R v Liu
[2015] NZHC 746
•17 April 2015
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-044-001376 [2015] NZHC 746
THE QUEEN
v
YUN QING LIU
Hearing: 30 March 2015 Appearances:
Kieran Raftery and Fiona Culliney for the Crown
Michael Kan for the DefendantJudgment:
17 April 2015
RESERVED JUDGMENT OF MOORE J [Re: admissibility of evidence (2)]
This judgment was delivered by me on 17 April 2015 at 4:00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
R v LIU [2015] NZHC 746 [17 April 2015]
Contents
Paragraph
Number
Introduction ..............................................................................................................[1] Background...............................................................................................................[5] Pot plant reconstruction
The evidence and relevance .................................................................................[27] Defence submissions ............................................................................................[36] Decision................................................................................................................[44]
Travel time reconstructions
Background and evidence ....................................................................................[46] Defence submissions ............................................................................................[51] Decision................................................................................................................[53]
16 November 2012 reconstruction and interviews Challenge..............................................................................................................[54] Background ..........................................................................................................[55] Defence submissions ............................................................................................[68] Crown submissions ..............................................................................................[70] Discussion ............................................................................................................[76]
Section 30 of the Evidence Act – the balancing exercise .....................................[87] The importance of the right breached, and seriousness of the intrusion ..............[90] The nature of the impropriety ..............................................................................[91] The nature and quality of the improperly obtained evidence...............................[94] Seriousness of the offence....................................................................................[95] Are there alternative remedies to exclusion? .......................................................[96] Was the impropriety necessary to avoid apprehended physical danger? .............[97] Was there any urgency in obtaining the evidence? ..............................................[98] Overall assessment ...............................................................................................[99]
Relevance of the “If I die …” statement made by Ms Chen
Background ........................................................................................................[102] Challenge............................................................................................................[108] Crown submissions ............................................................................................ [110] Defence submissions .......................................................................................... [115] Decision.............................................................................................................. [119] Result .....................................................................................................................[123]
Introduction
[1] The defendant, Yun Qing Liu, also known as “Jack”, is charged with the murder of his partner Bin Chen. The Crown alleges that the defendant killed Ms Chen sometime during the evening of Monday, 5 November 2012. The defendant’s trial for Ms Chen’s murder is scheduled to commence on Monday,
4 May 2015.
[2] Regrettably, for reasons which it is not necessary to develop here, the multiplicity of pre-trial applications, their identification and prosecution, has resulted in a somewhat disjointed and prolonged process. Furthermore, given the imminence of the trial date, there has been urgency in hearing and determining the outstanding evidential matters.
[3] This judgment relates to the admissibility of four discrete aspects of the evidence which the Crown wishes to adduce at trial. These are:
(a) the pot plant reconstruction; (b) travel time reconstructions;
(c) 16 November 2012 interviews (reconstructions);
(d) relevance of the “If I die …” statement made by Ms Chen to a friend.
[4] I shall deal with each of these issues in the same order as they are noted above.
Background
[5] A detailed description of the circumstances around Ms Chen’s disappearance
and the Police investigation which followed it is set out in my judgment of 16 April
2015 in relation to the first tranche of admissibility issues.1
1 R v Liu [2015] NZHC 732.
[6] The Crown case is that sometime during the evening of Monday, 5 November
2012 the defendant murdered Ms Chen. Her body was not recovered for more than
16 months. No cause of death could be determined due to the advanced state of decomposition of the remains.
[7] The Crown’s case is circumstantial. It relies on a number of strands of which include, but are not limited to, evidence of the couple’s deteriorating relationship, Ms Chen’s intention to make a will cutting out the defendant and various contradictory accounts the defendant gave about what happened on the evening of 5 November
2012.
[8] The defence case will be that Ms Chen went walking alone that evening and never returned. The defendant was not involved in her disappearance or death.
[9] Despite the uncertainty of what may actually have occurred on the evening of
5 November 2012 certain events are capable of being timed with some precision. For example, at 7:15 pm a call was made to the cell phone used by Ms Chen’s older brother from the landline at Waiau Street, Torbay, the home Ms Chen shared with the defendant. This call was unanswered. The significance of this event is that if Ms Chen was the caller, it shows she was alive at the Waiau Street address at
7:15 pm. This is contrary to the explanations the defendant gave to the Police about her movements that night.
[10] At about 8:45 pm the defendant called 111 and reported Ms Chen missing. This was after one of Ms Chen’s friends had called the house asking to speak to her. The defendant later told the Police it was then he realised Ms Chen had not returned home and he began to worry. Shortly before midnight the Police arrived at Waiau Street to speak to him. This was a necessarily truncated exchange but the defendant did say Ms Chen had gone out for a walk at about 5:00 pm. He said although he normally accompanied her he did not this time because he had a sore hand. Due to the defendant’s limited ability to communicate in English these comments were relayed through a boarder who resided at the address. The Police then left to search the Long Bay area which was where the defendant said Ms Chen would have gone.
This proved fruitless and they returned to Waiau Street to check if Ms Chen might have come home. She had not, and so the Police filed a missing person’s report.
[11] The following morning the Police again attended the Waiau Street address and spoke more expansively with the defendant. In the course of this discussion the defendant described, in some detail, his movements the previous day following his arrival home from work at about 5:15 pm. He said Ms Chen was already home. He went upstairs and had something to eat while Ms Chen went out for a walk. He estimated that this was at about 5:30 pm. While she was away he undertook some tiling repairs and some painting using an extension ladder.
