R v X
[2021] NZHC 2444
•17 September 2021
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-096-3073
[2021] NZHC 2444
THE QUEEN v
X
Hearing: 11 and 14–16 June 2021; submissions 1 July Counsel:
G J Burston, F E Cleary and A C R M Jeffares for Crown
R M Lithgow QC, N Levy QC, M C McCarthy and A Jeremich for Mr X
Judgment:
17 September 2021
JUDGMENT OF SIMON FRANCE J
(Admissibility of Defendant’s Statements)
Table of Contents
Paragraph No.
Introduction [1]
Background [8]
The Corrections Regulations [19]
CIPEM [42]
Unfairly Obtained Evidence [49]
Introduction [49]
R v X [2021] NZHC 2444 [17 September 2021]
The first interview [53]
(a)Conversations off-camera [59]
(b)The accident theme [76]
(c)Excessive manipulation [86]
The phone call [110]
The second interview [118]
Challenges [121]
Guideline 2 [128]
Guideline 3 [137]
Guideline 4 [142]
Guideline 5 [146]
Conclusion on s 30(5)(c) - an unfairly obtained confession [147]
Should the evidence be excluded? [154]
Privileged communications [179]
Conclusion [188]
Introduction
[1] On 9 December 2016 Ms Lois Tolley was fatally shot in her home. Four men were seen entering her flat not long before. Mr X has admitted to being one of those men, and to being the person who fired the fatal shot. This ruling addresses a challenge by Mr X to the admissibility of those admissions.
[2]There are three statements that are the subject of challenge –
(a)a recorded interview on 15 August 2019. Mr X was in prison on unrelated matters. He was visited by officers involved in the investigation of Ms Tolley’s death, and agreed to accompany them to a police station for the interview. The interview was conducted by specialist police interviewers brought in for the task, and otherwise unconnected to the inquiry. It is said that the method of inducing Mr X to go to the police station was in breach of the relevant regulations;
(b)a telephone call to the prison the following day, 16 August. The call was made by one of the interviewers who had indicated the previous day he would be contacting Mr X. In this telephone call Mr X for the
first time admits (at least inferentially) to involvement and asks to see the interviewers again; and
(c)a recorded interview on the next day, 17 August, at the end of which Mr X admits to being the shooter.
[3] There are two primary challenges. The first is to the overall interview process and technique which is submitted to be exploitive and unfair. It is alleged the police manipulated Mr X by falsely appearing to be concerned about him, by misrepresenting the nature of the event (as an accident), by exploiting his ties to his gang and the ethics of that gang membership, and by misleading Mr X into thinking by the end of the first interview he had effectively narked on others. All that follows with the phone call and the second interview is said to be the inevitable product of this unfair technique.
[4] By way of introduction it can be noted the interviewers are part of a small group of specialists, trained in an interviewing style developed by Detective Superintendent Thomas Fitzgerald. The model is called the Complex Investigation Phased Engagement Model (CIPEM). It will be considered more fully later, but on Mr X’s behalf Mr Lithgow QC submits that when taken to an extreme it has the potential to be oppressive and create unfairness. That is what has occurred here – excessive manipulation of a suspect until they are backed into a corner. The Crown disputes both the claimed inherent risks, and the alleged excessive implementation.
[5] The statutory context for the challenge to the interview process is s 30 of the Evidence Act, it being said the evidence was improperly obtained. In terms of the source of impropriety it is alleged there are breaches of the Corrections Regulations, of the letter and spirit of the Chief Justice’s Practice Note on Police Questioning, and general unfairness.
[6] A second separate challenge is made to the admissibility of the telephone call and the subsequent interview the following day. It is sourced in s 57(2A) of the Evidence Act which accords privilege to any communication made in connection with plea discussions. In the telephone call Mr X raises the possibility of a manslaughter outcome. It is submitted from that moment on the privilege applied.
[7] For the purposes of determining these issues, oral evidence was taken from Detective Superintendent Fitzgerald, Detective Senior Sergeant Anderson and Detective Sergeant Ross. The latter two are the specialist interviewers brought in to conduct the questioning. In relation to Mr X’s release from prison and the process that was followed, evidence was taken from Detective Senior Sergeant McGill who liaised with the prison, Ms Whelan the prison manager, and three other officers either connected to the investigation or who were involved in transporting Mr X to and from the prison. Mr X did not give evidence, and no defence evidence was called.
Background
[8] When the four men entered Ms Tolley’s flat, between them they were armed with a weapon such as a machete, and a shotgun. Ms Tolley suffered a leg wound, and was then fatally shot in the neck region. The context of the “visit” was drugs. It is believed Ms Tolley was involved in drug dealing and the visit probably concerned a debt.
[9] There was no immediate investigative resolution and the events concerning Mr X’s statements occurred more than two and a half years after Ms Tolley’s death. The police had recently received information from an undisclosed informant who identified Mr X as one of the four men.
[10] There is within the police organisation a group of interviewers who have been trained in an interview method which, as noted, is attributed to Detective Superintendent Thomas Fitzgerald. He authorises and supervises the involvement of the interview team in any particular investigation, and decides who from among the team will conduct the interviews. These interviewers otherwise hold regular positions within the police and are brought in for a project on an ad hoc basis.
[11] The interviewing style used by the team is far from revolutionary but is a different look to the usual police interview. Mr X having been transported from prison, these interviews commence with shared food. There is no table between the interviewee and the officer. Rather, there are comfortable chairs close to each other in somewhat of a fireside chat style. The interviewers have no paperwork in front of them, and take no notes.
[12] The circumstances relating to Mr X giving the interview will be considered in more detail but DSupt Fitzgerald and the interviewers did not want Mr X to have any idea that police officers wanted to talk to him about Ms Tolley before they spoke to him. The prison cooperated in this plan so that when Mr X was taken from his cell to the room where the officers were, he had no idea what it was about. No record has been kept of what was said to him at that time, but as a consequence he consented to leave the prison for an interview, and the prison manager signed off on it using a consent form prepared in advance.
[13] The first interview was conducted primarily by DSS Anderson but in the later stages by DS Ross. It had started around 10.15 am and concluded at 3.40 pm.
[14]Towards the end the following exchange occurs:
DRI’ll tell you, I’ll tell you, I don’t wanna hear that mate cos you know that I don’t believe that and you know that that’s not true. I’ll tell ya what I’ll do …
X I don’t know what is true bro.
DR … (inaudible), I wouldn’t normally do this cos normally my job is to come here and walk away.
X Yeah.
DR But I can see you are having some struggles with this, would that be fair:
X Yeah.
DRYeah. I can see that. So what I’m willing to do, I’m gonna contact you tomorrow. Alright? I’m gonna touch base with you. You’ve got a lot to think about tonight. Like I said b, I can’t stop what’s coming
…
X Yeah.
DR … that’s coming anyway. X Yeah.
DRBut I can see that you need a little bit more time. Everyone wants more time, we all want more time but I can’t control that. The best I can do is help you before it happens.
X Yeah.
DRI really need you to think about that tonight. And I will contact you tomorrow. Do ya understand that?
X (Nods head) Yeah.
DR Is there anything that’s unclear about what I’ve said before I finish? X (Sighs) This whole situation is pretty much unclear to me. Ya know,
like …
DRYou’re the Prince of Wellington mate, nothing’s unclear to the Prince of Wellington.
X Bro …
DRLet’s just, I don’t wanna tell each other so why don’t we just stop there.
[15] DS Ross is based in Dunedin and returned there following the interview. As forecast at the end of the interview, the next day he rang Mr X at the prison.
[16] DS Ross said to Mr X that he had been concerned about Mr X, and what would have been going through his head as yesterday had been a big day. Mr X asked if DS Ross could come and see him in person again. He also asked if there was any chance of a “347” (a dismissal of charges) for a friend, to which DS Ross responded by asking “what would I be getting?” Mr X replied “something from me to make it all go away”.
[17] Elsewhere in the call Mr X raised the possibility of a favour for another friend, said he would take it on the chin, and mentioned manslaughter. DS Ross said he would arrange to see Mr X, and “would come up with a plan”. The plan that emerged was to re-interview Mr X the next day.
[18] Mr X was again taken from prison to be interviewed by the same officers. The interview ran from 10.40 am to 12.36 pm. Mr X made various statements about what happened but the end position was that he was holding the gun and shot Ms Tolley. He named three men as present (only one of whom is a co-defendant).
The Corrections Regulations
[19] It is submitted that the method used to obtain Mr X’s consent to an interview breached the Corrections Regulations 2005.
[20] As noted, the police wished to cold call on Mr X. Further, it was regarded as essential that the interview occur elsewhere than at the prison. This meant it would be necessary to obtain a temporary release under s 62(1) of the Corrections Act 2004. What would be needed therefore would be the consent of Mr X once he had spoken to the officers, and the immediate cooperation of the prison manager, whose consent is also required subject to whatever conditions that person imposes.
[21] The police contacted the prison manager, Ms Whelan, in advance. Ms Whelan agreed to cooperate, and took internal steps to set up the meeting room on a “need to know” basis to ensure Mr X did not know why he was being taken to see the police officers. Further, the police prepared and sent the prison manager a release request which on its face suggested Mr X had already agreed to the interview and was requesting release.
[22] In evidence Ms Whelan said she was not aware that the consent letter was anticipating a consent not yet given, but contemporaneous records make it plain her recollection is faulty. For example, in an internal email which she sent at the time to two senior prison officers she said:
… he [Mr X] will need to come up on the day without being informed as to the why. So we cannot advise staff at this time.
This reflects DS McGill’s evidence about his communications with Ms Whelan.
[23] The process of temporary release would normally be more protracted, taking up to seven days. A prison manager would receive a request, approve it or not, and then arrangements would be put in place for the release. Here, however, it needed to all occur in a short timeframe such as an hour or less. DS McGill, who for 16 years processed all police-initiated temporary release applications, testified that this sort of accelerated process had occurred about five times.
[24] Regulation 107 of the Corrections Regulations contemplates visits to a prison by an enforcement officer if the purpose is to interview the prisoner. Regulation 107(2) sets out the applicable conditions:
(2)The following provisions apply to the interview:
(a)the prisoner must consent to it:
(b)an officer must be present when it begins:
(c)an officer must remain in sight while it is undertaken, if the prisoner or the enforcement officer so requests:
(d)at all times while it is undertaken, the prisoner and the enforcement officer must be able to contact an officer:
(e)the prisoner may end it at any time.
[25] The Prison Operations Manual provides further detail about the procedures to be followed then reg 107 is engaged. Prior to being taken to the visitors area the prisoner is to be told that an officer wishes to interview them, the prisoner does not have to consent, the prisoner can end an interview at any time and that non- participation by the prisoner will not prevent a charging decision if that is why the officer wants to see the prisoner.1
[26] It is clear the purpose of this provision is to allow the prisoner to make an initial decision prior to seeing the officer, since the next step commences:2
If the prisoner consents, the prisoner should then be taken to the interview area to see the enforcement officer …
[27] On behalf of Mr X it is submitted the process was a manipulative avoidance of the protections inherent in reg 107 and the Prison Operations Manual. Those provisions recognise the vulnerability of prisoners who cannot control their environment in the way someone in the community is able to. The defendant submits that these provisions govern the rules of engagement within a prison between an enforcement officer and a prisoner, and cannot be circumvented by visitation rules available to all persons.
[28] The Crown submits the rules clearly apply only when it is intended to conduct the interview on the prison premises. Where here the purpose of contact is solely to invite the prisoner to attend an interview elsewhere, reg 107 is inapplicable. Rather, the Crown submits legitimacy of the visits is found in a combination of the temporary
1 Prison Operations Manual (23 July 2018) at [V.02.R01.01(3)].
2 At [V02.R01.01(4)].
release rules and the rights of general visitors. The overall process complied with the temporary release rules and they are the only applicable rules to Mr X’s situation. The process involved a temporary transfer of custody from Corrections to police, a factor that points to the inapplicability of the “interview in prison” rules.
[29] The Crown further submits the initial contact with Mr X is governed by the general visitor rules. First, s 3 of the Corrections Act 2004 defines visitor as a person other than a staff member, security officer or other prisoner who visits a prison. All such visitors, other than statutory visitors and specified visitors, are further labelled “private visitors”. Statutory and specified visitors are defined and do not include a police officer for the present purposes.
[30] The Crown then points to s 73 of the Act which entitles a prisoner to receive one private visitor each week for a 30-minute duration. I do not see this provision as relevant; one can be confident Mr X did not regard the officers as his private visitor for the week, especially given he did not know who was seeing him or why.
[31] The Crown next relies on reg 88 of the Corrections Regulations which provides that the prison manager may permit any person to visit at a reasonable time. The Crown submits that this regulation covers the initial contact.
[32] The initial focus in my view should be on the first contact between the police officers and Mr X. Under what rules did that occur?
[33] First, if it were a normal s 62 release, it would be a contact requested, or at least consented to, by Mr X in advance. It would be the orderly implementation of events approved in advance by the prison manager, and known and expected by the prisoner. Those attending the prison would be there solely to uplift the prisoner. Plainly, none of this applies to the current situation.
[34] Second, the police were not there to interview Mr X in the sense contemplated by reg 107. This does not require analysis. It is self-evident. The purpose was to ask Mr X to go elsewhere for an interview. If he declined, then the police would leave. That is not to say the rationale for the rules attaching to a reg 107 interview, and the
spirit underlying the further requirements in the Prison Operations Manual are irrelevant to the present analysis. They are just not directly engaged.
[35] Third, by elimination, the police officers must have been visitors. However, they were not statutory visitors, specified visitors or indeed private visitors. The situation can therefore only have been governed by reg 88 which gives the prison manager a wide discretion:
The prison manager may permit any person to visit … at any reasonable time.
[36] I conclude the initial visit was not in breach of any enactment because the prison manager had authorised the police to attend in the manner they did at the time they did. Regulation 88 empowers the prison manager to do so. That said, I do not consider the prison should be so readily facilitating police activity in this way. The spirit of the rules is to give the prisoner choices and it is not clear why the prison saw its responsibility to act as it did contrary to that spirit simply because it suited the police. Were the police interviewing the prisoner at the prison the process would not be permitted and it should not have been facilitated in this way to the detriment of the prisoner.3
[37] Although the Prison Operations Manual provisions were not directly applicable, they should have guided the prison manager in the exercise of her discretion. The Manual makes it plain the prisoner should have a choice before engaging with the police, and it was incorrect to circumvent the spirit of these just to accommodate the police desire for control by cold calling on a prisoner.
[38] There is no reason for concern over the preparation of paperwork in advance. Although on its face it was misleading, it was not to become operative unless and until Mr X made decisions that made the consent form an accurate document. Nor particularly is there concern over the process of accelerated release but for this one factor – the agreement of the prison to keep Mr X in the dark and deny him the chance to say he did not want to see them, or to say he would not see them until he knew why.
3 I do not say it may never be an appropriate process. There may occasionally, for example, be specific safety concerns that justify it, or some other reason. To the extent the police here suggested it was necessary for safety reasons, there is no evidence provided that would support that claim.
[39] I observe I do not particularly criticise the police here. They were open with the prison manager as to what was intended. It is the prison’s role to facilitate or reject such an approach in accordance with appropriate prison management principles.
[40] In terms of causation, had there been a breach of the relevant enactments, there is no objective basis to say it led to a statement being made that would not have been. I base that on three factors:
(a)Mr X did agree to be interviewed;
(b)there is no evidence from him to suggest he was in any way oppressed in his decision to cooperate; and
(c)having viewed the interview, he appears a willing and engaged participant who is interested to talk about Ms Tolley’s homicide.
[41]To conclude:
(a)there was no breach of any enactment because reg 107 and the accompanying provisions of the Prison Operations Manual were inapplicable, and the prison manager authorised the cold-call visit by the police;
(b)in my view, the prison should not have facilitated the police endeavour in this way. The prison’s emphasis should have been on ensuring a prisoner has the same choices contemplated by reg 107 and the Manual; and
(c)the procedure was not causative of a statement being made which otherwise would not have been.
CIPEM4
[42] As noted, the CIPEM is an interviewing method developed by DSupt Fitzgerald. While it is a somewhat different approach for police, there does not appear to be anything novel or radical about it. It is an interview style that emphasises building a relationship, maintaining dialogue and avoiding the traditional “cop-mode” structure of an interview.
[43] The model emphasises planning. Its aim is to ensure dialogue occurs, and when that is achieved, managing that dialogue to obtain a truthful account from the interviewee. The route to achieving dialogue is building a relationship, understanding the suspect and using that understanding, not contradicting or arguing and avoiding aggression.
[44] The model identifies nine phases in an interview. For each phase there is a discussion of the goals, pitfalls to avoid, and techniques to achieve its goals. It is emphasised that flexibility is the key and the phases need not occur in order, although obviously some, such as the planning phase and the closing phase, will be consistent. The interviewer must keep the interview flowing and not impose upon it a pre- ordained sequence. It is recommended that available evidence be introduced later in the exercise, normally in what is called the “version challenge”. The nine phases are:
(a)planning;
(b)approaching the interviewee;
(c)engaging with them;
(d)dealing with resistance;
(e)dialogue;
(f)adding value;
4 “Cop-mode” is a term used in the CIPEM document.
(g)version challenge;
(h)“appeal” which is described as helping the suspect to think about their actions by rationalising, minimising and justifying their actions. The interviewer is to be open to all explanations provided. It concludes that the interview “must ensure the suspect understands that their world has now changed”; and finally
(i)the closing phases.
[45] Mr Lithgow highlights some of the detail under various phases. The purpose is to provide support for challenges to the actual interviews which are said to reflect excessive implementation of the method. It is appropriate to note that these are purposely selective samples. There are other rules and guidance included in the method that, if highlighted, would support arguments that its purpose is truth gathering, and that the interviewer should have a genuine interest in the defendant. Some of these matters highlighted by Mr Lithgow include:
(a)under “resistance” a direction to ask for the suspect to just listen. This reappears under “appeal” where the interviewee is told to ensure the interviewee is first listening to the interviewer’s concerns;
(b)under “rapport” where it is emphasised the interviewer must develop the relationship, likeability and trust; and
(c)under “version challenging” a reference to introducing a non-specific accusation which can be a softer accusation suggesting a lesser element of the suspect’s role in the offence.
[46] Based on this one example I would view the method as clever in a non- pejorative sense. It is designed to put the suspect at ease and to get them talking. Once they are talking, skilled interviewers weave into the conversation at well-timed junctures information or an opinion, or change the direction of the interview. Challenges are carefully made in a non-confrontational way. The interviews pander
to the interviewee’s weaknesses, but overall the key is to keep up a relatively amicable dialogue over a sustained period. Here, for example, the first interview was about five hours.
[47] General criticisms are made by the defendant of what is said to be the false nature of the structure. DSupt Fitzgerald and the interviewers did not accept the proposition that their professed interest in helping a suspect, and in being interested in their welfare, was fake and manipulative. They said it was genuine. Likewise, the officers expressed support for the idea that telling the truth was always in the suspect’s best interests. This was a proposition challenged by Mr Lithgow who said it reflected a clear blurring of the very different interests of a suspected offender and a police officer. The blurring of this line was said to be manipulative.
[48] I did not find this aspect of the evidence helpful. There is an inconsistency in the defendant’s challenge with the officers being contemporaneously described as zealots for the CIPEM method and fake in their approach. One is either a zealot or perpetrating a ruse. There is in my view no doubt the officers believe what they say – that they are helping the person and it is good for them. Whether that is correct does not require analysis or a general conclusion. The Court has only the present example of the method on which to form a view and it is preferable to focus on that.
Unfairly Obtained Evidence
Introduction
[49] The defendant brings together a number of features which together are said to mean the statements are unfairly obtained. The Crown first, however, notes R v Wichman for the proposition that ss 28, 29 and 30 of the Act each performs a separate role.5 If the claim is, for example, oppression, that is to be analysed in terms of s 29. If not in breach of that section, the conduct does not fall back into a general s 30 analysis.
5 R v Wichman [2015] NZSC 198, [2016] 1 NZLR 753 at [69].
[50] The submission begins with the means by which Mr X was induced to give an interview. There are two matters highlighted – the alleged breach of the Corrections Regulations, and the fact that Mr X was not given a rights warning nor was any record kept of the exchange. I have already concluded there was no breach of an enactment in terms of approaching Mr X in prison and that aspect will not be considered further. There is no aspect of it to carry forward into an overall assessment of fairness, particularly given the conclusion it was not causative. The recording point will be considered later.
[51] The next submission covers much of the defendant’s overall case, namely that the interviewers mislead and manipulate Mr X, particularly in the first interview and then the phone call. The third statement is less the subject of focus, it being submitted that it is the inevitable product of the preceding two events. On a broad level it is submitted this manipulation leads Mr X to believe he has implicated his friends. This is emphasised by the interviewers despite the fact that anything said by Mr X is inadmissible against the others.6 In doing so, the interviewers were continuing to exploit Mr X’s gang connection and resulting loyalties and beliefs. One of these, well- known, is the unacceptability of narking. It is for this reason that the next day Mr X talks of taking it on the chin and seems to be concerned primarily about gaining charging relief for his friends.
[52] Within this first interview the defendant identifies various characteristics which it says contribute to an overall unfairness, namely misrepresenting evidence, sowing an invalid seed (namely the softer accident accusation) and overusing interview techniques such as insisting on Mr X listening and rejecting outright his explanations.
The first interview
[53] The first interview is the longest. There is little in it that is inculpatory,7 despite a persistent pushing from the interviewer that “they know” Mr X was there, a
6 Evidence Act 2006, s 27.
7 The Crown submits there are aspects in which Mr X shows knowledge that is particular to someone who was there.
proposition based on the word of an undisclosed informant, and similar comments from two other people.
[54] The interview can be summarised briefly. Mr X says he has been thinking about what happened, discloses that he think his very close friend MC8 was involved, eventually names the four people he thinks may have done it and persistently maintains he was not involved. It seems he was in a Wellington apartment the night of the killing with MC and another of the named four. Their disappearance for an hour or two appears to have fuelled Mr X’s belief that they were involved in the death.
[55] I have formed the view there are serious matters of concern with this interview which need consideration. Even though it is largely innocuous in terms of actual admissions, it is undoubtedly the interview that triggers the events of the next two days. Because of this it is necessary to spend time on it. I consider Mr Lithgow’s characterisation is correct – whatever the legitimacy of the CIPEM method, this is an example of it being followed to excess.
[56] It is necessary for me to first comment on Mr X. These are my impressions. There was no expert evidence about him or the characteristics he displays in the interview. The length of the interview reflects that Mr X talks a lot, some of which makes very little sense. There were noticeable mood swings in the interview and at times he seems almost manic. He describes himself as very smart, and seems to believe it, but then at times is capable of irony at his claim to smartness while realising he is being lured into talking to the police. He describes himself as the Prince of Wellington, and talks of putting things in a part of his mind where he can forget about it. He displays commitment to his gang values and ethos, but his articulation of what that means and how he should act comes across as confused and inconsistent at times. For whatever reason he is struggling with his own situation, most prominently, at least as comes across in this interview, because he seems to feel involved because MC is involved and he feels responsible. He plainly feels a very strong bond to MC and seems indecisive about what he therefore should do. There is obviously a wish to protect MC, but at the same time he implicates him.
8 Not a defendant.
[57] The interview is conducted by DSS Anderson, although near the end DS Ross steps in for a piece. That is at the point where DSS Anderson appears to have hit a dead end and DS Ross knocks on the door and inserts himself.
[58] There are three aspects of the interview about which I am concerned. They reflect aspects of counsel’s submissions but also my own observations. They are first what apparently occurs off-camera, second, the police introduction of the label “accident” and third what I regard as excessive manipulation by the interviewers. This latter concern embraces both what is said and when, but also the style of interview, and the manipulation of the whole process such that Mr X is urged to believe (and seemingly does so) that the interviewers are actually doing him a favour by interviewing him.
(a) Conversations off-camera
[59] There are three off-camera conversations with Mr X – at the prison when Mr X is first approached and in the car to the police station, and then during each of two breaks in the interview.
[60] Guideline 5 of the Chief Justice’s Practice Note on Police Questioning (the Practice Note) provides:
Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on audio tape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.
[61] The Courts have noted on numerous occasions the dangers of off-camera discussions, particularly where those discussions have a material link to a suspects statements, and the importance of complying with this guideline.9 This issue was
9 See, for example, R v Perry [2016] NZSC 102 at [54]; and R v Gossett [2019] NZHC 183 at [91]. A recent example of off-camera discussions being instrumental in the exclusion of evidence is R v Van der Krogt [2021] NZCA 436.
considered by the Supreme Court in R v Chetty.10 There the interview was terminated in the expectation there would be no further interaction other than the formalities of charging. However, a 25 minute conversation led to a further recorded interview. The focus was the unrecorded nature of the 25 minutes, which was summarised on video at the commencement of the renewed interview.
[62] The Supreme Court agreed the failure to record the 25 minutes was a breach of Guideline 5, even though at the time the police had thought the formal interview was finished. Examining the content of the 25 minutes, as disclosed through evidence at the pre-trial hearing, the Court observed that the detective told Mr Chetty:11
if there was anything that he had left out of his account, he needed to tell the detective as this was the last opportunity he would get to speak to them – he was on his own from that point. This was an invitation to Mr Chetty to speak further on the substance of the allegations against him. This invitation should have been recorded on video, together with Mr Chetty’s response.
The Court further observed that once Mr Chetty indicated he had something to say, he should have been told to wait until it could be recorded. The failure to do so was a “significant breach”.12
[63] Turning to the present facts, no record was kept of the initial contact at prison. This presumably was because it was only an initial sounding out, although why no record was kept of what was said to Mr X remains unexplained. As regarding this, it is necessary to make an observation to which I will return. It is very clear that nothing in this process occurs by chance. The interview team plans and indeed literally rehearses expected contingencies. A strategy is worked out having considered what information is available about the interviewee. A small example, but illustrative, is the amount of administrative effort to ensure it was a “cold call” at the prison.
[64] It is also necessary to divert for a moment to deal with an issue raised on behalf of Mr X. When challenged by Mr Lithgow as to why no recording of this phase was kept, DSupt Fitzgerald said it was not possible because of the prison setting. This is incorrect as permission to have a recording device can be obtained. The Court is
10 R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26.
11 At [45].
12 At [45].
invited to find the officer was seeking to mislead the Court. I decline to do so. He was in error but there is nothing more to it than that.
[65] Despite DSupt Fitzgerald saying it is the preferred methodology to read into the video record any off-camera conversations, this did not happen here.13 All of the three off-camera occasions are only raised in the formal interview by the interviewer at whatever stage of the interview suits their interviewing approach and aims. There is no initial general recalling and formalising of off-record events. Thus it cannot be known whether more was said or not. Mr X has not testified to allege anything, but of course a purpose of this rule is to remove that necessity.
[66] Of what appears to be a significant conversation in the car on the way from the prison, topics subsequently touched on as having been discussed in the car include:
(a)that Mr X was talking to them about Ms Tolley;
(b)that he mentioned his godfather;
(c)that he wanted to instil the experiences and values he had learned into younger generation guys coming through the gang; and
(d)that he had a part of his brain that he put stuff in that he did not want to remember.
[67] To illustrate the point about drip-feeding this information into the formal interview, these topics are found at pages three, eight, 15 and 33 of the transcript. The topics point to a significant conversation having occurred in the car which obviously included getting an understanding of Mr X and how he thinks, presumably a discussion of who matters to him (the godfather comment),14 and comments by Mr X about Ms Tolley, and I imagine his knowledge or otherwise of her.
13 DSS Anderson gave evidence that it did, but he is wrong on that.
14 Who matters to him is discussed at some length in the interview as a way of identifying what matters to Mr X and what values he sees them as representing. The later injunction is then for Mr X to act consistent with those values, with the interviewer defining what would be consistent
– admitting to being there.
[68] By the time Mr X is in the police car, he has agreed to an interview and been released from corrections custody to police custody. The snippets that appear through the interview point to a conversation the nature of which is far more than passing time on the journey. It is a clear breach of Guideline 5 not to have deferred this conversation until the formal interview. I have no doubt there is a deliberateness in this sense – the interview technique emphasises control and the importance of the initial contact and relationship building. I do not suggest the idea is to avoid the lens. I am sure the motivation is to avoid any delay in getting that relationship underway whatever the rules require.
[69]The first break occurred approximately two hours into the interview, at
12.04 pm. It then recommenced at 12.20 pm at which time DSS Anderson said:
TAOkay and while we were out there we’ve just had a bit of a chat… about the importance of telling the truth, okay?
X Yep
TAAnd ya know and you said a few things to me outside, to me and Dylan [DS Ross], okay… that um you’ve given us a bit more...
[70] It is clear that another breach of Guideline 5 has occurred, and one that I regard as far more serious than in Chetty where the officers thought the interview had ended. Here, the interviewers know it is continuing and yet have talked to Mr X, off-camera, about telling the truth.
[71] Turning to what else was discussed, again as best can be known from the topics the interviewer chooses to introduce into the interview, they were:
(a)the people Ms Tolley owed money to were not Mr X’s people;
(b)an explanation from Mr X as to how he came into possession of a shotgun he believed may have been the gun used in the killing,15 with apparently considerable detail as to who he bought it off and what he paid;
15 There is no ballistic evidence link between the gun and Ms Tolley’s death.
(c)a few further pages on in the interview, a reference to Mr X having speculated about who he thought was heard to say outside the crime scene “What have we done”; and
(d)at page 58 of the 65 page transcript,16 a reference to what DSS Anderson said to Mr X at the prison at the start of the day. Which was “regardless of what we have to say today, I’m gonna take you back so nothing’s gonna change”.
[72] The discussion of these obviously central topics off-camera in the middle of a recorded interview is a further significant breach of Guideline 5. It can only be considered to be a knowing breach. Further, it is clear from anyone who has watched the interview that this particular timeout effects a significant change in approach by Mr X.
[73] This phase of the interview ends at 1:36 pm and a second break is taken. Mr X is out of the room for about 15 minutes and then in it alone for some time. The interview resumed at 2.24 pm. Again DSS Anderson begins by referring to a chat outside:
And we sort of spoke about how these boys, it’s because of who you are and these boys wouldn’t go and do anything like this without you because they don’t have that, ya know the control and authority that you have.
[74]DSS Anderson then notes:
…you said while we were out there that you’ve asked the question you said is it possible to erase something like this from your memory?
[75] At this point it is enough to conclude that there have been repeated and serious breaches of Guideline 5 which have the effect of subverting the purposes of that Guideline. I must infer experienced interviewers understood the rules and must have appreciated a breach was occurring. The most favourable view I can take is that commitment to the interview process and principles has seen the officers place priority on maintaining connections and the relationship at the expense of the lawful processes.
16 The interview involved three tapes. The transcript of each tape begins at page 1, so this is page 58 of the second tape.
(b) The accident theme
[76] There was publicity concerning Ms Tolley’s death. Although not part of the evidence, it is a public fact that it was described by police officers at the time as an execution-style killing.17
[77] The relevance of this is that became an angle in for the interviewers. DSS Anderson early on, and repeatedly through the interview, says to Mr X he has read the file and does not believe that to be correct. At one point he links this, reasonably, to reports that one of the offenders when running away was heard to say “what have we done, what have we done”. These are sentiments inconsistent with a planned killing, and probably perhaps were unknown at the time to the police officer who gave it the execution label.
[78]DSS Anderson first says:
I don’t think this was an execution. I think something went terribly wrong but that wasn’t the reason she was killed.
He carries on with the proposition that what happened was not meant to happen and that sometimes things “get outta control”. He says Ms Tolley was someone’s mother, daughter, sister:
And that’s why I don’t believe this is an execution. Okay? Um its just something that completely went wrong, ya know. You could almost call it accidental.
[79] Perhaps this could be seen as a bit of a flourish, or a poor choice of words in the context of an oral conversation where the right word does not come out. However, it is then repeated. The defence has identified its use on 20 different occasions. Sometimes the context may make it clear what is meant by it, but not always, and it is a very misleading word.
17 For the purposes of the judgment I have confirmed this by referring to newspapers and internet publications at the time: See Emma Hurley and Mitch McCann “Upper Hutt woman Lois Tolley ‘executed’ – police” Newshub (online ed, New Zealand, 21 December 2016); Talia Shadwell “Police say Upper Hutt woman Lois Tolley was killed in ‘execution’” Stuff (online ed, New Zealand, 21 December 2016); and “Upper Hutt woman shot and stabbed in ‘execution type killing’” 1 News (online ed, New Zealand, 21 December 2016).
[80] First, to my understanding there was not then, and still is not, any prosecution belief the killing was accidental in any normal use of that word. Second, there is a very large spectrum between a planned execution killing, and an accident. It was a word undoubtedly chosen to be used, and the evidence never satisfactorily explained how it was fastened on as an alternative to execution.
[81] On behalf of Mr X, attention is drawn to an aspect of CIPEM which recommends proffering an interviewee a non-specific and softer alternative. This is undoubtedly a variation on that, seeking to downgrade the nature of the killing from a planned execution to a “things go wrong and get out of control” event. Of itself it is not a far-fetched recharacterisation, but the label is misleading.
[82] Perhaps this might not matter, but the way it is used is very effective. From about half way through the interview Mr X himself starts using the word, talking at one stage about some “freak accident”, and then of course the next day he asks about the availability of manslaughter. Within the interview this adoption of the idea by Mr X gets turned around so that in tape three one finds Mr X being asked to explain how it is an accident. DSS Anderson says that Mr X has told him about the gun, and given me “some names of some of the boys” that you think have gone there:
You’ve given me a scenario of what’s happened in there… okay that makes it sound like an accident. Alright, you’ve told me all these things.
[83] I interpolate here that the only thing Mr X has at this point disclosed is that he purchased a gun he thinks was used in the killing. His position otherwise is that he was not there and does not know what happened. It is not a situation of him recounting what others have said. Rather, it has consistently been him guessing what happened, a guess, it must be said, that matches what the interviewer has been suggesting from early on.
[84]DSS Anderson continues:
Now it’s time to get past that. Okay. Now it’s time for you to tell me, okay… why it’s an accident. Okay you need to start helping your mates here, look after the bros. Okay you’re the only one that can do that before somebody else says something else …
This theme of Mr X needing to tell the police why it is an accident is then repeated on several occasions.
[85] Overall I consider the use of accident to be a misleading representation of what the police believed had happened. There are times when it is explained, to the extent anything in the interview is explained, that it is being used in the context of things getting out of control and therefore not deliberate, but other times not. It is a concept that is heavily inserted into the entire interview and hammered home, and then is turned on Mr X in the sense that it seems to be his idea that he must explain.
(c) Excessive manipulation
[86] It is not easy to convey all the features that make up this assessment. To generalise it, my assessment is that Mr X is an unusual and volatile person who has confused thought processes but does not realise that. He is manipulated throughout the interview in a way that exploits his weaknesses. It is obvious when you read it, and more so when you watch it. At times one can only wonder how Mr X does not see it, and there are points such as when he is left alone in the room where he makes comments that suggest perhaps he does realise it.
[87] The first two tapes are about building the relationship; which involves bolstering Mr X and his values, his leadership and standing, and his commitment to doing the right thing. This is very much the style, a blend of control and mateship, and opinions can differ on whether it is correct for the police to mask or suppress the true nature of what is happening. The set-up of the interview room and beginning with shared food set the tone. The interviewer is extremely patient and lets Mr X meander through a lot of topics of minimal or any relevance, but which let the interviewer bond with him.
[88] The focus for this section of the judgment is the third tape and particularly when there is a change in interviewer. It is the culmination in a way of the groundwork that has been laid.
[89] I have already cited an extract from early on where DSS Anderson talks about the off-camera conversation and his view that, because of “the control and authority”
Mr X has, the four offenders he has named would not do anything without him.18 The interview then moves on to another previously cited extract, where the interviewer exhorts Mr X to explain how it is an accident.19 Mr X expresses regret he cannot help them because he does not know.
[90] By now Mr X is exhibiting the confused thinking to which I have referred. He says he knows nothing but wishes he did, and expresses again this thought that somehow he has been dragged into it. A somewhat lengthy extract best explains some of these observations:
XI can help them as much as I’m helping like now and it seems like, it seems like you know I’ve got no choice bro but to help them bro because I’ve seen there’s no choice. I’ve made a decision bro. I’m thinking f…, they’re f… eh, ya know. To be honest I can’t help but think that I like made that happen bro, just by chance that I had thing things, this toy, which I put a toy gun, a firearm bro to piece it all together. F…. O fall people, me bringing everyone down. It sucks bro. I’ve got that on my conscience right now but, but I know it’s not fully me eh bro ya know so I get f…. off with well when you talk about T. People have, people bring people down eh bro even without even knowing it and that’s just the, the logistics of life right now eh. Ya know what I mean? I’m gonna have to live with that ya know? I found out something today bro that ah my hunch was correct eh bro, ya know what I mean? I’ve had a puzzle bro, a piece a this puzzle for like the last like two years, piece a this puzzle. I’ve had that gun sitting in my, in someone’s, in someone’s closet bro that I trust with my life for ages, just because I’ve had this hunch bro.
…
X… it is the correct um pronunciation on bro on on on what I, what I feel because I, I whether yous believe me or not bro I don’t guarantee to know what happened that night and who, who did it. I’m just clever enough bro to know who to eliminate in my mind ya know, process of elimination eh bros. Who was around at the time, who was, who had ties to these people, eh bro? Who had like um emotional attachments, you know ah financial attachments to these peoples. You know what I’m saying? So um process of elimination eh brother.
[91]After a period DSS Anderson introduces the theme of urgency to Mr X, stating:
18 At [73]. DSS Anderson uses the term “boys”. It could be a reference to only two of the four with whom Mr X does have a relationship. There is no reason to think he has control and authority over the other two people he named who are not in his gang.
19 At [84].
TA…if we do not get to the bottom of this today… how this is gonna be portrayed, is how its been written at the moment.20
X Yeah I know bro
TAOkay and we don’t want that to happen. Okay this needs to be sorted today … cos someone else could say something completely different
…and that’s not how it went down alright and thats why I’m talking to you X.
It is then added that setting the record straight will “help the bros out”. Mr X is reminded he has spoken a lot about his father (a senior gang figure), and that he respects his father and that if his father was in the same boat “he’d end up choosing to do the right thing to save the bros”.
[92] Mr X responds by again denying involvement, and then goes off for a period setting out theories about things, much how he had done earlier. The other interviewer, DS Ross, perhaps sensing a change is needed, knocks on the door, and takes over.
[93] Now having access to the CIPEM overview document it is very apparent DS Ross embarks, in an almost blueprint way, on what the method calls “the appeal phase”.21
[94] DS Ross’ theme is that Mr X’s world has irrevocably changed. Why that is so is not apparent to me, but that is what Mr X is told:
(a)it is the day he knew was eventually going to be coming; and
(b)life has changed for you and is not going to be the same. Alright?
In between these two observations Mr X is told how fair DSS Anderson has been to him, and how he has listened and now it is Mr X’s turn to listen:
Theres a time for doing what you think you have done all your life and there’s a time for not doing that. And today is one of those times.
20 I assume that is a reference to the execution-style killing.
21 This paragraph is suppressed.
[95] This may seem harsh, but this passage is representative of what can only be called the nonsense that is then spoken for a period. It is a time of statements full of apparent deep meaning that in fact have none, yet seem to impress themselves on Mr X. To take the one just cited – which of those two is he to do? – whatever it is that he has done all his life or not that? Instinct says the latter, but in fact until then the interviewer has been exhorting him to follow his values, and, as will be seen, to stand up and be a hero. Disappointment is then later expressed because DS Ross thought Mr X would be braver.
[96] Throughout this phase there is a constant resort by both DSS Anderson and DS Ross to interrupting Mr X and telling him he has to listen. Mr Lithgow is critical of this, submitting it shows the fake nature of the claim to wanting to get the interviewee’s version. Mr Burston submits the passages are being taken out of context, and there is fair reason on each occasion to say it given Mr X’s rambling style.
[97] It would not be productive to analyse the 27 occasions the officers say it. What can be said is Mr X is voluble and prone to ramble. Most instances occur at the time when the officers want to focus rather than allow more of that which has occurred for some hours. So there is legitimacy to much of it. But also it is undoubtedly a technique to exert control and ensure the interviewee is listening to what the officer wants to say
– which is version challenging, and getting the interviewee to reflect on how apparently their life has already changed.
[98] DS Ross says he is unsure Mr X is as smart as he says he is because if he were he would see how things have changed:
Life changes for us all at some point. As much as we would like to go back to when it was better we gotta accept the truth that we can’t do that.
[99] Again there is nothing underlying this sentiment. Nothing has actually changed for Mr X himself. He has throughout denied involvement and is still doing so, yet it is being impressed upon him that some momentous change has happened. To avoid lengthening this commentary, I simply note that other matters referred to as part of this exhortation for Mr X to tell the truth included bravery, what his kids would think when they are grown up, values, being true to himself, that the window of
opportunity to sort it was closing, a return to the theme that people understand that “an accident can happen”, and that it would “destroy” Mr X if he did not get it sorted. Mr X is told he is:
a ship in the spotlight now, you need to come across, come across fully to us because you’re not where you were but you’re not where you need to be;
He is also told that, like his father, it is Mr X’s time to be a hero:
heroes aren’t born on days that are easy, heroes are born on tough days;
and it is time for him to “walk the walk”.
[100] DS Ross is soon to leave the interview to allow back in DSS Anderson. Before doing so, however, two related themes are introduced. It had earlier been explained to Mr X that the interviewers were not part of the investigation but had been flown in to talk to him. This fact then becomes a window of opportunity which is closing, all presented to Mr X as if it is an opportunity Mr X had sought, and as if the real investigation team had other material to move on with against Mr X as soon as these interviewers have gone. Also developed, and reflecting the underlying premise advocated by DSupt Fitzgerald, is the idea that the interviewers have been fair and are on his side:
Steve [DSS Anderson] is not gonna be here after today. Alright? You will just have to face the music on your own.
[101] I conclude this aspect with an exchange that illustrates how the relationship has ended up, and how in my view Mr X has been overwhelmed. I say this not in the sense of making admissions, but in agreeing to propositions that are a distortion of the reality:
DR: Listen to me. Cos we gotta go soon. X: Yeah.
DR: So this one day, this opportunity that you’ve had today X Yeah
DR That I know you appreciate don’t ya X (Nods head) Yeah yeah
DR You do appreciate how we’ve approached you today X Yeah
DRWe’ve put you first. Everything we have done, today has been about you
X Yeah nah thanks bro.
The last comment is from a person who, unbeknown to him, has been implicated by a confidential informer, who otherwise was in prison and had not had any involvement in the case for nearly two years, who had not indicated any interest in talking about the case, and who was the subject of a cold call that was carefully orchestrated to avoid any warning or opportunity to not see the police. Despite these actual facts, here he is agreeing with the proposition that he has been given an opportunity that was all about him.
[102] When DSS Anderson returned, the pressure was maintained. The first comment was:
TA X its time for you to start listening to me, okay X?
and:
TA No you should listen and don’t interrupt alright? X Yeah
TA Alright. I know you were there okay X?
and:
TAOkay? Don’t tell me anything different, any of the other stuff. Yeah coz I know what happened alright?
X (Nods head)
TAAnd, ya know, the more you start talking about those other things and it actually kind of insults me a bit.
[103] The next sequence is a period of DSS Anderson asserting he knows Mr X was there, and just responding to any denial by telling Mr X just to listen. It is an oppressive sequence albeit a small portion of the interview. It goes beyond maintaining control but ultimately leads nowhere. Mr X responds by saying “take me back to my cell please”, with that being ignored in favour of him being reminded it was his last opportunity.
[104] The same sequence then continues until again interrupted by DS Ross who again takes over.
[105]DS Ross says they are going to finish but tells Mr X:
Mr X surprised him. Some of them in good ways and others not so good, but he appreciates Mr X talking to them;
[106] Mr X says he did not appreciate it that he was not believed, that he feels bad about chucking the bros “all in the shit” and is concerned about MC. Mr X holds the stage for about four pages commenting on these things. When DS Ross is able to re- enter the dialogue he picks up on that:
so hearing you talking is um is good because ah its confirming to me that you’ve heard some of the things that I’ve said. I think you’ve made it worse for your friends … you haven’t helped anyone. You’ve actually made your friends, this is gonna be tough for them. Alright?
[107] Mr X says he thinks he has helped them because of the “freak accident” thing, and he feels sorry for them as it is an accident they are going to have to live with. DS Ross responds by saying he thought Mr X would be braver, because of the person Mr X had told him he was. The interview concludes with the passage cited earlier where DS Ross promises to call and reminds Mr X he is the Prince of Wellington.22
[108] This lengthy narrative, itself a snapshot of a very long interview, has been necessary to set out why, in my view, it was an excessively manipulative interview that played on Mr X’s weakness and left him confused about what had happened. It can be observed that while Mr X has named four people, it is very clear, on the basis of this interview:
(a)he actually knows nothing; and
(b)he is speculating.
[109] I conclude with one last comment from DS Ross at the end, made in the context of calling Mr X the next day. It is relevant to the unfolding of following events.
22 At [14].
Having said that he could see Mr X was struggling with what had happened, and getting agreement to that proposition, he said:
So what I’m willing to do. I’m gonna contact you tomorrow. Im gonna touch base with you. You’ve got a lot to think about tonight. Like I said, I can’t stop what’s coming. (my emphasis).
The phone call
[110] As promised, DS Ross rang Mr X in prison the next day. DS Ross recorded the conversation. Very soon into the conversation Mr X asks if DS Ross can come see him in person again. There is nothing in the conversation to that point which accounts for this – it was plainly something Mr X was intending to ask if DS Ross telephoned as he said he would.
[111] The answer given by DS Ross, however, has been the focus of considerable attention:
DR I’ll do that mate. If I have to come to see you again I will, I’m in Dunedin now. I had to go home
X Oh yeah
DR I came home last night but like I said I don’t normally do this but the situations a wee bit different and I said to you yesterday I can, I can hold the wolves back for a bit but um
X Nah I think Im, I think, I think I understand what youre trying say now bro
[112] The transcript as set out is a police transcript. In evidence DS Ross said the word was not “wolves” but “walls”. Relistening to the tape, I could not say either way, but it was apparently a planned word so I accept the evidence.
[113] Mr X said he’d been all over the place yesterday and DS Ross agreed. That was why they had taken their time – they did not want Mr X to feel like they were putting everything on him in a hurry.
[114] Mr X then asked, again of his own initiative, whether there was any chance of a 347 (discharge) for MC; DS Ross asked what he was charged with, and what DS Ross would be getting in return. The answer was:
X Ah you’d um obviously something from me to make it all go away. DR Go away or work it out?
X Yeah, work it out. Cos what will I be looking at? Manslaughter DR Well these are things we have to talk through mate.
DS Ross made it clear he was not in a position to make promises. Nothing else of consequence to the present analysis was discussed, other than Mr X said:
Well like, um, MC is number one bro and yeah. I’m trying to help myself but them at the moment but I think I’ll take it on the chin.
DS Ross said for Mr X to sit tight and he would come up with a plan:
Like I said this is what we [he and DSS Anderson] do. We fix problems um, we’ll get there okay?
[115] The aspect of this call that needs analysis at this point is the idea of holding the walls back. DS Ross accepted the content of the phone call was planned in advance, including this term. Given this, it was surprisingly difficult to obtain an explanation of what was meant by it, but eventually this extract captures his evidence:
A. So regardless of whether X talked to me or any police officer, the fact remains that the investigation was not going to stop because some people didn’t want to talk to the police, and it was known to me that they were entering a re – a new phase of the investigation. I wasn’t privy to everything that was going to happen in the investigation. I was just a mere part of it. But the walls are really the fact that it’s not going to go away and other people are going to keep coming and asking questions. But he had an opportunity there to deal with me, because I don’t live in Wellington, I live in Dunedin, and he had an opportunity to deal with me. If he chose not to, well, I didn’t expect to talk to him again. But I did call him back because I made a commitment to him at the end of the interview that I’d call him and he agreed to take my call and that’s why he did, because I told him I would.
[116] It is, I consider, a puzzling term to have used to capture the ideas DS Ross is talking about. And again one also sees the unreal aspect of how the interview is being viewed by DS Ross and DSS Anderson; namely, this idea that somehow it is an opportunity not to be lost for Mr X to talk to them rather than the investigation team as if they were not equally police officers.
[117] What is submitted to be the inexplicable use of the word “walls” informs a defendant submission that it is a word that is deliberately used to trigger something said to Mr X off-camera the day before. I decline to draw that inference in the absence of any evidence supporting it.
The second interview
[118] Mr X was taken back to the police station the following day. In a changing story he ultimately admitted to shooting Ms Tolley. On his behalf it is submitted the errors he makes in describing the events make it plain the account is untrue, and a product of the unfair interview process. These alleged discrepancies will be considered later in the judgment. For now, it is enough to give a brief overview.
[119] Mr X begins by saying he left the central Wellington apartment he had previously referred to with MC and another. He did not know where they were going. There was no firearm. Reflecting the manner of how he expressed things over the three days, Mr X said:
X I wouldn’t really like to get into the logistics (inaudible). Honestly, honestly bro I wasn’t there. I just prefer to go to jail bro for a long time, to save the people I love. Honestly, no bullshit G. That’s why this is gonna be a lot different than the other day because the other day it was only, it was only my personal thoughts and opinions, personal thoughts and opinions on how everything played out cos it’s all imaginary, imaginative and that’s why some things don’t make sense to yous. You know what I mean, does that make sense bro?
DR Yeah. I think, I hear what you’re saying.
What Mr X is saying would not be obvious to most, but within the passage is the idea of him doing what he is doing to protect others, and the acknowledgement that it will be different from the previous day when he was just giving his personal thoughts and opinions. Of course, it can be observed that if what is being said on this second interview occasion is true, then the first interview of two days earlier was not Mr X speculating on what happened; it must have in fact been him lying.
[120] Mr X in explaining the course of events that occurred says that he waited in the car while others went in. Once inside he wrestled with Ms Tolley who allegedly somehow had her hands on the gun. When he gained control of the gun, he shot her;
Mr X speaks of “painting a wall”. DS Ross seeks detail which at points includes (those marked with an asterisk are arguably or even for some certainly inconsistent with known facts):
(a)there were five of them;*
(b)he was waiting in the car and then belatedly went in by which time Ms Tolley was cut;*
(c)he had not seen the gun so the other car must have had it;
(d)someone else scuffled with her over the firearm. It came loose and he picked it up and used it;
(e)he shot her in the head, the back of the head, not right in the back, in the side because she was spinning;*
(f)she was already fighting when he first went in;
(g)she was stabbed in the head or face, one of those;*
(h)he in fact just took the gun of one of the others;
(i)he was not aiming the gun anywhere specific. Just pulled the trigger and she dropped;
(j)there was a lot of blood. There was splatter; he saw it on the wall;*
(k)he did not know until about a year ago she had been cut;
(l)the gun was in the car with him. It was loaded because he checked it;
(m)he kicked Ms Tolley’s door and it opened; and
(n)again, she was stabbed in the face.
Challenges
[121] The parties analyse the challenges through the lens of s 30 of the Evidence Act 2006 and in particular s 30(5)(a) (breach of an enactment) and s 30(5)(c) (unfairness). Conclusions have already been drawn in relation to the first interview which will be fed into this analysis but not repeated. To summarise those:
(a)there was no technical breach of the rules governing contact with prisoners, but the prison manager’s decision to allow the events to unfold as they did represents a poor exercise of her powers that did not prioritise prisoner protections and allowed a circumventing of the legislative scheme;
(b)there were breaches of Guideline 5 in relation to off-camera conversations. Their repeated nature, and the content of the conversations – to the extent disclosed – makes those breaches serious;
(c)the repetitive use of the accident theme was misleading in that it misrepresented any reasonable view of what happened based on what was known, and did not represent police views of the event; and
(d)the entire interview represents excessive manipulation of the defendant and left him with a confused view of matters.
[122] The Crown has considered the “dark threat” issue of holding the wolves/walls back under s 29 of the Evidence Act, being the oppression provision. I agree that section is not engaged and do not understand the defendant to contend otherwise. I address the s 30(5) issues in the order analysed by the Crown.
[123] The Crown begins with two context submissions. The first is the seriousness of the circumstances – a “point blank” shooting of a woman in her own home by a group of men. It is submitted to be appropriate to use every investigatory technique lawfully available. With the last aspect of this there could be no disagreement. Whether it gains strength from the seriousness of the context arises for consideration in any balancing exercise but does not otherwise advance matters. The contrary view
of course is that it is when the stakes are at their highest that rights and vigilance most matter.
[124] The second context submission is that the CIPEM technique is legitimate, is not a method that prioritises confessions at any cost or that inevitably obtains outcomes due to its manipulative techniques. Rather, it aims to use personal engagement in the pursuit of truth. I do not comment on the technique generally, having only seen this example. I am obligated to say I otherwise saw little in this example that supports the Crown submission.
[125] The concept of seeking the truth is not as neutral as it sounds. Here it is apparent the officers had a clear view on what was the truth and, as I have held, manipulated Mr X and persistently challenged him to get to the revelation of that “truth”. His statements to opposite effect, consistently advanced by him for over five hours, were routinely rejected, and various methods were employed to get him to say something different. The final technique was this:
(a)your world has changed;
(b)you have put your friends in a bad place; and
(c)I don’t usually do this but tomorrow I will ring you at prison to see how you are.
[126] A completely confused Mr X, whose befuddled way of thinking is very hard to explain but very obvious when you see the interview and read the text, took this on board. The idea of putting his mates in a bad situation ran contrary to his core values.
