Toseland put the voluntary statements to the appellant during the course of the video interview. The appellant did not take issue with or dispute the content of the statements in the course of the interview.
Result
[24] There was no breach of the appellant’s rights and the evidence is accordingly admissible.
[25] The appeal is dismissed.
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt for Appellant
Crown Law Office, Wellington
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