R v M HC Auckland T 011088

[2001] NZHC 641

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY T 011088

THE QUEEN

v

[M]
[S]

Hearing: 9,10,11,12 July 2001

Counsel: S Gray for Crown
F Hogan for [M]
I West for [S]

Judgment: 12 July 2001

ORAL JUDGMENT OF PRIESTLEY J
ON s 347(3) APPLICATIONS

Solicitors:
Meredith Connell & Co, DX CP 24063, Auckland
Counsel:
F Hogan, DX EP 76552, Papakua

I West, PO Box 76 049, Manukau

[1] The Crown concluded its evidence at 5 pm yesterday. By that stage counsel for both accused had indicated that s 347(3) applications were likely. Two separately grounded applications have been made to me this morning by Mrs West acting for the accused [S], and by Mr Hogan acting for the accused [M].

[2] Because both applications canvass different issues I intend to deal with them separately.

[3] I do not intend to traverse the evidence which I have heard. The two accused are jointly charged under s 115(a) of the Crimes Act that they conspired to prosecute [K] for a sexual crime knowing him to be innocent thereof. The sexual crime in question was sexual violation of the accused [M] with a rolling pin. The date of the alleged conspiracy is between 2 July 2000 and 18 July 2000. The former date is the date of the accused [M]’s marriage to Mr [K]. The latter date is the date on which a detailed police statement by the accused [M] as complainant was finalised.

[4] By way of further background on 26 and 27 June 2001, Potter J heard detailed evidence on the Crown’s s 344A application relating to admissibility. Potter J’s decision was delivered on 29 June 2001. The challenge of the two accused was rejected and all the evidence which the jury has heard in this trial flowed from Potter J’s s 344A decision.

Application of [S]

[5] The relevant evidence is discernible from my notes and need be summarised only briefly. Some time around 10 pm on 12 September 2000 the accused [M] went to see Detective Sergeant Baldwin, the officer in charge of the [K] prosecution, for the purpose of finalising her deposition statement. During the course of that interview the accused [M] stated that the portion of her depositions brief which related to the rolling pin violation was false. She stated that, at her aunt’s suggestion (the accused [S]), she had fabricated this allegation for the purpose of making matters for her husband Mr [K] more serious and in the hope that the police would take her allegations more seriously as a result. Mr [K] had already been arrested and charged on the basis of that complaint, the rolling pin violation forming one of some 11 charges which had been laid against him.

[6] Detective Sergeant Baldwin was understandably concerned about this retraction. Foremost in his mind at that stage would have been whether the accused [M] was a reliable complainant and, if she had not been telling the truth in relation to the rolling pin allegation, whether her other allegations on the serious sexual offending charges against her husband were reliable.

[7] Sometime around midnight, probably 11.45 pm or thereabouts, Detective Sergeant Baldwin telephoned on a cellphone Detective Constable Winder who had also been involved in the [K] investigation and was a member of the team which Mr Baldwin headed. The instruction was given to proceed to the residential address of Mrs [S] and to bring her into the police station for questioning. Detective Constable Winder of course obeyed this order and he and another constable shortly on or after midnight, knocked on the door at Mrs [S]’s home. The door was answered by another member of the household and Mrs [S], despite having concerns about a sick child, voluntarily accompanied Detective Constable Winder to the police station.

[8] At the police station Mrs [S] was subjected to an interview. The purpose of the interview, initially at least, appears to have been to verify whether her niece’s (the accused [M]) retraction of the rolling pin charge was correct. This interview took place in a room in the absence of the niece. It was an interview which comprised two phases and seems to have spanned a period of approximately an hour and 10 minutes. Detective Winder’s notebook suggests that Mrs [S] was uplifted from her address at a quarter past midnight on 13 September and arrived at the police station at Wiri 10 minutes later.

[9] There is evidence that during the course of interviewing Mrs [S] Detective Winder was in regular contact with his superior officer Detective Sergeant Baldwin. Detective Sergeant Baldwin was still at that stage interviewing Ms [M] and understandably the two police officers compared notes from time to time. There is a potential conflict of evidence as to whether or not Detective Sergeant Baldwin entered the interview room containing Mrs [S] on two or more occasions.

