R v Samson

[2018] NZHC 633

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2017-085-2143

[2018] NZHC 633

THE QUEEN

v

BRONSON BOUDINE SAMSON

Hearing:	23 March 2018
Counsel:	J M O’Sullivan for Crown K Preston for Defendant
Judgment:	10 April 2018

JUDGMENT OF THOMAS J (ADMISSIBILITY OF VIDEO INTERVIEW)

Introduction

[1]    The defendant, Bronson Samson, faces 10 charges in connection with two separate incidents.

R v SAMSON [2018] NZHC 633 [10 April 2018]

[2]    Mr Samson is charged jointly with Jade Barton of aggravated robbery at Petone Beach on or about 8 August 2017 (the Petone incident). On 23 March 2018, he pleaded guilty to that charge.

[3]    Mr Samson is also jointly charged with Mr Barton of aggravated robbery, kidnapping, aggravated wounding and arson on 9 August 2017 at Wellington (the taxi incident). He also faces five charges of using a document.

[4]    On 11 August 2017, two days after the alleged taxi incident, Mr Samson was interviewed at the Wellington Central Police Station and asked about both the Petone and taxi incidents. He takes no issue with the interview relating to the Petone incident but challenges the admissibility of his interview concerning the taxi incident.

[5]    The Crown has applied for an order that the evidence is admissible on the grounds the evidence is relevant and has probative value which outweighs any illegitimate prejudice; the evidence was properly obtained; and, if found to have been improperly obtained, the exclusion of it would be disproportionate to any impropriety.

[6]    The defence opposes the application on the basis the evidence was unfairly obtained in breach of the Practice Note on Police Questioning 2007 (the Practice Note)1 and, given the importance of the rights breached, the evidence should be excluded.

Interview

[7]    The interview lasted approximately half an hour and started just before 8.00 am on 11 August 2017, after Mr Samson was given coffee, water and antibiotics (for a burn on his leg).2

[8]    The challenge is to the second part of the interview when Mr Samson was asked about the taxi incident. It is, however, relevant to consider what happened at the start of the interview and how Mr Samson dealt with questioning generally.

1      Pursuant to the Evidence Act 2006, s 30(6) and published as Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.

2      Jobsheet Detective Evans, 11 August 2017.

[9]    The interview began with Mr Samson being informed he was to be asked about both incidents. He was given his rights pursuant to the New Zealand Bill of Rights Act 1990 (NZBORA). Mr Samson confirmed he had spoken to a lawyer that morning.

[10]   The detective then asked about the Petone incident, to which Mr Samson replied, “No comment”. He  was  then  asked  about  the  taxi  incident,  to  which Mr Samson replied, “I don’t recall anything”.

[11]   The detective then returned to the Petone incident. Mr Samson initially said that his associate, Mr Barton, was talking to the complainants on the beach but he, Mr Samson, was relieving himself some distance away. A little later, when asked about the age of the complainants, Mr Samson said they were not kids and, “We wouldn’t do that shit”. He then admitted he was there and, “We were both equally, equally in as much shit … we’ll take 50/50, you know, we both fucked up we’re both wrong”.

[12]   Mr Samson was next asked about using credit cards allegedly taken from the complainants in the Petone incident, including being advised of CCTV footage showing Mr Samson allegedly trying to use the cards. Mr Samson said, “I’ll just leave that as it is”.

[13]   He was then shown a photograph from a service station where he apparently tried to use one of the credit cards. He seemed to agree it was a photograph of him. The detective referred to a tattoo on Mr Samson’s right hand and that Mr Samson had a moustache in the photographs. The detective asked Mr Samson when was the last time he had shaved. Mr Samson said he always had a clean shave and when he was asked whether he was denying the person in the photographs and CCTV footage was him, he said he wanted to leave it as a no comment, to which the detective replied, “No comment. Cool.”

