R v Reddy
[2016] NZHC 526
•24 March 2016
IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CRI-2014-092-11748
[2016] NZHC 526
THE QUEEN v
KAMAL GYENDRA REDDY
Hearing: 21-23 March 2016 Appearances:
C Gordon QC, L Clancy and H Benson-Pope for the Crown J Krebs for the Defendant
Judgment:
24 March 2016
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 24 March 2016 at 10:00 a.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Solicitors / Counsel:
Ms C Gordon QC, Special Counsel, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau Mr L Clancy and Mr H Benson-Pope, Kayes Fletcher Walker, Office of the Crown Solicitor, Manukau Mr J G Krebs, Barrister, Napier
R v REDDY [2016] NZHC 526 [24 March 2016]
[1] The defendant is charged with the murder of Mubarak Pakeeza Yusuf and her three old daughter, Juwairiyah Firdaws Kalim, in late 2006/early 2007.
[2] The defendant gave notice to the Crown that he objected to proposed Crown evidence of admissions of apparent guilt made by him. The Crown has sought orders declaring the evidence admissible, and also declaring admissible further evidence obtained as a result of the admissions.
[3] The grounds relied on in the defendant’s notice to the Crown, and maintained at the commencement of this hearing, invoked the following provisions of the Evidence Act 2006:
(a)Section 28: exclusion of unreliable statements.
(b)Section 29: exclusion of statements influenced by oppression.
(c)Section 30: improperly obtained evidence.
(d)Section 8: exclusion of evidence where the probative value is outweighed by the risk of unfair prejudice.
[4] The Crown’s application, evidence, and comprehensive written submissions provided in advance of the hearing, addressed all four grounds of opposition, and the evidence heard over two days was directed to all four grounds. However, at the commencement of his closing submissions, on the third day, Mr Krebs for the defendant advised that he could not responsibly advance arguments under ss 8, 28 and
30. This was primarily in light of the majority judgment in the recent Supreme Court decision in R v Wichman.1
[5] I am satisfied that Mr Krebs’ position adopted in closing was an entirely proper one. The inadmissibility arguments under ss 8, 28 and 30 would not have succeeded. I make that observation having regard not only to the effective concessions of the
1 R v Wichman [2015] NZSC 198 per William Young, Arnold and O’Regan JJ (given by William Young J).
defendant, through Mr Krebs, but also having regard to the important supervisory role of the Judge on questions such as this.2 The extent of the hearing, coupled with the comprehensive written submissions of the Crown, have nevertheless assisted in addressing the remaining admissibility issues on oppression under s 29.
Introduction
[6] Ms Yusuf and her daughter disappeared in late 2006 or early 2007, but Police did not begin an investigation into their disappearance until January 2013. This occurred when Ms Yusuf was reported missing by her mother, who had been living in Fiji.
[7] The defendant had been in a relationship with Ms Yusuf in 2006. He was a suspect from an early stage of the investigation. He was interviewed by police officers on three occasions, his communications were intercepted, and other forms of investigation were carried out. By April 2014 the Police had concluded that there was insufficient evidence to charge the defendant. And at this date Police had no evidence as to what had happened to Ms Yusuf and Juwairiyah.
[8] In April 2014 Police launched an undercover operation, referred to as the “Crime Scenario Undercover Technique”. Described in very broad terms, the objective was for one or more undercover officers to seek to engender the defendant’s confidence and, from this, if the operation was able to be fully implemented as designed, either to obtain sufficient evidence to charge the defendant, or eliminate him as a suspect.