[12] He also said he moved a pot plant from the drive way. He described the position of the pot plant as being next to a white post box. This procedure, he claimed, was to provide improved vehicular access into the basement garage as well as assisting the parking of the boarder’s car on the drive way. He described how he lifted the pot plant and moved it to the side of the house. However, as he was performing this manoeuvre, he claimed he lost his footing and fell forward injuring his right thumb.
[13] At about 7:30 pm he said he received a call from Ms Chen’s friend who wished to speak to her. At about 8:00 pm he drove around the neighbourhood and the Long Bay area in search of her. It was sometime after this he decided to call the Police through 111.
[14] Later that day the defendant agreed to accompany the Police to the North Shore Policing Centre. A Mandarin-speaking interpreter was arranged and a video interview was recorded.
[15] The defendant was not cautioned or advised of his rights under the New Zealand Bill of Rights Act 1991 (“NZBORA”). This was because the Police regarded him as a witness in a missing person’s inquiry.
[16] However, the account given by the defendant in his video interview differed in certain material respects from the oral account he had earlier given, including how and when he had injured his thumb.
[17] The defendant said that when he first arrived at his home from work he saw Ms Chen’s car there. However, contrary to his earlier statement in which he said he moved the pot plant after Ms Chen had left for her walk, the defendant said he parked his car in front of the garage near the pot plant. Concerned that he might knock the pot plant over, he then decided to move it. He said this was about 5:15 pm. He got out of his car, picked up the pot and placed it on a retaining wall by the side of the house. He described it as heavy. It was during this manoeuvre he claimed he tripped and jammed his thumb. He then returned to his car which he parked “on the spot”, presumably a reference to the position formerly occupied by the pot plant. It was only then that he claimed he went upstairs and spoke to Ms Chen. He asked her if she had eaten. There then followed a discussion about going for a walk. The defendant said he told Ms Chen he would not accompany her because his finger was a bit sore and he was tired. She decided to walk on her own.
[18] After she left he said he took out his ladder and painted the wall to cover some cracks. Then he pottered around the house and watched some television. He said it was at about 8:20 pm when Ms Chen’s friend telephoned. He noticed it was late and began to worry. So he decided to go out in his car to look for her. It was Guy Fawkes night. He drove around the usual places the couple walked and then returned home and after consulting the same friend decided to ring 111.
[19] On 8 November 2012, two days after the defendant had given his witness statement, the Police interviewed another friend of Ms Chen’s known as Cindy. She told them of a comment Ms Chen had allegedly made to her on the morning she disappeared, namely:
“If I die one day, quickly ring the Police, he’s [Jack’s] the one who kill me.”
[20] Unsurprisingly, this disclosure elevated the defendant to suspect status. A
warrant authorising the interception of private communications was granted.
[21] However, it was not until 16 November 2012 that the defendant was spoken to for a second time.
[22] Early on the morning of 16 November 2012 the Police arrived at the Waiau Street address and asked the defendant if he would be prepared to assist them further by giving them a demonstration of what he did following his arrival home from work on the afternoon of 5 November 2012. They told him they believed Ms Chen had been murdered and advised the defendant he was a suspect. They gave him his
rights under NZBORA as well as his rights under the Chief Justice’s Practice Note.2
These were translated using the services of an interpreter.
[23] The defendant indicated his willingness to participate and there then followed a video recorded reconstruction, which included the defendant’s description of moving the pot plant and injuring his hand.
[24] For reasons which are more fully developed later in this judgment I have determined that the video recorded reconstruction and the evidence of subsequent dealings with the defendant that day are inadmissible on the grounds that the evidence was unfairly obtained because the defendant was not properly advised of his right to free legal advice.
[25] Thus the only available description by the defendant of where the pot plant was originally positioned, why he moved it, where he moved it to and how he injured his thumb comes from the defendant’s two Police interviews on 6 November
2012.
[26] However, I am satisfied that even putting to one side the description contained in the defendant’s 16 November 2012 account, there is sufficient detail in the defendant’s accounts of 6 November 2012 to identify the position in the driveway where the defendant said the offending pot plant was positioned. This is because the defendant said he showed the pot plant to another Police officer and that
the pot plant was next to a white post box. The white post box is plainly visible in a
2 Practice Note on Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.
series of photographs which the Police took of the scene and which I understand the
Crown intends to produce.
Pot plant reconstruction
The evidence and relevance
[27] On 19 November 2012, as part of their investigation, the Police undertook a series of experiments in an attempt to reproduce aspects of the accounts given by the defendant in relation to the moving of the pot plant and the house painting.
[28] Using what appears to have been the same extension ladder the defendant said he had used the Police were able to confirm that the painting exercise as described by the defendant could be reproduced.
[29] However, the Police’s attempt to reconstruct the defendant’s account of the
obstacle the pot plant presented proved more of a problem.
[30] The garage in question is situated in the basement of the Waiau Street address. It is accessed via a short drive way. To enter the garage a vehicle must execute a sharp 90 degree right hand turn. The pot plant could only present a potential obstacle to a person attempting to park in the right hand side of the two-car garage.
[31] In an attempt to reproduce the defendant’s account, the pot plant was placed in the same position the defendant had described. His car was then driven up the drive way and into the right hand side of the garage keeping as close to the right side as possible, i.e. as close as possible to the side where the pot plant was positioned.
