R v Taitapanui

[2018] NZHC 1853

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 ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2017-087-131

[2018] NZHC 1853

THE QUEEN

v

RONALD FISHER TAITAPANUI

Hearing:	19 July 2018
Appearances:	R W Jenson for Crown L Smith for Defendant
Judgment:	19 July 2018
Reasons:	25 July 2018

REASONS FOR JUDGMENT OF LANG J

[on application for orders as to admissibility of evidence]

This judgment was delivered by me on 25 July 2018 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

R v TAITAPANUI [2018] NZHC 1853 [19 July 2018]

[1]                 Mr Taitapanui faces charges of participating in an organised criminal group, rioting, discharging a firearm with reckless disregard for the safety of police officers and discharging a firearm with reckless disregard for the safety of any person. All of the charges were laid following an incident that occurred in Arawa Street, Whakatane on 17 January 2017. During that incident a group of Black Power members gathered in Arawa Street and two shots were fired by a member of the group towards a large gathering of members of the Mongrel Mob approximately 150 metres further down the street. Several police officers were in the vicinity of the Mongrel Mob endeavouring to keep them apart from the Black Power gang members.

[2]                 The police arrested several members of the Black Power group on 27 January 2017. They then spent more than six months endeavouring to identify other members and associates of the Black Power gang who may have been involved in the incident. They were aided in this task by film footage and still photographs taken by persons who were in the vicinity of the incident.

[3]                 Mr Taitapanui was not arrested until 12 September 2017. Prior to his arrest he agreed to be interviewed by Detective McKenzie of the Whakatane Police. The interview was recorded on videotape and the Crown proposes to play the videotaped interview to the jury at the trial.

[4]                 Mr Taitapanui contends the police undertook the interview in a manner that was unfair and in breach of his rights under the New Zealand Bill of Rights Act 1990 (NZBORA). For that reason he has advised the Crown that he challenges the admissibility of the evidence. The Crown has responded by filing an application under s 101 of the Criminal Procedure Act 2011 seeking orders as to the admissibility of the evidence.

[5]                 Following a hearing held on 19 July 2018, I advised counsel that I ruled the evidence admissible. I now give my reasons for doing so.

Grounds of challenge

[6]                 Mr Taitapanui challenges the circumstances in which the evidence was obtained on two bases. First, he contends the detective was aware he wanted to have

a lawyer present at the interview. Notwithstanding this knowledge the detective proceeded to conduct the interview when Mr Taitapanui did not have the benefit of his lawyer’s presence. In doing so the detective breached Mr Taitapanui’s right under s 23(1)(b) of NZBORA to consult and instruct a lawyer without delay whilst he was detained at the police station. Secondly, Mr Taitapanui contends the detective offered unfair inducements to him before he began the interview. These took the form of promises that Mr Taitapanui would receive favourable bail terms if he would undertake the interview, and that he would also receive a lighter sentence.

The evidence

[7]                 The Crown called two witnesses at the admissibility hearing. They were Detectives McKenzie and Twomey. Both detectives confirmed they had travelled to Mr Taitapanui’s home on  the  morning  of  12  September  2017.  They  spoke  to Mr Taitapanui inside the address and advised him that they needed to speak to him about the gang shooting in Arawa Road, Whakatane in January 2017.

[8]                 Detective McKenzie says Mr Taitapanui agreed to accompany him to the police station to discuss those issues further. As he and Mr Taitapanui walked from the house to the patrol vehicle, the detective says Mr Taitapanui asked his partner to contact Mr Taitapanui’s employer, Mr Kevin McConnell.

[9]                 Detective McKenzie says Mr Taitapanui did not tell his partner to ask Mr McConnell to contact a lawyer, and Mr Taitapanui never indicated he wished to speak to a lawyer either at his house or at any stage during the journey to the police station. Detective Twomey’s evidence is to similar effect.

[10]              Detective McKenzie said that when they arrived at the police station he placed Mr Taitapanui in an interview room whilst he made preparations to interview him. At

9.17 am, the detective re-entered the interview room and obtained Mr Taitapanui’s personal details.  He also advised Mr Taitapanui of his NZBORA rights.  He said  Mr Taitapanui did not indicate at this point that he wished to see a lawyer.

[11]              The detective said he then took Mr Taitapanui into another office, where he showed him video footage and still photographs of the incident in Arawa Street. He

said Mr Taitapanui agreed that he was one of the persons depicted in both the film footage and the still photographs. He then initialled the still photographs that the detective had shown him.

