R v Vaka

[2007] NZCA 158

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND THE REASONS THEREFOR IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN A LAW REPORT OR LAW DIGEST IS, HOWEVER, PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA71/07 [2007] NZCA 158

THE QUEEN

v

ANOTI VAKA

Hearing:         29 March 2007

Court:            Chambers, Chisholm and Gendall JJ Counsel: C L Mander for Crown

D H Quilliam for Respondent

Judgment:      27 April 2007         at 10 am

JUDGMENT OF THE COURT

A        Leave to appeal is granted.

B        The appeal is allowed and Ms Terry’s evidence is ruled to be admissible. C      Order prohibiting publication of the judgment and the reasons therefor

in news media or on Internet or other publicly accessibly database until final disposition of trial.   Publication in a law report or law digest is,

however, permitted.

R V VAKA CA CA71/07  27 April 2007

REASONS OF THE COURT

(Given by Chisholm J)

[1]      The respondent faces one charge of attempted murder and  an alternative charge of wounding with intent to cause grievous bodily harm.  These charges arise from  an  alleged  attack  by the  respondent upon  his  18-year-old  daughter.    In  a pre-trial ruling Heath J held that admissions made by the respondent to a social worker were inadmissible. The Crown seeks leave to appeal against that ruling.

Background

[2]      On 22 September 2006 the respondent travelled from Hawke’s Bay to Te Puke with his daughter, Claire Vaka (the complainant), and his daughter’s friend, Tracey Lenden.  They stayed in Te Puke with the respondent’s brother, Toni Vaka, and his wife, Taari Tebwebwe.

[3]      Around midnight on 23 September the complainant asked her father if she and her friend could go to a party that they had been told about by some boys.  An argument developed when he declined her request.   From that point there are diverging accounts of the events that followed.

[4]      According  to  the  complainant  she  started  to  swear  at  her  father  who responded by slapping her face.  The respondent then said that he did not know why he and his wife had brought the complainant into the world.   This prompted the following exchange:

Complainant:   I don’t care, you should kill me.

Respondent:    Why would I kill you, I would rather kill myself. Complainant:  Then don’t complain.

Respondent:    Shut up.

The complainant said that she then saw a knife lying on a nearby table and indicated to her father:  “There you go, there’s a knife” following which he picked up the knife and slashed at her.  Although she saw the blow coming and moved backwards, she was cut on the forehead.

[5]      The complainant continues that her uncle then took the knife off her father, following which her father said he was sorry and that he was going to kill himself. Later she saw her father crying, told him not to be sorry, and sat beside him until he fell asleep.   The following day she declined her father’s offer to take her to the doctor.  When they arrived back in Hawke’s Bay she hid the cut from her mother.

[6]      We were informed from the Bar that the matter was brought to the attention of the Napier police by the complainant’s friend, Tracey Lenden.  According to Ms Lenden’s brief she witnessed an argument between the complainant and respondent which escalated into the respondent kicking and punching his daughter.   She said that the respondent then went to a table and grabbed a knife which he used to stab his daughter on the forehead at which point the respondent’s brother and his wife woke up and tried to stop him.  Ms Lenden said that when she saw blood she went outside and did not come inside again for a couple of hours.

[7]      Statements have been obtained from the respondent’s brother and sister-in- law.  According to these statements Ms Lenden had left the room before the events involving the knife took place and in this respect they are consistent with the complainant’s statement.

[8]      Toni Vaka said that he was woken by the complainant swearing at her father. He saw the respondent slap the complainant who then picked up a knife from the bedside table and said:   “Come and take the knife and kill me”.   After that the respondent went over to his daughter and grabbed her hands which were wrapped around the handle of the knife.  During the ensuing struggle the complainant had her head down and he could see blood coming from her head.  The respondent then took the knife away and passed it to him.

