R v Sturgeon CA196/04

[2004] NZCA 368

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL.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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA196/04

THE QUEEN

v

GRAHAM DONALD STURGEON

Hearing:         26 August 2004 Coram:  Hammond J

Robertson J Baragwanath J

Appearances: D L Stevens QC for Applicant

B M Stanaway for Crown Judgment:    15 September 2004

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

Introduction

[1]    This is an application for leave to appeal some of the pre-trial rulings made in the District Court at Nelson on 14 May 2004 prior to a  trial  of  Mr Sturgeon  on    16 counts alleging various offences under the Misuse of Drugs Act 1975 and the Crimes Act 1961.

R V STURGEON CA CA196/04 [15 September 2004]

[2]    The first relates to an application for severance in respect of two charges of possession of offensive weapons in circumstances that prima facie showed the intention to use them to commit an offence involving bodily injury or the threat or fear of violence and one charge of receiving a Suzuki four-wheel motorcycle from  all the other counts in the indictment.

[3]    The second relates to an application to exclude the evidence of some of the interchanges between the applicant and Detective Woodley on the day of his arrest.

The factual circumstances

[4]    Mr Sturgeon’s 16 count indictment includes 4 counts of cultivating cannabis contrary to s9(1) of the Misuse of Drugs Act 1975, 2 counts of selling cannabis contrary s6(1)(e) of the Misuse of Drugs Act, 1 of being in possession of cannabis for the purposes of supply contrary to s6(1)(f), and 6 money laundering charges under s257(A)(ii) of  the  Crimes  Act  1961.  There  is  no  argument  about  these 13 charges being heard together. The challenge relates to two charges under s202A(4)(b) of the Crimes Act of being in possession of offensive weapons in circumstances that prima facie show an intention to use the weapons to commit an offence involving bodily injury or the threat or fear of violence and one charge of receiving a four-wheeled motorcycle knowing that it had been dishonestly obtained contrary to s258(1)(a) of the Crimes Act.

[5]On the issue of severance, the Judge stated the applicable law to be:

What is at issue in an application for severance is the balance between the rightful interests of the Accused and the interests of the public in the prompt and  proper  dispatch  of  the  business  of  the  Court  –   (Wilson   (1996)   14 CRNZ 471). Counts should be severed if there is a real prospect that the number of counts will cause injustice by way of an unfair trial. The general principle to be considered is that counts arising from incidents unrelated in time and circumstance are not to be tried together unless evidence as to one is relevant to another so that probative value outweighs any prejudicial effect (R v W (1995) 1 NZLR 548).

[6]There is no challenge to that statement.

[7]    The Crown’s contention in the District Court and before us is that there was sufficient inferential evidence upon which the jury could find that these two firearms, one of which was standing against the headboard of the applicant’s bed concealed under a dressing gown and the other in a hot water cylinder cupboard were on hand as a means of protection for the applicant and his drug activities. Each of  the firearms had a loaded magazine attached to it. The Crown has not sought to have reference made to other firearms which were in proper storage.

[8]    The contention on behalf of Mr Sturgeon was that the prejudicial effect on the jury outweighed any probative value in having these issues dealt with at the same trial. Before us Mr Stevens contended that it was a lethal combination insofar as prejudice is concerned of “drugs money and guns”. As there was not a large scale drug operation discovered at the time of the search the probative value, if any, was negligible, counsel submitted.

[9]The trial Judge saw it differently:

The search of the property on 4 February 2003 revealed a number of items that the police are entitled to refer to as being part of the trappings and paraphernalia of a person engaged in drug dealing and drug cultivation. Those items include the growing of drugs, tracks, other paraphernalia obtained in a search of the growing areas including the motorbike, pictures of tracks which are consistent with a motorbike being used, drugs near the dog kennel in a container, pollen in the freezer, money in the freezer, scales, and the rifles. All are relevant. Those circumstances are such that the evidence of the possession and position of the rifles is admissible on other counts. The same reasoning applies to the motorbike.

[10]   We are not satisfied that his conclusion is wrong in respect of the firearms charges. Although there is always the potential for misuse of evidence by a jury, a trial Judge in properly directing with regard to the jury’s assessment of the individual counts will discuss the extent and use of this material. It is not necessary or appropriate to sanitise a factual situation of alleged criminality so that each component is robbed of the reality which arises from the total circumstances. There is a basis upon which the Crown could advance the theory of these firearms being in the positions they were, and in the state that they were, as a means of protecting what was otherwise happening on the property.

[11]   Mr Stevens acknowledged that the joinder would be unobjectionable if there was a large amount of harvested cannabis on the property. We note the presence of pollen vials, $20,000 in cash and 1014 grams of cannabis in a bucket from which the Crown is entitled to invite the jury to conclude that large scale harvesting operations had occurred or were in contemplation.

[12]   We are therefore satisfied that the refusal to sever in respect of those two counts was appropriate. The material has the potential to be of inferential value and we do not accept that the illegitimate prejudice is disproportionate.