[12]              The detective says he then invited Mr Taitapanui to undergo a videotaped interview and Mr Taitapanui agreed to do so. At the beginning of the interview the detective described the events leading up to the interview, and Mr Taitapanui agreed with these. The detective then gave Mr Taitapanui his NZBORA rights again, and asked for confirmation that Mr Taitapanui was “happy to keep talking to me as we are here now”. Mr Taitapanui confirmed that he was. At no stage during the course of the interview did Mr Taitapanui seek to speak to a lawyer or raise the issue of legal representation in any way. Detective McKenzie says that if Mr Taitapanui had asked to speak to a lawyer at any stage he would have stopped the interview and made arrangements for a lawyer to come to the police station to speak to Mr Taitapanui.

[13]              Mr Taitapanui’s version of events is different. He says that whilst inside the house he told the detective he wanted his lawyer Rebecca Plunket to meet him at the police station. He says he did not have Ms Plunket’s contact details. He therefore told Detective McKenzie he would ask his partner to call Mr McConnell and request him to arrange for Ms Plunket to go to the police station to look after Mr Taitapanui’s interests. As a result, Mr Taitapanui says he expected his lawyer to meet him at the police station and to provide him with advice there.

[14]              Mr Taitapanui also says that before the interview commenced the detective told him he would get bail if he agreed to be interviewed, and that he would also receive a lighter sentence. He says the detective also told him that he should attempt to engage in the restorative justice process. He therefore agreed to undertake the videotaped interview.

[15]              Mr Taitapanui’s partner supports Mr Taitapanui’s evidence regarding the conversation that took place in the house. She also says she contacted Mr McConnell’s office and asked the person to whom she spoke to arrange for Ms Plunket to go to the police station to speak with Mr Taitapanui.

[16]              A member of Mr McConnell’s staff then contacted one of Ms Plunket’s staff solicitors, Ms Kim Johnson, and asked her to meet Mr Taitapanui at the Whakatane Police Station. Ms Johnson says she received this request as she was travelling back to Whakatane from the Opotiki Court. She then drove directly to the Whakatane Police Station, which took about 20 minutes. At the police station Ms Johnson introduced herself to the police officer at the front counter and said she was Mr Taitapanui’s lawyer. She also told the officer that she wanted to speak to Mr Taitapanui immediately.

[17]              The police officer then left the counter and Ms Johnson waited in the foyer. A few minutes later, the officer returned and told Ms Johnson that Mr Taitapanui was in an interview and it was not possible to interrupt the interview. Ms Johnson advised the officer that she needed to speak with her client urgently. The officer then wrote a note to that effect, along with contact details for Ms Johnson. She understood the officer had slid the note under the door of the interview room.

[18]              Ms Johnson continued waiting in the foyer of the police station for approximately 45 minutes, but did not get to speak to Mr Taitapanui. She eventually left after providing the police with Ms Plunket’s telephone number and asking them to give it to Mr Taitapanui. Mr Taitapanui says he then contacted Ms Plunket a couple of days later.

Factual findings

[19]              I do not accept that Mr Taitapanui advised Detectives McKenzie and Twomey that he wished to speak to a lawyer when they were at his address. Nor do I accept that Mr Taitapanui told his partner in their presence that he wanted Mr McConnell to arrange for a lawyer to meet him at the police station. I accept the evidence of the two detectives on these points and do not accept the evidence of Mr Taitapanui and his partner.

[20]              I did not find Mr Taitapanui and his partner to be satisfactory witnesses in relation to these issues. Mr Taitapanui’s partner was extremely diffident when giving her evidence. More importantly, at one stage when she was giving evidence I had to intervene to tell Mr Taitapanui not to make overt gestures of support to her. I was

obliged to intervene because I had observed Mr Taitapanui giving his partner a “thumbs up” signal from the dock when she was giving evidence about what she said Mr Taitapanui had told her. I consider there is a real risk that Mr Taitapanui and his partner have colluded in constructing their evidence in an effort to have the interview ruled inadmissible.

[21]              Furthermore, if such a discussion had occurred, I have no doubt Mr Taitapanui would have told Detective McKenzie he did not wish to proceed with the interview until his lawyer arrived at the police station. Instead, Mr Taitapanui confirmed to the detective that he was happy to speak to him. He did so immediately after the detective had given him his NZBORA rights at the beginning of the interview. If Mr Taitapanui had been expecting a lawyer to be present at the police station I have no doubt he would have raised that issue as soon as he arrived at the police station.