[9]      In broad terms Taari Tebwebwe confirms her husband’s version of events. She was woken up by the complainant swearing at the respondent.   She saw the respondent slap his daughter across the face following which she ran to the edge of the bed and picked up the knife from the table.  When the respondent tried to take the knife from the complainant she would not let it go.  As they struggled over the knife the knife scraped the complainant’s head.

[10]     At about 8pm on 26 September 2006 the respondent agreed to accompany two police officers to the police station where he was arrested, cautioned and given a Bill  of  Rights  warning.    Then  he  was  briefly questioned  by a  constable.    The respondent told the constable that he remembered hitting his daughter on the head with a knife and in response to a question from the constable asking why he had hit her, the respondent replied:  “She was outside talking to some boys.  I don’t know.  I didn’t like it.”

[11]     The following morning Marc Leney-Smith, a men’s services co-ordinator for DOVE Hawke’s Bay, spoke to the respondent at the Napier police station.   In his brief Mr Leney-Smith describes the respondent as “very depressed and subdued”. The respondent told Mr Leney-Smith that he had been having some family problems which mostly concerned his  wife and  daughter.    Mr  Leney-Smith  said  that  the respondent began to talk about how he had “kicked his daughter and he also spoke of a knife, but I am not sure what he meant by it”.  After offering the respondent some advice about various programmes offered by DOVE, Mr Leney-Smith left.

Evidence the Crown seeks to have admitted

[12]     Around two hours later, at approximately 10.30am, a police officer contacted Trixie Terry about the respondent.   Ms Terry is employed by the Hawke’s Bay Health Board as a mental health social worker.  She holds a post-graduate certificate in cognitive behavioural therapy.  Her role with the Board often involves assessing clients as to their mental state, especially regarding the risk of self-harm or harm to others.

[13]     After being contacted by the police Ms Terry went to the Napier police station where she spoke at length with the respondent.   At the outset Ms Terry explained to the respondent that she was not acting on behalf of the police and that she  worked  for  the  Health  Board.    She  showed  him  her  identification  badge. Ms Terry asked the respondent to talk about how he was feeling.

[14]     Ms  Terry’s  brief  indicates  that  she  documented  her  assessment  at  the conclusion of her conversation with the respondent which lasted around two hours. Her evidence will be that the respondent told her:

Essentially, [he] had taken his 18 year old daughter to Te Puke for weekend. On Saturday night she met with some people and felt like going out with them.   Her father refused this and he took her back to his brother’s home with whom they were staying.  [The respondent] reports that daughter was upset.  He had approximately 6 x stubbies of Tui and wanted to “shut her up”.  He decided to kill her and then kill himself.  “It is all too much”.  So he told her he was going to kill her and then himself.  He grabbed a knife and was going to plunge knife into her head (he described intention to stab the top of her head).  “My brother stopped me by pushing me away”.  In process “I cut her forehead, saw the blood and then did nothing further about it”.

She will also give evidence that the respondent appeared to ruminate extensively about the wrongdoings of his wife and daughter and that when he was asked what he thought of his own actions of trying to kill his daughter he acknowledged that he was relieved she is alive but did not elaborate further.  Ms Terry will say that there was much focus on other people’s wrongdoings, but less upon his own violence.

[15]     According to Ms Terry’s notes she was with the respondent for two hours from 11am on 27 September 2006.  At the foot of the second page of her notes she has recorded the time as 2100 (this having apparently been changed from 2200), but at the third and final page of her notes she has recorded the time as 1400.

High Court ruling

[16]     In his oral ruling on the Crown’s application under s 344A of the Crimes Act

1961 Heath J observed that Ms Terry’s notes were written up between one and one and a half hours after her conversation with the respondent (he has obviously taken

1400 hours as the correct time).  The Judge also observed that there was nothing to

indicate whether the formal notes had been written up from other notes taken during the course of the interview.