[32] Despite a number of attempts to make contact with the pot the officer was unable to manoeuvre the car any closer than within one metre of it. Furthermore, the pot was positioned behind an existing pot plant of comparable size. The reconstruction revealed that even had it been possible to make contact with the pot it was not possible to do so without first making contact with the other pot plant.
[33] The sequence was photographed and in the course of argument I had the opportunity to examine the photographic record. The position of the pot plant beside the white post box is explained graphically by the photographs, as is the sequence described by the officer undertaking the experiment.
[34] What this evidence tends to prove is that the defendant’s explanation that he moved the pot plant because it hindered access to the garage is unlikely, if not impossible. However, the Crown submits the evidence has a greater significance. The defendant used the moving of the pot plant to explain the injury to his right thumb and thus why, at least in part, he departed from his usual practice of accompanying Ms Chen on her evening walk. Furthermore, the Crown will say that this injury was more likely to have been caused as a result of the defendant’s assault on Ms Chen or was sustained in the course of the disposal of her body rather than as a result of an accident when moving the pot plant.
[35] Thus the evidence tending to disprove the defendant’s explanation is, the
Crown submits, both relevant and admissible.
Defence submissions
[36] First, Mr Kan submits that the evidence of the pot plant reconstruction involves expert opinion evidence and as such is governed by s 25 of the Evidence Act 2006.
[37] He submits that the officer who undertook the reconstruction is not sufficiently qualified in the terms required by s 4. He appears to have no expertise in the reconstruction of vehicle movements and is insufficiently qualified to proffer the opinion he does.
[38] Mr Kan submits that the opinion evidence is inadmissible because the finder of fact would not derive substantial help from the officer’s opinion in understanding other evidence in the proceeding or ascertaining any fact that is of consequence to
the determination of the proceeding.3
3 Evidence Act 2006, s 25(1).
[39] Secondly, Mr Kan relies on the comments of Jeffries J in R v Baker where his Honour described a reconstruction as an attempt to construct again or re-establish, a previously existing or performed event which is in issue.4 In preferring to describe such evidence as a demonstration or an experiment, his Honour said:5
“It is a demonstration in that it is an attempt to show, or point out clearly so as to make evident, something that is a subject in issue in the trial.”
[40] His Honour observed that the question of admissibility rests largely with the discretion of the trial Judge and the discretion must be exercised in a justifiable way within the context of the case. He emphasised that the Court must ensure that an experiment is not likely to mislead members of the jury who might attach exaggerated significance to the test.
[41] It appears that Mr Kan’s principal concern is that in addition to the subject evidence being inadmissible opinion evidence there is also a danger its significance may be exaggerated in the eyes of the jury.
[42] Thirdly, Mr Kan submits that in terms of s 8 the limited probative value of the evidence is outweighed by the risk it will have in an unfairly prejudicial effect. He submits that the unreliable manner in which the experiment was conducted diminishes its already weak probative value and, at best, the experiment merely demonstrates that the officers were unable to hit a pot plant on an unspecified number of attempts.
[43] He also submits that there is a real risk the jury will use the reconstruction in concluding the defendant was not forthcoming about how he injured his hand and why he did not accompany Ms Chen on her walk.
Decision
[44] I am satisfied that the evidence should be admitted for the following reasons:
4 R v Baker [1989] 3 NZLR 635 (HC) .
5 At 638.
(a) First, the defendant’s explanation as to how he injured his right thumb is plainly relevant for the reasons mentioned above. It is appropriate that the jury is able to effectively assess the veracity and plausibility of the defendant’s explanation that one of the reasons he did not accompany Ms Chen on her evening walk was that he had injured his hand.
(b)Secondly, there is no unfair or illegitimate prejudicial effect on the proceedings nor will the admission of this relatively narrow and discrete evidence needlessly prolong the proceedings.
(c) Thirdly, this evidence is not opinion or expert evidence. While, for reasons more fully developed below, I am satisfied that the evidence would be of substantial help to the jury, the witnesses are not giving evidence of opinion. Rather, their evidence is factual and based on their own observations.
(d)Fourthly, the criticisms of the methodology which Mr Kan advances are issues which can be tested in cross-examination and upon which he can make comment in his submissions to the jury. The photographs taken in the course of the reconstruction will, no doubt, be produced by the Crown. If not, Mr Kan will be at liberty to produce them in cross-examination. As already discussed, these photographs provide a useful, contemporary, pictorial description to supplement the witnesses’ oral testimony. Any criticism of the methodology could be highlighted using this record in cross- examination.
(e) Fifthly, any challenge to the correctness of the Police’s interpretation of where the defendant said the pot plant was originally positioned can be made by cross-examination.
(f) Sixthly, I am satisfied this experiment is not likely to mislead members of the jury or that they might attach exaggerated
significance to it. Any dangers of that sort, to the extent they exist at all, may be met by a direction from the trial Judge identifying the legitimate use to which this evidence may be put and the limitations which are necessary implicit in any attempt to reconstruct the defendant’s account.
(g)Finally, without this evidence the jury cannot fully determine the validity of the defendant’s claim that he departed from his usual routine of joining Ms Chen for an after dinner walk because his thumb was injured. It is a significant circumstantial strand of the Crown’s case that the defendant’s explanation for not accompanying his partner permitted him to develop other core aspects of his explanation, accounting for her sudden and unexplained disappearance and his subsequent actions and explanations to others.
