R v Ritchie CA284/04

[2004] NZCA 346

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA284/04

THE QUEEN

v

DARRYN GRANT RITCHIE

Hearing:         29 September 2004 Coram:  McGrath J

Wild J France J

Appearances: B R Green for Appellant

G C De Graaff for Respondent Judgment:  15 October 2004

JUDGMENT OF THE COURT DELIVERED BY WILD J

Introduction

[1]                This appeal is against a pre-trial ruling of Judge Jaine in the District Court at Christchurch on 16 July.

R V DARRYN GRANT RITCHIE CA CA284/04 [15 October 2004]

[2]                The issue is whether the Judge was correct in ruling admissible in the appellant’s trial evidence of statements the Police allege he made to them while they were searching the appellant’s house, executing a search warrant.

[3]                Having accepted the Judge’s ruling that he cannot challenge the admissibility of those statements on the basis of any breach of the New Zealand Bill of Rights Act 1990, the appellant founds his challenge on a breach of Rules 2 and 9 of the Judges’ Rules.

Background

[4]                After hearing evidence from the appellant and the two senior police officers involved in the search, Judge Jaine made clear findings of fact. We draw the following summary from the Judge’s ruling.

[5]                On Friday 19 September 2003 the appellant’s former partner complained to the Police that the appellant had assaulted her in her home.

[6]                The following day, Saturday 20 September, the Police obtained a warrant to search the appellant’s home. That day, and again on Sunday 21 September, the complainant was spoken to by Detective Kerr. The Police assisted in finding the complainant safe alternative accommodation.

[7]                On Monday 22 September the Police executed the search warrant at the appellant’s home. Four police officers were involved. Detective Kerr was in charge of the search. Senior Constable Barlass was tasked with speaking to the appellant. During a discussion spanning some 10 minutes, Constable Barlass discussed the complaint with the appellant, and more generally his relationship with the complainant. The appellant acknowledged that he and the complainant had had a heated argument. He was asked whether a knife had been used and where the Police could find it. The appellant denied using a knife but showed the Police a small red- handled knife in a drawer unit in the bedroom. He denied this knife had been used in the assault.

[8]                When pressed again about the use of a knife, the appellant said that he and the complainant had “had a tussle on the bed” and that “things got pretty out of hand”.

[9]                At that point the appellant was cautioned and advised of his rights under the New Zealand Bill of Rights Act. He did not ask to speak with a lawyer.

[10]            The appellant was then again asked whether he had used a knife. He took the Police to the laundry and showed them a brown-handled knife. According to the Police he told them that this was the knife used. The Police took possession of the knife. They then took the appellant back to the Hornby Police Station. Once at the station, the appellant spoke to a lawyer and then declined to make a statement to the Police.

[11]            Constable Barlass then, within the space of half an hour, converted into a job sheet notes which he had made on a clipboard pad during his discussions with the appellant at his home while the search was going on. He did not show either his clipboard pad notes or the job sheet to the appellant. When he was cross-examined before Judge Jaine, Constable Barlass was asked why not. He explained that, as the appellant had declined to make a statement, he did not think the appellant would be minded to sign either his notes or job sheet as an accurate record of what had been said.

The Judge’s ruling

[12]Judge Jaine ruled:

a)Senior Constable Barlass had not gone to the appellant’s home having determined to arrest him. He made up his mind to do so only after the appellant described a “tussle on the bed” that “got out of hand”, since that accorded with what the complainant had said. The appellant was then promptly cautioned. Accordingly, there was no breach of Rule 2.

b)Rule 9 had not been breached because Senior Constable Barlass had not, during his discussion with the appellant while the search was going on, been recording a “statement” of the appellant. The Judge observed that it will be a question of the weight to be given to Senior Constable Barlass’ evidence rather than its admissibility.

The opposing arguments

Rule 2

[13]Rule 2 of the Judges’ Rules provides:

Whenever a police officer has made up his mind to charge a person he should first caution such person before asking him any questions or any further questions, as the case may be.

[14]            Mr Green submitted that the Police should have cautioned the appellant upon arriving at his home and before commencing the search, or certainly before any discussion with or questioning of the appellant began.

[15]            Mr Green sought to elevate the situation above one where the Police were investigating, upon a mere suspicion of criminal offending. He pointed out that the Police had a specific complaint of criminal offending by the appellant. They had taken that complaint seriously enough to seek (and had obtained) a search warrant, to assist in finding the complainant safe accommodation, and to oppose bail for the appellant describing the charge as “serious”.

[16]            Mr Green contended that an objective assessment of those circumstances could only have led a reasonable police officer to the view that a prima facie case against the appellant had been made out, justifying arresting and charging him.

[17]            We have mentioned that the Judge, having heard evidence, found that Senior Constable Barlass had not decided to arrest and charge the appellant until the appellant described the tussle on the bed which had got out of hand. Mr Green submitted that the Judge had applied the wrong test in deciding the Rule 2  issue.  The obligation to caution arises when the Police have evidence which, objectively

considered, supports a prima facie case against the suspect: R v Goodwin [1993] 2 NZLR 153, 197 (CA).

[18]            For the Crown Ms De Graaff submitted that the Judges’ Rules had largely been superseded by the Bill of Rights: R v Butcher [1992] 2 NZLR 257, 267 (CA). To the extent that the Rules may survive, breach does not lead automatically to exclusion of evidence. Exclusion is discretionary, with the overriding consideration being fairness.

[19]            Ms De Graaff accepted that the Judge appeared to have applied the wrong  test in determining whether the Police had complied with Rule 2. The Court has preferred a more objective approach: R v Goodwin [1993] 2 NZLR 153; R v Rogers [1979] 1 NZLR 307; R v McLean 30/5/95 CA449/94.

[20]            But, contended Ms De Graaff, even on the Rogers approach, the spirit of  Rule 2 was complied with. It was only after the appellant had shown the Police the red-handled knife and admitted to things getting out of hand during a tussle on the bed, that the Police considered they had sufficient to justify arresting the appellant. Those admissions confirmed the, until then uncorroborated, statement of the complainant. Ms De Graaff pointed out that both Detective Kerr and Senior Constable Barlass had stressed in their evidence the importance of obtaining “the other side of the story” before deciding whether to make any arrest.

[21]            Ms De Graaff next argued that, even if the Court finds Rule 2 had been breached, it could not be said that unfairness to the appellant was involved here. There was no oppression or overbearing conduct by the Police. The search and discussion had been “low key” and “amicable”, according to the Judge’s findings. Everything said by the appellant was exculpatory, with the exception of his critical alleged statement that “this is the knife used” when showing the Police the brown- handled knife in the laundry.

Rule 9

[22]Rule 9 provides:

Any statement made in accordance with the above rules should, whenever possible, be taken down in writing and signed by the person making it after it has been read to him and he has been invited to make any corrections he may wish.

[23]            Mr Green submitted that the failure of Senior Constable Barlass to write down at the time what the appellant said, or record it verbatim, gave rise to a sufficient risk of unfairness to the appellant to justify exclusion of the evidence: R v Rowlands [1974] 1 NZLR 759. While acknowledging that Rule 9 did not require contemporaneous recording, Mr Green argued that what Senior Constable Barlass did was inadequate, as it gave rise to real questions about the accuracy and completeness of what he subsequently included in his job sheet. Compounding that was the Constable’s failure to retain his clipboard notes, coupled with his failure to show those notes or his job sheet to the appellant and seek his verification. The Constable’s assumption that the appellant, having refused to make a statement, would also refuse to verify the notes was unfair to the appellant.

[24]            Ms De Graaff’s first submission for the Crown was that it was by no means clear that Rule 9 applied here at all. The appellant had not been detained and was  not being formally interviewed. He was being spoken to while a Police search was underway. Those are not circumstances in which the Rule 9 would normally be held to apply: R v Iese and Ginty 29//8/02 CA96 and 104/02; R v Milina 21/3/95 CA300/94.

[25]            Senior Constable Barlass explained in evidence that he anticipated that a formal interview of the appellant would follow at the Police Station. When it did  not, he dictated his job sheet, within half an hour or so. The fact that the Constable did not show that job sheet to the appellant would not prevent the Constable refreshing his memory from it at trial. All the points made for the appellant go to the weight to be attached to the evidence in question, not to its admissibility: R v Butcher. They lend themselves to an appropriate direction from the trial Judge,  along the lines suggested in Bucknall v R 18/12/01 CA248/01.

[26]            Finally, Ms De Graaff submitted that the Court’s discretion at common law to exclude evidence unlawfully or unfairly obtained survives: R v Murphey (2003) 20

CRNZ 278 at para [5]. Taking into account all the circumstances here, a proper exercise of that discretion favoured admitting the evidence. What weight was to be accorded to it then becomes a matter for the jury, assisted by appropriate direction from the trial Judge.

Decision

[27]            As this Court pointed out in R v Butcher, the Judges’ Rules have substantially been overtaken and rendered obsolescent by the New Zealand Bill of Rights Act. The Act addresses, with statutory force born of the ever increasing international recognition of basic human rights, the various “mischiefs” to which the Rules were directed over 90 years ago.

[28]            Thus, the modern approach should in general be to rely on the Act, reverting where necessary to the discretion a Court always has to exclude evidence on the grounds of unfairness. Because of the nature of criminal prosecution, unfairness is normally raised by an accused, but it should not be overlooked that the discretion is also available to the prosecutor.

[29]            As alleged breaches of Judges’ Rules 2 and 9 have been relied upon here, we deal with them. We do not think either rule applies in the circumstances here. As to Rule 2, our view is that the police officers involved, in particular Senior Constable Barlass, did not make up their minds to arrest and charge the appellant until, having shown the Police the red-handled knife in the bedroom drawer, he admitted to matters getting out of hand during a tussle on the bed. The appellant accepts that he was then immediately cautioned and given his rights in terms of the Bill of Rights Act. Our view as to the point at which the Police decided to arrest and charge the appellant, and were therefore required to caution him, holds good irrespective of whether the test applied is the subjective one applied by the Judge, or the objective test counsel jointly submit represents the law.

[30]            It may, however, be helpful if we indicate that the objective test favoured by this Court in R v Rogers and R v Goodwin is the one which should be adopted. Literally construed, Rule 2 stipulates a subjective test: “whenever a police officer

has made up his mind to charge a person … “. But, as this Court pointed out in R v Rogers at p314, it is the spirit rather than the letter of the Judges’ Rules which is to be complied with. The Court in R v Rogers pointed out that the spirit of Rule 2 “is not always answered by going no further than a subjective test” which “ought not to be regarded as providing an automatic answer”. The Court then referred (at p 315) to Walker v Viney [1965] Tas SR 96 and to the (then) current Judges’ Rules in England as further supporting the adoption of an objective test. What this Court did not accept in R v Rogers, was that a police officer was required to caution a suspect as soon as the officer had “the beginnings of a case”, which seemed to be the test suggested by the English Court of Appeal in R v Osbourne [1973] QB 678, 688; [1973] 1 All ER 649, 655. This Court observed “At present we see no need to go quite as far in this country”.

[31]            In R v Goodwin Casey J built on what had been said in R v Rogers in the following passage at p 197 of his judgment:

Under rule (2) of the Judges’ Rules, whenever a police officer has made up his mind to charge a person with a crime, he should caution him, and that obligation exists when he has evidence which objectively considered supports a prima facie case against the suspect:

R v Rogers [1979] 1 NZLR 307. …

[32]            We add a comment on one of the factors relied on by Mr Green in submitting that a reasonable police officer assessing the circumstances objectively would have gone to the appellant’s house minded to arrest and charge him. That factor is the Police policy, upon receipt of a complaint of an assault in a domestic situation, of immediately arresting the alleged offender. The situation existing when the Police went to the appellant’s home on the morning of 22 September was not one to which the policy applied. Immediate arrests are made in situations where the Police are responding urgently to a complaint that an assault is occurring – or has just occurred

– in a domestic situation. The policy aims to secure safety for the victim(s) by removing immediately the alleged offender. That type of situation had allegedly occurred between the appellant and the complainant on Friday 19 September. By the morning of Monday 22 September it was well past, the Police having in the meantime assisted in finding the complainant safe alternative accommodation.

[33]            Nor do we consider that Rule 9 applied here. As Mr Green conceded, the  rule is directed to statements made by a suspect, especially when the suspect has been cautioned that anything said will be taken down in writing and may be used in evidence: R v Mason [1998] 2 NZLR 61, 63 (CA). By Rule 9 the Judges sought to bring home to the Police the importance, once a suspect had been cautioned in the customary terms, of ensuring that anything the suspect then said was indeed taken down in writing or recorded and verified by the suspect in the manner indicated in the Rule.

[34]            Mr Green submitted R v Rowlands [1974] 1 NZLR 759 was authority that, in the absence of a verbatim record against which the police officer’s evidence could be checked, the risk of unfairness to the accused was sufficient to justify exclusion of the evidence. Rowlands was an intra-trial ruling of Cooke J, when a Judge of the (then) Supreme Court. The police officer had executed a search warrant at the accused’s home. The accused had produced drugs which had been secreted in the wall lining of a shed at the back of the property. The officer then took the accused back to the Police Station where he interviewed him, the interview beginning with a caution including telling the accused that anything he said would be taken down in writing. The Judge found that the detective did not in fact take down considerable parts of what the detective in evidence (upon a voir dire in the accused’s trial) claimed the accused had said to him. That is the situation in which Cooke J observed:

… but it seems to me that the failure to take down in writing what the detective thought the defendant was saying, and the consequent absence of any verbatim record against which the  detective’s evidence could be checked, might result in an acceptance of the detective’s evidence by the jury which would otherwise not have occurred. Therefore there is a sufficient risk of unfairness to the defendant to persuade me in the exercise of the discretion to exclude the evidence to which objection is made.

