R v McCallum HC Auckland CRI 2006-004-17181

[2007] NZHC 2065

ORDER PROHIBITING PUBLICATION OF ANY PART OF THE PROCEEDINGS (EXCEPT THE OUTCOME) UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-004-17181

QUEEN

v

SHEREE ANN MCCALLUM

Hearing:         2 August 2007

Appearances: K Lummis for Crown

J Lethbridge for Accused

Judgment:      29 August 2007 at 10:00 am

JUDGMENT OF ASHER J

This judgment was delivered by me on 29 August 2007 at 10:00 am pursuant to Rule 540(4) of the High Court Rules

………………………………………..

Registrar/Deputy Registrar

………………………………………..

Date

Solicitors:

Meredith Connell, PO Box 2213 Auckland

Public Defence Service, PO Box 90243 Auckland Mail Service Centre

R V MCCALLUM HC AK CRI 2006-004-17181  29 August 2007

Table of Contents

Paragraph Number

Introduction  [1] The taking of Ms McCallum’s statement  [4] The issues     [10] The test for detention  [12] Was there detention?  [18] The parties’ subjective intentions  [19] Objective reasonableness of Ms McCallum’s belief  [24]

The advice  [27]

At  the  outset  of   the  interview  in   Ms McCallum’s bedroom

[29]

At the police station  [37]

The balancing exercise  [47]

The importance of any right breached by the impropriety, and the seriousness of the intrusion on it: (s 30(3)(a))

The nature of the impropriety, in particular, whether it was   deliberate,   reckless,   or   done   in   bad   faith: (s 30(3)(b))

The nature and quality of the improperly obtained evidence: (3 30(3)(c))

The seriousness of the offence with which the defendant is charged: (s 30(3)(d))

The availability of  other  investigative  techniques  not involving any breach of the rights: (s 30(3)(e))

[52] [53]

[54] [58]

[60]

Other matters: (s 30(3)(f)-(h))  [61] The fact that a confession is at issue  [64] Conclusion on balancing exercise  [66] Conclusion           [67]

Introduction

[1]      The Crown has applied under s 344A of the Crimes Act 1961 for an order that a statement provided by the accused, Sheree Ann McCallum, is admissible.

[2]      Ms McCallum faces the following two charges:

a)        One charge of conspiracy with Douglas Gordon Hay to supply a class

A controlled drug namely methamphetamine; and

b)       One   charge   of   supplying   a   class   A   controlled   drug   namely methamphetamine.

[3]      Ms McCallum’s statement was provided both at her place of residence and at the  police  station.    The  Public  Defender  submits  that  the  police  advice  as  to Ms McCallum’s rights under the New Zealand Bill of Rights Act 1990 (“the Bill of Rights”) was insufficient, and that the statement was therefore obtained improperly.

The taking of Ms McCallum’s statement

[4]      On 18 August 2006 Ms McCallum had been allegedly working as a prostitute in Auckland.  The police were investigating the methamphetamine dealing activities of a Douglas Gordon Hay.  They had intercepted telephone discussions and had text messages which implicated Ms McCallum in Mr Hay’s activities.

[5]      At 2:50 pm on Friday 18 August 2006 Ms McCallum was living in a room in a boarding house in Te Atatu South.  At 2:50 pm that afternoon she was in bed in her nightdress.   There was a knock on the  door  and two  police  officers  introduced themselves, being Detective Prentice and Detective McLaughlin.   They said they were police officers from Nelson, and with her consent entered her room.   They cautioned her and formally advised her that she had the right to a lawyer pursuant to s 23(1)(b) of the Bill of Rights.  They said that they were there to talk to her about Douglas Hay and her involvement with him.   Ms McCallum put on her dressing gown and got back into the bed.   The interview then proceeded for approximately

one quarter of an hour during which the Detectives proceeded to take a statement. Detective Prentice   sat   at   the   end   of   the   bed.   Detective McLaughlin,   with Ms McCallum’s consent, searched the room, looking in drawers and her bag.

[6]      After   taking   Ms McCallum’s   statement   for   a   quarter   of   an   hour, Detective Prentice said he no longer felt comfortable sitting on the edge of her bed. At 3:05 pm Detective Prentice asked Ms McCallum to come to the Auckland police station for an interview.

[7]      Detective Prentice and Detective McLaughlin went outside the room while Ms McCallum changed.  She had a shower and it took her about 10 minutes to get ready.   When she opened the door she said that the police officers were standing outside her room.  Detective Prentice in evidence acknowledged that that might have been so, although he said he and Detective McLaughlin had gone out onto the road to wait for her for a period, and would only have returned to wait at the door when they became concerned about how much time had gone by.   Ms McCallum then went to the police car with them, and they opened the car door for her to get in.

[8]      They went to an interview room in the Auckland Central Police Station, and at 3:30 pm the  interview continued, and carried on through to  5:30 pm.   At the conclusion of the interview Detective Prentice told Ms McCallum that he was going to arrest her.  He then formally cautioned her and advised her of her rights under the Bill of Rights.  Ms McCallum was taken through the contents of the police notebook and signed it as an accurate record of the conversation.  She was then taken to the watchhouse for processing.

[9]      In the statement Ms McCallum appeared to be frank and articulate, and gave details of a considerable involvement with Mr Hay over a period of some weeks. She was aware that he was involved both in obtaining products for the manufacture of methamphetamine and in the selling of methamphetamine, and she reported assisting him by driving him to places and receiving money from methamphetamine sales into her bank account.   She also acknowledged receiving methamphetamine from him, and supplying some limited quantities of methamphetamine.

The issues

[10]     Ms Lethbridge for Ms McCallum, in arguing that the statement should not be admitted, made the following submissions:

a)       Ms McCallum was detained by the police for the purposes of the Bill of Rights from the time she went with the police to the police station and therefore the police were obliged to give advice pursuant to s 23 of the Bill of Rights.

b)       The  caution  and  Bill  of  Rights  advice  given  by  the  police  to Ms McCallum was deficient in that such advice was given only at the outset of the interview  in the bedroom and  not  given  again  when Ms McCallum was detained.

c)        The caution and Bill of Rights advice were defective in their form.

[11]     There is no doubt that Ms McCallum was detained when she was arrested at the conclusion of the interview.  That is not the issue that arises.  The issue, rather, is whether she was detained at an earlier point, partway through giving the statement.

The test for detention

[12]     The question arises whether Ms McCallum was “detained” so as to engage the police obligation in s 23 of the Bill of Rights to give her the advice required by s

23(1)(a) and (b).  Section 23 reads:

23       Rights of persons arrested or detained

(1)      Everyone who is arrested or who is detained under any enactment— (a)   Shall be informed at the time of the arrest or detention of the

reason for it; and

(b)      Shall have the right to consult and instruct a lawyer without delay and to be informed of that right;

…

[13]     It is now settled that the question of whether someone is detained within the meaning   of   s 23   of   the   Bill   of   Rights   is   determined    by   a    “mixed objective/subjective” test.  In Everitt v Attorney-General [2002] 1 NZLR 82 it was stated at [7]:

In general terms, whether someone is detained within the meaning of s 22 of the Bill of Rights may be determined by a “mixed objective/subjective test: does the suspect have a reasonably held belief, induced by police conduct, that he or she is not free to leave” (R v M [1995] 1 NZLR 242 at p 245). A commonsense and practical approach is called for and something more than a temporary check on a citizen’s liberty is required.

[14]     A genuine belief on Ms McCallum’s part that she was not free to leave, or a genuine belief on the police’s part that  she was free to leave, will therefore be relevant.  However, neither the subjective intentions of the police nor the perceptions of the suspect are determinative: Police v Smith CA196/93 13 July 1993.  It is also necessary to consider objectively whether the parties’ beliefs were reasonably held.

[15]     To this end, it is clear in terms of  Everitt that any belief on Ms McCallum’s part that she was being detained must have been in some way induced by police conduct.     “Police  conduct”  must  be  something  more  than  just  the  general environment of the interview.  It is important to bear in mind that the police have a duty to investigate and prosecute crime and therefore the “fact that they are interviewing  a  suspect  at  a  police  station  does  not  mean  that  he  or  she  must inevitably be regarded as detained”: R v Edwards (1991) 7 CRNZ 528 (CA) at 535. In that case Casey J went on to observe that "a coercive environment by itself is not a restriction on the freedom to depart."

[16]     Rather, conduct which on an objective test would have induced a reasonable person to believe that the person was detained is required.  This sort of action would include, for example, words indicating that a witness was obliged to co-operate, generally intimidating behaviour by the police, or words indicating that the person to be interviewed was  suspected of a serious crime.  As was stated by Fisher J in R v Adams (1993) 10 CRNZ 687 at 698, after referring to what Cooke P said in R v Butcher [1992] 2 NZLR 257:

One could say at a philosophical level that any belief by the suspect in circumstances  such as  we have here  must  have been  induced  by  police

conduct in the sense that Mr Adams  would not have gone to the police station without an invitation to do so. However, something more direct and assertive on the part of the police must have been intended by Cooke P when he required that the belief in detention be "reasonably'' held. It cannot be the case that whenever the police arrange outwardly consensual interviews at the police station they run the risk that, unknown to the police,  the suspect believes that he or she is not free to do anything else and that in consequence there is an arbitrary arrest or detention for Bill of Rights purposes.

[17]     In R v M [1995] 1 NZLR 242 at 245, the following factors referred to in R v Moran (1987) 36 CC (3d) 225 were set out as a non-exhaustive list of relevant factors going to reasonableness of the belief:

1)The precise  language  used  by the  police  officer  in requesting  the person to come to the police station, and whether the suspect was given a choice or expressed a preference that the interview be conducted at the police station rather than at home.

2)Whether the accused was escorted to the police station or came in response to a police request.

3)Whether the accused left at the conclusion of the interview or whether he was arrested.

4)The state of the investigation, in particular whether the questioning was part of the general investigation of a crime, or whether the police had already decided that a crime had been committed and that the accused was the perpetrator or involved in its commission and the questioning was conducted for the purpose of obtaining incriminating statements from the accused.

5)Whether the police had reasonable and probable grounds to believe that the accused had committed the crime being investigated.

6)The nature of the questions; whether they were questions of a general nature designed to obtain information or whether the accused was confronted with evidence pointing to his guilt.

I turn now to apply the test set out in Everitt and R v M to the facts of this case.

Was there detention?

[18]     In considering whether Ms McCallum was detained according to the test laid out earlier,  I  bear  in  mind  that  the onus  falls  on  the  Crown to  prove that  Ms McCallum  was  not  detained.    I  first  consider  whether  the  parties  subjectively believed that Ms McCallum was detained in the sense of not being free to go.

The parties’ subjective intentions

[19]     Ms McCallum was called to give evidence before me in the course of the s 344A hearing.  She stated that when the police officers told her that they wished her to go down to the Auckland Central Police Station, she considered that she did not have any option but to do so.  She considered that she had to go with them.  Later she reiterated that “I had no option but to go”.   She was not challenged on the genuineness of this belief.  I am satisfied that the belief was genuine and that, on a subjective basis, she considered herself detained.

[20]     For his part, Detective Prentice was cross-examined at depositions at some length about  whether  he  intended  to  detain Ms McCallum during  the  interview. Although  Detective Prentice  was  called  again  before  me,  he  was  not  examined further on this issue.

[21]     It  was  not  suggested  to  him  during  cross-examination  that  he  had  any intention to detain Ms McCallum at the outset of the interview.  However, it was put to him that after taking the first part of her statement on the bed, if Ms McCallum had declined to go to the police station he would have detained her and taken her to the police station for the purpose of further questioning.  When that question was put to him there was the following exchange:

If that were the case I would have had two options, I could have continued talking with her in her room or I could have detained her and asked her back to [the police station], yes.

To the extent that you could have continued talking to her in her bedroom she would not have been free to go from there would she?….. Possibly, not.

[22]     When this exchange is considered against the backdrop of what the police were investigating and what was said by Ms McCallum during the initial interview, I conclude that Detective Prentice would have insisted that Ms McCallum go to the police station with him if she had declined to do so and ultimately, if she had refused to go, would have arrested her.

[23]     I now turn to consider whether Ms McCallum’s belief that she was being detained was reasonable on an objective basis, bearing in mind the matters referred to in R v Moran.

Objective reasonableness of Ms McCallum’s belief

[24]     The following factors arise:

a)      The  interview  was  part  of  an  investigation  into  serious methamphetamine dealing.  The police analysis of the text messages to and from cellphones operated by Mr Hay strongly suggested, as stated in the summary of facts, that he was supplying controlled drugs, and  that  persons  below  him  were  receiving  drugs  and  in  turn supplying customers of their own.   Ms McCallum was a known associate of a man believed to be involved in serious offending.  She was a suspect.  This is relevant in terms of factor 4 of R v Moran.  The Police were likely to be very interested in keeping her until they had obtained a statement.

b)       The  fact  that  the  police  came  into  her  bedroom and  then  took  a statement from her while she was in bed and still in her night-clothes indicates a determination to pursue matters, if necessary, to an arrest. A more moderate alternative of asking her to come down to the police station at a time to be fixed was not pursued.

c)       In the initial part of her statement from her bed, she admitted knowing Douglas Hay.   She said that she was not surprised that he had been arrested for conspiracy to supply methamphetamine, and said that she

had consumed methamphetamine with Mr Hay a “couple of times”. By the end of the interview in her bedroom, the police had enough information to show that she was likely to be the person with whom Mr Hay    had     been    communicating    about    the    supply    of methamphetamine.   They arrested her.   This is relevant in terms of factor 3 of R v Moran.

d)The police action in searching her room and bag, sitting on the end of her bed, waiting for her outside her door, and walking her to the car where they opened the door, all indicate that she was a suspect and was obliged to go with them.  It is relevant in terms of factor 2 of R v Moran.

e)        She was not given any choice or options by the Police when she was requested  in the  bedroom to  come  to  the  police  station.    This  is relevant in terms of factor 1 in R v Moran.

f)        The police had found what appeared to be a methamphetamine pipe in Ms McCallum’s room.  There was therefore a basis for charging her at that point, although ultimately this was not pursued.

[25]     Ms McCallum’s belief that she was detained was thus the culmination of the police arrival at her door and entry of her bedroom, their taking of a statement from her bed, their search of the room and her bag and their waiting for her to get dressed, coming to her door and escorting her into the police car.   From an objective assessment of the events as they unfolded, I consider that the actions of the police officers were sufficiently suggestive of an intention to arrest Ms McCallum if she sought to leave that her belief that she was detained was reasonable.   Indeed, the statement of Detective Prentice tends to support this conclusion.

[26]     I am therefore satisfied that Ms McCallum had a genuine and reasonably held belief that she was obliged to go to the police station with the police officers.   I therefore conclude that Ms McCallum was detained from the point when she went back to the police station with the Detectives.

The advice

[27]     Given that I have found that the police officers had detained Ms McCallum in asking her to come back to the police station and escorting her there, the police were obliged to provide her with a caution as required by the Judges’ rules, and to inform her in terms of s 23(1) of the Bill of Rights:

a)        of the reason for her detention; and

b)       of the right to consult and instruct a lawyer without delay.

It now falls to assess what advice was given by the police at what stage of the interview, and the adequacy or otherwise of that advice.

[28]     I  note  at  the  outset  that  I  consider  that  both  Detective Prentice  and Ms McCallum  were  truthful  witnesses  in  their  description  of  the  events  that unfolded, although I do not accept that Ms McCallum was, as she asserted in her evidence, a person who  had  “never  been  in trouble  before”.    She  had  had  two brushes with the police, and would have had some awareness of police practices.

At the outset of the interview in Ms McCallum’s bedroom

[29]     The nature of the advice provided in Ms McCallum’s bedroom at the outset of the interview is recorded in the police officers’ notebook.   After a reference to giving Ms McCallum the caution and Bill of Rights, the notebook reads:

Q:       Do you understand these rights? A:        Yeah, yeah, what’s this all about?

Q:       You’re [sic] involvement with Doug Hay?

A:I’ve only known him about 4 weeks … ah, and I haven’t seen him in a while.

[30]     It  is  clear,  then,  that  at  the  outset  of  the  interview  in  Ms  McCallum’s bedroom, police formally cautioned Ms McCallum, advised her of her right to a lawyer  and  advised  her  that  the  interview  was  about  her  “involvement  with

Doug Hay”.   Indeed this is recorded in Detective Prentice’s notebook, which has been signed by Ms McCallum.  Ms McCallum did not deny that this is what she was told.  Yet Detective Prentice stated in evidence before me that Ms McCallum was a suspect from the outset.

[31]     I must now consider whether this was sufficient to qualify as advice as to the reason for the interview within the meaning of s 23(1)(a).

[32]     What  is  required  by  advice  as  to  the  “reason  for  the  interview”  was considered by the Court of Appeal in R v Tawhiti [1993] 3 NZLR 594 at 595-596. In that case, the Court held that for advice as to the reason for the interview to be effective, the police must have conveyed the extent and seriousness of the charges. It is necessary for a suspect to understand this so that an informed decision can be made as to whether to give a statement.

[33]     It is also clear that it is the suspect’s subjective understanding, rather than the police explanation, that will determine whether the advice as to the reason for the interview is sufficient.  In R v Mallinson [1993] 1 NZLR 528 it was stated at [6]:

The crucial question is whether it was brought home to the arrested person that he or she had those rights.  That is not the same question as whether the police were justified in assuming that he or she did understand them.   To look at it simply from the perspective of the police officer would mean that the person arrested who did not in fact understand the position would not be able to make an informed choice with respect to the exercise or waiver of the guaranteed right.

[34]     It was further stated in R v Robinson CA16/97 12 May 1997 at 5 that where there is detention:

… an allegedly voluntary waiver of an accused's right to counsel must be properly informed: that is, an accused must be possessed of sufficient information to enable him or her to make an informed decision as to whether to speak to a lawyer (R v Tawhiti [1993] 3 NZLR 594, and the authorities therein referred to). It follows that a suspect must know the real substance of the likely allegations against him or her at the point of interview (see R v Etheridge (1992) 9 CRNZ 268; and R v Tihi (1990) 5 CRNZ 472, which although not a Bill of Rights case is of assistance).  Ms Phipps conceded that the appellant did not have to know the precise charge in this case, although that is not to say that there may not be cases in which the precise character of a charge would have to be made known to the interviewee.

[35]     I conclude that Ms McCallum was not properly informed as to the reason for the interview.  It was not brought home to her that she was a suspect of serious drug offending involving Mr Hay.   This is crucial, because as Fisher J said in Caie v Attorney General HC AK CP334-SD99 6 April 2001 at [109]:

Once a suspect is able to identify the act or omission for which he or she is arrested, and the broad legal category of crime which that act or omission is said to constitute, a number of informed decisions can be made.

[36]     It was the obligation of the police to bring home to Ms McCallum what they were interested in, at the latest at the outset of the interview at the police station when a situation of detention had developed.  They did not advise her of what they thought the nature of her involvement with Mr Hay was.   While she was certainly aware within a relatively short time that Mr Hay had been arrested, because she referred to it, the police did not tell her that she was thought to have assisted him. The advice was insufficient to comply with s 23(1)(a).

At the police station

[37]     Prior to going to the police station the police had interviewed Ms McCallum on her bed, starting with straightforward questions about her contact with Mr Hay and whether she had drugs in her room, and moving on to her own use of methamphetamine and the fact that Mr Hay had been arrested.  Towards the end of that initial interview on her bed she was asked whether he had supplied her with methamphetamine, which she denied, but she admitted having it used it “a couple of times” with Mr Hay.  It was then that she was asked to go back to the police station.

[38]     When the interview resumed at the police station, an obligation arose to give her a further caution and advice in terms of s 23(1)(b) of the Bill of Rights, as she was now in a situation of detention.   However, no further advice of any sort was given.  The original defect of a failure to give her proper advice of the offences of which she was suspected was now compounded by a failure to administer for the second time now that she was detained the appropriate caution and Bill of Rights advice.

[39]     Ms McCallum did, of course, assert that when asked to go to the police station she felt she had no choice but to do what she was told, which could be seen as indicating an awareness that she was being interviewed about serious charges. However, her initial conduct indicates that she was not aware she was a suspect.  It must be borne in mind that she had been sleeping when she woke to find the police at her door.

[40]     This case has similarities to the case of R v Koops (2002) 19 CRNZ 309.  At the outset of the police execution of a search warrant the accused was given the usual Bill of Rights advice.   She was then taken back to the police station.   There an interview commenced with questions about items found in a house (small quantities or traces of cannabis, cannabis oil and methamphetamine) and the supply of drugs. The tenor of the interview changed as soon as soon as it moved to the sale of what were morphine sulphate tablets.  At that point there was what the Court of Appeal described as a “situation of detention”: at [16] and, further, the interview was progressing into different territory.  As Blanchard J commented in R v Koops at [18]:

This unfortunate situation would have been avoided, notwithstanding the arbitrariness of the detention, if the police officer had adopted the sensible common practice of giving a caution and Bill of Rights advice concerning the right to legal counsel and to refrain from making a statement before beginning an interview with a person suspected of criminal activity, or at the very least had done so as soon as an admission of dealing in drugs emerged.

[emphasis added]

[41]     As in R v Koops, the position changed for Ms McCallum from the interview in the bedroom to the interview at the police station, where a situation of detention arose.     Approximately  half-an-hour  into  the  interview  at  the  police  station Ms McCallum sent a text to a friend which read:

im at central police stat. With everything 2 do with that guy frm nelson.  Im in the shit 4 knowing what he was up 2.

This text shows that she had become aware at this point of time that her connection with Mr Hay was at issue in the interview, and that she was in trouble.   However, this was after she had thoroughly incriminated herself.

[42]     I therefore conclude that the police did not provide Ms McCallum with the caution and with the advice they were required by s 23(1)(a) and (b) to provide when the interview recommenced back at the police station.

[43]     To summarise my conclusions so far:

a)       Ms McCallum was detained by the police when she was taken to the police station and the interview recommenced;

b)       Ms McCallum was not at that point, as she began to give evidence which clearly implicated her in Mr Hay’s criminal activities, properly informed of the reason for her detention.  Further, she should have at that point been cautioned for a second time, and given her Bill of Rights advice under s 23(a) and (b).

The statement  Ms McCallum gave at the police station has therefore been obtained in breach of the requirements of the Bill of Rights.   She was not re-cautioned and advised  again  of her  right  to  a  lawyer  under  s 23(1)(b).    She  was  never  fully informed of the reasons for her detention.  It was not argued that the statement in the bedroom was obtained improperly, and despite shortcomings in the initial advice of the reason for interview, that advice was sufficient for the limited purposes of that initial interview when she was not detained.

[44]     I also consider that the statement at the police station was obtained unfairly. Ms McCallum should have been told that she was a suspect.   She co-operated and incriminated herself,  not  understanding  initially at  least, that  she was at  risk  of serious charges.  It was unfair of the police not to explain to her clearly, at the latest at the outset of the continuation of the interview at the police station, the substance of the likely police allegations against her.

[45]     The rules relating to the admissibility of evidence obtained in breach of the Bill of Rights are now contained in s 30 of the Evidence Act 2006.  Sections 30(4) and (5) reads:

30       Improperly obtained evidence

…

(4)       The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.

(5)       For the purposes of this section, evidence is improperly obtained if it is obtained—

(a)       in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or

(b)       in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c)      unfairly.

[46]     Because at the time of going to the police station no advice was provided consistently with s 23(1) of the New Zealand Bill of Rights Act, and no further caution given, Ms McCallum’s statement has been “improperly obtained” within the meaning of s 30(5)(a) of the Evidence Act 2006.  I also consider that the evidence was “improperly obtained” in terms of s 30(5)(c) of the Act in that it was obtained unfairly.

The balancing exercise

[47]     The evidence having been improperly obtained, it is necessary therefore to consider whether the evidence should nevertheless be admitted.

[48]     The process that must be carried out is in general terms the same both at common law and under s 30.  Section 30(2) states:

(2)      The Judge must—

(a)       find,  on  the balance  of  probabilities,  whether  or  not  the evidence was improperly obtained; and

(b)       if the Judge finds  that  the evidence has  been  improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing  process  that  gives  appropriate  weight  to  the

impropriety but also takes proper account of the need for an effective and credible system of justice.

[49]     Section 30(3) sets out the matters to be considered as follows:

(3)      For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a)       the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b)       the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:

(c)       the nature and quality of the improperly obtained evidence: (d)     the seriousness of the offence with which the defendant is

charged:

(e)       whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f)       whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:

(g)       whether the impropriety was necessary to avoid apprehended physical danger to the police or others:

(h)       whether there was any urgency in obtaining the improperly obtained evidence.

[50]     The exercise that is to be carried out under s 30(3) is not in any fundamental way different from that carried out under R v Shaheed [2002] 2 NZLR 377 and affirmed in R v Williams CA372/05 7 March 2007.  It was noted in R v Williams at [150] that: “We do  not consider that  anything  we  have said  with regard  to the balancing exercise conflicts with the new Act”, and I recently concluded in R v Boon HC AK CRI 2006-004-21763 13 August 2007 at [77] that the approach of the Court of Appeal in R v Williams applies to the balancing exercise required by s 30.

[51]     I now consider the s 30(3) matters that arise here.

The importance of any right breached by the impropriety, and the seriousness of the intrusion on it: (s 30(3)(a))

[52]     The rights breached were by definition important.  The intrusion was serious. Ms McCallum was woken, and without the advice required, questioned about grave crimes.    If she  had  been  properly  advised  she  might  well  not  have  made  any statement at all, or refused to speak further when at the police station.   She has seriously jeopardised her defence, and incriminated herself.

The nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith: (s 30(3)(b))

[53]     Having heard Detective Prentice, I do not consider that the impropriety was deliberate, reckless or done in bad faith.  The Bill of Rights advice was given at the outset of the interview when the police arrived.  The failure to give proper advice at the  police  station  was  an  error  of carelessness  and  poor  practice  rather  than  a deliberate attempt to avoid an obligation or to trick an accused into incriminating herself.

The nature and quality of the improperly obtained evidence: (s 30(3)(c))

[54]     I have concluded recently that the probative value of the evidence can still be a relevant matter to be considered in a s 30 balancing exercise, although a clause in an earlier draft of s 30, which made reference to the centrality of evidence to the prosecution, was removed before the final reading of the Evidence Act 2006: R v Boon at [76].  The nature and quality of the evidence are still stated to be relevant matters.

[55]     Here, Ms McCallum’s statement is very good evidence and will undoubtedly be of considerable assistance to the police at trial.  I was informed from the Bar that the prosecution would continue with or without the statement, and that there was other evidence available which was sufficient to conduct a prosecution.  However, I was also informed that the statement would considerably assist the prosecution and make its case easier to prove.   Thus, the importance of the evidence is a factor in favour of admission, but less so than if it were central to the prosecution case.

[56]     On the other hand, it is very relevant that Ms McCallum’s statement, which is confession evidence, only came into being as a consequence of the breach of the Bill of Rights.  There was no statement in existence until the police started interviewing Ms McCallum, breaching the Bill of Rights in the process.  That places that part of the statement  in  a  different  category  from evidence  which  is  only  obtained,  as opposed to induced, by a breach of the Bill of Rights.

[57]     Thus the fact that the police station statement is confession evidence weighs against the admission of the evidence.

The seriousness of the offence with which the defendant is charged: (s 30(3)(d))

[58]     The charges here are on their face very serious, the maximum penalty being life imprisonment.

[59]     However, Ms McCallum’s involvement was clearly at a low level.  At worst she was a driver and a person involved in one sale of methamphetamine worth approximately $2,000.   Ms Lummis for the Crown accepts that if she were found guilty,   Ms McCallum  would  not   be  facing  a   starting   point   of  four   years’ imprisonment or more.  The final point of her sentence is more likely to be in the two to three-year area.   In R v Williams at [135] it was held that a charge was serious where the starting point for sentence would be four years’ imprisonment or more, or where the offence involved the public safety such as the carrying of a loaded weapon in public.  The more serious the offence, the more weight against exclusion, bearing in mind always the right in the Bill of Rights to the advice stipulated in s 23.   I conclude,  therefore,  that  in  terms  of  the  proportionality  exercise  Ms McCallum should not be regarded as being charged with a serious offence.

The availability of other investigative techniques not involving any breach of the rights: (s 30(3)(e))

[60]     It  would  have  been  an  easy  matter  for  the  police  to  have  advised Ms McCallum again of her rights when she was taken back to the police station. This was not done.

Other matters: (s 30(3)(f)-(h))

[61]     There is no alternative remedy to the exclusion of the evidence derived from the  statement  following  Ms McCallum  going  to  the  police  station.    It  is  either excluded or it remains.

[62]     The error was not necessary on the police part to avoid apprehended physical danger  to  the  police  or  others,  and  there  was  no  particular  urgency  about  the interview.  Indeed, it seems that there was plenty of time.

[63]     I  do  not  consider  that  there  are  any other  relevant  matters  save  for  the confessional nature of the statement to which I will now refer.

The fact that a confession is at issue

[64]     I do not consider that s 28 of the Evidence Act 2006 applies.   That section relates to reliability.  Reliability is not defined in the Act, but I interpret the word as relating to the accuracy and soundness of the statement, rather than to the fairness of the circumstances that led to it being made.  There is no challenge to the reliability of this statement.

[65]     However,  I have taken  into  account the fact  that  this  is a confession  in considering the nature of the evidence earlier in this judgment, and I weigh that as a factor against admission.

Conclusion on the balancing exercise

[66]     There has been a serious breach of the Bill of Rights which has contributed to the creation of a confessional statement.   The confession at the police station may well have not come into existence but for that breach of rights. This factor works powerfully against admission, and is more relevant than the importance of the evidence.  The fact that despite the very high notional penalty, Ms McCallum does not face serious charges in her particular circumstances, is also relevant.   It is my conclusion that the proportionate response to the error in this case is to hold that the statement  of  Ms McCallum  following  her  arrival  at  the  police  station  to  be

inadmissible.  I consider that the seriousness of the breach requires such an order, and in doing so I take into account the need for an effective and credible system of justice.

Conclusion

[67]     I conclude that Ms McCallum’s statement following her arrival at the police station is inadmissible.

…………………………..

Asher J