R v Leith CA380/06

The Court of Appeal of New Zealand heard an appeal 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. The appellant, Peter Donald Leith, 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. The legal issues the court was required to decide included whether the appellant's level of intoxication affected his comprehension of his rights as given to him by Constable Tyrer in Durham Crescent and repeated by Constable Leitch at the Police Station, and whether the "reminder method" was adequate to ensure the appellant knew and understood his rights.

The court found that the appellant was not so drunk that Constable Leitch could not take what he was saying at face value. The court held 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, it was brought home to the appellant what his rights were and that he understood them. The court 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). The Court concluded that there had been no breach of s 23 of the New Zealand Bill of Rights Act 1990, and no unfairness in the interview. The appeal is dismissed.

The court found that the Judge's findings of fact were clearly available to her on the evidence. The 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). 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.

The court dismissed the appeal.