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R v Kumar

R v Kumar

Case [2015] NZSC 124 6 August 2015

Active Elicitation

Right to Silence

Right to Counsel

Unfairly Obtained Evidence

Breach of New Zealand Bill of Rights Act

Criminal Law

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IN THE SUPREME COURT OF NEW ZEALAND

SC 115/2014
[2015] NZSC 124

BETWEEN	THE QUEEN Appellant
AND	SHIVNEEL SHAHIL KUMAR Respondent

Hearing:	12 and 13 February 2015
Court:	Elias CJ, William Young, Glazebrook, Arnold and O’Regan JJ
Counsel:	M D Downs and P D Marshall for Appellant R M Mansfield and D A C Bullock for Respondent
Judgment:	6 August 2015

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

William Young, Glazebrook, Arnold and O’Regan JJ	[1]
Elias CJ	[75]

WILLIAM YOUNG, GLAZEBROOK, ARNOLD AND O’REGAN JJ
(Given by Arnold J)

Table of Contents

Para No
Introduction	[1]
The police investigation	[6]
The police undercover operation	[15]
The rights at issue	[22]
The right to refrain from making a statement and police undercover cellmates	[27]
The statements at issue	[51]
Evaluation	[59]
The right to counsel	[72]
Decision	[74]

Introduction

This appeal concerns the admissibility of incriminating statements made by the respondent, Mr Kumar, while he was in custody following his arrest on a charge of murder. The statements were made in the course of an 80 minute conversation with two undercover police officers in a police cell following a formal video interview in which Mr Kumar had denied responsibility for the murder. In the High Court, Venning J held that the statements were admissible;[1] on appeal, the Court of Appeal disagreed.[2] This Court granted leave on the question:[3]
… [W]hether the Court of Appeal was right to conclude that an inculpatory statement made by Mr Kumar to undercover police officers was improperly obtained and should not be admitted in evidence at his trial.
[1]R v Kumar [2013] NZHC 3487 [Kumar (HC)].
[2]Kumar v R [2014] NZCA 489, (2014) 27 CRNZ 19 (Harrison, Courtney and Clifford JJ) [Kumar (CA)].
[3]R v Kumar [2014] NZSC 166.
As Mr Kumar’s trial was due to commence on 2 March 2015, we issued a results judgment dismissing the appeal.[4] In this judgment we set out our reasons. We note that both Mr Kumar and his co-accused, Mr Permal, were found guilty at trial.
[4]R v Kumar [2015] NZSC 14.
Counsel were agreed that, on the authorities, the assessment to be made was whether the undercover police officers had “actively elicited” relevant information from Mr Kumar in the course of their conversation with him. In the particular circumstances of the case, if the officers did actively elicit information, they necessarily undermined Mr Kumar’s rights, in particular his right to refrain from making a statement as protected by s 23(4) of the New Zealand Bill of Rights Act 1990 (NZBORA).
For the Crown, Mr Downs acknowledged in oral argument that there had been active elicitation from a particular point in the conversation and accepted that, as a consequence, statements made by Mr Kumar after that point should be excluded. In respect of those statements, Mr Downs did not argue that they should be admitted…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Kumar

Details

AGLC: R v Kumar [2015] NZSC 124
Case: [2015] NZSC 124
Decision Date: 6 August 2015

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an appeal from the Crown against a Court of Appeal decision that excluded incriminating statements made by Mr Kumar, who was charged with murder, while he was in police custody. The Crown's appeal was dismissed. The majority found that Mr Kumar's right to refrain from making a statement, protected by s 23(4) of the New Zealand Bill of Rights Act 1990, had been breached by undercover police officers who had been placed in a cell with him to obtain admissions of guilt. The Supreme Court found that the undercover officers had actively elicited information from Mr Kumar by directing the conversation to matters of interest to the police and by direct questioning. The statements were obtained in breach of s 23(4) and should be excluded. The Supreme Court also found that the undercover operation breached the right to consult and instruct a lawyer, protected by s 23(1)(b) of the New Zealand Bill of Rights Act 1990. The Court was also of the view that the statements were obtained in breach of the Practice Note on Police Questioning, although this ground was not pursued by the respondent.

Orders