R v R HC Auckland CRI 2006-092-14165

[2007] NZHC 1975

This case has been anonymized

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 2006-092-14165

QUEEN

v

R

Hearing:         7 August 2007

Appearances: S Hazard for Crown

D Wallwork for Accused

Judgment:      7 August 2007

ORAL JUDGMENT OF ASHER J

Solicitors:

Meredith Connell, PO Box 2213 Auckland

DS Wallwork, Barrister, PO Box 76500 Manukau City Auckland

R V R HC AK CRI 2006-092-14165  7 August 2007

Table of Contents

Paragraph Number

Introduction  [1]

Background facts  [3] The issue  [10] The Judges’ Rules  [13] Failure to give advice under s 23 of the Bill of Rights  [16] What constitutes detention?  [19] Subjective belief of the police  [25] Subjective understanding of Mr R    [27] The objective position  [33] Conclusion  [38] Result  [40]

Introduction

[1]      This is an application under s 344A of the Crimes Act 1961 for an order directing that the brief of evidence of Detective Glen Andrew Matheson, which includes  a  statement  of  the  accused  James  R  ,  be  ruled  admissible  for  the purposes of Mr R  ’s forthcoming trial.

[2]      Mr R  , with Darin Gardner and Anton Degraaff, faces charges of injuring two persons, Nigel Burson and Kelvin Hitchen, on 8 October 2006.  The indictment also includes counts directed at Mr Gardner only, that he murdered Kane Wright and Melissa Viall, and with intent to cause grievous bodily harm injured Ashley Chetty and Carl Wartnaby.

Background facts

[3]      The charges arise from a tragic incident that occurred in the early morning of Sunday 8 October 2006.  The police summary of facts alleges that the three accused had been drinking in the Howick/Pakuranga area.  The three got involved in a fight, which I will refer to as “the first fight”, with persons who included the complainants on the  intent  to  injure charges,  Messrs Burson  and  Hitchen.    It  is  alleged  that Mr R    with  Mr Degraaff  punched  and  then  kicked   Mr Burson,   and  that Mr Hitchen who went to assist Mr Burson was then punched by Mr Gardner.  Both Mr Burson and Mr Hitchen suffered moderate injuries.

[4]      Another group of men had observed the fight and took exception to what they had witnessed.   They ran towards the three accused who became separated.   The newcomers engaged with Mr Degraaff and there was a fight, which I will refer to as “the second fight”.   Mr Degraaff ended up on the ground having sustained some injuries.  While he was lying on the lane close to the footpath Mr Gardner had gone to his motor vehicle, which he then proceeded to  drive back towards the group surrounding Mr Degraaff.  It is alleged that he then drove through the group hitting three people and that he then turned and drove back again, hitting a further person.

He then drove away.  As a consequence there were four victims, one of whom was killed almost immediately and one of whom died later.  The two others were injured.

[5]      Within a short while the police were investigating the homicide.  They had no leads until the mother of Mr Gardner called them later on the Sunday morning.  As a consequence  of  what  they  were  told  the  police  went  to  Mr Gardner’s  house. Mr Gardner was ultimately arrested.  The police were advised that the car involved was at Mr Degraaff’s home and officers were sent to his house.   The officers who went to Mr Degraaff’s house included Detective Matheson.   Mr R   was at the Degraaffs’ home together with Mr Degraaff.

[6]      It is clear from the evidence of the police officers, and ultimately has not been challenged  by Ms Wallwork  for  Mr R  ,  that they did  not  consider  that Mr R    was  involved  in  the  homicide.    However,  they  regarded  him  as  an important witness.  Detective Matheson asked Mr R   to go with him to the police station, which he did.   A statement was then taken from Mr R   at the police station.  No caution or advice under s 23 of the New Zealand Bill of Rights Act 1990 (“the Bill of Rights”) was given.  Mr R   was questioned about the events of that night with the focus being entirely on the homicide.  The police were not aware at that time of the first fight, but were aware that there had been a fight on the road (the second fight, involving Mr Degraaff and the newcomers) immediately before the car had been driven at the group of persons surrounding Mr Degraaff.

