R v T HC Hamilton CRI-2006-019-4626

[2006] NZHC 1405

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2006-019-4626

THE QUEEN

v

T

Hearing:         9, 10 November 2006

Appearances: Ms L Dunn for Crown

Mr D J Allan for Accused

Judgment:      10 November 2006

(ORAL) JUDGMENT OF LANG J [on s 344A application]

Solicitors:

Crown Solicitor, Hamilton
Counsel:

Mr D J Allan, P O Box 4443, Hamilton

R V T HC HAM CRI-2006-019-4626  10 November 2006

[1]      Mr T   faces two charges of conspiracy to defeat the course of justice. These relate to assistance that Mr T   is alleged to have provided to a fugitive by the name of Kim Smith.

[2]      Mr Smith was present at a farm property at Waingaro at a time that Mr Andre Wilson died as a result of a gunshot wound in the early hours of 7 June 2005. During the police investigation of Mr Wilson’s death they stepped up their efforts to locate and arrest Mr Smith, who at that time was wanted on a number of charges.

[3]      As part of the case against Mr T   the Crown proposes to lead evidence of two written statements that he made to the police on 7 and 8 July 2005.   Mr T   was not cautioned at the commencement of either of the interviews that gave rise to the statements and he was not advised of his rights under the New Zealand Bill of Rights Act 1990 (“NZBOR”) either.

[4]      Mr T   objects to the admissibility of those statements on the basis that those cautions and advice under the NZBOR were not given.   As a result, the Crown has applied for an order under s  344A of the Crimes Act 1961 determining the admissibility of the two statements.

[5]      Over the last two days I have heard oral evidence from the two police officers who interviewed Mr T   on 7 and 8 July.   That evidence makes it quite clear that Mr T   was not considered a suspect in the police investigation at that stage.   He was simply being interviewed as part of the overall police effort to establish the identity of persons who were associates of both the deceased and Mr Smith.    Mr T   clearly fell into that category because he knew both Mr Smith and Mr Wilson and had visited the Waingaro address on several occasions.

[6]      Having heard from the officers I am satisfied that Mr T   was only being interviewed as a witness and that the police had no intention at that time of charging him with any offence.   This conclusion is reinforced by the fact that Mr T   was not arrested until 18 November 2005, some four months after the interviews.

[7]      In addition, the police arrested Mr Smith on 19 August and over the next two days also arrested a significant number of his associates.    The fact that Mr T   was not arrested until November 2005 reinforces the conclusion that, as at 7 and 8

July 2005, the police had no intention of charging him with any criminal offence. Moreover, the vast majority of intercepted telephone conversations on which the Crown now relies did not occur until after the interviews on 7 and 8 July 2005.

[8]      In those circumstances there can be no suggestion that the police ought to have cautioned Mr T   or to have provided him with advice of his rights under the NZBOR Act.   For that reason the objection cannot be sustained.

[9]      I therefore grant the Crown’s application and declare that the two statements are admissible at Mr T  ’s trial.

Lang J