[22]              Mr Taitapanui endeavoured to explain his passive approach by saying he did not raise the issue with the detective at the police station because he just thought he would be polite to the detective and “go with it”. I find that explanation unconvincing to say the least.

[23]              I am also satisfied the detective did not offer Mr Taitapanui any inducements before commencing the interview. The detective said that he had already decided to arrest and bail Mr Taitapanui at the conclusion of the interview. He had also decided it would be a condition of Mr Taitapanui’s bail that he would not be permitted to reside in the Whakatane area. He knew Mr Taitapanui would not be receptive to that condition. He therefore deliberately left any discussion about bail until after the interview.

[24]              I accept the detective’s evidence on that issue because it makes sense. Furthermore, the police had already identified Mr Taitapanui from the film footage as being one of the participants in the events giving rise to the charges. That evidence was available regardless of whether Mr Taitapanui agreed to be interviewed. The interview was therefore not crucial to the prosecution case. Given that background there was no need for the detective to provide any inducements to persuade Mr Taitapanui to be interviewed.

[25]              Furthermore, I do not draw any adverse inferences against the police in relation to what occurred after Ms Johnson arrived at the police station. The circumstances in which she went to the police station are not entirely clear because no evidence was called from the person at Mr McConnell’s office who contacted Ms Johnson. Mr Taitapanui’s partner says she told the person with whom she spoke at Mr McConnell’s office that Mr Taitapanui wanted Mr McConnell to arrange for a lawyer to meet Mr Taitapanui at the police station. That may be correct. Alternatively, Mr McConnell or a member of his staff may have decided to contact Ms Plunket’s office of his or her own volition after learning that the police had taken Mr Taitapanui to the police station. Either way, however, I am satisfied Detective McKenzie did not know a lawyer was coming to the police station to assist Mr Taitapanui.

[26]              It is clear that the police officer behind the counter endeavoured to interrupt the interview to tell Detective McKenzie that Ms Johnson had arrived and wished to speak to Mr Taitapanui. During the interview a knock on the door can be heard at approximately 10.19 am. This accords with the time Ms Johnson estimated she would have arrived at the police station.

[27]              Detective McKenzie responded to the knock on the door by saying “Sorry, interview”. He explained it was common for police officers to wish to use the interview room when a suspect was already being interviewed. If the door to the interview room was closed, they would knock on the door to ensure the room was not already in use before entering. Detective McKenzie says he responded to the knock by saying “Sorry, interview” because he believed the person knocking on the door was another police officer who wished to use the interview room. I see nothing suspicious or untoward in relation to this issue.

[28]              Detective McKenzie also said he only saw the note that had been slid under the door at the conclusion of the interview. Mr Taitapanui’s evidence did not contradict the detective’s evidence on this point. Mr Taitapanui said he saw the note being pushed under the door but he did not alert Detective McKenzie to that fact. He said it was not for him to do so, and that the detective was the person who ought to have picked up the note immediately. I accept Detective McKenzie’s evidence, however, that he had no knowledge of the note until after the interview had concluded.

[29]              It follows that nothing about the manner in which the police dealt with either Ms Johnson or Mr Taitapanui on 12 September 2017 leads me to conclude the police breached Mr Taitapanui’s NZBORA rights or acted unfairly towards him in undertaking the interview.

[30]              In addition, there must be proof of a causative link between unfair police conduct and the making of a statement.1 In the present case it is clear from Mr Taitapanui’s manner throughout the interview that he was happy to speak to the detective. It follows that, even if there were any shortcomings in the detective’s conduct, these did not result in Mr Taitapanui undertaking the interview. There is therefore no causative link between the conduct of the detective and Mr Taitapanui’s decision to agree to be interviewed.

[31]              My conclusion on this point is reinforced by the fact that, when I asked Mr Taitapanui whether he had been happy to talk to the detective, he said “Yeah, but I wouldn’t have minded my lawyer there as well”. This response speaks volumes.

Conclusion

[32]              For the reasons set out above I concluded there was no factual basis for Mr Taitapanui’s challenge to the admissibility of the videotaped interview. I therefore ruled the interview admissible at Mr Taitapanui’s trial.

Lang J

Solicitors:

Crown Solicitor, Tauranga

Mrs L O Smith, Barrister, Auckland

1      Boskell v R [2014] NZCA 497 at [9].