[7]      Mr R   co-operated fully with the police who made no suggestion to him that he was in any way implicated in the homicide.  The police took a DNA sample from him and photographs of his legs, arms and face.  He was given the usual advice when he was asked to provide these, and he agreed.

[8]      The next  day Mr R    was  contacted  again  by  Detective Matheson  and asked if he would show him around the place where the  incident  had occurred. Mr R   agreed to do so and they went to the scene.  Mr R   went through what had happened the night before and Detective Matheson made a number of notes in his notebook as to what was said.  Following this Mr R   was then taken back to his home.

[9]      Nothing further happened until 18 October 2006.  During that time the police had become aware of the first fight and the fact that it was alleged that Mr R   was involved.   On 18 October 2006 Detective Matheson contacted Mr R   again.   In giving evidence, Detective Matheson said that at that point Mr R   had changed from a witness to a suspect in respect of the first fight, which the police were now aware of.   He said  that  on this third occasion when  he contacted Mr R   he advised him that he believed that he had been involved in an earlier  fight.   He cautioned him and advised him of his rights under the Bill of Rights.   In response Mr R   declined to give a video interview, and ultimately he was charged with the present offences relating to the first fight.

The issue

[10]     Ms Wallwork      for      Mr R        challenges      the      admissibility     of Detective Matheson’s  evidence,  and  in  particular  the  two  statements,  on  three grounds:

a)        the failure to advise Mr R   of his rights under s 23(1)(a) and (b) of the Bill of Rights;

b)       the failure to caution Mr R   pursuant to r 2 of the Judges’ Rules, and

c)        upon the general grounds of unfairness.

Although this was not her primary submission, she submits that the police officers had made up their mind to charge Mr R   during the course of either the first and second interviews, and that he should have been cautioned under r 2 of the Judges’ Rules before being asked any questions or any further questions.

[11]     The  main  focus  of  her  submissions,  however,  was  that  Mr R    was detained by the police when he was asked to go back to the police station on the Sunday morning and was in a state of detention in relation to both the first and second interviews.  She submits that he should, therefore, have been advised of his

rights under s 23 of the Bill of Rights.  There is no question that no caution and no

Bill of Rights advice was given.

[12]     Mr Hazard for the Crown submits that at no stage until 18 October 2006 was there any question in the minds of the police that they might charge Mr R  , and therefore r 2 does not apply.   He also submits that Mr R   was not at any stage detained on 8 or 9 October in the sense that that word is used in s 23 of the Bill of Rights and that there was therefore no obligation to give Bill of Rights advice.

The Judges’ Rules

[13]     The police never had any evidence before them suggesting that Mr R   might have been involved in the homicide.  It was clear that a single person drove the car, and following the phone call from Mr Gardner’s mother it is clear that the police  considered  that  that  person  was  Mr Gardner.     The  police  were  only investigating a homicide which had occurred some hours earlier when they visited Mr Degraaff’s house and met Mr R  .  They were aware of the fight on the road but it had only been Mr Degraaff that was involved in that fight and not Mr R  . They therefore had no basis on which to charge Mr R  .  It was the evidence of Detective Sergeant French and Detective Matheson that Mr R   was not a suspect in relation to the homicide, and that they did not regard him as a suspect in relation to any matter during 8 and 9 October 2006.

[14]     In   the   end,   although   she   probed   the   matter   in   cross-examination, Ms Wallwork did not submit that the police were giving false evidence on this point. I have no doubt that the police did not view Mr R   as a suspect in relation to the homicide  or  indeed  the  related  assault.     Despite  the  breakthrough  following Mr Gardner’s mother’s telephone call to them, they had a complex task ahead of them to put together the exact sequence of events in relation to the homicide and were anxious to obtain a detailed understanding of what had happened that night as was their obligation.  That is why they wanted to interview Mr R   and others.