[10] Mrs [S]’s stance during the course of being interviewed was to deny her niece’s accusations and to deny that she and her niece had conspired to fabricate the rolling pin allegation. Faced with this denial Detective Sergeant Baldwin decided that the best approach was to put both accused into the same interview room so that the accused [S] could hear what her niece had to say. This occurred. In the presence of police officers the niece implicated her aunt certainly to the extent of alleging that the rolling pin allegation was the aunt’s idea. It appears on the evidence that the aunt was either mute or initially denied the allegation. Subsequently, however, she “confessed” that the rolling pin allegation was indeed a fabrication to which she had been a party. She was cautioned and made a statement to Detective Constable Winder which was recorded in his notebook and which was duly signed.

[11] The evidence before me from Detective Constable Winder was not identical to that heard by Potter J. Before Potter J (page 8, line 10 of her notes) Constable Winder stated that towards the end of the interview involving both women he felt more confident that Mrs [S] was lying. He then decided to caution her and that subsequently the notebook statement was taken.

[12] In his job sheet, however, and his depositions evidence, both of which were made considerably nearer the time of the relevant events than his evidence last month before Potter J, Detective Constable Winder stated that during the course of him suggesting to Mrs [S] that it would be unusual for her niece to lie about her aunt’s involvement, Mrs [S] conceded that there had been a discussion about the rolling pin aspect of the complaint, whereupon he administered a caution.

[13] When being cross-examined in this trial (page 55, lines 18 to 34) Detective Constable Winder’s evidence was that he recalls giving Mrs [S] a caution and then led straight into the statement. He did, however, concede that his job sheet of 13 September and his depositions statement made in October were more likely to be a correct recollection. That concession is the only proper basis on which Mrs West for the accused [S] can be permitted to revisit matters and understandably, of course, she has.

[14] The issue which I must decide is whether Mrs [S] should have been cautioned at a much earlier stage than she was. In counsel’s submission it is immaterial whether Mrs [S] made her admission before or after Detective Winder administered the caution. Of particular relevance here are the rights conferred on Mrs [S] by s 23(1) of the New Zealand Bill of Rights Act 1990. It is not necessary for me to review the case law on that section. Suffice to say that the Court of Appeal in R v Takira [1993] 3 NZLR 257 has rightly observed that the prima facie rule for a breach of s 23(3) should be one of exclusion of evidence obtained “in consequence” of such a breach. There must be a real and substantial connection between the breach concerned and the evidence obtained.

[15] The rights conferred by the New Zealand Bill of Rights Act must be given substance by New Zealand courts. They are not empty rights. They must at all relevant stages govern not only the admissibility of evidence but also the treatment of New Zealand citizens by the police and other relevant authorities.

[16] The facts of this case so far as Mrs [S] are concerned are particular relevant. I accept Detective Sergeant Baldwin’s evidence that at the point that Ms [M] retracted the rolling pin allegation he had serious concerns. He may already have had concerns stemming from other sources relating to the cultural background of the [K] investigation; the fact that the accused Ms [M] was a young woman who had been persuaded by her family to enter into an arranged marriage with a person who lived in India. There were aspects which permeate the police documents relating to a dowry, and certainly from the point of view of Detective Sergeant Baldwin, although prima facie a sexual violation case, there were unusual overtones of both a cultural and a factual nature which would in any event have placed him in a difficult position. Detective Sergeant Baldwin, as investigating officer, would quite justifiably need to exercise some caution. His decision on that night was to issue an immediate order to bring Mrs [S] into the police station. I accept that his purpose in doing so was to investigate as rapidly and as thoroughly as he could whether or not the retraction by Ms [M] of the rolling pin allegation was a correct retraction and whether or not Mrs [S] had indeed suggested to her niece the fabrication of that particular allegation.

[17] Having accepted as I do that this was Detective Sergeant Baldwin’s primary focus, in respect of which no criticism at all can attach to him, nonetheless the rights conferred on Mrs [S] by the New Zealand Bill of Rights Act needed to be considered in conjunction with his primary concerns. Mrs West is in my view correct in her submission that at the stage that Mrs [S] was implicated, or indeed inculpated by her niece, some consideration needed to be given to those rights. The circumstances of what happened in the police station in Wiri also need to be considered. This was not a situation (unlike that which pertained at the relevant time to Ms [M]) where Mrs [S] was at the police station helping the police with their inquiries or for some other purpose related to the [K] investigation. A police car had been despatched to her home as a matter of urgency. She was persuaded to accompany Detective Constable Winder to the police station. She arrived there in the early hours of the morning. She was then, as part of the legitimate police investigation of their concerns, interrogated and interviewed by Detective Constable Winder in a separate room. She denied what her niece was saying and despite those denials, the second phase of her stay in the police station that night was to place her in the same room as the person who inculpated her so that she herself could hear what her niece was saying.

