R v T HC Wellington CRI 2007 091 715

[2008] NZHC 1000

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2007 091 715

THE QUEEN

v

T

Hearing:         13 June 2008

Counsel:         P K Feltham for Crown

S K Green for Accused

Judgment:      27 June 2008

RESERVED JUDGMENT OF DOBSON J (SECTION 344A APPLICATION)

Nature of the application

[1]      This is a pre-trial application brought by the Crown under s 344A of the Crimes Act 1961 for an order determining the admissibility of a video interview. Counsel for the accused has served notice of challenge to its admissibility under ss 28, 29 and 30 of the Evidence Act 2006 (“the Act”).

[2]      The accused is charged with one count of attempted murder and one count of wounding with intent to cause grievous bodily harm.   The charges arise out of an

alleged stabbing at a Porirua address on the evening of 27 February 2007.  Both the

R V T HC WN CRI 2007 091 715  27 June 2008

accused and the complainant resided in different parts of the property which one Police witness described as “a doss house”, and is apparently a mixture of rooms let on a single basis, communal facilities, and somewhat larger flats.   The address in Kahika Grove was well known to the Police as one which Mongrel Mob members or associates either lived at, or at least frequented.   It was also known as a “tinny house”, that is a source of low level cannabis dealing.

[3]      Shortly after 11.15pm on 27 February 2007, the accused entered the Porirua Police Station, asking to be locked up because he claimed the Mongrel Mob were chasing him, and that he and his girlfriend had been attacked by Mob members.  He appeared with a cut to the head which was subsequently attended to.

[4]      Informal discussions with two officers ensued in which the accused was told he could not be locked up without being charged with an offence, but that he would be welcome to remain in the foyer of the station if he wished to.

[5]      About an hour after his arrival, officers at the station had learned enough from persons at the Kahika Grove address, and at a local after-hours emergency medical clinic, to charge the accused with assaulting the complainant.  He was duly charged at 12.20am, processed and placed in a cell overnight.

[6]      In the course of the following morning, the terms of the charges were altered to reflect those the accused now faces, and a Detective conducted two video interviews with him.  He was eventually taken to the Porirua District Court (located very close to the Police Station) shortly before 1pm that day, 28 February 2007.

[7]      In the first video interview, the accused denied any assault, and said he had difficulty remembering what had occurred the previous evening.   That interview stopped when he indicated he did not want to say anything more.   The second interview included a form of confession to stabbing the complainant.

[8]      The challenge is to the admissibility of the second interview, and is based on two grounds.  First, that it was influenced by oppression, contrary to s 29 of the Act, and secondly that the delay in presenting the accused at Court amounted to a breach

of his right under s 23(3) of the New Zealand Bill of Rights Act (“BORA”) to be brought as soon as possible before a Court, which delay enabled the second video interview to occur so that it was improperly obtained for the purposes of s 30 of the Act.

Factual context

[9]      It is appropriate to begin with an analysis of the way the Police dealt with the accused throughout the period he was in custody.  In addition to viewing both video interviews, I heard a full day’s evidence from four Police officers involved with the matter, as well as from the accused, his domestic partner, Jodie Rapana, and the counsel first contacted to represent the accused, Mr Ewen.  I have subsequently had the advantage of written submissions from both parties.

[10]     The period up to the accused being charged and placed in a cell at 12.20am is unremarkable, as is his being left to sleep until some time after 7am the following morning.  The first material interaction appears to be during the opportunity he was afforded to go outside the Police Station building to an adjoining yard of some sort to have a cigarette, sometime between 7.30 and 8am.  He spoke there to two officers, Detectives Fantham and Davis.  At least Detective Fantham had spoken previously to the accused about the activities of others at the Kahika Grove address.  There was a suggestion from Ms Rapana that the Police had visited their part of those premises many times before, asking them to be informants for the Police, which they had refused to do.

[11]     Detective Fantham made a note of at least part of this discussion in the yard with the accused.  He recorded asking the accused:

Fantham:        What was last night all about mate? Accused:       I just got angry man, I was drunk. Fantham: What were you fighting about?

Accused:         My guitar got stolen man, why don’t you guys do something about that place?  Whenever you go there you take everyone else away but not him.

Fantham:         It’s not really like that.

Accused:        You guys know he’s the one that runs the shop up there. Fantham: Did you mean to kill him?

Accused:         Nah.

Fantham:        What did you want to do?  I mean you tried to put a knife in his chest?

Accused:         I don’t know, I was just ….

The accused declined to sign that note taken by Detective Fantham at the time.