[15]     I conclude that the police officers had not made up their minds to charge Mr R   and indeed did not regard him as a suspect.  There was therefore no breach of r 2 of the Judges’ Rules.

Failure to give advice under s 23 of the Bill of Rights

[16]     As I have indicated earlier, the police officers have acknowledged and indeed the statements show, that no advice was given under the Bill of Rights.  The police explanation for this is that they regarded Mr R   as a witness only and did not consider that any advice was required.   The question then is whether there was an obligation to give this advice.

[17]     Section 23(1)(a) and (b) reads as follows:

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; and

…

[18]     Mr R   was not arrested, and the issue is whether he was detained before or during either of the interviews on 8 and 9 October 2006.

What constitutes detention?

[19]     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.

It is clear that the subjective intentions of the police and indeed the perceptions of the suspect are not determinative: Police v Smith CA196/93 13 July 1993.

[20]     In considering whether a person is detained it is important not to lose sight of the fact that the police have a duty to investigate and prosecute crime, and that 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 and

535. Casey J went on to observe that "a coercive environment by itself is not a restriction on the freedom to depart: at 535.

[21]     It is clear then that a genuine belief on Mr R  ’s part that he was not free to leave is not determinative of whether he was detained.   Equally, a belief on the police’s part that Mr R   was free to leave is not determinative of detention.  It is still, however, necessary to examine the actual subjective beliefs of the suspect and the relevant police officer as part of the process of deciding whether Mr R   was detained.    It  is  also  necessary  to  consider  objectively  whether  Mr R    was detained.

[22]     The belief must have been in some way induced by police conduct.   Police conduct must be something more than just the general environment of the interview, or police action that was on any objective test neutral.  Some 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 that indicate that the person to be interviewed was a suspect of a serious crime.

[23]     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.

[24]     I now turn to the specific facts.

Subjective belief of the police

[25]     As I have already indicated, I am satisfied that the police did not regard Mr R   as a suspect.  They saw him as a relevant witness.   Mr Gardner was the suspect and Mr Degraaff was injured.  It was entirely rational for the police to wish to obtain a detailed statement from a person who seemed to have witnessed the background events leading up to the homicide.   That is why they wished to get a statement from Mr R  .   I accept Detective Sergeant French’s evidence that the police had nothing to suggest that Mr R   was involved in the offending.

[26]     Ms Wallwork placed emphasis in cross-examination on the police’s decision to take Mr R   back to the police station to interview him.  However, that appears to have been a rational decision explained by the fact that Mr Degraaff’s mother and others were being interviewed at the house already and it was desirable that he be interviewed in a place where the interview could be conducted in private and without interruption.      Having   heard   his   evidence   on   the   point   I   conclude   that Detective Matheson’s evidence that in relation to both interviews he would not have forced Mr R   back to the police station or, in relation to the second interview, threatened him if he refused a site visit, is true.  I therefore conclude that the police from a subjective point of view did not detain Mr R  .

Subjective understanding of Mr R 

[27]     Mr R   in his evidence said that he considered he had no choice but to co- operate with the police and give them the statement on the Sunday and go to the site and  answer  questions  on  the  Monday.    I  do  not  consider  that  Mr R    was endeavouring to deceive the Court when he said this, but it is necessary to examine what he meant when he said that he felt he had no choice.  When he was probed on the topic in cross-examination and he was asked what made him say that he felt he had to go to the police station with the Detective, he responded “because of the

seriousness and magnitude of the situation”.  He was asked whether he felt morally obliged to go to which he responded “I just felt I had to go”.  When probed further he reiterated that it was because of the seriousness of the situation.

[28]     Mr R   has been arrested, charged and convicted on 15 occasions between

2001 and 2005.  From the penalties imposed it does not seem as if the offences were serious.  They involve a range of assault related and disorderly conduct charges, the worst  penalty being a modest  fine.   It  is clear,  however,  that  he has  had  some experience with the police and in cross-examination he acknowledged that he had been told of his rights on previous occasions when spoken to by the police.   He acknowledged having received those rights in the past and being aware of having the right to a lawyer if he wanted one.  He also acknowledged that he was aware that he did not have to say anything to the police if he did not wish to do so.  He was also asked towards the conclusion of his evidence whether he believed in his own mind that he was a witness and he acknowledged that he did.