[18] Although undoubtedly the police concern was to check the veracity of Ms [M]’s complaints across the board, and as I said I have no criticism of them for adopting that approach, riding parallel with the prime police concern was the fact that if the niece’s allegations were correct then not only was Mrs [S] implicated and inculpated in a false complaint by her niece, but also she should have been regarded as a suspect. I have no difficulty in accepting that charging Mrs [S] with an offence under s 115(a) of the Crimes Act that night was far from the minds of Detective Sergeant Baldwin or Detective Constable Winder. Nonetheless, there was at the stage that the retraction was made, an inherent risk if not a probability, that if what Ms [M] was saying was correct, Mrs [S] could be involved as a party to a serious offence. Such has proved to be the case.

[19] The other available evidence so far as the accused Mrs [S] is concerned is a telephone call which she made to Detective Sergeant Baldwin later that morning sometime after 5 am and a fax of an apologetic or possibly mitigating nature which has not been received in evidence but on which Crown witnesses have been cross-examined. The primary evidence of course is the notebook statement taken by Detective Constable Winder. If that statement was to be excluded, in my judgment there would have been absolutely no motivation for Mrs [S] to commit herself to a telephone apology or to sending the fax.

[20] Had Mrs [S] voluntarily confessed her alleged conspiracy to the police in different circumstances such as for instance in the same way as her niece appears to have done, my approach would be different. I can understand the reason why a caution was not administered at an earlier stage. I would have adopted a more forgiving approach had a caution been administered any time up to the taking of Mrs [S] into the interview room with her niece. However, in my judgment even though I can perfectly understand his failure to have administered a caution at the stage that Detective Constable Winder reached the view that Mrs [S]’s denials of her niece’s accusations were not correct, a caution should have been administered. In my view that stage would have been reached fairly early on in the course of this interview with her. Had he not believed that Mrs [S]’s denials were suspect there would have been little purpose in continuing the interview with her, particularly at that early hour of the morning.

[21] The taking of Mrs [S] to the police station in the circumstances that I have described and at that hour are also a matter of concern to me. I can understand the Detective Sergeant’s need to prioritise this aspect of his investigation of the [K] matter. However, for any civilian the arrival of a police car at a residential address and a courteous request to accompany a police officer to the police station would have been an alarming event, certainly something untoward, and not a request which many civilians would think of refusing.

[22] Although in the early hours of the morning of 13 September I do not consider Mrs [S] was “detained” as that expression has been used in s 23, nor was she at that stage for the reasons I have described a “suspect”, she certainly was a potential suspect in my view from the point she set foot into the police car. Her presence was for all intents and purposes a de facto detention in the sense that she was in a police station in an interviewing room and being faced with proper but persistent questions stemming from Detective Constable Winder.

[23] For all these reasons and given the clear policy need to prioritise Mrs [S]’s rights conferred by s 23(4) of the Bill of Rights Act I am of the view that the notebook statement taken by Detective Constable Winder is inadmissible. In particular, and this is where I diverge from Potter J, I think Detective Constable Winder was right and the admission was made before rather than after he cautioned her although I accept that the caution was administered shortly or immediately thereafter. I also agree with Mrs West’s submission that the telephone apology and the facsimile are inextricably linked with the notebook statement taken.

[24] I thus rule that the statement taken by Detective Constable Winder is inadmissible for the reasons which I have just stated as are the other two aspects of the Crown’s evidence against her (the fax and the telephone apology). It thus follows that there is no evidence for Mrs [S] to put before the jury and she will thus be discharged under s 347(3) of the Crimes Act 1961.