[9] The use of this technique, and the admissibility of evidence obtained through its use, is the subject of the Supreme Court’s decision in Wichman. The main features of this undercover technique, often referred to as a “Mr Big operation”, were described in the majority judgment as follows:
2 The Judge’s obligations are expressly referred to in ss 28(1)(b) and 30(1)(b) and are at the least implicit in s 8(1).
[16] At the heart of a complete Mr Big operation are the following features: a supposed criminal organisation based on the principle that its members are completely honest and open amongst themselves; the suspect being recruited as an associate of the organisation and becoming involved in what appear to be criminal activities; the organisation's apparent ability to resolve problems associated with possible prosecution; and, at the end of the operation, an interview between Mr Big and the suspect.3 From the point of view of the suspect, the interview is the final step before full membership of the organisation and the suspect is expected to be entirely frank about any prior offending. …
[10] In Wichman the defendant argued that admissions of guilt made by him, in the final interview with Mr Big, were not admissible on three grounds under the Evidence Act: unreliability (s 28); improperly obtained evidence (s 30); and unfair prejudice (s 8). The majority in the Supreme Court reversed a unanimous Court of Appeal decision which had held the evidence inadmissible. On the present application the Crown submitted that a close analysis of the facts of Wichman, and the reasoning of the majority, make clear that the case for admissibility in this case is even stronger than in Wichman, and that, applying the approach of the majority in Wichman to this case, the evidence is admissible. As already indicated, I agree.
[11] Although the live issue of admissibility relates to s 29, and s 29 was not one of the grounds relied on by the defendant in Wichman, conclusions in respect of ss 8, 28 and 30 are nevertheless relevant when considering s 29, as the judgments in Wichman made clear. The point is discussed below. For this reason it is appropriate to record in broad terms why I am satisfied that the evidence in question is not inadmissible under ss 8, 28 or 30.
[12] I heard evidence over two days. This was evidence in detail from the two principal undercover police officers and four other police officers who had different levels of responsibility for overseeing the operation. I watched just over three hours of two videoed discussions between the defendant and A. The second discussion resulted in the admissions now challenged as inadmissible. Between the two discussions with A, the defendant had a discussion lasting around one hour, over lunch, with B who dealt most extensively with the defendant from a reasonably early stage
3 See R v Hart 2014 SCC 52, [2014] 2 SCR 544 at [58]-[60]; Kouri T Keenan and Joan Brockman Mr. Big: Exposing Undercover Investigations in Canada (Fernwood, Halifax (Nova Scotia), 2010) at 19-21.
of the operation through to its conclusion. I have read the transcript of that discussion, in respect of which there was also extensive cross-examination of B. A substantial number of transcripts of other interactions between B and the defendant have been produced and were the subject of some evidence-in-chief as well as cross-examination. A lengthy summary of all of the interactions between undercover officers and the defendant was produced and read by the officer who produced it. The evidence also included the background information indicated by the decision in Wichman as information which should be put before the Court.
[13] All of this satisfied me that the implementation, as well as the management of the operation, complied with what may be called the minimum standards indicated by the majority decision in the Supreme Court. In a number of relevant respects, the standard of compliance was above the minimum to be expected. In the majority decision, the operation in question in Wichman was described as “vanilla in character; at least by comparison with Mr Big operations in other jurisdictions”. In relation to this case, the Court of Appeal’s decision in Wichman had been released on 22 July 2014. Although the undercover operation commenced in April 2014, it had not progressed very far by 22 July. Police witnesses in this case said that they were well aware of the Court of Appeal’s decision and took particular steps to seek to ensure that the operation in this case, in its actual implementation, as well as its design, did not fall below what was required to make the actions compliant. I am satisfied that they achieved their objective. As a consequence of paying heed to the Court of Appeal’s decision, the implementation of the operation came well within the parameters for admissibility indicated by the majority in the Supreme Court in Wichman.
The evidence
[14] A reasonably detailed summary of the evidence would have been required if the issues under ss 8, 28 and 30 had remained. It is not required given the defence concessions and my conclusions in that regard. In case it becomes relevant I nevertheless record that I am satisfied that the Crown’s comprehensive summary in section 5 of its written submissions is an accurate summary of the evidence.
[15] The one part of the evidence that does need to be outlined is that relating to the two videoed discussions between the defendant and A and the intervening lunchtime discussion between the defendant and B. This is conveniently taken from the Crown’s summary. It is reproduced verbatim, apart from some minor editing.