[14]There was then the following exchange:

BS     I wanna… BE      So tell me…

BS     …wanna get…

BE     …about what happened with… BS  …legal advice before I…

BE     Yeah. Tell me…

BS     ...before I comment on….

BE     …about what happened with the taxi driver. BS      Yeah.

BE     Because that’s pretty serious, eh. BS         It’s pretty serious.

BE     Yeah.

BS     But, yeah, I’d rather leave that. BE Yeah.

BS     Yeah. I’ll wait, I’ll wait till I get legal advice. BE     Okay.

BS     Yeah.

BE     Cos allegation, I’ll, I’ll, go with the allegation obviously. BS Yes.

BEUm, allegation is that around kinda 2:30 I think a.m. on the 9th um you, Jade, and possibly someone else have pulled up and, uh, physically assaulted the taxi driver, chucked him in the boot, you’ve got into the front of the taxi, pulled the camera out then the taxi is driven up to Lower Hutt. Um, it’s kind of come back down through Petone, gone all the way up to Porirua, over to kind of towards Cannons Creek area back towards Titahi Bay, back down to Newlands, driven up Newlands, kind of around that area for quite a while, back down across over to Khandallah, back through to Johnsonville and back to Newlands. Trip’s kind of about two and a half hours ish, um, but there was a 40 minute stop in, in Newlands.

BS     Mm.

BE And then, um, items from the taxi have been taken out of the taxi at  some stage. Um, the white van has been seen at the start obviously and, and towards the end following the taxi at certain stages.

BS     The white van.

BE     The white, uh, Probox, sorry. BS     Okay.

[15]   It was then put to Mr Samson that the car was set alight and Mr Samson was asked what he could say about that, to which he replied, “I can’t tell you anything at the moment.”

[16]   The detective showed Mr Samson some photographs allegedly of Mr Samson in the front of the taxi ripping out the camera. There was then a prolonged pause before the following exchange occurred:

BS     Is there anything you wanna ask me or?

BE     There’s, like I said there’s photos of you ripping the camera out. BS Nah, don’t know about that.

[17]Mr Samson said he understood how serious the allegation was and then said:

BS     Cos when I spoke to my lawyer and they said about that one.

BE     Cool. There’s nothing you wanna tell us about, about that incident? BS        Um, no.

BE     No.

BS     Not at this stage anyway, no. BE     Yeah. Um…

BS     I’ve just got to take my lawyer’s advice.

BENah, that’s, that’s cool, that’s cool. Um, is there a reason why you did have a shave…

[18]   The detective then continued asking Mr Samson if there were any reason he had shaved off his moustache and why he had deleted or deactivated his facebook account in the last day.

[19]   The detective asked Mr Samson if there was anything else he wanted to say in relation to the two incidents, to which Mr Samson said no.

[20]   The detective then left the room for five minutes, returned and told Mr Samson they had just about finished. He discussed the police interview with Mr Barton which had taken place the previous day. He said Mr Barton was asked about the two incidents and shown the photograph previously shown to Mr Samson which showed the person in the front seat of the taxi which the police believed was Mr Samson. The detective reported Mr Barton as identifying the person as Mr Samson and that his girlfriend had said the same thing. Mr Samson appears to nod his head.

[21]   The detective then told Mr Samson it was his last opportunity to tell him about the incident.

[22]   Mr Samson said he did not recall the incident and, when asked why, said it was because he was high on drugs and drunk, had blacked out and did not want to say anything to dig himself a bigger hole. The detective told him he did not want him to say anything Mr Samson could not remember or that was not true. He referred again to Mr Barton’s alleged identification of Mr Samson in  the photograph,  asking,  if Mr Samson could not remember getting into the taxi or being there, what could he remember before the taxi incident. Mr Samson said it was him and Mr Barton, and said he blacked out and came to when he was arrested.

[23]   The detective then asked him again about whether he was always clean shaven, referring to a photograph taken of Mr Samson when he was returned to New Zealand from Australia (the Crown accepts these references will need to be deleted).