[12]     Shortly before 8am, Detective Davis contacted a lawyer for the accused, Mr Ewen, and arranged for him to speak directly to the accused on the telephone.  At

8.36 that morning, Detective Davis commenced the first video interview with the accused.   The interview traversed the circumstances of an argument between the accused and the complainant about matters, including the complainant knowing who had stolen the accused’s guitar earlier in the year.  During that interview, the accused was at times tearful, and was generally inclined to deny recollection on account of being drunk.  Eventually he indicated that he did not want to say anything else, and then twice stated “I didn’t do anything”.

[13]     The accused’s evidence was that at the end of the first interview, Detective Davis threatened him with conducting a search of the Mongrel Mob “pad”, and telling the occupants that the search was being done because of the accused.

[14]     After the first video interview, the accused was permitted to see his partner, Ms Rapana.  Her evidence was that she had learned from the complainant, and from witnesses in the room at the time of the alleged attack, what they would say about it before going to the Police Station that morning.  She went, in part at least, to see what the accused’s version of those events was.  She described seeing him first in a room where they were separated by a perspex shield.  She described him as being upset and had been crying.  Her evidence-in-chief was:

He said that the Police wanted him to make a statement.  They threatened him if he didn’t make a statement they would go to the mob and ask them questions and tell them they were there because of [the accused].

[15]     Her evidence was also that some little while after this meeting with the accused, Detective Davis took her from the public area of the Police Station to the cell where the accused was being held.   The evidence of both the accused and Ms Rapana was that Detective Davis asked the accused, in her presence, whether he would now make a statement, to which he nodded in assent.

[16]     Ms Rapana said the same officer who took her to the cell was the one who questioned her, and that this was Detective Davis.  However, she accepted in cross- examination that her interview was conducted by another officer. Detective Davis denied  that  any such  second  meeting  occurred,  or  that  there  was  any threat  to attribute a search of Mongrel Mob premises to the accused.

Oppression: the law

[17]     Section 29 of the Act provides:

29       Exclusion 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.

[18]     Both parties referred to the decision of Harrison J in R v Patten HC AK CRI

2006 004 3200 8 April 2008 where the terms of s 29(5) were commented on to the following effect:

[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.

[19]     If I accept the accused’s version, then such a threat to expose him (and possibly his partner) to the risk of retribution by the Mongrel Mob if he did not provide  a  statement  is  clearly  within  the  forms  of  oppression  the  section contemplates.

Did oppression occur?

[20]     In the end I am satisfied beyond reasonable doubt that the threat was not issued by Detective Davis, as alleged.  That conclusion depends on weighing all the evidence of what occurred at the Police Station that morning.

[21]     First, there is the contemporaneous evidence in the content of the two video interviews themselves.  In the first, the accused is tearful, uncertain, appears to be feeling the effects of alcohol and possibly the cannabis that he admitted consuming the night before.   He had spoken to  a lawyer shortly before the interview, but remained very unsure of himself.  After numerous exchanges with Detective Davis about the circumstances at the Kahika Grove address and his contact with others the night before, he said that he was not prepared to discuss what happened.  He denied doing anything, and that brought the first interview to an end.

[22]     After that interview was completed, the accused heard from his partner what the complainant and witnesses were likely to say, and would probably assume that was information available to the Police.  A reconstruction in his own mind, aided by a private discussion with his partner, might well have triggered some measure of risk that the Police would have recovered the weapon, which indeed he was confronted with during the second interview.

[23]     Then, near the beginning of the second video interview, after the standard cautions, the circumstances that had preceded it were explicitly addressed:

Detective:        Ah, you’ve seen Jodie, your partner, this morning, and after seeing her you decided to make a statement, voluntarily.

Accused:        (Nods head)

Detective:       Have we held out any promises for you to make a statement? Accused:      No.

Detective:        No.  OK.  I never said to you that if you see Jodie, you had to make a statement, or

Accused:        No.

Detective:       Nothing like that? Accused:  (Shakes head)

Detective:        OK.   It’s just important, thats, some, somebody may ask, well why is he all of a sudden seeing his partner, now he’s prepared to make a statement.  I just want, for the record, for the video, show that, you know, I never held that over your head to, over your head to get, for you to talk, to me.

Accused:        Yeah.

Detective:       Whew, so we, we’ll start off as to ah where we got to last time.

Accused:        (Nods head)

[24]     The accused’s agreement with the propositions put is silent.   However, his demeanour gives no hint that the two participants are sharing a mis-statement of the true situation, and his part in these exchanges, together with his conduct later in the interview, appear consistent with his genuinely accepting those propositions put to him.    There  is  certainly  no  suggestion  that  the  interviewing  officer  had  just threatened him with adverse consequences for failing to make a statement.