[16] On Tuesday, 14 October 2014, the defendant was asked to attend a meeting with A so that A could get to know the defendant better. This is the crucial meeting which took place in two parts, with a break in the middle in which the defendant had a discussion with B over lunch.
[17] In the early stages of the meeting, the defendant noted that he had no concerns with any of the activities he had assisted with up to that point. A repeated a number of times that the defendant was free to leave and that if he chose to do so, they would remain on good terms. The group’s core values of trust, honesty and loyalty were also discussed at length. The defendant recalled a number of occasions when he had seen these principles in action in the course of his involvement with the organisation.
[18] Conversation turned to an encounter the defendant and B had had with C in Wellington the previous Friday. C had dealt with the defendant in the overt Police investigation before April 2014. A stated that he had spoken to the corrupt police officer that the defendant had met the previous week and was advised that the defendant was the suspect in an ongoing murder investigation. A advised the defendant that he needed to know about this so that he could work out what the risks were to the organisation. The defendant stated that he did not know why he was a suspect in the investigation. He stated that he was involved in a domestic relationship with the woman, but had left her. He said that at one point they had had a fight and he was charged with assault but that this was later withdrawn.
[19] A then stated that he needed to get more information from the police officer. He rang the officer in front of the defendant and arranged to meet with him to speak further while the defendant had lunch with B. The defendant did not object to A further meeting with the police officer and he suggested that the officer check out the status of the earlier assault charge against him that he thought had been withdrawn. He was happy for A to check so that he could know what the risks were to him.
[20] At this point it was clear that A did not believe that the defendant was giving him the whole story. A stressed the need for absolute honesty and that he did not care what the defendant had done, he just needed to know the details so he was able to fix it.
[21] During the lunch break, B told the defendant that A had advised him that the defendant was the suspect for the murder of the woman and her daughter. B told the defendant that if he wanted to discuss it, he was there to listen. The defendant acknowledged he had assaulted her and for the first time admitted that he had threatened to kill her, but stated that he was not responsible for her disappearance or murder. Throughout the course of the conversation, B stated that the murder investigation was not going to go away and stressed the need for complete honesty. He also stressed that it did not matter what he had done, all that mattered was that they knew so they could fix it, and he stated that A was not buying the explanations that the defendant was giving. B finished by saying that maybe the defendant did not fully understand the values of trust, honesty and loyalty and that maybe it was not his time to join the organisation.
[22] At the start of the second part of the interview with A, the defendant was clearly stressed by the prospect of the ongoing Police investigation and when asked how his lunch was, he stated that he had not been able to eat any because he was really upset. A started the meeting by noting that he had been talking more to the police officer. He then reiterated that he needed the defendant to be completely honest with him about what had happened so that he could work out what the risks were. The defendant was asked to put their previous conversation aside and to tell A the truth. The defendant then admitted killing both the victims and burying their bodies under a bridge somewhere on the North Shore of Auckland. He stated that he did this as he suspected that Ms Yusuf was having an affair. In his statements the defendant included the following details:
(a)He strangled Ms Yusuf in her bed with the cord of an electric iron that was on the bedside table of the room and that he knew she was dead when she went stiff.
(b)He smothered Juwairiyah in her bed with a pillow as he feared she would identify him to Police.
(c)He told A that he spent the following months slowly disposing of the victims’ property in unlocked skips and in public clothing bins.
(d)He continued to pay the rent and Sky TV to avoid suspicion.
[23]With regard to the burial site he noted:
(a)He put the bodies in the boot of his car and covered them with a blanket.
(b)He failed to come up with a plan to dispose of the bodies and therefore he went to his uncle Krishna Bal Naidu, told him what he had done and asked for his assistance in disposing of the bodies.