[24]   The detective asked Mr Samson whether there was anything else he wanted to say before the interview was concluded and Mr Samson said no.

[25]   The detective concluded the interview and informed Mr Samson about the fact he could view the tape if he wanted. Mr Samson then said:

But me, I’m probably gonna, I’m probably just gonna plead guilty anyway so I’ll plead guilty, yeah, and just get it out of the way, whatever happens, happens.

Issues

[26]   As with the admissibility of all evidence, the starting point is a consideration of ss 7 and 8 of the Evidence Act 2006 (the Act). I am satisfied the evidence is relevant and should not be excluded under s 8(1).

[27]   The issue is whether the evidence was improperly obtained, and if so whether it should be excluded pursuant to the balancing process set out in the Act.3

3      Evidence Act 2006, s 30.

[28]   In Mr Preston’s submission, for Mr Samson, Mr Samson asked for further legal advice and attempted to invoke his right of silence, but his request for a lawyer was ignored and he was pressured into relinquishing his right to silence in contravention of NZBORA.4

The law

[29]Rights of persons arrested or detained are set out in NZBORA 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

(c)shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

(2)Everyone who is arrested for an offence has the right to be charged promptly or to be released.

(3)Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.

(4)Everyone who is—

(a)arrested; or

(b)detained under any enactment—

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

(5)Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[30]The defence relies on the Practice Note, cl 2(b):

2. Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:

4      New Zealand Bill of Rights Act 1990, s 23(4)(b).

…

(b) that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme.

[31]   Evidence is improperly obtained if obtained (as relevant to this proceeding) in consequence of a breach of NZBORA or unfairly.5 The Act specifically provides that, in deciding whether a statement obtained by a member of the police has been obtained unfairly, the guidelines in the Practice Note must be taken into account.

The right to take legal advice at any stage

[32]   The police routinely commence any electronically recorded interview with a suspect by outlining the suspect’s rights pursuant to NZBORA, specifically advising the suspect of the right to remain silent; that he or she does not have to make a statement; that anything said will be recorded and may be given in evidence in Court; that the suspect has the right to speak with a lawyer without delay and in private before deciding whether to answer any questions; and the police have a list of lawyers to whom a suspect may speak for free.

[33]   Mr Preston referred to the approach of the courts in England and Wales codified in the Codes of Practice issued pursuant to the Police and Criminal Evidence Act 1984.6 Those rules are more detailed than the Practice Note and, in connection with the right to legal advice, provide among other things:

6.1… all detainees must be informed that they may at any time consult   and communicate privately with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available.

…

6.5… Whenever legal advice is requested … the custody officer must act without delay to secure the provision of such advice. …

6.6A detainee who wants legal advice may not be interviewed or continue to be interviewed until they have received such advice …

5      Evidence Act 2006, s 30(5).

6      Revised Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers: Police and Criminal Evidence Act 1984 (PACE) – Code C (May 2014).

[34]   The Code contains detailed provisions about what happens if a detainee changes his or her mind about wanting legal advice or having a solicitor present and states they no longer wish to speak to a solicitor. Detailed provisions are incorporated outlining specific requirements before the interview may be started or continued in those circumstances.

[35]   In England and Wales, therefore, if at any time during an interview a detainee asks for legal advice, the custody officer must act without delay to secure the provision of such advice.

[36]   This issue does not appear to have caused particular difficulty in New Zealand. In the context of cases concerning those charged with driving with excess breath or blood alcohol under the Land Transport Act 1998, the police are required to remind a suspect of their rights at a number of different stages throughout the process. Such reminders are in the context of statutory provisions requiring testing procedures to be undertaken without delay.

[37]   Brosnahan v Police is a case concerning excess breath alcohol procedures.7 In that decision, the Court of Appeal answered questions as to a suspect’s right to take further legal advice following that right already having been exercised as follows:8

(i)Whether a suspect in the appellant’s position, having been given and exercised the right to obtain legal advice, requires a material change in circumstances or some event which plainly presents as a basis for seeking further advice before the police are required to facilitate a second or subsequent request for legal advice?

Answer: Yes.

(ii)Whether a suspect in the appellant’s position is required to articulate the reasons for seeking further legal advice before the police are required to facilitate that further request?

Answer: Yes, if the request follows the obtaining of legal advice at the same stage of the alcohol testing procedures and no event has occurred which obviously calls for further advice.

7      Brosnahan v Police [2009] NZCA 146, [2009] 2 NZLR 777.

8 At [33].

(iii)On the facts established in this case, ought the police to have been required to facilitate the further request for legal advice?

Answer: No.

[38]   Allegations of driving with excess breath or blood alcohol are in a different context from the present case. Suspects are required to undergo certain physical procedures and those procedures must be undertaken without delay. It is an offence to refuse to permit a blood specimen to be taken in certain circumstances.9 The answers set out above must therefore be considered in that context.

[39]   In the more general situation, where the police have sufficient evidence to charge a person or seek to question a person in custody, those imperatives requiring certain procedures to be undertaken without delay do not apply. The usual course is for a suspect to be given the opportunity to speak to a lawyer and, whether or not that right has already been exercised, the suspect’s rights pursuant to NZBORA are given at the start of the interview. The intent of that must be to inform the suspect that he or she still has the right to take legal advice, despite having done so already.

[40]   The 2016 Supreme Court decision of R v Perry contains some useful guidance on a suspect’s right to legal advice.10 In that case, Mr Perry’s rights were explained to him but he elected to commence an interview. Part way through the interview he said, “I am not going to say any more until I speak to a lawyer”. The interviewing detective stopped the interview and provided access to a lawyer. Mr Perry then told the detective his lawyer had advised him not to make a statement. There followed a break during which Mr Perry was spoken to by a detective inspector, who it seems informed Mr Perry that his choice not to say any more might not be his best option. Mr Perry then made a statement.

[41]   The Court of Appeal was of the view Mr Perry had exercised his right to silence when he conveyed to the interviewing detective the advice his lawyer had given him. The Supreme Court approached the matter on the basis Mr Perry had not asserted a wish to remain silent and was in two minds about whether or not to say anything further.

9      Land Transport Act 1998, s 60.

10     R v Perry [2016] NZSC 102.

[42]   Although there were two dissenting judgments, all Judges agreed it was not the role of the police to urge or seek to persuade a suspect to reject legal advice.11 The difference between the Judges centred mainly on the issue of causation, the majority considering the interference of the detective inspector was a minor contributing cause to Mr Perry making a full statement whereas the two dissenting Judges considered his advice was a major cause.12 In her dissenting judgment, Elias CJ commented on a suspect’s right to take further legal advice if the circumstances required it:

[175] Following that indication, Detective Varnam re-started the interview which was filmed. Mr Perry was again cautioned and reminded of his right to obtain legal advice although as Detective Varnam immediately remarked to Mr Perry “And you’ve done that and you’ve spoken to a lawyer previously”. I have some doubts as to whether the advice of the right to obtain legal advice was more than ritual. At that stage, Mr Perry had already indicated he was prepared to make a statement notwithstanding the earlier advice. He was not asked whether he wanted to communicate that intention to the lawyer and discuss it further with her, as I consider would have been proper given the earlier advice obtained and communicated by Mr Perry to the police.

Questioning following assertion of right to silence

[43]   The right to refrain from making a statement and the right to obtain legal advice are closely connected.13

[44]   There is no general or absolute prohibition on a police officer continuing to question a suspect who knows their rights and has asserted the right to silence:14

The suspect may waive his [or her] rights. Equally, the police may not undermine those rights or behave unfairly during the questioning. Relevant considerations include the circumstances in which the discussion came about; any vulnerability of the suspect, the manner of the questions; any lapse in time between caution and questions; and any element of bad faith or oppression by the police.