[25]     Then assessing the predicament of the accused at the time.  For anyone in his position reflecting on what those with gang associations were likely to accuse him of, and the need for the Police to visit and potentially search the Kahika Grove premises, a real apprehension at the hornets’ nest he may have stirred up is entirely likely.   Such a fear of retribution could arise for him and his partner without any prospect that the Police would draw further attention to him by blaming him for a search of Mongrel Mob premises.   He had come to the Police Station effectively seeking protection from them, before any Police action was taken.

[26]     There was also the prospect of confusion as to which premises might be subjected to search.  On one view, the Kahika Grove address might be treated as a Mongrel Mob “pad”, whereas the accused was adamant that the threat related to another Mongrel Mob  address,  quite  unconnected  to  the  events  of  the  previous evening.  As I have noted, the prospect of further Police visits to Kahika Grove in connection with the events of the previous evening was entirely to be expected.

[27]     The confusion in the evidence of Ms Rapana as to which Police Officer took her to the accused’s cell also tells against its reliability.  She did accept that she was not asked to persuade the accused to make a statement.

[28]     Submissions  for  the  accused  made  the  point  that  whether  there  was oppression has to be assessed in the circumstances in which the questions were put (s 29(4)(c) of the Act).   I do not see that having any bearing on the credibility of

which version of events is to be preferred.  I deal separately below with the effect of delay per se.

[29]     Detective Davis’ evidence reflected a demeanour consistent with that shown in the two video interviews he conducted.  He was very firm in denying all aspects of the alleged dialogue between the two interviews.

[30]     There was another, quite discrete, contest on credibility.   The accused said that when he was left alone to speak with Mr Ewen before the first video interview, after doing so he took the opportunity to call someone else.  He says that Detective Davis discovered him doing this, stopped the call and swore at him.  He also claimed the Detective swore at him on another occasion.  The allegations of swearing were denied by Detective Davis.   I did not understand Ms Green to contend that this behaviour constituted either oppression of itself, or conduct aggravating other oppression.   If so, I would be inclined to treat it as below the threshold for what might constitute oppression.   In those circumstances, it is unnecessary to make a finding as to whether the swearing conduct was made out.

[31]     Accordingly, I find that the alleged Police conduct constituting oppression influencing the provision of the second video interview did not occur.

Improperly obtained?

[32]     The second ground of challenge was that the second video interview was improperly obtained in that it resulted from, or was contributed to by, undue delay in bringing the accused before the Court, which right is recognised in s 23(3) of BORA. Here, the test under s 30 of the Act is somewhat different.  It provides:

30       Improperly obtained evidence

(1)This   section  applies   to   a   criminal   proceeding   in   which   the prosecution offers or proposes to offer evidence if—

(a)the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation,   the   issue   of   whether   the   evidence   was improperly obtained and informs the prosecution of the grounds for raising the issue; or

(b)the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.

(2)      The Judge must—

(a)find,  on  the  balance  of  probabilities,  whether  or  not  the evidence was improperly obtained; and

(b)if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.

(3)For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a)the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b)the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:

(c)      the nature and quality of the improperly obtained evidence: (d)      the seriousness of the offence with which the defendant is

charged:

(e)whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f)whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:

(g)       whether the impropriety was necessary to avoid apprehended physical danger to the police or others:

(h)whether there was any urgency in obtaining the improperly obtained evidence.

(4)The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.

(5)For the purposes of this section, evidence is improperly obtained if it is obtained—

(a)in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or

(b)in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c)      unfairly.

(6)Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.

[33]     The total period during which the accused was at the Porirua Police Station needs to be broken down.  I discount the period up to 7.30am on 28 February 2007. He had arrived seeking sanctuary, was charged after midnight, processed (obviously in a state of some intoxication) and put in a cell until the morning.  There can be no expectation that the process of preparing what needed to be done before a Court appearance would be progressed in that period.

[34]     After an initial discussion in the open air where the accused discussed the matter with Detective Fantham, I find he indicated his willingness to undertake a video-taped interview.  He confirmed that he had no objection near the outset of the video interview, timed around 8.36am. The first interview ended at 8.56am.

[35]     After that first interview, he was given an opportunity to speak to his partner. She estimated their discussion in the room where they were separated by perspex lasted between 15 minutes and half an hour.  Assuming, say, 20 minutes for that to be arranged after the first interview (including the time for the post-interview matters in the interview room) and, say, 10 minutes for the accused to be returned to his cell after it, that would mean a lapse between 10am or somewhat thereafter, and 11am, with the recording for the second interview timed as starting at 11.10am.

[36]     Detective Davis’ evidence was that he did not recall how he learned that the accused was prepared to participate in a second video interview.  He was adamant that he had not participated in putting any pressure of any sort on the accused to do so.  He was cross-examined as to the length of time taken to prepare the file on the accused for Court.  That included a summary of the facts and grounds for opposition

to bail.  He denied that he could thoroughly have completed the file for Court by, say, 10.30am.