(c)Reluctantly Mr Naidu agreed to assist. The following night he led the defendant to a new roading project that he was the supervisor on. The site had a bridge under construction which spanned a small tidal river. Once there Mr Naidu unlocked the gate to the site, provided the defendant with tools to dig and directed him to the underside of the bridge and left the defendant to bury the bodies on his own.
(d)The defendant explained that he dug a deep hole and that he placed stones on top of the bodies so the rising tide would not lift their bodies out of the dirt. The defendant stated that his uncle would then organise for the site to be bulldozed over the following morning.
(e)The defendant noted that the victims were wearing clothes but no shoes when they were buried.
[24] The second discussion between the defendant and A ended in the middle of the afternoon on 14 October. Interactions between the defendant and B continued that afternoon and for a few more days. The interactions are not relied on by the defendant on the question of oppression, but they are relevant to an assessment of the issue. It is
apparent from the evidence that the defendant continued to engage willingly with B. In the course of this he did not express any concerns about his discussions with A, or the intervening discussion over lunch with B. On 15 October the defendant willingly travelled with B to Auckland to locate the burial site. After some hours driving on Auckland’s North Shore, plainly caused by the defendant’s complete lack of familiarity with the area, the burial site was located and the defendant then stood in what he said was the precise location. He allowed himself to be photographed by B.
[25] On 17 October the defendant went with B to visit the defendant’s uncle, Mr Naidu. After some discussion Mr Naidu agreed to go with the defendant and B to the burial site and confirmed the general location. The remains of the bodies were located a few days later by a Police search team where the defendant indicated they would be.
Section 29: the provision and its scope
[26]Section 29 is as follows:
29Exclusion of statements influenced by oppression
(1)This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if—
(a)the defendant or, if applicable, a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of whether the statement was influenced by oppression and informs the Judge and the prosecution of the grounds for raising the issue; or
(b)the Judge raises the issue of whether the statement was influenced by oppression and informs the prosecution of the grounds for raising the issue.
(2)The Judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.
(3)For the purpose of applying this section, it is irrelevant whether or not the statement is true.
(4)Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:
(a)any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):
(b)any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):
(c)the nature of any questions put to the defendant and the manner and circumstances in which they were put:
(d)the nature of any threat, promise, or representation made to the defendant or any other person.
(5)In this section, oppression means—
(a)oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person; or
(b)a threat of conduct or treatment of that kind.
[27] All of the judgments in Wichman, in different ways, emphasise the importance of determining the meaning and application of the individual exclusionary provisions in question by reference to the other exclusionary provisions. As indicated in the introduction, the relationship between the provisions is of importance in considering the defence argument under s 29. This was discussed in the majority judgment in Wichman as follows:
[69] Sections 8, 28, 29 and 30 must be interpreted in a coherent way. Considering the application of ss 28, 29 and 30 to Mr Big operations, we see s 29 as addressing impropriety by undercover officers acting in role as criminals involving threats (actual or implicit) of violence to obtain confessions, s 28 as addressing the risk of unreliable confessions and s 30 as dealing with other matters (such as police impropriety, including possible non- adherence to, or circumvention of, the Practice Note). Section 30 should not be treated as conferring a broad discretion to exclude defendants’ statements for reasons addressed in ss 28 and 29. It follows that we consider the Court of Appeal ought to have addressed its concerns about the reliability of the respondent’s statements under s 28 rather than s 30. We accept, of course, that concerns as to reliability, and thus the cogency or otherwise, of the evidence in question may be relevant to the application of s 30, and particularly s 30(4) and that aspects of the operation that are relevant to the reliability assessment may also be relevant to the fairness assessment. As to s 8, it states a fundamental, over-arching principle, but does not indicate the circumstances relevant to a court’s consideration of whether probative value is outweighed by prejudicial effect, as ss 28, 29 and 30 do. This means that a s 8 evaluation of the evidence in issue in this case must be carried out in a way which is consistent with the operation of the later sections.
[70] As we have noted, it was not suggested that the conduct of the police involved oppression for the purposes of s 29. That section, however, would apply where the Mr Big interview (or anything which went before it) involved violence or actual or implicit threats of violence. We see the availability, but non-applicability, of s 29 as being of significant contextual importance. And there was no finding that exclusion of the admissions would be justified under
either or both of ss 28 or 8. All of this means that the fairness analysis under s
30 will be in the limited compass of assessing police conduct short of oppression that has not led to exclusion of evidence under s 28(2). Sections 28 and 8, in the context of the Act as a whole, proceed on the basis that residual risks of unreliability (which do not warrant exclusion under s 28(2)) or of unfair prejudice (which do not warrant exclusion under s 8) should be addressed by the Judge in the course of the management of the trial, with warnings as to possible unreliability and directions as to illegitimate reasoning and the burden and standard of proof. In this context, it is difficult to see how such issues are material to the logically distinct question whether the police acted unfairly and thus improperly.
[28] What flows from this analysis in respect of the defence reliance solely on s 29 may be described as the antithesis of what is referred to above at [70]. The availability of ss 8, 28 and 30, but the non-applicability of all of them, is also of significant contextual importance. Amongst other things, conduct or circumstances properly considered, if at all, under s 8, or s 28, or s 30, would not generally fall for consideration under s 29 if the other sections have no application.
[29] Section 29 uses the comprehensive expression “oppression”, but this is defined in s 29(5)(a) by reference to four types of conduct or treatment – oppressive, violent, inhuman, or degrading conduct or treatment. Mr Krebs made clear that the particular type of oppression relied on is the first type recorded in subsection (5)(a) – oppressive conduct or treatment. He submitted, in effect, that it has a meaning distinct from conduct which is violent, inhuman, or degrading, although he did not refer to any authority in that regard.
[30] I will use the expression “oppressive conduct”, as a compendious reference to “oppressive … conduct towards, or treatment of, the defendant” and “a threat of conduct or treatment of that kind”. Determining the meaning of “oppressive conduct” is in large measure determinative of the defence argument.
[31] The word “oppression” does not stand in isolation. It takes colour from the three other words – “violent, inhuman, or degrading”. Those three words are different forms of egregious conduct. To the extent that oppressive conduct may be different from, for example, violent conduct, it must nevertheless be similar in kind; similarly serious. This approach is reinforced by the fact that, if the defendant raises the issue of oppression on the basis of an evidential foundation, a low threshold, the evidence
in question must be excluded unless the Crown satisfies the Judge beyond reasonable doubt that the statement was not influenced by oppression. That is a very high standard. It is the sort of standard likely to be applied only where the conduct in question has been egregious. And it is a standard to be contrasted with that relating to unreliable statements under s 28 where the onus is also on the Crown, if an evidential foundation is raised, but the standard is the balance of probabilities.
[32] In Wichman the defendant did not rely on s 29, but the meaning of oppression was addressed in the judgments. Although the statements of meaning may be described strictly as obiter dicta, the observations are highly persuasive in this Court. The persuasive weight, given the source of the observations, is given added emphasis by s 30(1)(b) which effectively requires the Judge to be alert to the question of oppression. This aspect is expressly adverted to by Glazebrook J in a passage cited below.
[33] The passage from the majority judgment cited above contains a definition, and one which is, of course, directed to undercover operations of the sort now in question:
[Section 29] … would apply where the Mr Big interview (or anything which went before it) involved violence or actual or implicit threats of violence.
[34] Justice Glazebrook addressed the meaning and application of s 29 reasonably fully, as follows:
[386] It was never Mr Wichman’s contention that s 29 applied but I deal with that section first for completeness. Section 29 requires a judge to exclude a statement unless satisfied beyond reasonable doubt that it was not influenced by oppression.4 For the purposes of this section, it is explicitly stated that it is irrelevant whether or not the statement is true.5
[387] It appears to me that the aim of the last few scenarios was to set up at least some apprehension in Mr Wichman of Scott. At the time of his interview with Scott, Mr Wichman had been deliberately made to feel isolated in Dunedin. The Dunedin scenario also had an air of menace (with firearms and the “Asian” gang). In cross-examination, Detective Senior Sergeant Mackie agreed that the simulated activity was “pretty heavy stuff”.