[45] For these reasons I am satisfied the evidence is relevant and its probative value is not outweighed by the risk the evidence will have an unfairly prejudicial effect on the proceeding. It is admissible.
Travel time reconstructions
Background and evidence
[46] CCTV footage obtained by the Police shows a car fitting the description of the defendant’s travelling through an intersection near the Waiau Street home address at 2028 hours on 5 November 2012 and returning through the same intersection at
2101 hours. The Crown case is that within that 33 minute window of opportunity the defendant disposed of Ms Chen’s body in the Trias Reserve in Glenfield, not far from where the couple used to live.
[47] The Long Bay area is where the defendant habitually walked with Ms Chen and where he told the Police he went in search of her when she did not come home. It is north of the Waiau Street address. However, when the CCTV footage was examined it showed a car fitting the description of the defendant’s heading south, in
other words in the opposite direction to Long Bay. Significantly, the Trias Reserve is further south in Glenfield.
[48] Unsurprisingly, given the 33 minute window the Police undertook a number of experiments designed to examine how long it takes to drive from the intersection to the Trias Reserve and back. Three separate timed drives were undertaken using different drivers. Each driver left the intersection at 2028 hours. Each recorded their route, the driving conditions, the odometer reading and the time at which they returned to the intersection.
[49] The times recorded varied between approximately 27 minutes and 31 minutes. The distances travelled varied, depending on the chosen route, from between approximately 20 kilometres and 27 kilometres.
[50] The Crown wishes to adduce this evidence in order to demonstrate that the window of opportunity was sufficient for the defendant to drive from the intersection to Trias Reserve, dispose of the body and return to the intersection en route back to Waiau Street.
Defence submissions
[51] Again, Mr Kan submits that this evidence is expert evidence. He submits the evidence should not be admitted because the fact finder would be unlikely to obtain substantial help from the opinion of the three witnesses. More particularly, he submits that the methodology adopted in the experiments is so unreliable that the evidence would not be “substantially helpful” to the fact finder because:
(a) the experiments do not accurately reproduce the same traffic conditions on the night in question;
(b) the experiments did not use the same vehicle;6
(c) the experiments used a variety of routes;
6 It is assumed this complaint is that the testing was undertaken in a vehicle other than the
defendant’s.
(d)the drivers are likely to be more familiar with the North Shore area than the defendant;
(e) the experiments were not recorded on video.
[52] For the reasons previously discussed in relation to the pot plant experiment I do not accept this evidence falls into the category of expert opinion. The evidence is of direct observations undertaken in controlled circumstances.
Decision
[53] I am satisfied that the evidence is admissible for the following reasons:
(a) First, it is relevant because it tends to prove a fact in issue, namely whether or not it would have been possible for the defendant to drive from the intersection, dispose of Ms Chen’s body and return to the intersection within 33 minutes.
(b)Secondly, there is no unfair or illegitimate prejudicial effect on the proceedings nor will this relatively narrow and specific evidence needlessly prolong proceedings.
(c) Thirdly, the criticisms of the methodology which Mr Kan advances are all issues which can be properly tested in cross-examination.
(d)Fourthly, as Mr Kan candidly accepted, the defence are at liberty to undertake a similar exercise, a concession which underscores not only its relevance but also the ability to challenge its accuracy by adducing contradictory evidence.
(e) Finally, the reception of this evidence will mitigate the risk that members of the jury may undertake their own inquiries and experiments. This risk is greater than the risks Mr Kan submits exist of the jury exaggerating the significance of the evidence or the risk it might be used by the jury for an improper purpose and would be
unfairly prejudicial. It is inevitable that the majority of jurors will not be familiar with this part of the North Shore and the reception of this evidence will reduce the temptation of jurors even in the face of the routine judicial direction not to, to engage in uncontrolled extra-curial experiments of their own which cannot be tested in cross- examination.
16 November 2012 reconstruction and interviews
Challenge
[54] Mr Kan challenges the admissibility of the reconstructions and interviews the defendant made to the Police on 16 November 2012. He does so on the grounds that these statements, both verbal and non-verbal, were made in breach of clause 2 of the Chief Justice’s Practice Note7 and, in particular, the advice in relation to free access to a lawyer was not adequately translated. He submits the only proportionate remedy in the circumstances is to exclude the evidence.
Background
[55] Detective Iremonger, with Detective Blake, was assigned to deal with the defendant. They planned to ask him to consent to participating in a recorded reconstruction of his movements and actions on 5 November 2012 and to agree to escort them along the route which he had previously told the Police he had taken in his search for Ms Chen that night. Following this, it was the officers’ intention to invite the defendant to participate in a formal suspect interview.
[56] Shortly before 7:00 am the detectives, accompanied by an interpreter and a camera woman, arrived at the Waiau Street address. They knocked on the door. It was answered by the defendant who invited them in. Detective Iremonger declined and asked to speak to the defendant in the entrance area.
[57] The exchange between Detective Iremonger, the interpreter and the defendant was recorded on video. Detective Iremonger started the discussion by advising the
7 Above n 2.
defendant that “due to the circumstances to date the Police believed that Ms Chen was dead, that she had been murdered and [the defendant] was a suspect in relation to her murder”. In order to ensure that the defendant understood what the detective was saying, he asked the defendant to repeat, via the interpreter, what he understood. Through the interpreter the defendant responded:
“Now you suspect me as the most important suspect.”