[37]     If, as I have found, the accused indicated at some point before 11.10am that he was prepared to undertake a second video interview, then it must be reasonable for the investigating officer to suspend work on the file for Court, and conduct the video interview.  From Detective Davis’ point of view, it seems that since the first interview, the Police had retrieved items including the knife, and these were able to be put to the accused.   Although it was not acknowledged in the evidence, it is reasonable for an interviewing officer to take some little time to be briefed on developments  with  the  case  that  might  become  relevant  in  the  context  of  the interview he was about to conduct.

[38]     The Crown’s submissions relied on R v Chadd CA CA114/06 4 September

2006:

[33]      It is common ground that “as soon as possible” and “promptly” has to  be  interpreted  realistically.    Confessions  obtained  where  the  person arrested is deliberately kept in custody under a holding charge whilst another case is being further investigated, rather than brought before the Court, will be in breach of s 23(3): see R v Te Kira [1993] 3 NZLR 257 (CA). The statement may be excluded if there is a material causal connection between the breach and the subsequent damaging statement: R v Greenaway [1995]

1 NZLR 205, 208 (CA). The test for causation is that there is a “real and substantial connection” between the breach and the evidence: Te Kira at 272. There has to be a reasonable time allowed for decisions to be made and the requisite processing to be completed: R v Rogers (1993) 1 HRNZ 282 (CA).

Applying that approach here, even if I am wrong in treating the period between interviews as reasonable in the sense of not breaching the right to be brought before the Court as soon as possible, then there must also be an issue of the causal link.  If the delay arose because the accused indicated his preparedness to make the second statement,  then  the delay has  not  arisen  because  the  Police  were  attempting  to procure such a statement.

[39]     Cross-examination  of  Detective  Davis  included  criticism  of  the  period between the end of the second interview at 11.46am, and delivering him to the Court at 12.55pm.  That period cannot have had any influence on the provision of a second video interview which had been completed before then.  At most, it might be treated

as additional time required to prepare the file for Court, raising a question as to how much of that work had in fact been done in the period between the first and second interviews.

[40]     However, the transformation of the recorded statements by the accused from exculpatory to inculpatory may well have warranted some re-working of the detail on the file being prepared for Court.

[41]     Evidence was also called from Mr Ewen, who had been contacted before 8am and  had  had  a  discussion  by telephone  with  the  accused  before  the  first  video interview.  Mr Ewen was acting as duty solicitor at the Porirua District Court that day, and was expecting the accused to appear there during the course of the morning. He stated that he was “pretty steamed” that the accused had not been brought to Court by sometime around or shortly after midday.   That evidence suggested an expectation that the process ought ordinarily to take less time than it did on this occasion.   It cannot, of itself, be  evidence that the time taken in the particular circumstances was unreasonable.

[42]     Similarly, the evidence that preparing a file sufficiently to take an arrested person to Court generally takes between 20 minutes and one and a half hours cannot, of itself, render the period involved in the present circumstances a breach of a right to be taken to Court “as soon as possible”.

[43]     Overall, I do not find that, in the circumstances of this case, the period between the accused first being charged and his appearance in Court constituted any breach of his rights under s 23(3) of BORA.  It follows that this criticism does not raise an issue that the second video interview constitutes improperly obtained evidence in terms of s 30 of the Act.

Unrelated criticism

[44]     An  entirely  new  and  different  criticism  was  mounted  in  the  written submissions for the accused received after the hearing.  Excision was sought from the first interview (not under challenge at all until this stage) of references made by

the Detective to the denial by the accused that he had done anything being different from what he had previously told the Police.   Detective Davis’ comments to this effect were:

Well, that’s a  little  bit  different  to  what  you’ve  been  saying  to  us  this morning before we started the video…OK.  If you are going to retract what you’ve said, if you don’t want to answer any more questions, I’m not going to ask any more.

And, some four exchanges further on:

It’s not really enough for my statement, we talked about, prior to starting, you having a story to tell about last night and I’d still like to give you the opportunity to tell that side of the story.

[45]     It was submitted that the reference to a prior admission is inadmissible when the interviewing Detective, when questioned about this, could not recall any prior statement by the accused that justified his comment in the first interview.

[46]     The point was not addressed in submissions for the Crown.  I can envisage possible explanations for Detective Davis’ reference to a prior statement, but I am not prepared to rule on its admissibility without affording the Crown an opportunity of responding.   In the circumstances, I decline to deal with this separate matter, leaving  it  to  counsel  for  the  accused  to  raise  the  admissibility  issue  at,  or

immediately before, trial.

Dobson J

Solicitors:

Luke Cunningham & Clere, Wellington for Crown
S K Green, Hamilton for Accused