[17]     Heath J considered that the question was whether Ms Terry’s evidence was sufficiently probative of an intent to kill to outweigh any illegitimate prejudicial effect that the evidence might have.  As he saw the matter:

[16]     There is no dispute that, while Mr Vaka has a grasp of English, his primary  language  is  that  of  Tongan.    Indeed,  most,  if  not  all  of  the discussions that occurred during the time the incident is alleged to have taken place, were in Tongan.  He was clearly in a poor state of mind at the time he spoke to Ms Terry.   If that were not the case it is unlikely that a Senior Constable would have requested Mental Health Services’ assistance. The  conversation  took  place  over  a  lengthy  period  of  time  with  notes prepared after the event, but purporting to express some statements in quotation form.  There are questions as to the reliability of that evidence for that reason.

[17]     The evidence is equally consistent with ramblings by a man in the condition of Mr Vaka.   Other evidence of intent to kill is slight.   If this evidence were used to elevate the accused’s intent for the purpose of establishing a charge of attempted murder, real  questions of illegitimate prejudice could arise.

[18]      There is also the problem that in facing the charge of wounding with intent to cause grievous bodily harm, a jury will nonetheless hear this evidence if admitted.  It would be difficult for the jury, whatever direction was given to them, to put this evidence out of their collective minds even if, at the end of the Crown case, the Judge were to rule that no reasonable jury could convict on an attempted murder charge, leaving only the wounding with intent charge to go to the jury.

[19]     In my view, the circumstances in which this statement was made, particularly the fact that Ms Terry represented to the accused that she was not acting on behalf of the Police, coupled with the rambling aspects of a small portion of a two hour interview, means that the prejudicial value of the evidence  outweighs  its  probative  value  to  the  extent  that  it  should  be rendered inadmissible.

Ms Terry’s evidence was ruled to be inadmissible.

Crown’s application for leave to appeal

[18]     Given that the respondent’s likely defence will be that the complainant’s injury was caused accidentally, the Crown contends that the admissions made to Ms Terry are highly probative.   While Mr Mander accepted that there might be

grounds for criticising the reliability of the admissions at trial, he submitted that that was a matter for the jury’s assessment, and was not a matter that could determine admissibility in this case.  He also claimed that there was no unfairness arising out of the manner in which the admissions were obtained.

[19]     The particular matters relied on by Heath J also attracted submissions from Mr Mander.  With reference to the Judge’s assessment that the respondent had a poor grasp of English, was in a poor state of mind, and was “rambling”, Mr Mander submitted that those assessments lacked an evidential foundation.  He submitted that in any event they were matters for the jury.  To the extent that the Judge had relied on the fact that Ms Terry’s notes were prepared after the event, Mr Mander argued that that factor could not justify exclusion of the evidence because Ms Terry could give evidence about the statements made to her by the respondent without reference to her notes.  And as to the Judge’s conclusion that “Other evidence of an intention to kill is slight”, Mr Mander submitted that the evidence of the complainant and Ms Lenden provides a substantial evidential foundation for the Crown’s allegation.

[20]     A number of additional matters were also traversed by Mr Mander.   He submitted that neither s 33 nor s 35 of the Evidence Amendment Act (No. 2) 1980 applied and that there was no evidence to suggest that the statements to the social worker were other than voluntary.  He submitted that the real issue is whether the admissions had been unfairly obtained.  In that respect he suggested that this Court should take a number of factors into account:   the social worker was not a police agent;  there is no suggestion of impropriety or orchestration on the part of either the police or Ms Terry;  there is no evidence that the respondent had been induced by Ms Terry to disclose a confidence that would not have otherwise been disclosed; and there is no foundation for any belief on the part of the respondent that Ms Terry would receive information on the basis that it would remain confidential.

Response on behalf of Mr Vaka

[21]     In broad terms Mr Quilliam supports the reasoning of Heath J.  He accepted that  neither  s  33  nor  s  35  of  the  Evidence  Amendment  Act  applied.    While Mr Quilliam also accepted that he had difficulty in challenging the voluntariness of

the respondent’s statement to Ms Terry, he nevertheless maintained that the respondent’s distressed condition was highly relevant to the issue of overall fairness.