[58] Detective Iremonger then advised the defendant of his rights. In relation to the defendant’s right to access to a lawyer as well as the non-compulsive nature of the defendant’s involvement, the following exchange took place:
“Police: You have the right to speak with a lawyer without delay and in private before deciding whether to answer any questions.
(Interpreter speaking)
Police: Police have a list of lawyers you may speak to for free.
[Emphasis added]
(Defendant speaking with interpreter) Interpreter: But I haven’t got a lawyer at the moment. Police: Okay. Do you understand those rights, Jack?
(Interpreter speaking)
(Defendant speaking with interpreter) Interpreter: Yes I do.
Police: Thank you. Do you understand you’re not under arrest?
(Interpreter speaking) Police: Okay.
Interpreter: Yes.
Police: And will you give your consent to conduct this electronically recorded reconstruction?
(Interpreter and defendant speaking) Interpreter: Yes I can. I have no problem.
Police: You understand you do not have to do this if you do not want to?
(Interpreter and defendant speaking)
Interpreter: I don’t think there’s a necessity ah I don’t mind doing it.”
[59] Regrettably, it appears that the interpreter did not interpret Detective Iremonger’s advice that the Police had a list of lawyers which the defendant could speak to for free. It is common ground the highlighted portion of the extract set out above was not conveyed to the defendant.
[60] There then followed what has been described as a reconstruction. This involved the defendant providing something of a guided tour during which he described and demonstrated his account of the events of Monday, 5 November 2012 following his arrival home from work. For example, he pointed out where he parked his car, where the pot plant was situated, how and to where he moved it, his discussions with Ms Chen and his movements after Ms Chen had left for her walk. He described how he later received the telephone call from one of Ms Chen’s friends asking to speak to her.
[61] This reconstruction occupied more than an hour and a quarter. At its conclusion, shortly before 9:00 am, the defendant escorted the Police to point out the route he claimed he took in his search for Ms Chen. They drove towards Long Bay as the defendant gave directions. They returned to Waiau Street some 16 minutes later.
[62] The defendant then agreed to show the Police the routes he took to drive to and from his work on 5 November 2012.
[63] Shortly before 10:00 am Detective Iremonger asked the defendant if he would agree to accompany him to the North Shore Policing Centre for an interview, adding that he was not required to do so but that it would be helpful. The defendant agreed.
[64] Detective Iremonger then repeated his earlier advice, informing the defendant that the Police believed Ms Chen was dead; that she had been murdered and that the defendant was a suspect for her murder. On the issue of access to a lawyer the following exchange took place with the assistance of an interpreter:
“Police: You have the right to speak to a lawyer without delay and in private before deciding whether to answer any questions. Police have a list of lawyers you may speak to for free. Do you understand your rights Jack?
Defendant: Yes, where is this lawyers list?”
[65] This time it appears that the right to access a lawyer without cost was interpreted. The detective told the defendant he would provide the list when they arrived at the Police station.
[66] On their arrival at the Police station shortly after 10:00 am the defendant was given the on-call lawyers list and selected the name of a local barrister, Peter Boylan. The detective spoke to Mr Boylan by telephone, explained to him what the position was and permitted the defendant to speak with Mr Boylan in private. Mr Boylan arrived at the Police station at about midday. The detective briefed him following which the defendant and Mr Boylan spoke privately. After a little more than an hour Mr Boylan emerged to advise the detective that the defendant was not going to make an interview but permitted the defendant to record that refusal on DVD. The video interview commenced at about 3:00 pm with Mr Boylan present.
[67] Although the defendant participated in the interview he chose, in the main, not to answer any questions. Following the completion of the interview the defendant was released.
Defence submissions
[68] Mr Kan challenges the admissibility of the reconstruction on the basis that it was obtained in breach of cl 2 of the Chief Justice’s Practice Note on Police Questioning.8 The Practice Note applies to the events of this day because by this time the police had gathered sufficient evidence to arrest and charge the defendant.
[69] Mr Kan submits that the failure to convey to the defendant that the exercise of his right to a lawyer without cost means any evidence of his statements made from that point until he exercised the right and instructed Mr Boylan, was unfairly
obtained and should be excluded under s 30.
8 Above n 2.
Crown submissions
[70] Mr Raftery, while accepting the fact of the breach, submits it should be considered in context. He points out that there is no challenge that the rest of the defendant’s rights were properly translated and, in particular, it was plainly conveyed to the defendant that he was not only a suspect but “the most important suspect” for the murder of his wife.
[71] Mr Raftery submits that when advised of his right to consult and instruct a lawyer the defendant did not respond by saying that he could not afford a lawyer; a statement which, Mr Raftery submits, is the sort of comment which would have triggered the importance of ensuring the right was understood in Detective Iremonger’s mind.
[72] Mr Raftery submits that apart from the omission it is plain that the defendant was told unequivocally that he could have a lawyer before deciding whether or not to participate and his answers indicated a willingness to be involved notwithstanding.
[73] Mr Raftery submits that although the defendant, from an early stage on the morning of 16 November 2012, knew he was the most important suspect he plainly elected to participate. However, after three hours of questioning the realisation dawned on him that despite his best efforts to exculpate himself he had been unsuccessful and the Police were plainly intent on examining his explanations further. It was only then that he decided his situation was sufficiently grave to justify legal assistance and he thus elected to exercise his right.
[74] On the question of the defendant’s answer “But I haven’t got a lawyer at the moment” Mr Raftery submits that this sentence should not be elevated beyond its natural meaning. He submits that all the defendant was saying was recording the factual position that he did not have a lawyer at that time. He submits that there is nothing in that statement which should have alerted the Police to the need to ensure the defendant was aware of his right to access a lawyer at no cost. Mr Raftery notes the defendant said nothing about not being unable to afford a lawyer or if he knew he could have a lawyer for free he would not have agreed to participate in the reconstruction.
[75] Mr Raftery submits that because this discussion occurred at an early stage in the sequence of events that morning, the inference is that the defendant believed at this point he could talk his way out of it in a way which he later realised he could not.
Discussion
[76] Clause 2 of the Chief Justice’s Practice Notice on Police Questioning
relevantly provides:
“2Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:
[…]
(b) that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme.”
[77] It is insufficient for the Police to merely recite these rights to a suspect who they are questioning. They must also demonstrate that the defendant understood his rights in a meaningful way. To meet this requirement it will generally be sufficient for the defendant to state that he understands what he has been told. However, where there is an evidential basis to indicate the existence of circumstances which call for obvious care and further inquiry by the Police, the onus falls on the Crown to show
that the defendant understood his rights.9
[78] As the Court of Appeal said in R v Alo there is no absolute requirement for the Police to advise suspects of the existence of the PDLA scheme. But a failure to give such advice will result in a breach of s 23 if the circumstances at the time of the interview provide a substantial basis for believing the suspect might not have appreciated that he or she had the practical ability to obtain legal advice and where
the defendant provides an evidential basis for the contention he or she chose not to
9 R v Mallinson [1993] 1 NZLR 528 (CA) at 531; Attorney-General v Udompun [2005] 3 NZLR
204 (CA) at [119]-[121]. This continues to be relevant since the passage of the Evidence Act, see B (CA46/2014) v R [2014] NZCA 85 at [32].
take legal advice because of cost considerations and the Crown cannot disprove that contention on the balance of probabilities.10
[79] In the present case there are two circumstances which called for the investment of obvious care and further inquiry by the Police.
(a) First, it is plain that the defendant’s understanding of English was poor. This is evident from the statements of the first Police officers who attended Waiau Street late on the evening of Monday,
5 November 2012. They described the defendant’s poor grasp of English and for that reason recruited the assistance of the boarder at the address to translate for them. There are numerous other examples in the evidence. Where a defendant lacks proficiency in the English language this factor has been considered relevant in the assessment of whether or not his assertion that he understands his rights can be
accepted at face value.11
(b)Secondly, and in my view significantly, there is the defendant’s first response, via the interpreter, to Detective Iremonger’s advice that the Police had a list of lawyers the defendant could speak to for free. The defendant’s response “But I haven’t got a lawyer at the moment”, particularly given that it is common ground that right was not conveyed to the defendant, emphasises the inference that the defendant may well have elected to continue to co-operate with the Police because he believed he could not afford or could not access the services of a lawyer.
[80] A similar situation arose in R v Schriek. In that case, the following exchange took place:12
“Police: Okay and also you eh have a right to consult and instruct a lawyer without delay, eh you have a right to refrain from making any statements and you can also speak to a lawyer in
10 R v Alo [2007] NZCA 172, [2008] 1 NZLR 168 at [72].
11 R v Hooper HC Gisborne CRI-2003-016-6805, 24 March 2005 at [32]-[34].
12 R v Schriek [1997] 2 NZLR 139 (CA) at 155.
private if you wish to. Eh do you understand what that means?
Defendant: Yep.
Police: Okay. Do you wish to have a lawyer present? Defendant: Don’t have a lawyer.”
[81] There the Court of Appeal was prepared to conclude that this response indicated “at least an ambiguity as to whether the defendant understood the nature of the right of which she was being informed”. In particular, Eichelbaum CJ went on to say:13
“Certainly in the case of an inexperienced 17-year-old the answer may have indicated a belief that what was meant was that if she had a lawyer she was entitled to have that person present; and it may not have occurred to her that she might obtain, without cost, the temporary services of a lawyer not previously known to her.”
[82] While Schriek pre-dates the Evidence Act 2006 by some years, I consider a similar observation is capable of being made in the present circumstances. I am left in significant doubt that the defendant fully understood the extent of his right to a lawyer. Had the right been fully explained to him, I am satisfied on the evidence, particularly given his response, that the defendant may well have chosen to exercise that right immediately as he did later.
[83] This leads to a third circumstance which, in my view, is relevant. When, shortly before 10:00 am, Detective Iremonger repeated his advice, the last aspect he mentioned was the list of lawyers the defendant could speak to for free. He asked the defendant whether he understood his rights. The defendant’s immediate response was:
“Yes, where is this lawyers list?”
[84] That response strengthens the inference that the defendant either did not understand the effect of the earlier advice or chose not to take legal advice because of the cost considerations. I am not satisfied that the Crown has disproved that
inference
13 At 158.
[85] For these reasons I consider that the failure of the Police to have the right to a lawyer without charge properly translated to the defendant was likely to have been responsible for his decision not to speak to a lawyer at the earlier stage. I am satisfied that had he done so it is unlikely he would have participated in the reconstruction.
[86] It follows I am satisfied on the balance of probabilities the evidence obtained, whether by way of admission or demonstration, was improperly obtained in breach of cl 2 of the Chief Justice’s Practice Note.