[25] In making that decision I want to make two things abundantly clear. Mrs [S]’s success in her application is for reasons which are essentially technical and legal. I do not believe that the police and in particular Detective Constable Winder or Detective Sergeant Baldwin can be criticised for the approach which they took that evening. Their primary concern was for the reasons I have stated, the reliability of Ms [M]’s evidence as it related not only to the rolling pin charge but to all charges which had been laid against Mr [K]. I accept that it was not until a relatively late stage that evening that either police officer saw the need to administer a caution and to advise Mrs [S] of her New Zealand Bill of Rights. That they failed to do so is perfectly understandable. However, for the reasons which I have stated and in particular Mrs [S]’s potential status as a suspect at a much earlier stage than this was apparent to the police, the caution should have been administered.

[26] Whether there are other aspects relating to Mrs [S]’s conduct in this matter for which she should be criticised or in respect of which she is still potentially liable to be charged I know not and I make no comment. Only Mrs [S] will know whether in fact she did do what she confessed to Detective Constable Winder that night in the now inadmissible statement. It is a matter of concern that she failed to turn up as a Crown witness to the [K] trial. It may well be to a large extent that Mrs [S] is the victim of her own actions. Nonetheless the interface of constitutional law and the liberty of a subject usually takes place in the criminal arena. Mrs [S] is the beneficiary of those rights regardless of what her moral culpability may be.

[M]

[27] Mr Hogan sought a s 347(3) discharge initially on two limbs. The first limb was that in fact the rolling pin violation did occur. He had at an earlier stage referred to available medical evidence and I have already with the consent of counsel read out to the jury Ms [M]’s evidence in the [K] trial under oath in which she said that the end of the rolling pin was inserted into her vagina even though that was not a charge that Mr [K] then faced. However, the truth of what may or may not have happened with the rolling pin and the accused does not lie centre stage in respect of a 347 application. The test is whether there is evidence available to the jury which if, properly directed, they may accept, and which justifies the trial proceeding. It is abundantly clear that regardless of the veracity of the historical use of the rolling pin, there was ample evidence to place before a jury at the close of the Crown case. This includes of course Ms [M]’s voluntary retraction to Detective Sergeant Baldwin; her uncautioned statement (exhibit 4) taken probably in two portions between 2350 hours on 12 September 2000 and 01.45 hours on 13 September; her own somewhat exculpatory fax to the police despatched on 15 September 2000 (exhibit A) and finally of course, her cautioned statement made on 26 September (exhibit 9).

[28] I have indicated some concerns about what occurred at the police station on 26 September. The accused Ms [M] was asked to go to the police station to read and sign her amended depositions statement. By that stage Detective Sergeant Baldwin had taken advice both from senior police officers and from the Crown Solicitor and had decided that Ms [M] was to be prosecuted. An information or summons alleging an offence under s 115(a) of the Crimes Act had already been sworn and was at the police station to be served on the accused when she left. Detective Sergeant Baldwin candidly conceded that the reason for him administering the caution at the rather unusual time of proffering to the accused her depositions statement was because he perceived there could well be an argument that her uncautioned statement of 12 September (exhibit 4) could be challenged.

[29] Ms [M] was cautioned; exhibit 9 resulted. I have expressed the view during argument with counsel that it could well have been deception not to have informed Ms [M] in advance that she was to be prosecuted. The first inkling she would have had of course would have been her parting gift at the police station of service of summons. That, however, is not a deception which in any way can be used to challenge the admissibility of exhibit 9 which was preceded by a proper caution.

[30] The second limb of Mr Hogan’s application was that the police had an agenda which flowed from a reduced confidence in Ms [M]. That agenda included an endeavour to obtain a retraction of some if not all of her statements and constituted in addition, an attempt to get her to agree to drop all the charges against Mr [K], possibly on the basis that no further action would be taken against the accused personally. In Mr Hogan’s submission the true purpose of the police was to wear her down when she arrived at the police station on the night of 12 September.

[31] It may well be that Ms [M], if she so elects, will give evidence along those lines. Certainly those aspects have been put to the police officers in cross-examination. However, there is no evidence before me at the moment which on the balance of probabilities would persuade me that that was indeed the police “agenda”.

[32] In Mr Hogan’s submission Ms [M] should have been cautioned immediately on blurting out to Detective Sergeant Baldwin that the rolling pin allegation was a fabrication. In his submission the failure to administer such a caution renders inadmissible not only the uncautioned retraction (exhibit 4) but everything downstream from that.

[33] As a supplementary argument Mr Hogan has reminded me that weaved through s 347 is a requirement for a presiding Judge to take into account the overall interests of justice. This was a factor which apparently weighed with Nicholson J who discharged Mr [K], despite evidence from Ms [M] in her role as complainant, some three or four weeks ago.

[34] In considering the discretion I have under s 347(3) I am mindful of the recent court of Appeal decision in R v F (CA 211/00, 16 August 2000). The overall interests of justice of course require anxious consideration of a discharge if the Crown in particular is in a position where it has to persuade a jury that they can be sure of conviction when the credibility of a Crown witness has been serious impeached. I do not consider in this case that the credibility of the Crown witnesses against Ms [M] have been seriously impeached. There is certainly many aspects of the police evidence where there are inconsistencies and there are a large range of areas where I am sure counsel can argue cogently to the jury they should entertain a reasonable doubt. That, however, is not the purpose of a s 347 application and it is not my function as trial Judge to usurp the jury’s role.

[35] For the Crown Ms Gray has submitted the Crown case against Ms [M] as strong; that she blurted it out during the course of her interview with Detective Sergeant Baldwin, - a submission which is undoubtedly correct; and exhibit 4 stands alone as a retraction. Ms Gray further submits that there is no evidence that the police in any way have treated the accused unfairly or in a deceptive fashion. Certainly the factors which have persuaded me to discharge Mrs [S] are not applicable in this particular case. The retraction by Ms [M] was voluntary.

[36] The accused’s case as articulated succinctly by her counsel to the jury on the first day of the trial is that the rolling pin allegation is in fact true and that her retraction was a result of police oppression and was induced by the police. The jury have yet to hear all the evidence in that regard because the accused and her witnesses have not yet given evidence.

[37] I do not consider that the verbal retraction made by the accused to Detective Sergeant Baldwin on the night of 12 September is inadmissible for New Zealand Bill of Rights Act or other reasons. I hold a similar view so far as exhibit 4 is concerned. There are no serious issues arising out of exhibit A the fax, or of course the 26 September statement which is consistent with all retractions the accused had hitherto made and was preceded by a caution.

[38] Obviously there are serious credibility issues arising out of what aspects of the rolling pin allegations are true or false. These strike me as being core credibility issues which is the province of the jury to decide.

[39]Therefore in respect of Ms [M]’s s 347 application, for reasons I have stated, the application is dismissed.

Related concern

[40] The Court is now in a novel situation where of two conspirators, and there are only two in this particular case, one has been discharged under s 347(3) which is tantamount to acquittal, but the Crown case against the other will proceed before the jury.

[41] I have some considerable unease as to whether in a criminal charge involving but two conspirators it is legally possible for one conspirator to be acquitted whilst the other conspirator is left with a possible result of a guilty verdict and a conviction.

[42] In the short time available to me I have been unable to find any clear authority on the topic. Crown Counsel Ms Gray and also in an endeavour to assist the Court Mrs West, have submitted to me in a general way that such a result might be possible. It may well be of course that the issue becomes moot if at the conclusion of the trial Ms [M] is acquitted by the jury.

[43] As an aside I must confess to some unease about a woman who at the time of the alleged offending was only 18, who had been subjected to an arranged marriage and who clearly must have been subject to some form of sexual behaviour which discomforted her, being prosecuted on such a serious charge and in the High Court. However, those are not matters which are relevant to anything I have to decide. The way I intend to approach the paradox as to whether or not it is legally possible for Ms [M] to face the risk of conviction in a situation where her sole co-conspirator has been acquitted will be to reserve the issue as a matter of law under s 380 of the Crimes Act 1961. I note that under s 380(4) if there is an acquittal the normal mandatory requirement to discharge the accused applies but an accused can be re-arrested and retried if the Court of Appeal orders a new trial.

[44] All that, however, lies ahead and I would be obliged if at an appropriate stage Ms Gray and Mr Hogan could settle in conjunction with me the question of law I have highlighted in this portion of my decision. It is probably novel. Conspiracy charges usually involve more than one accused. The problem would not arise if one conspirator had been discharged and two remained. That is not, however, the case here, and obviously there are conceptual problems with maintaining that a conspiracy between two people exists when one of the conspirators has already been acquitted.