[22]     Mr Quilliam emphasised that the respondent’s behaviour clearly warranted the intervention of the mental health services and that the statements he is alleged to have  made  to  Ms  Terry are  indicative  of  his  state  of  mind  at  the  time  of  his “utterances” to her.  He submitted that under those circumstances it is not possible to determine how the respondent might have perceived Ms Terry’s involvement.  In all the circumstances, submitted Mr Quilliam, the respondent’s utterances could only be seen as “totally unreliable as to the truth of what was said”.

[23]     Counsel relied on R v Rapana [1995] 2 NZLR 381 (HC). Comparing that decision with the situation under consideration Mr Quilliam noted that Ms Terry was conducting an interview to assess the respondent’s mental condition in response to concerns held by the police; she was a person in ostensible authority; and she was acting on behalf of a mental institution. He claimed that in all the circumstances Heath J was right to conclude that the evidence should be excluded on the grounds of fairness.

Discussion

[24]     We accept that Mr Quilliam’s concession that ss 33 and 35 of the Evidence Amendment Act do not apply in this case was appropriate.   In terms of s 33 the evidence falls well short of establishing that Ms Terry was acting on behalf of a clinical psychologist or a medical practitioner “in the course of the treatment of” the respondent.  And in terms of s 35 Ms Terry has not sought to invoke the protection of the section.  As was indicated by this Court in R v B CA351/01 19 March 2002 at [14], a person other than the witness cannot invoke s 35 if that person does not otherwise have the right to claim privilege.  The same point was made in Complaints Assessment  Committee  v  Medical  Practitioners  Disciplinary  Tribunal  [2006]  3

NZLR 577 at [45] (SC).

[25]     Having eliminated any statutory basis for excluding the evidence, three other possibilities need to be considered, namely whether:

(a)       the probative value of the evidence was outweighed by its illegitimate prejudicial effect;

(b)       it was unfairly obtained;

(c)       it was so unreliable that it should be should be excluded.

While Heath J based his decision on the first of these possibilities, Mr Mander suggested that the second possibility more accurately identified the underlying issue. Although the third possibility was not specifically addressed on a stand-alone basis, we are taking the precaution of considering it on that basis.

Probative value versus prejudicial effect

[26]     In  our  view  the  evidence under  consideration  has  considerable  probative value.  It was not disputed by Mr Quilliam that the respondent’s defence is likely to be that his daughter’s injuries were  suffered  accidentally when  he  attempted  to remove the knife from her.   No doubt the defence case will place considerable reliance on the evidence of the respondent’s brother and sister-in-law.  In this respect the defence case will obviously be at odds with the Crown’s allegation that the respondent intended to kill his daughter.   It follows that the respondent’s state of mind will be a critical issue at trial in relation to both charges.

[27]     We are  unable  to  agree  with  Heath  J’s  observation  that  the  evidence in support of the Crown’s proposition that there was an intention to kill was “slight”. To the contrary, a solid foundation for the Crown’s allegation (and its alternative allegation that there was an intent to cause grievous bodily harm) can be found not only in the evidence of the complainant but also in the evidence of Ms Lenden.

[28]     On the other side of the scales, it is important to keep in mind that the focus needs to be on the illegitimate prejudicial effect.  As observed in R v During [1973]

1 NZLR 366 at 375 (CA), most Crown evidence has a prejudicial impact upon the accused in the sense that it is intended to support the Crown case and to diminish the chances of an acquittal. Putting aside for the moment the circumstances surrounding

the  accused  making  his  statements  to  Ms  Terry  and  the  reliability  of  those statements, both of which will be considered shortly, we cannot accept that the prejudicial effect of the evidence under consideration could be accurately described as illegitimate.  As we see it, the evidence, if admitted, would not have a tendency to influence the jury to arrive at a decision on an improper or illogical basis, nor would it be likely to mislead the jury.