[35]            Contrasting with the type of situation Cooke J was ruling upon in Rowlands, are the situations considered in cases such as R v Iese and Ginty, R v Milina and R v Dally [1990] 2 NZLR 184. In Iese the accused had made several potentially incriminating statements to a detective while unlawfully detained in a flat for about 40 minutes after being searched. At first instance, the Judge had excluded the

detective’s evidence about the statements the accused had made to him while unlawfully detained. In the course of upholding that ruling, as a proportionate response to the breach of the accused’s rights, this Court commented:

… We would not go so far as saying, however, that there was a breach of r9 – a short exchange while Mr Iese was being searched is not the equivalent of a formal police interview or a series of questions and answers, to which that Rule is really directed.

[36]            In R v Milina the accused came to the Police Station at a detective’s request to discuss an allegation of indecent assault made by the accused’s daughter. The detective first conducted an informal interview. He did not take notes of that and  was thus unable to give a precise account of what was said. Immediately following a crucial admission by the accused, the detective stopped the interview, cautioned the accused giving him his rights under the Bill of Rights Act, and then with the accused’s agreement conducted a videotaped interview. The admissibility of that videotaped interview was challenged on the ground that the overall procedure was unfair, unfairness during the unrecorded interview contaminating the videotaped interview. Whilst not upholding that challenge, this Court did comment:

… The reference (in Rule 9) is to a statement following a caution; the caution of course including the words “whatever you say will be  taken down in writing”. The rule therefore did not strictly come into play in this case until the end of the initial interview; and the video recording of the statement made following the caution must be regarded as effective compliance with rule 9. Nonetheless, speaking generally it is good police practice for all interviews with suspects to be recorded in one form or another so that the Court can be given a more accurate account than is likely from the officer’s reliance on memory: R v Mason [1988] 2 NZLR 61.

[37]            The situation in R v Dally was different again, and considerably removed from that here. Charged with the now infamous murder of Karla Cardno,  the accused challenged the admissibility of his oral statements to the Police in interviews conducted on four different days in June and July 1989. Some of those interviews extended over several hours, and included numerous instances of cross- examinations. The accused was not given the opportunity of checking the accuracy of the interviewing officers’ notes, some of which were not written up immediately. It was against that background that Eichelbaum CJ made these comments:

… The practice followed by detectives in the present case, where in general no contemporaneous notes were made, and the accused was not at any stage given the opportunity of checking the accuracy of the notes that eventually were recorded, appears to be a reversion to practices more prevalent some years ago. …

(at p189)

… For purposes of this judgment it is unnecessary to reproduce remarks by the Court of Appeal in recent judgments expressing concern about police practices relating to the questioning of suspects. The problems will not be overcome until such time as interviews are videotaped, and the police are to be commended for agreeing to trial that procedure. In the meantime I appreciate that it is not practicable to make a contemporaneous record of every significant remark uttered by a suspect and have it checked over by him; but in the ordinary situation of a formal interview, my own view at any rate is that there will rarely be any good reason why the procedure envisaged in Mason’s case should not be followed. This would appear to be especially so where what is in issue is a planned interview conducted in a police station.

(at p190)

The Chief Justice’s comment about the desirability of videotaping suspect interviews places his remarks in their historical context.

[38]            All those cases contain affirmations of one sort or another that Rule 9 is directed to statements made by a suspect following the customary caution that anything said will be recorded, with the aim of ensuring that it is. Generally, although not always, that will apply to Police interviews conducted with a degree of formality. We do not consider that was the situation here, and it certainly was not up until the time that the appellant was cautioned and given his rights.

[39]            Approached, as we consider it should be, in terms of the Court’s discretion to exclude evidence as a matter of fairness, we think the Judge’s decision to admit this evidence was correct. Essentially, the reasons are these:

a)The Police went to the appellant’s home armed with a search warrant, which was shown to him at the outset. The appellant let the Police in.

b)The search and accompanying discussion with the appellant were, to use the Judge’s words “reasonably amicable, calm and low key”. The appellant eschews anything oppressive or overbearing on the part of the police officers.

c)Once cautioned and given his rights, the appellant’s response was to tell the Police to follow him while he took them out to the laundry and showed them where there was a brown-handled knife. Indicating the knife, he then allegedly said to the Police that that was the knife used. All of that was entirely voluntary and occurred, as we have said,  after

– immediately after – he had been cautioned. It is difficult to  reconcile that with the appellant’s evidence before the Judge. He stated that, had he been cautioned earlier, he would have called for his lawyer straight away. What the appellant actually did, when  cautioned as opposed to what he claimed he would have done had he been cautioned earlier, does not suggest unfairness.

d)There is no challenge – and nor could there be – to the admissibility in evidence of the brown-handled knife located by the Police.

Result

[40]            The  appeal is dismissed.    We uphold the ruling of Judge Jaine that the evidence in question is admissible in the appellant’s trial.

Solicitors:

Cameron & Company, Christchurch for the Appellant Crown Law Office, Wellington