R v Leith CA380/06

[2006] NZCA 496

ORDER: NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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

CA380/06

THE QUEEN

v

PETER DONALD LEITH

Hearing:         16 November 2006

Court:            O’Regan, Potter and Miller JJ Counsel: W M Johnson for Appellant

C L Mander for Crown

Judgment:      23 November 2006         at 12.00 noon

JUDGMENT OF THE COURT

A        The appeal is dismissed.

BOrder prohibiting  publication  of  the judgment in  news  media  or  on internet or other publicly accessible database until final disposition of

trial.  Publication in Law Report or Law Digest permitted.

R V PETER DONALD LEITH CA CA380/06 23 November 2006

REASONS OF THE COURT

(Given by Potter J)

Introduction

[1]      This appeal is against a pre-trial ruling by Judge B M Mackintosh in the District Court at Wellington on 6 October 2006 which ruled admissible at trial a video interview with the appellant by Constable Leitch at the Lower Hutt Police Station on the evening of 30 January 2006.

[2]      The appellant is charged with wounding Ratuhoehoe Hanui with intent to cause him grievous bodily harm on 30 January 2006, and in the alternative wounding Mr Hanui with intent to injure him.

Background

[3]      Police were called to an incident in Durham Crescent, Epuni on the evening of 30 January 2006.  At 9 pm Constable Tyrer arrested the appellant who had been seen in possession of a knife.  He was given his rights.

[4]      The appellant told Constable Tyrer that he had intervened in an argument involving the neighbours and was beaten up by the complainant.  He said he returned home and got a kitchen knife.  He thought that the complainant was stabbed during the scuffle.   He said he had hidden a knife in the cupboard at his house.   He subsequently took Constable Tyrer to his house and pointed out the knife.

[5]      He was then taken to the Lower Hutt Police Station at 9.25 pm by Constable Leitch.  Constable Leitch understood that the appellant had already been given his rights and caution.  The District Court decision records there was no dispute that that had occurred.  Constable Leitch then proceeded to interview the appellant by way of video  tape  in  the  course  of  which  the  appellant  made  a  number  of  relevant admissions.  The interview commenced at 9.45 pm and concluded at 10.30 pm.

[6]      Constable Leitch did not give the appellant his rights afresh but instead went over the rights that were given to him in Durham Crescent.  There was the following exchange near the commencement of the video interview between Constable Leitch and the appellant:

MLOkay, and as a result of that you’re back here, okay and do you remember at the time in Durham Crescent that you were given your rights?

PL      Mm. (nods head in positive)

ML     You were told you had the right to refrain from making a statement? PL     At the scene yeah. (nods in positive)

ML     Yeah, and you had the right to consult and instruct a lawyer in private without delay.

PL      Yep.  (nods in positive)

ML     You would be given those rights as soon as practicable. PL Okay.  (nods head in positive)

MLAnd, and do you remember being told that you weren’t obliged to say anything and anything you do say may be given in evidence?

PL      Yeah I know all that (nods head in positive) yeah.

ML     Yeah.   You know and you remember being given that in Durham

Crescent?

PL      No I don’t even remember but I know it (nods head in negative) ML        You know it.  Okay …

PL      I, like I know it, but I don’t rem call (sic) someone saying it to me.

District Court decision

[7]      The issue before the District Court Judge was whether, given the appellant was intoxicated, as was apparent during the interview, it affected his comprehension of his rights as given to him in Durham Crescent by Constable Tyrer, and repeated as set forth above by Constable Leitch.

[8]      The Judge concluded that it was necessary that the appellant be given his rights again at the Police Station, there being the lapse of nearly an hour from the

time he was given his rights in Durham Crescent to the time the video interview commenced at the Police Station, the interview being conducted by an officer other than Constable Tyrer who initially gave him his rights, and the appellant being intoxicated.

[9]      The Judge heard evidence at a voir dire and viewed the videotape of the interview.

[10]     She found that the appellant was not so drunk that Constable Leitch could not take what he was saying at face value.   She found that the appellant answered questions  in  a  sensible  manner  and  gave  a  coherent  account  of  events.    She concluded that while it was not ideal that he was simply reminded of the rights earlier given to him, and it would have been better if he had been given his rights afresh, she was satisfied that it was brought home to the appellant what his rights were and that he understood them. She considered that there were not circumstances in this case which called for “obvious care and further inquiry” in terms of the test in R v Mallinson [1993] 1 NZLR 528 at 531 (CA).

[11]     She held that there had been no breach of s 23 of the New Zealand Bill of

Rights Act 1990, and no unfairness in the interview.

Submissions for the appellant

[12]     Mr Johnson, counsel for the appellant, after making submissions about the appellant’s level of intoxication on the night in question, accepted that the Judge made an assessment and finding of fact on that matter, after viewing the videotape.

[13]   He maintained nevertheless, that there was at least enough evidence of intoxication to put Constable Leitch on notice that further inquiries should be made, and that a full statement of the appellant’s rights should have been given to him.  He submitted that in the circumstances, the “reminder method” was inadequate to ensure the appellant knew and understood his rights.

Discussion

[14]     The Judge presided over a voir dire at which Constable Leitch gave evidence and was closely cross-examined by Mr Johnson on his experience with intoxicated persons generally, his understanding that the appellant had been drinking prior to the interview on video interview on 30 January 2006, and his approach to and method of giving  the  appellant  his  rights  under  NZBORA.    The  Judge  also  viewed  the videotape.

[15]     The appellant did not give evidence at the voir dire.  No complaint has been made, nor is there any evidence that he did not understand his rights as delivered to him by Constables Tyrer and Leitch.  His responses to Constable Leitch’s questions about his rights as previously given by Constable Tyrer, were positive.

[16]     While it would have been a simple and preferable procedure for Constable Leitch to have given the appellant his rights anew at the commencement of the video interview, in recalling the rights previously given, Constable Leitch referred specifically to each of the rights of which the appellant needed to be informed.  The obvious inference from the appellant’s responses which raised no queries or disagreement but included nods of affirmation and statements that “I know it”, was that he understood his rights.

[17]     The Judge’s findings of fact are set out in [10] were clearly available to her on the evidence.

[18]     This Court in the leading case of R v Mallinson 528 at 530-531 considered the relevant requirements of s 23(1)(b) to include, relevantly in relation to this case:

(a)      That to be “informed” of the right to a lawyer is to be made aware of it.  The obligation on the officer concerned is to communicate clearly to the person arrested that he or she has that right.

(b)Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused’s answers at face value.

(c)      The crucial question is whether it was brought home to the arrested person that he or she had those rights.

(d)Informing persons arrested of their s 23(1)(b) rights ordinarily carries with it the obvious implication that they are entitled to exercise those rights but there is no duty on Police on informing arrested persons of their rights to facilitate the exercise of the right to a lawyer.

(e)NZBORA is not a technical document.   It has to be applied in a realistic way.  The question is whether what was done gave practical effect in the particular circumstances to the rights protected by the particular guarantee, here s 23(1)(b).

[19]     It is clear in the circumstances of this case, that the requirements identified in R v Mallinson have been met.  The appellant was clearly informed of his rights.  The District Court Judge made a finding of fact that there were no circumstances calling for obvious care and further inquiry, a finding of fact that was available to her.  She was also satisfied that the appellant’s rights had been brought home to him.

Result

[20]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington