R v Pawa
[2007] NZCA 281
•6 July 2007
ORDER PROHIBITING PUBLICATION OF JUDGMENT OR THE REASONS THEREFOR IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA127/07 [2007] NZCA 281
THE QUEEN
v
CHEZ ALEXANDER PAWA
Hearing: 19 June 2007
Court: Hammond, Randerson and Williams JJ Counsel: F P Hogan for Appellant
K B F Hastie for Crown
Judgment: 6 July 2007 at 11 am
JUDGMENT OF THE COURT
AThe appeal against the District Court ruling admissible the appellant’s interview with Detective Page on 7 November 2005 is dismissed.
BAn order is made prohibiting publication of this judgment or the reasons therefor in the news media or on the internet or in any other publicly accessible database until final disposition of trial. Publication in law
report or law digest permitted.
R V PAWA CA CA127/07 6 July 2007
REASONS OF THE COURT
(Given by Williams J)
Issue
[1] The appellant, Mr Pawa, is one of 10 young men currently facing an indictment in the District Court alleging assault on six people at Manukau on
16 June 2005.
[2] On 22 March 2007, following a defended hearing, Judge D J Harvey granted the Crown’s application under the Crimes Act 1961 s 344A and ruled admissible a videotape of an interview between Mr Pawa and a Detective Page which took place on 7 November 2005. The hearing was conducted without oral evidence.
[3] Mr Pawa appeals to this Court seeking an order that the whole of the interview be ruled inadmissible on the basis that the questioning was unfair, overbearing and intrusive.
Facts
[4] The facts, broadly stated, are that clashes between up to 40 gangs of youths in the South Auckland area were prevalent in mid to late 2005. The Crown alleges the
10 accused were members or associates of one of those gangs, the “Juvanyle Crip
Boys” (“JCBs”).
[5] The Crown’s allegation is that the victims in this matter were not gang members but were accosted by the accused, who were the occupants of vans and cars, on the evening of 16 June 2005 in Manukau. The Crown alleges the accused were intending to attack members of a rival gang, the “Juvenile Delinquent Styles”. It is alleged the accused (and others) commenced assaulting the victims in two locations with weapons including an axe, a machete, baseball bats and hammers. Numerous assaults are said to have occurred.
[6] The accused are then said to have realised the victims were not part of a gang and stopped the assault. Some apologised to the victims. They then drove away.
Interview of appellant
[7] It was not until 7 November 2005, nearly five months after the incident giving rise to the charges, that Detective Page interviewed the appellant. The interview was recorded on videotape. It was not played to Judge Harvey and, despite queries from us, neither counsel invited us to view it.
[8] Before considering the recorded interview, it is pertinent to note that in the Detective’s brief of evidence “handed up” at depositions, he said he uplifted Mr Pawa from his house about 8:40am on 7 November 2005 and cautioned him and advised him of his rights under the New Zealand Bill of Rights Act 1990 both there and at the police station. After arrival at the police station, the detective questioned Mr Pawa before the formal interview. Mr Pawa told him he had been a member of the JCBs for about three or four months and knew other members. He acknowledged being at a “Black Power pad” on the night in question and getting into a van with up to seven others. He said he stood by at the first fight but then ran up to the “Space Odyssey to see another fight”, running from that fight from Valentine’s restaurant to the motorway, back to the shopping mall and, with another accused, taking a taxi home. At one point Mr Pawa “denied knowing why they were going to Manukau” but at another point admitted “that he knew they were going up for a fight”.
[9] The interview which followed ran from 10:35-11:25am. After the usual questions establishing the appellant’s name, age – he was 20 at the time – and a repetition of the caution, the officer made clear to Mr Pawa that the interview was “in relation to an assault that took place back on the 16th of June of this year back in Manukau”. He repeated a summary of the discussion they had prior to the commencement of the recording to the effect the appellant was picked up at the “Black Power pad” in a van late in the evening with about 15 people travelling in that and other vehicles.
[10] Mr Pawa denied the group were going to “sort out a problem”. He acknowledged his membership of the JCBs for about eight months. He denied taking weapons but said, in response to the question “Are you pretty good with you [sic] hands fighting-wise?” that “I know how to use them”. He said he was unaware whether other members of the group had weapons. When the group reached Manukau City, he said “everyone just jumped out of the cars and um went running for a fight”.
[11] The interview then proceeded:
Q.So you all drove down on the van and the other two, the other two cars, drove from the Black Power Pad and you drove down, some of the guys had, had tooled up, you don’t need to cause you, so you didn’t have anything with you when you went down?
A. Nah.
Q.You pulled up to the um … on the side of the road, just up from the bus stop there … and you all run out to have a fight … when you stopped the van, why did you stop there?
A Oh there was just a big group of fella’s standing right near us.
Q. Were that, was that all the other guy’s or was that some of the JCB’s that were standing there?
A. When we pulled up? Q. Yeah.
A. Just some of the other guys.
Q. Just all the other guys that you were going to have a fight with? A. Yeah.
Q. How many do you think were there? A. (Shrugs shoulders) Um …
Q. Have a guess… five, ten
A. (Shrugs shoulders) … About probably yeah about 10.
And then, a little later:
Q. Did you see any of the um … of your guy’s fighting them?… The
JCB’s fighting them?
A. Fighting them?
Q. Yeah. … Fighting the other group, the other group? A. Yeah.
Q. Okay … so your all, your all joining in … you all fighting away there … or one group on the other group?
A. Yeah.
[12] He said he then ran up to the Space Odyssey because “some of those fellas were running that way” but said “dunno” in response to the question “You’re gonna get them?”. He said there was another fight there, near Valentines, after which he “gapped” it, that is to say he ran away “cos the cops were there”.
[13] The interview then recapitulated the incidents several times. An example is:
Q. So when you, when the van stopped and there was about 10 of the other guys standing on the side of the road, how far from the van to the other guys?
A. 50 to 100 metres?
Q. Yeah and you … did you get to run very far to get to them? A. Nah … not really.
Q. Did they .. did they run when your guys were running towards them? A. Yeah some of them run toward us.
Q. Yeah … Was it just like in the movies where there two groups and you all just charge together and you have a big fight?
A. Yeah.
…
Q. And you all got out and there’s about 10, 10 or so of the other guys s[t]anding on the side …
A. Yeah.
Q. You had a big fight with those guys? A. Yeah.
Q. And then you chase about 5 of their guys up to Space Odyssey, up by Valentines and they had, and then you had another fight up there?
A. Yeah.
Q. …so you, so all of you ran towards, towards them… A. Yeah.
Q. …and you had, you had the fight… so say you never um picked up any weapons or picked up anything from the, from the pad?
A. Yeah.
Q. You just used your fists? A. Nah I didn’t use anything. Q. You didn’t use anything? A. Nah.
Q. So your saying that, that everyone else ran from the, from the van and ran in and had the fight but you didn’t?
A. Nah.
Q. So how many other people were standing back there where you were?
A. Oh I just noticed one.
Q. Just one, so you and one other? A. Yeah.
and said “Yeah” to a question which ended in “up to Space Odyssey and you run up again, have another watch?”.
Q. …Um I mean the whole idea of being there was to sort these other guys out because of something that may have happened earlier or, or um…. (unclear)
A. Yeah but I didn’t know what I was going there for.
[15] In light of the arguments later summarised, it is also pertinent to note that the detective asked Mr Pawa a long involved question which ended by suggesting that it would be difficult to “have such an involved confrontation” with others and not remember and that, this being the “one gang fight that you have had” he should be able to recall the “major detail”. On each occasion Mr Pawa asked him what he meant by “such an involved confrontation” and “major detail”.
[16] The Judge summarised the submissions by Mr Hogan, counsel for Mr Pawa, to the effect that the interview should be ruled inadmissible because it contained leading questions or unsupported conclusions: R v Halligan [1973] 2 NZLR 158 at
162. He noted the submission that the repeated questioning in the interview amounted to attempts to provide an evidential foundation otherwise lacking to support the Crown case.
[17] He then dealt with the Crown’s submissions that questions may be put in interview as long as they are not oppressive, unfair or overbearing and the allegations are of matters known to the Police. The Crown pointed to facts from which inferences could be drawn which formed the basis of the detective’s questions.
[18] An additional point made was that Mr Hogan submitted to the Judge that it was unclear whether the detective’s repeated use of “you” referred to the singular or the plural. On that, the Judge said there was a “rather fluid utilisation of the second person pronoun … which drifts from the singular to the plural”, but the transcript made clear what was intended: at [8].
[19] The Judge also dealt with the submission that the interview contained “double-barrelled questions” involving both a statement and a question. He held it was a matter of context, and the phrasing of the questions would be a matter for the jury, once it saw the interview.
[20] The interview was then held wholly admissible.
Submissions in this Court
[21] Mr Hogan’s submissions to us largely reflected those made to the District Court. He suggested Mr Pawa was relatively unsophisticated by comparison with the detective’s verbal and interviewing skills and the “double-barrelled” questions posed difficulties for the appellant in answering them.
[22] Ms Hastie for the Crown submitted the detective acted fairly and in good faith. Any ambiguity in the form of the questions was for the jury to assess. The detective had an evidential foundation for the questions he asked, both from his prior involvement in the operation and from the appellant’s admissions before the videotape recording began. She pointed out that direct evidence implicating Mr Pawa in the incident came from a victim who gave evidence at depositions saying he saw the appellant fighting with the victim’s brother (another victim) during the first incident. She emphasised that Judge Harvey’s decision being a matter of discretion, it was for the appellant to show his views were wrong or reached in error on principle.
Discussion
[23] We agree with Mr Hogan who appeared for Mr Pawa that the form of the questions asked by Detective Page could have been more succinct and pointed. Combining several matters into one question risks a series of answers or, more frequently, a single response which diminishes the utility of the answer for either side, since it may be unclear to which part of the question the answer is intended to refer. However, questioning in that form is by no means uncommon – even by experienced counsel – and juries are likely to be well accustomed in their daily lives to questions in that form and to interpreting answers.
[24] We agree, too, with Mr Hogan that the way the detective used the personal pronoun “you” often failed to distinguish between the singular and the plural, but, as the Judge found, the appropriate meaning can usually be distilled from the transcript. More importantly, if there is uncertainty as to whether the singular or the plural use is intended, the appellant’s responses are less likely to be able to be held against him. And if the detective was simply using the argot of the streets to make his questions more comprehensible to the appellant, that is scarcely unfair and he can be asked to explain his meaning to the jury.
[25] It is true that, as a review of the transcript shows, there are contradictions concerning the appellant’s knowledge of the group’s intentions and his participation,
but that is a common feature of trials and one where the jury will be well able to judge the issue on all the evidence before it.
[26] Finally, we take the view that the transcript does not show that the method of questioning adopted was unfair, overbearing or intrusive. The transcript shows Mr Pawa was able to express his version of events and that he sought explanations from the detective if he could not understand the question.
[27] The final aspect is whether the detective’s knowledge of what had occurred was sufficient to provide a foundation for the questions he asked. As the s 344A hearing proceeded without evidence, he could not be asked about the state of his knowledge but his involvement in the inquiry, and the statements made to him by Mr Pawa before the recording began, suggest he had a reasonably detailed understanding of the matter. There is nothing to suggest the interview was contrary to anything said by this Court in Halligan on this topic.
Result
[28] In the result, the appellant has failed to persuade us that Judge Harvey’s decision was wrong, or was an incorrect exercise of his discretion.
[29] The appeal against the District Court ruling admissible the appellant’s interview with Detective Page on 7 November 2005 is dismissed.
Solicitors:
Crown Law Office, Wellington
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