[45]   The fact a suspect might refer to legal advice not to comment does not change this position.15

11 At [51], [62 and [160].

12     At [56], [146] and [162].

13     R v Kumar [2015] NZSC 124, [2016] 1 NZLR 204 at [23].

14     Waipuka v R [2012] NZCA 526 at [18] (citation omitted).

15     R v Hughes [2007] NZCA 38, [2007] NZFLR 719 at [21].

[46]   The Court of Appeal decision in Lisiate v R contains some important guidance.16 A suspect can choose whether or not to remain silent; the decision to waive the right must be voluntary, informed and unequivocal; the right to legal counsel exists to assist a suspect to make an informed decision; and a suspect’s rights will not be breached if he or she chooses to answer a question with full knowledge of his or her rights and there is no element of bad faith, oppressive or overbearing conduct by the police.17

[47]   Relevant considerations in assessing fairness include the circumstances of the admission, the language used, the age and emotional status of the suspect, the lapse of time between caution and admission and any change in content or purpose of police questions.

[48]   The issue of continued questioning was discussed in the recent Court of Appeal decision of Te Moananui v R.18 The Court said:

[31]      In Ormsby the Court held the appellant’s statements to be admissible and noted the following significant contextual features of the case:19

(a)The appellant had been given the opportunity to see a solicitor and had exercised that opportunity;

(b)He knew he did not have to answer police questions;

(c)There was no evidence of any arrangement or understanding between the police and the solicitor that there would be no further questioning, nor even evidence of a request by the solicitor that there should not be further questioning;

(d)The appellant chose which questions to answer and, when he did not wish to answer a question, asserted his right not to do so;

(e)The police officer did not, to any substantial extent, persist with any question which the appellant declined to answer; and

(f)There was nothing else in the circumstances to suggest overbearing or coercive police interviewing tactics.

16     Lisiate v R [2011] NZCA 170.

17     At [11]–[12].

18     Te Moananui v R [2010] NZCA 515.

19     R v Ormsby CA493/04, 8 April 2005.

[32]      All those factors are present in this case. The appellant in Ormsby, like Mr Te Moananui, had told the officer he did not want to make a statement, after he had spoken to a lawyer. This Court held that in the absence of an absolute prohibition there was no legitimate basis upon which the interview that followed could be held to be inadmissible.

[33]      On the same basis, we conclude that the appellant’s right to silence was not undermined in this case.

[49]   That is not to say the police have carte blanche to continue with questioning when a suspect has made it clear he or she wishes to exercise their right of silence or their right to consult a lawyer. Examples of where the police have crossed the line include R v Falala, where a suspect continually said he wished to remain silent but the interviewing detective persisted on at least nine occasions.20 The interview was ruled inadmissible. Similarly, in R v Mitchell, the Court of Appeal regarded prolonged questioning of a suspect after he said he did not want to talk further to be in breach of his rights and unfair.21

Analysis

[50]   Together with counsel, I watched the relevant part of Mr Samson’s interview. He appeared relaxed, engaged and thoughtful.

[51]   Mr Preston’s emphasis was on the exchange set out in paragraph [14] above when, on two occasions, Mr Samson referred to legal advice, saying he wanted to get legal advice before commenting on the taxi incident, and, after acknowledging it was a pretty serious allegation, said he would rather leave it and wait until he had legal advice.

[52]   In Mr Preston’s submission, this was a different situation from the cases relied on by the Crown because Mr Samson clearly stated he wanted legal advice.   In     Mr Preston’s submission the questioning should have immediately stopped and a lawyer should have been made available to Mr Samson. Instead, he said, the detective brushed over Mr Samson’s comments and kept on questioning him. He accepted this was not done in a hostile or confrontational manner, in contrast to the case of

20     R v Falala [2013] NZHC 1737.

21     R v Mitchell CA160/05, 31 August 2005.

R v Slaimankhel referred to by the Crown,22 but said it was effective in a different way. In Mr Preston’s submission, the detective encroached bit by bit, with no let up and ignored Mr Samson’s  right to legal advice.  He suggested the questions regarding  Mr Samson’s moustache and whether or not he was usually clean shaven was an example of the detective using an investigative technique to obtain evidence from the photographs.