[13]   The Crown responsibly acknowledged the link between the allegedly stolen four-wheeled motorbike and the rest of the offences is much more tenuous. Clearly the Crown is free to lead evidence that a motorcycle was at the property and there were clear indications of it being used, but the fact that it had been dishonestly obtained is not relevant. This factor is not probative in respect of the remaining counts. The balance is clearly tipped with prejudice outweighing probative value. Severance in respect of that count should have been granted and is now ordered.

The facts with regard to the statements

[14]   The  search  of  the  applicant’s  property  commenced   about   9.15am   on   4 February 2003. While there, Detective Woodley asked the applicant a number of questions and recorded the answers in his notebook.  In  answer  to  one  question  Mr Sturgeon said there was no cannabis on the property. At 1.26pm the Detective asked the applicant to accompany him to the Police Station which he agreed to do and arrived there  at  1.55pm.  Shortly  afterwards,  Detective  Woodley  says  that Mr Sturgeon admitted that the cannabis plants on the hill at the back of the property were his and that he had planted them, watered them and put fertilizer on them.

[15]   At about 2.30pm, Mr Sturgeon indicated he wanted to speak to various named solicitors. There was some difficulty in making contact.

[16]   At 3.25pm Mr Sturgeon spoke by telephone with a solicitor. At 3.55pm the Detective asked Mr Sturgeon “if he was prepared to make a statement of admission.”

He then said the cannabis on the hill was not his, he was just trialling the bike and there was no cannabis in his house, there were good reasons for the firearms and he would state all this on video.

[17]   The  Detective  declined  to  conduct  a   video   interview   and   said   that Mr Sturgeon could make those statements in his own defence in due course but it was not the Detective’s function to record them. He told Mr Sturgeon’s solicitor at 4.10pm that it was not his role to present a defence case and therefore he would not conduct a video interview. There were some further questions between 4.14pm and 4.45pm with the questions and answers being recorded in a notebook but none of these provided the applicant with the opportunity to give the explanation that he had earlier indicated he wished to give.

[18]   At depositions, the Detective was cross-examined about his refusal to afford the applicant an opportunity to provide his explanation. He said that he was not prepared to give Mr Sturgeon an opportunity because he did not believe him and the trial process would enable the applicant to give his explanation. In summary, the Detective was not prepared “to conduct a self-serving statement recorded on video that contained material that I believed to be inconsistent with the truth.”

[19]   Judge McKegg held that there had been no unfairness in the conduct of the Police. They were under no obligation to take steps about a video recording and that “the accused does not have control of the interviewing process, its duration or its nature.” He held that the interchanges between the two men up until the telephone discussion between Mr Sturgeon and his solicitor could be relevant and admissible but not anything thereafter. Because of Bill of Rights issues which are not in contention before us, he agreed with the Crown’s position that comments after he expressed a desire to speak to a lawyer should not be led.

The legal position

[20]   As Mr Stevens conceded, there is no absolute obligation on the Police to interview a suspect or provide an opportunity to give an explanation, R v Gibbons

[1997] 2 NZLR 585. However, counsel submitted that once there was a decision to interview there was an obligation to proceed on a whole statement basis. He noted the reasoning of this Court in R v Tomkins [1981] 2 NZLR 170 when concluding that the whole of a statement must be produced (both the inculpatory and the exculpatory parts of it) on the basis that the jury was entitled to assess all:

It would be unreasonable to assume that a man’s entire explanation for his conduct can be expressed in one sentence or any particular number of sentences. The explanation may have to be derived from the whole  statement taken together.

[21]   Mr Stevens placed particular reliance on the decisions of the English Court of Appeal in R v Pearce (1969) 69 Cr App R 365 where the relevant principles were summarised:

(1)A statement which contains an admission is always admissible as a declaration against interest and is evidence of the facts admitted. With this exception a statement made by an accused is never evidence of the facts in the statement.

(2)A statement that is not an admission is admissible to show the attitude of the accused at the time when he made it. This, however,  is not to be limited to a statement made on the first encounter with the police … The longer the time that has elapsed after the first encounter the less the weight which will be attached to the denial …

(3)Although in practice, most statements are given in evidence even when they are largely self serving, there may be a rare occasion when an accused produces a carefully prepared written statement to the police, with a view to its being made part of the prosecution evidence. The trial judge would plainly exclude such a statement as inadmissible.

[22]   There was in England some divergence of view as to how the 3 principles were to apply and the issue was reviewed by the House of Lords in R v Sharp (1988) 86 Cr App 274 and subsequently in R v Aziz [1995] 2 Cr App Rep 479. Importantly, for the purposes of this case, while again reiterating the whole evidence approach to statements, Lord Steyn in Aziz, with regard to wholly exculpatory statements, said at 158:

Counsel for the  Crown submitted  that Lord Taylor  CJ  in R v  Vye [1993] 3 All ER 241 in effect ruled that wholly exculpatory and self-serving statements by a defendant are admissible and should be the subject of directions in accordance with R v Vye. …. It is clear beyond any doubt that

R v Vye is only concerned with mixed statements. And the position remains that a wholly exculpatory statement is not evidence of any fact asserted.

[23]   As this Court noted in R v Poa, CA48/01, 24 July 2001, all evidence of interchanges between Police and suspects is hearsay. Confessions are admitted by way of an exception to the rule against hearsay. A wholly exculpatory statement is inadmissible.

[24]   Because frequently the Police are anxious to interview suspects, and not infrequently there is exculpatory material alongside the inculpatory, a common practice has emerged of all the interchanges being placed before the jury to fulfil the whole statement criteria.

[25]   It sometimes appears that there is a misapprehension that interviews are some class of evidential material which has automatic admissibility. Clearly that is not the legal position. Any out of Court statement, whether oral, written or on video, will be prima facie inadmissible. The rules permit evidence to be given about spontaneous utterances and other matters coming within res gestae in particularised situations. Immediate reactions can be of probative value. But otherwise only  statements against interest are admissible as an exception to the hearsay rule although they must be viewed within their total context.

[26]   The Court must assess what is to be characterised as the whole statement. In making that judgment it will determine what is said by way of spontaneous reaction to the allegation; what is said by way of admission; and what is the natural development of the statement. Once the natural development has been overtaken by  a decision to offer a contrived exculpatory account, the time has come to draw the line.

[27]   We add that the obtaining of such statements is not a licence for police officers to get before the Court in the guise of questions in obtaining the confession, material which would otherwise be inadmissible. The reactions and assessments of questioners are of no evidential value. The questions themselves have no probative value until and unless they are accepted or acquiesced in by the person being interviewed, R v Halligan [1973] 2 NZLR 158; R v Hunt (CA178/00) 26 September

2000. The view of the questioner as to whether a person is telling the truth, or is reliable or believable is irrelevant. The far too frequent introduction of this type of material is objectionable and contrary to principle.

[28]   There needs to be vigilance to ensure that the interviewing process is not abused or contaminated. It is too easy to resort to a vague notion of fairness as a justification for a deviation from the rules which have been crafted and created to ensure proper balance is achieved. An unprincipled approach in either direction  lacks integrity and is contrary to proper practice and will lead to injustice.

[29]   Issues of fairness may arise when an investigating police officer is selective with respect to the use of evidence that has been gathered – for example, when material relevant (exculpatory) evidence is not disclosed in an application for a search warrant: R v H (CA340/00) 26 September 2000. But that is a different thing from saying either there is a duty on the investigator to continue to hear and repeat anything a suspect or accused chooses to say, or to receive additional evidence offered by the suspect at a later stage.

Application to the facts

[30]   In the absence of  an  obligation  on  the  Police  to  interview,  and  where  Mr Sturgeon had made clear that the material involved would have been exculpatory, there is no principled reason which could make the outcome of a video interview admissible. Once Mr Sturgeon made clear that what he wanted to say on video would not include any inculpatory material, the Police Officer was entitled to conclude that there was no point in conducting the an interview. If it had occurred, the outcome would not, in any event, have created admissible evidence and the Crown would have been under no obligation to tender it.

[31]   We note only that the touchstone is not whether the Police Officer believed or did not believe what Mr Sturgeon wanted to say. That is of no relevance or interest. The issue is whether what Mr Sturgeon was going to say could be admissible evidence.

[32]   What occurred on the day that Mr Sturgeon was apprehended prior to the police officer’s declining to continue was not particularly unusual. There was a  series of interchanges between police officers and the suspect extending over some hours. Parts of that material were inculpatory and parts exculpatory. If the Crown wanted to rely on any of it, they had to present all of it. The crux issue is when ‘the statement’ can be considered as having come to an end. Mr Stevens argued that, because the process was curtailed by the police officer, no part of the police and suspect interchanges should be admitted.

[33]   We do not agree. A sensible starting point is that all the interchanges through until the discussion with the solicitor should prima facie be treated as the statement. Clearly a new phase was to be entered into thereafter. What Mr Sturgeon then wanted to do can only be seen as creating a contrived exculpatory statement. It was no longer part of the natural development of the interchange between the parties. While unwritten, this would have been a straight forward example of principle applied in the third category in Pearce.

[34]   The precise outcome is altered in this factual scenario because, as the Crown has responsibly accepted, after some initial interchanges at the Police Station, there was a clear indication at 2.30pm that Mr Sturgeon wanted legal advice. Comments made thereafter cannot be tendered by the Crown because of Bill of Rights requirements.

Conclusion

[35]   Accordingly leave to appeal is granted. The appeal is allowed in respect of the application for severance of the receiving charge which is now ordered. The appeal in all other aspects is dismissed.

Solicitors:

Bamford Law, Nelson, for Applicant Crown Law Office, Wellington