4 Section 29(2). Oppression under s 29(5) means “oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person” or “a threat of conduct or treatment of that kind”.
5 Section 29(3).
[388] On the other hand, the firearms in the last scenario were not for the use of the organisation (other than to make money) and Mr Wichman had appeared excited about his role in the organisation when talking to his father and partner.6 One could justifiably be sceptical about his suggestion in his evidence at the pre-trial hearing that this was so as not to worry them.
[389] While there is nothing necessarily incompatible between excitement and being scared, unlike in some of the Canadian cases,7 there had been no suggestion in any of the scenarios that leaving (or lying to) the organisation would be met by violence. Indeed, Scott, in the interview, stressed the non- violent nature of the organisation and Mr Wichman’s ability to leave without hard feelings. The non-violent nature of the organisation was one of the reasons Mr Wichman gave to Scott for being comfortable with being part of the organisation.8
[390] In these circumstances, I consider that Mr Wichman rightly did not seek to argue that s 29 was engaged. The conduct of the undercover officers did not reach the threshold required by s 29.
[35] Justice Glazebrook’s observations are of importance not just in relation to the meaning in general of the expression, but also because of her conclusions on the facts of the Wichman case. I have earlier recorded my conclusion that the implementation of the undercover operation in this case was certainly as “vanilla” as in the Wichman case.
[36] The Crown, in addition to references to the observations in Wichman, cited two cases on the meaning of oppression. One is a judgment of the Court of Appeal in another case about a Mr Big operation, R v Cameron.9 In Cameron the Court referred to the defendant’s submission that he had raised an evidential foundation for the oppression issue and said:
[39] This can be shortly dealt with. There is no evidence in the transcript – and we were not urged to look at the video tape – of Tony engaging in oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the appellant: see s 29(5)(a). On the contrary, Mr Cameron saw distinct
6 It is not clear whether any of these conversations were after the Asian gang scenario. The telephone call that Mr Wichman had with his partner on the morning of his interview with Scott did not mention his involvement in that particular scenario: discussed above at [373](c).
7 For a particularly notable example, see the case of R v Terrico 2005 BCCA 361, (2005) 199 CCC (3d) 126. In that case, a mock beating of another undercover officer was arranged in a hotel room. In that case, the officers acknowledged that their objective was to convey the impression that the gang was “violent and ruthless and that one can get beaten up, if not worse, when one lies to them”. A similar beating of another member occurred in R v Bonisteel 2008 BCCA 344, (2008) 236 CCC (3d) 170 at [15] purportedly because what the undercover officer said did not match up with what the fake police report indicated. If these scenarios occurred in New Zealand, they would almost certainly fall foul of s 29 of the Evidence Act.
8 See above [that is, in Wichman] at [376].
9 R v Cameron [2009] NZCA 87.
opportunities to advance his own criminality by joining the gang. He voluntarily put forward the account he did.
[37] This short statement, in a sense, defines the scope of the provision by referring to circumstances that will not come within it. The Court’s conclusion on the facts is applicable to the evidence presently before the Court in this case.
[38] The Crown also referred to a decision of this Court in R v Patten.10 In that case Harrison J, after recording s 29(5), said:
[29] These words convey the same or a similar flavour. The infringing conduct must be the exercise of authority or power in a burdensome, harsh or unjust manner, which is of itself improper: R v Fulling [1987] 2 All ER 65 (CA) at 69. Its offensive characteristic is its inherently coercive tendency to overbear and thus adversely affect the truth of a statement. But the existence of oppression of itself is not determinative; its causal effect is critical. In the event that an evidential foundation of oppression is established, then the inquiry must focus on whether or not it influenced the statement.
[39] The statement in Fulling was in fact a definition of oppression taken from the Oxford English Dictionary: “Exercise of authority or power in a burdensome, harsh, or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc; the imposition of unreasonable or unjust burdens.” The statement in Patten contains two other points. The first is the one made earlier – the meaning of oppressive conduct is coloured by the other words in the definition – “violent, inhuman, or degrading conduct”. The second point is what is contained in s 29(2): if oppression is established (rather than simply an evidential foundation) there must be a causal connection between the oppression and the statement by the defendant sought to be excluded.
[40]One other citation will suffice. In R v Hanford, Priestley J said:11
[64] ... The s 29(5) definition of oppression specifically stipulates violent, inhuman, or degrading conduct. These adjectives denote conduct of a very brutal, physically violent, or highly callous type. But the definition, somewhat circularly, includes oppressive conduct or treatment. The relevant New Shorter Oxford Dictionary definition of “oppressive” is “… characterised by cruel or unjust exercise of authority or power; unreasonably harsh; tyrannical”. The root verb “oppress” includes such synonyms as “put down, suppress, subdue, overwhelm” and “press down on forcefully and harmfully; trample; smother; overwhelm with numbers”. My interpretation is broadly
10 R v Patten HC Auckland CRI-2006-004-3200, 8 April 2008.
11 R v Hanford HC Auckland CRI-2007-057-1922, 24 July 2008.
consistent with that of Williams J in R v Hone who cautions against courts attempting to broaden the s 29(5) definition.12
Evaluation
[41] Mr Krebs submitted that the admissions by the defendant were required to be excluded because of oppressive conduct by B during the lunchtime meeting between the two discussions between the defendant and A. He submitted that the oppressive effect of A’s conduct in the lunchtime meeting had to be assessed, first, by reference to a number of the scenarios that had preceded this lunchtime meeting, including the first interaction between A and the defendant that day. Mr Krebs referred me to numerous passages recorded in the documentary evidence. In respect of this evidence, Mr Krebs submitted that it involved three significant themes, or prospects, being “dangled” before the defendant. One was a real prospect of being fully engaged with, or employed by, the group headed by A. The second was that A had significant influence with corrupt police officers and could make problems with the Police go away for those who A was prepared to assist. The third matter was that if the defendant was honest with the group, and in particular if he was honest with A, the defendant would have no risk that what he said to A would be disclosed to Police.
[42] The lunchtime interaction between the defendant and B on 14 October had been the subject of cross-examination of B, with the transcript of this interaction, or scenario, scrutinised in some detail. In his closing submissions Mr Krebs took me to the passages submitted to be demonstrative of oppressive conduct, when assessed in relation to all that had gone before.
[43] Mr Krebs further submitted that causation, in terms of s 29(2) was established because the defendant’s admissions to A, in the second discussion with A, occurred not long after the lunchtime meeting with B came to an end.
[44] As the extensive evidence was presented to me over two days, nothing in it suggested that there was an evidential foundation that the defendant’s admissions had been influenced by oppression. It warrants emphasis that in the course of this evidence I had the opportunity to view the defendant in the two lengthy discussions with A
12 R v Hone HC Napier CRI 2007-020-001518, 15 April 2008 at [57].
extending over some three hours. Reaching conclusions based on demeanour requires caution. But giving full weight to that caveat it was clear from all of the defendant’s conduct that he was speaking voluntarily. It is also to be remembered that the various forms of inducement proffered by B in the lunchtime meeting, including some seriously negative things he referred to, such as repeated reference to the ongoing murder investigation, are precisely the sorts of things that are proffered in this type of undercover operation which has the approval of the majority in the Supreme Court.
[45] However else it might be characterised, there was no conduct by any of the undercover police officers, and in particular no conduct by B at the lunchtime meeting, which could be characterised as oppressive conduct. It fell well short of such conduct.
[46] I am satisfied that there is no evidential foundation for the argument the defendant sought to raise under s 29.
Result
[47] The Crown’s application is granted. All of the evidence subject to the application is admissible.
Woodhouse J