[53]   The Crown disagreed with Mr Preston’s interpretation of what had happened. In Ms O’Sullivan’s submission, Mr Samson was not saying he wanted legal advice at that time; he was simply saying he preferred not to comment until he had the opportunity to obtain more legal advice.

[54]   Ms O’Sullivan said the issue had to be interpreted in the context of the wording of s 23(1)(b) of NZBORA. The right, in Ms O’Sullivan’s submission, was at the time of arrest or detention. Mr Samson had been given legal advice immediately prior to the interview and there was therefore no breach.

[55]   Mr Preston relied upon the Practice Note which stipulates that a person in custody must be told of the right to consult and instruct a lawyer without delay and in private before deciding whether to make a statement or answer questions. They must also be told the right can be exercised without charge under the Police Detention Legal Assistance Scheme.

[56]   That is exactly what happened in this case. Immediately prior to being questioned, Mr Samson was given the right to instruct a lawyer and he exercised that right.

[57]   As discussed above, if, during the interview, a suspect requests the right to consult a lawyer then, in accordance with the rights repeated at the start of the interview, a suspect should be given that right. This is where the right to consult a lawyer and the right to silence converges.

22     R v Slaimankhel [2014] NZHC 3056.

[58]   Having watched Mr Samson’s interview, I agree with Ms O’Sullivan’s interpretation of Mr Samson’s comments. Mr Samson did not ask to speak to a lawyer or say that he wanted to speak to one immediately and that he would not participate or continue to participate in the interview until he had done so. He said he would “wait till I get legal advice”. I interpret that as Mr Samson’s invoking his right to silence.

[59]   The detective took the opportunity to outline the allegation to Mr Samson. There was nothing to stop him doing so.   He did not ask or demand a comment.    Mr Samson himself volunteered a correction when the detective referred to a white van, this in the context of a white Probox having been discussed earlier in relation to the Petone incident.

[60]   The detective’s questions were open, for example saying, “So what can you tell me?”

[61]   After the detective showed Mr Samson some photographs which he believed showed Mr Samson in the taxi ripping out the camera, there was a prolonged pause. It was Mr Samson who broke that pause by asking whether there was anything the detective wanted to ask him. In other words, Mr Samson was inviting questions. In saying that, the tactic of remaining silent can be a useful technique to lead another person into filling the silence.

[62]   The detective then put it to Mr Samson that the photograph showed Mr Samson ripping the camera out of the taxi. Mr Samson said he did not know about that, he understood the seriousness of the allegation and referred to having spoken to his lawyer. The detective then said, “There is nothing you wanna tell us about, about that incident?” to which Mr Samson replied, “No, not at this stage anyway”, saying he had to take his lawyer’s advice.

[63]   The detective accepted that, saying “That’s cool” and then moved on to ask why Mr Samson had shaved off his moustache. That was not a question directly about the taxi incident, although cannot be divorced from it. While it could be taken to refer back to the earlier questions  about  photographs  the  police  maintained  showed  Mr Samson trying to use credit cards taken in the Petone incident, by this stage of

course Mr Samson had  been shown the photograph from the taxi.  In  any event,   Mr Samson dealt easily with the question.

[64]   I have some concern about what happened when the detective returned to the interview room after a short break. He resumed the interview, saying they had almost finished but then told Mr Samson that Mr Barton and his girlfriend had both identified Mr Samson as the person in the front seat of the taxi ripping out the camera. After Mr Samson said that was because Mr Barton was trying to get himself a lesser sentence, the detective told Mr Samson it was his last opportunity if there was anything else he wanted to say about the incident. It was then Mr Samson said he did not recall it and he did not want to dig himself into a deeper hole. When asked why he could not recall it, he revealed he had been high on drugs and alcohol. The detective told Mr Samson he did not want Mr Samson to say anything he could not remember but emphasised Mr Barton had identified Mr Samson as the one in the front seat of the taxi. Mr Samson repeated he was drunk and high and, although he said it was just him and Mr Barton, it is not entirely clear to what time he was referring and whether that extended to the taxi incident or related only to the time around the Petone incident.