Section 30 of the Evidence Act – the balancing exercise
[87] Having concluded the evidence was improperly obtained I must now decide whether or not the exclusion of the evidence is proportionate to the impropriety. I must balance the competing interests, giving appropriate weight to the impropriety but also taking into account the need for an effective and credible system of justice.14
[88] The concept of burden of proof is not engaged in the course of the balancing exercise. My mind is not permitted to rest in equilibrium but I must rather decide the way the balance falls.15
[89] I now deal with each of the s 30(3) matters in turn.
The importance of the right breached, and seriousness of the intrusion
[90] The right to consult and instruct a lawyer before deciding whether to answer questions is, undoubtedly, an important right. That such a right may be exercised without charge under the PDLA scheme gives effect to that right particularly in circumstances where a defendant might believe that for reasons of cost they cannot do so. While the breach of the defendant’s right may not have been at the most
serious end of the scale, it was, nonetheless, serious.
14 Section 30(2)(b).
15 R v Hanford HC Auckland CRI-2007-057-1922, 24 July 2008 at [8].
The nature of the impropriety
[91] I am satisfied that Detective Iremonger’s actions were undertaken in good faith. He did not deliberately deprive the defendant of his right to a lawyer. Throughout his interactions with the defendant on 16 November 2012 he was courteous and careful and did not, in any way, embark on either a deliberate or reckless course of conduct designed to circumvent the effect of the Chief Justice’s Practice Note. Indeed, the very contrary appears to be the case.
[92] Furthermore, not being conversant in Mandarin himself he was entitled to rely on the experienced interpreter used in this case.
[93] However, his error, particularly when he received the answer “But I haven’t got a lawyer at the moment” was not to return to the previous question and answer sequences and ensure that, line by line, the defendant understood his rights. In this context it is noteworthy that Detective Iremonger took the commendable course of asking the defendant to repeat back to him what the defendant understood had been said. However, this enquiry was confined to only the introductory part of the interview when the detective explained to the defendant that he was a Police suspect in the murder inquiry. The circumstances of this case, given the potential for a misunderstanding which the “But I haven’t got a lawyer at the moment” response reflected, called for a more cautious and careful approach to ensure that the defendant understood his rights.
The nature and quality of the improperly obtained evidence
[94] The reconstruction evidence and the statements made by the defendant on the morning of 16 November 2012, while undoubtedly of assistance to the Crown in proving its case against the defendant, does not contain critical significant admissions which are not found elsewhere in the evidence. For example, evidence that it was not the defendant who made the 7:15 pm call, and by elimination it must have been Ms Chen, is derived from statements made by the defendant in his DVD interview on 6 November 2012. Further evidence on this point is contained in the recorded conversations which Ms Chen’s older brother had with the defendant on
20 November 2012.16 The evidence of the pot plant reconstruction relied on for the purposes of the experiment, while neither as detailed nor as graphic as the video recording made on 16 November 2012, is also to be found in the descriptions given by the defendant on 6 November 2012.
Seriousness of the offence
[95] The charge is murder. It is most serious offending.
Are there alternative remedies to exclusion?
[96] It was not contended by either party that any alternative remedy was available which might adequately provide redress to the defendant.
Was the impropriety necessary to avoid apprehended physical danger?
[97] This does not apply.
Was there any urgency in obtaining the evidence?
[98] There was no urgency but, in the circumstances of this case, this is not a relevant factor.
Overall assessment
[99] I am required by s 30(2), having regard to the matters set out above, to determine whether exclusion of the evidence obtained as a consequence of the breach is proportionate to the impropriety. In doing so I am required to also take into account the need for an effective and credible system of justice. In essence, I am required to stand back and make an overall assessment in the context of the case.
[100] The balancing exercise is difficult in this case but the importance of the right breached and the fact that much of the evidence supportive of the Crown’s case is duplicated by other evidential sources leads me to conclude that the exclusion of the
evidence is proportionate to the impropriety in obtaining it.
16 And which I ruled were admissible in R v Liu above n 1 at [135].
[101] Accordingly I am satisfied that the evidence of the 16 November 2012 reconstructions until the point, shortly before 10:00 am when Detective Iremonger repeated the defendant’s rights, is inadmissible.
Relevance of the “If I die …” statement made by Ms Chen
Background
[102] On 8 November 2012 the Police interviewed a long time friend of Ms Chen’s,
Yen Foong Chin, known as Cindy.
[103] Extracts of portions of that statement to which Mr Kan takes objection, are discussed in my earlier judgment.17
[104] The last time Cindy spoke with Ms Chen was late on the morning of Monday,
5 November 2012, the day she went missing. Ms Chen telephoned Cindy. The conversation was, apparently, reasonably short because both participants were at work.
[105] According to Cindy the purpose of Ms Chen calling her was to ask Cindy for advice. Ms Chen indicated she wanted to speak to a lawyer about making a will. She asked Cindy if she knew a lawyer, adding that because she was not married and did not have children, she wanted, to give all her money to her brother in the event of her death. This was the first time the friends had discussed a will although Cindy knew through another source that the question of Ms Chen making a will had been
discussed with the family.18
[106] According to Cindy, Ms Chen said she wished to make a will because she did not want her money going to the defendant and his son. She expressed her anger towards the defendant saying that she wanted to sell the Waiau Street property and
divide the proceeds so she could buy a small place for herself.