[29]    Heath J appears to have been influenced by a number of factors:   the respondent’s poor grasp of English;  his state of mind;  the fact that Ms Terry’s notes were  prepared  after  the  event;    questions  as  to  the  reliability  of  the  evidence; difficulty in effectively directing the jury if the attempted murder charge was withdrawn from the jury;  and the circumstances in which the statement was made. We will consider each of these matters.

[30]     Heath J was concerned that although the respondent has a grasp of English, his primary language is Tongan.  However, the available evidence does not indicate that the respondent was unable to comprehend English or to adequately express himself in that language.  He was interviewed by one police officer in the presence of another police officer without any issues of that nature having been raised by either officer or by way of cross-examination at depositions.  The following day he spoke with Mr Leney-Smith and with Ms Terry, again without any language issues having been raised in their briefs or by way of cross-examination.  Most importantly, the respondent has not made any attempt to present evidence on that topic in opposition to the Crown’s application to have Ms Terry’s evidence declared admissible.

[31]     We will return to the concerns expressed by Heath J about the respondent being “clearly in a poor state of mind at the time he spoke to Ms Terry” and more general  questions  about  the  reliability  of  the  evidence.    For  the  moment  it  is sufficient if we indicate that notwithstanding the accused’s condition at the time the statements  were  made  to  Ms  Terry  and  the  contents  of  his  statements,  we  are satisfied that the jury will be well placed to assess the reliability of those statements.

[32]     The fact that there appears to have been a delay before Ms Terry’s notes were prepared also appears to have influenced the Judge.   We accept Mr Mander’s submission that Ms Terry will be entitled to give her evidence without reference to those notes.  If it becomes necessary for her to refresh her memory from her notes, then issues may arise as to whether she should be allowed to do so.  Conceivably there may need to be a voir dire to establish when the notes were recorded.  But if such issues arise, they will be matters for determination by the trial Judge.

[33]     The Judge was concerned that the jury would have difficulty in putting the respondent’s  admission  out  of  their  collective  minds  if  the  respondent  was discharged on the attempted murder charge.  We do not share that concern.  Whether the respondent is facing a charge of attempted murder or a charge of wounding with intent to cause grievous bodily harm, there will clearly be a contest as to whether the injury was caused intentionally or accidentally.  If the respondent is discharged on the attempted murder charge, it may well be appropriate for the Judge to direct the jury that they must ignore the attempted murder allegation when considering whether the alternative charge has been made out.  We cannot see any reason to depart from the well established assumption that the jury will comply with any such direction.

[34]     The final factor mentioned by the Judge was the circumstances in which the statement was made, particularly the fact that Ms Terry represented to the accused that she was not acting on behalf of the police, coupled with the rambling aspects of a small portion of the two hour interview.   Again we will consider this aspect in more detail later.  It is sufficient if we record at this point that having considered all the circumstances surrounding the making of the statements and their contents, we are not satisfied that this factor, either alone or in combination with the other factors, has sufficient illegitimate prejudicial effect to outweigh the strong probative value of the evidence.

[35]     Our conclusion is therefore that in the context of probative value versus prejudicial effect there was no justification for excluding the evidence.

Unfairly obtained

[36]     We approach the matter on the basis that this can be a discrete reason for exercising  the  discretion  to  exclude  evidence.     When  discussing  the  judicial discretion to exclude evidence, the authors of Cross on Evidence (looseleaf ed) comment at [1.66]:

It has … now been recognised that a Judge at a criminal trial has a discretion to exclude unfairly obtained evidence, and has a discretion to exclude evidence the probative value of which is outweighed by its prejudicial tendency.  These are separate discretions and should not be confused.

The authors observe that the first discretion is exercised on rather uncertain criteria which are still evolving.