[65]   Before the detective had left the room, Mr Samson had made it clear he had nothing else to say about the two incidents. It was when informed he had been identified by both Mr Barton and his girlfriend that Mr Samson became more forthcoming. However, in the same way there is nothing to prevent the police putting allegations to a suspect, there was nothing to stop the detective informing Mr Samson of the alleged identification of him.

[66]   As mentioned above, the interview  needs  to  be  considered  as  a  whole.  Mr Samson was quite willing to discuss the Petone incident, although there were some aspects of the allegations, in particular relating to the allegation Mr Samson tried to use credit cards stolen in the Petone incident, when Mr Samson said he would leave matters there. He was, therefore, quite capable of deciding what matters he wished to comment on and what matters he did not. This approach continues in the second part of the interview.

[67]   Relevant too is the spontaneous utterance from Mr Samson at the very end, when the detective was attempting to conclude the interview, that he would probably plead guilty.

[68]   The situation can be distinguished from Falala, relied on by the defence, where a suspect was questioned for 90 minutes, starting at 12.10 am. On two earlier occasions, he said he did not want to make any statement at all. He repeated this nine times subsequently. The Judge concluded the questioning, although not threatening, was overbearing. Asher J described it as “not a case of knowing and informed waiver of the right, but of capitulation in the face of persistent questioning”.23 The situation in Mr Samson’s case was entirely different.

[69]Mr Samson had:

(a)been given and exercised the opportunity to speak to a lawyer immediately prior to the interview;

(b)no other issues such as a disability, exhaustion, youth or language difficulties which impacted on his understanding or the voluntary nature of his conduct;

(c)understood he did not have to answer police questions;

(d)no arrangement with a lawyer and police that there would be no further questioning;

(e)made the choice to answer some questions and asserted his right not to answer others; and

(f)not been pressured inappropriately. The interview was relatively short and held at an appropriate time of day (8.00 am) after Mr Samson had been given refreshments. There is no evidence of any substantial persistence or badgering of Mr Samson in the way he was questioned,

23     R v Falala, above n 20, at [14].

nor was the officer overbearing in his approach. As alluded to above, however, I recognise there are other subtle techniques which can be employed by the police and which are not obviously overbearing.

[70]   The police must take care they do not exploit a suspect’s vulnerability and the power imbalance which can exist when police interview a suspect. In this case, I have identified some concerns. However, having viewed the interview, I am satisfied overall that there was no breach of Mr Samson’s right to take legal advice or exercise his right of silence. The evidence was not unfairly obtained.

[71]   Even if I had been required to undertake the balancing exercise,24 I would have concluded that exclusion of the evidence would be a disproportionate response. Notwithstanding the importance of the right, there was no recklessness or bad faith and there was no oppressive or overbearing conduct. Given Court of Appeal authority, the detective would have believed he was entitled to put the allegation to Mr Samson. It was not obvious Mr Samson wanted immediately to take legal advice and stop participating in the interview. Any impropriety was at the lower end of the scale. The account given by Mr Samson is both inculpatory and exculpatory, but it is relevant and probative, being given just two days after the taxi incident. Mr Samson faces a very serious charge. Those matters indicate the balancing exercise would be weighted in favour of allowing the evidence to be admitted.

Result

[72]For the reasons given, the application is granted and the evidence is admissible.

Thomas J

Solicitors:

Crown Solicitor’s Office, Wellington Public Defence Service, Wellington

24     Evidence Act 2006, s 30(2)(b).