[29]     I conclude that while Mr R   may have felt a sense of obligation to go arising from the dreadful circumstance of the night before, he did not perceive that he would be forced to go to the police station by the police if he declined.

[30]     Ms Wallwork emphasised the fact that the police had arrived with at least two and possibly three cars and that at least three police officers and possibly more had come  into  the  Degraaff  house  before  Mr R    had  been  asked  to  leave.    She submitted that this would have created the impression that Mr R   was in custody. She also pointed to the fact that he was taken by a police car, which may have had locks  in the back doors,  to  the  police  station  and  then  interviewed  in  a  police interview room.

[31]     However, the evidence disclosed that the police had not made any effort to lock Mr R   in the back of the car.  The interview room was an interview room used to interview both witnesses and suspects.  The floor on which it was on could only be accessed from the lift by an electronic key, but the interview room itself was not locked and there was an exit at the end of the floor and stairs to an exit to outside which were not locked.

[32]     I conclude that Mr R   did not believe that he was not free to leave in the sense that not “free to leave” is used in Everitt v Attorney-General.  My perception of his position is that he was horrified at what had happened the night before and understandably somewhat overcome by the gravity of the situation.  In this sense he undoubtedly did feel he had to talk to the police.  I do not consider that he felt that he was a suspect or that he would be arrested or in some other way detained by the police should he refuse to co-operate.

The objective position

[33]     The objective approach requires a consideration of the police conduct, as it is clear that  there must  be an objective basis  for  concluding that  a suspect  had a reasonably held belief induced by that police conduct that he or she was not free to leave.

[34]     The police conduct contain no actions that can be in any way interpreted as requiring Mr R   to co-operate.   The fact that the police arrived in some police cars and that there were more than one is neutral, and on any objective test was inevitable given the gravity of the situation.    It  does  not  in  itself  indicate that Mr R   was obliged to co-operate.

[35]     I  am  entirely  satisfied  that  the  remarks  made  by  Detective Matheson  to Mr R   were throughout neutral and not intimidatory.  He asked him if he would make a statement and he agreed.   He asked him if he would come to the police station and he agreed.  None of these actions can be seen as on an objective basis inducing  a  belief  that  there  was  no  choice  but  to  co-operate.    The  actions  of travelling to the police station in the car and going to the interview room were again neutral, and I have already remarked on the fact that there was nothing physically stopping Mr R   from leaving.

[36]     The  request  to  photograph  Mr R    does  not  objectively  indicate  any limitations on his freedom to leave.  Indeed the photographs, particularly of his limbs and hands, showed that he had not been involved in the fight.  Detective Matheson said the purpose of such photographs was to eliminate possible suspects and would

either confirm or disprove that a person was involved in a crime.  The taking of the photographs helped disprove that Mr R   had been involved in the incident, as he had no marks on him.

[37]     I am satisfied that the taking of the DNA sample was similarly innocent.  I accept  Detective Matheson’s  evidence  that  he  would  have  given  Mr R    the requisite warnings required by law, and that he obtained the sample as a precaution and for the same reasons as he had obtained the photographs.  There was nothing in his conduct the next day when he went with Mr R   to the site which on any objective test could be regarded as involving detention.

Conclusion

[38]     Accepting  that  the burden  is on the Crown to  satisfy the Court that  the statements are admissible, I conclude that Mr R   was not detained when he gave his statements on 8 and 9 October 2007.   I therefore conclude that there was no breach of s 23 of the Bill of Rights when the statements were taken, as no obligation arose to give any advice under s 23.

[39]     Detective Matheson’s evidence including his evidence as to what was said to him by Mr R   is therefore admissible.

Result

[40]     The  application  is  successful.     The  evidence  of  Detective Matheson  is admissible in the trial.

………………………..

Asher J