17 R v Liu above n 1 at [103(f)].
18 The Crown has advised that at trial it will call Ms Chen’s older brother’s sister-in-law, Candy, who witnessed a family discussion about Ms Chen making a will about six months earlier.
[107] In order to examine the context in which the challenged statement was alleged to have been made it is necessary to set out the relevant passage in full. It reads:
“I said as a good friend if you want to do a will, I am happy to hear that, that
is your own family. Good to do that.
I gave her two examples.
I said you never know what will happen.
If one day you die suddenly, you can put everything to your brother if you have a will.
The second one was if you are having dinner and he put something in food, then what happen?
Cissy said, Cindy, if I die one day, quickly ring the Police, he’s [Jack’s] the
one who kill me.
I was very surprised and I ask her, what happen for both of you, do you argue before?
She never said yes or no and the ending of the phone call was very rushed.”
Challenge
[108] I have previously determined that in relation to the “If I die …” hearsay statement, I am unable to determine its reliability on the present state of the evidence before me. This is because it is impossible to assess the tone, mood and context of this part of the conversation from the written record without hearing evidence from Cindy herself. I have already determined this is an issue more properly decided by the trial Judge, probably by way of voir dire.
[109] However, irrespective of reliability considerations, Mr Kan further submits that the “If I die …” statement is unfairly prejudicial and should be excluded under s 8 of the Evidence Act 2006. It is in relation to that relevance challenge that this aspect of the present judgment focuses.
Crown submissions
[110] The Crown submits that the relevance of this evidence is that it demonstrates the nature of the relationship between the defendant and Ms Chen. Mr Raftery submits that this comment by Ms Chen indicates the parlous state which the relationship had reached by the morning of the day she went missing. It demonstrates Ms Chen was in fear of her life. Mr Raftery submits that while there is ample evidence the relationship had steadily deteriorated over the previous year or so, the level of deterioration had became more pronounced over the first days of November 2012. This exacerbation developed to the point that the conversations which Ms Chen had with others incorporated an element of urgency around getting her brothers’ details and seeking out lawyers with a view to Ms Chen’s will being executed within the next day or so.
[111] He submits that without this evidence an erroneous impression might be left in the minds of the jury that the steps being taken by Ms Chen were simply illustrative of a diligent and careful person putting their family affairs in order. It is only when the “If I die …” statement is considered that the real urgency and the reason for the urgency is capable of being properly understood.
[112] Mr Raftery points to other evidence which supports the conclusion that the relationship was deteriorating such as the observations of neighbours, friends and boarders about seeing or hearing arguments between the couple.
[113] He also pointed to the statement of the defendant’s son who described his father, apparently surreptitiously, giving him $1,000 to buy a present for his girlfriend and that when the defendant’s son was about to leave the house, Ms Chen, uncharacteristically, declined to say goodbye or see him out of the house. This incident occurred on the Sunday evening, in other words the evening before Ms Chen went missing.
[114] Furthermore, Mr Raftery submits that any illegitimate prejudice is capable of being cured by a judicial direction; that daily jurors are given directions as to the proper use of evidence and our system of justice relies upon confidence that such directions are heeded.
Defence submissions
[115] Mr Kan submits it is noteworthy that it was Cindy who introduced the topic of dying suddenly. He submits that nowhere else in the evidence is there any similar mention, either from Ms Chen or anyone else.
[116] He submits that the prejudice is plain. Ms Chen’s apparent premonition that if she died it would be at the hands of the defendant would be wrongly used by the jury as evidence of the fact that the defendant was, indeed, her killer.
[117] He submits that no judicial warning, no matter how strong, would be capable of curing this illegitimate prejudice.
[118] In conclusion Mr Kan submits that while he accepts the evidence enjoys some probative value the unfair prejudicial effect on the proceeding greatly outweighs it and the evidence should be excluded in terms of s 8.
Decision
[119] As with the assessment of reliability I am of the view it is not possible to determine this issue without hearing from Cindy.
[120] In order to assess the probative value of the “If I die …” statement it is necessary to know the tone and contextual mood of the statement itself. It is apparent from other parts of the same conversation that Ms Chen was angry. An assessment needs to be made by the Court as to whether the comment was hyperbole driven by anger. Furthermore, subject to the tone used by Ms Chen, it may have been an attempt by her to make light of or deflect the comment made by Cindy immediately before this sentence is said to have been uttered. The comment may have been uttered in anger or frustration but not because Ms Chen was genuinely in fear of her life. Alternatively, as Mr Raftery presses, it may have displayed a genuine fear for her life indicating the level of dysfunction in the relationship at that time which would, of course, be relevant to motive.
[121] Until those issues are clarified it is simply not possible to make an assessment of the probative value of the statement in terms of s 8.
[122] The proper course will be for the trial Judge to hear the evidence from Cindy herself, tested by way of cross-examination on a voir dire, although that course will, naturally, be a procedural decision for the trial Judge.
Result
[123] Evidence of the pot plant reconstruction is admissible. [124] Evidence of the travel time reconstructions is admissible.
[125] Evidence of the 16 November 2012 interviews (reconstructions) is inadmissible.
[126] The relevance of the “If I die …” statement made by Ms Chen to Cindy is to be determined by the trial Judge.
[127] To protect the defendant’s fair trial rights I make an order prohibiting the publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final
disposition of trial. Publication in law report or law digest is permitted.
Moore J
Solicitors:
Crown Solicitor, Auckland
Mr Kan, Auckland
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