[37]     When considering how the discretion to exclude evidence unfairly obtained should be exercised,  we  derive  considerable assistance  from  R  v  Ali  CA253/99

8 December 1999.  In that case the judgment of a five-member Court was delivered by Richardson P.   He observed at [51] that in a case where it is alleged that the statement has been obtained unfairly:

It is … a matter of looking at the totality of the police conduct.   What is important is the overall question of the fairness of the police methods (R v Wilson at 322).  And the issue of fairness is determined by the Judge as a matter  of  judgment  rather  than  by  reference  to  the  onus  of  proof  (R  v Williams (1990) 7 CRNZ 378, 383;  R v Marsh (1991) 7 CRNZ 465, 471;  R v Te Kira [1993] 3 NZLR 257, 274).

Adopting that approach we now consider whether the respondent’s statements to Ms

Terry should have been held to be inadmissible in this case.

[38]     In  our  view  there  was  nothing  about  the  circumstances  surrounding  the making  of  the  respondent’s  statement  that  could  justify the  conclusion  that  the statement was unfairly obtained.   This was not a situation where the police were using devious methods to extract a confession.   The evidence indicates that they were motivated by genuine concerns about the wellbeing of the respondent, it being their belief that there was a risk of suicide.   This was borne out by Ms Terry’s assessment and it was for that reason that she reported back to the police.  Nor can there be any suggestion that the respondent was coerced into making statements to

Ms Terry.  He had already made admissions to the police and to Mr Leney-Smith. When the overall context is taken into account we do not share Heath J’s concern that Ms Terry told the respondent that she was not acting on behalf of the police. That, of course, was accurate and there were no sinister connotations.

[39]     We cannot agree with Mr Quilliam that this case is parallel to R v Rapana in which Thomas J ruled that admissions made to a psychiatric nurse while the accused was in police custody were inadmissible.  In that case Thomas J held that s 35 of the Evidence Amendment Act (No. 2) applied.  That is not the case here.  Moreover in that case the accused had declined to say anything incriminating to the police.  Again that is not the case here.

[40]     We therefore agree with Mr Mander that the evidence the Crown seeks to lead from Ms Terry was not unfairly obtained.

Unreliability

[41]     In R v Shaheed [2002] 2 NZLR 377 Gault J commented at [170]:

… Rules have been adopted and refined by the Judges over the years to deal with circumstances in which apparently probative evidence should be excluded.  Rules have evolved by which the overall public interest, and more particularly the interests of justice, are served by exclusion.  There underlies most such rules concern for reliability of certain kinds of evidence or evidence obtained in certain ways.  A consequence of such rules has been that citizens have been protected from conduct which might be engaged in for the purpose of obtaining evidence.   But historically the Courts have required good reasons before excluding truly relevant reliable and probative evidence. The same approach is to be seen in s 20 of the Evidence Act 1908.

The  issue  here  is  whether  the  evidence  under  consideration  is  so  inherently unreliable that it should be removed from the jury.

[42]     The evidence (including the content of Ms Terry’s notes) indicates that the respondent was distressed, subdued, and suicidal.  But it does not necessarily follow that his state of mind was such that he was delusional and that his admissions to Ms Terry were sufficiently unreliable to justify removal of the evidence from the jury.    Notwithstanding the  Judge’s  reference  to  “ramblings”,  we have  not  been

persuaded that the respondent’s statements to Ms Terry could be construed as delusional  or  that  there  is  any other  reason  for  the  jury to  be  deprived  of  the opportunity to assess the reliability of the evidence.   We do not think that R v Cooney [1994] 1 NZLR 38 (CA) can avail the respondent’s argument.

[43]     To a large extent Heath J appears to have based his concerns  about the reliability of the respondent’s evidence on the fact that English was not his first language, and on his poor state of mind when he was speaking with Ms Terry.  We have already traversed these aspects.   In our view they cannot, either alone or in combination with all the other factors in this case, justify exclusion of the evidence on account of its unreliability.

Outcome

[44]     In our view there was no sound foundation for the exclusion of Ms Terry’s evidence.   Leave to appeal is therefore granted and the appeal is allowed.   The evidence of Ms Terry is admissible.

Solicitors:

Crown Law Office, Wellington