[127] It is for these reasons that I reject the Crown’s assessment that the first interview was an example of what is said to be the CIPEM technique of placing priority on a neutral truth. It was a sustained pursuit of a particular “truth”.
Guideline 2
[128] Guideline 2 concerns the obligation to caution a suspect before questioning them. Three occasions are the subject of analysis:
(a)the absence of a warning when police first engaged with Mr X at the prison;
(b)the quality of the warning at the start of the first interview; and
(c)the absence of a warning at the start of the telephone call when DS Ross rang Mr X in prison the following day.
[129] In relation to the initial engagement, the purpose of the visit was to invite Mr X to come for an interview. The CIPEM method is such that engagement on the substance would not be expected or encouraged. It would not have been intended to talk to Mr X or question him about matters touching on the investigation. I agree no warning was required.
[130] No issue is raised by the defendant about the car journey in. From what can be gleaned from the interviews about what occurred during the trip, I consider there is likely an issue as to whether a warning was required, but given there is no reliance on anything said, it is not necessary to consider it further.
[131] A warning was given at the start of the first formal interview. The defendant takes issue with the way they were given, it being suggested to DSS Anderson that he “mellowed” the rights. Ultimately there can be little doubt that Mr X knew and understood his rights, so analysis can be briefer.
[132] I have some concern about the way the rights were given, seeing the tone as a continuation of the whole effort to downplay the true context of the event, which was to interview a suspect concerning whom the police had informer information about his involvement. The transcript reads:
TAAnd like I said to you mate, a lotta people have been spoken to. Everyone we’re talking to ya know because of what it’s about, we
have to give them their rights and ya know and well do the same to you …
X (Nods head) Yeah.
TA … okay? And, and the conversation while we’re sitting here is being recorded …
X (Nods head)
TA… and um I’ll give you your rights now so, you know you have the right to remain silent. Ya don’t have to answer any of my questions. Anything you say will be recorded and may be used in evidence in Court. You have the right to speak to a lawyer before deciding to answer my questions and we’ve got a list of lawyers that you can speak to for free.
X Yeah.
TA Alright, do you understand all that? X (Nods head) Yeah.
TA How’s that McChicken? X Yeah it’s pretty good.
[133] There is, in my view, formal compliance but a definite downplaying of the context – the reference to “talking to lots of people” and giving them their rights so may as well do the same for you, a quick recitation of the rights and then an immediate shift back to question about the food.
[134] Turning to the phone call, the Crown submits Mr X was not being invited to make a statement, and the call should be viewed the same as the initial prison contact with an absence of expectation about any questioning. I disagree and consider the submission gives insufficient weight to the context. The phone call was in reality a calculated continuation of the previous day’s events. Its existence was set up the previous day, and DS Ross accepted its contents were carefully planned. The call began with DS Ross immediately talking about how yesterday was a big day. Likewise, there is the comment by DS Ross about “cannot hold the walls back” made in answer to a question whether DS Ross could visit Mr X.
[135] The query by Mr X about a discharge for MC again made plain what was happening. DS Ross did not seek to put a brake on what Mr X was saying, nor give
any caution but rather kept it going even when there was the statement by Mr X about “making it all go away”.
[136]I find there to be a clear breach of Guideline 2 in relation to the phone call.
Guideline 3
[137] Guideline 3 is the prohibition on cross-examination. The Crown cites this passage from Chetty as capturing the essence of the rule:23
The critical consideration is not the form of the questions but their effect – a series of leading or closed questions may be unobjectionable in one context but objectionable in another. The key consideration is whether the questioning by the police officers is unfair in nature, taking into account all the circumstances including the characteristics and condition of the suspect. While the police are not obliged to accept a suspect’s assertions as to the events in issue at face value and are entitled to challenge them by, for example, referring to evidence that is inconsistent with them, the police are not inquisitors, and may not act as such. Questioning which is, in the circumstances, aggressive, intimidatory, unnecessarily persistent or otherwise designed to wear a suspect down is likely to cross the boundary of what is permissible.
[138] On behalf of Mr X, it is submitted the interview style, particularly in the first interview, amounted to cross-examination because the police knew very little and continually rejected Mr X’s version in order to induce a different account.
[139] The Crown submits it is incorrect to say that police knew very little about Mr X’s involvement, but then supports this claim only by reference to statements by three persons, one of whom is now a co-defendant, that Mr X was the shooter. This is not knowledge but mere assertion from other people , none of whom were ever going to give evidence to that effect. It is not that their evidence is inadmissible. However, the reality is that they had only those statements, none of which would be led as evidence.
[140] When one considers the Chetty quote, I consider there is a breach of Guideline 3 in the consistent rejection of Mr X’s explanation or statements. This is reinforced by the absence of any real basis on which to reject it, and the absence of
23 R v Chetty, above n 10, at [27].
any contrary evidence to use as a basis for challenge. It is cross-examination in the sense of persisting with rejection of the primary evidence, and appealing to values, and matters such as what his father or other heroes would do, in order to get a contrary version. I regard the last third of the interview as engaging the last concepts in the Chetty quote – unnecessarily persistent or otherwise designed to wear a suspect down.
[141] In support of this conclusion this further extract from Chetty points to the reality and the dangers of what is happening here:24
While the police are not obliged to accept a suspect’s assertions as to the events in issue at face value and are entitled to challenge them by, for example, referring to evidence that is inconsistent with them, the police are not inquisitors, and may not act as such. Questioning which is, in the circumstances, aggressive, intimidatory, unnecessarily persistent or otherwise designed to wear a suspect down is likely to cross the boundary of what is permissible.
[28] In assessing whether the boundary between acceptable and unacceptable questioning has been crossed, it is important that courts bear in mind two factors in particular. First, as the Law Commission has noted, the extent to which questions in the form of cross-examination should be permitted “is a matter of importance because the suspect who elects not to exercise the right of silence at the stage of police questioning does not generally have the same protection as a defendant who elects to give evidence and hence to undergo cross-examination at trial (although a suspect being interviewed by the police can decline to answer particular questions)”. There are, then, due process considerations. Second, research into false confessions shows that confessions which are accurate in terms of the details of the offending may nevertheless be false. While the reasons for suspects making false confessions are “numerous and multifaceted”, anecdotal case studies and DNA exonerations, which have focussed on the most serious cases, show that false confessions typically have two main causes: “manipulative or coercive interrogation techniques and suspects’ vulnerabilities in interviews”. In cases where the details of the offending are not publicly known, a suspect who confesses may have acquired detailed information from the content of the questions put to him or her by the police.
[29] Overseas research indicates that false confessions often appear convincing because they are “comprised of remarkably detailed narrative accounts after the initial admission ‘I did it’, which police and prosecutors use to persuade the jury that the suspect was in possession of remarkable ‘special knowledge’ that must have originated from the real perpetrator”. Such “special knowledge” may in fact be obtained by the suspect from police in the course of questioning. The advent of DNA testing brought about a large number of exonerations, a significant proportion of which (16 per cent) involved false confessions. Most of the false confession cases involved “detailed and persuasive incriminating facts that must have either wittingly or unwittingly originated from the police”. Questions in the nature of cross-
24 At [27]–[29].
examination (whether leading or otherwise) which reveal key elements of the offending may well increase the risk of a false confession being made. In addition, persistent questioning on a particular topic may make it clear to the suspect that the police do not accept his or her responses. Such persistent negative feedback may distort the suspect’s subsequent responses, that is, the suspect may adapt his or her responses to reflect the expectations of the interviewer(s) rather than the suspect’s version of events. One of the advantages of videotaping police interviews is that it enables the courts to assess whether this type of problem has occurred.
Guideline 4
[142]Guideline 4 states:
Whenever a person is questioned about statements made by others, or about other evidence, the substance of the statements or the nature of the evidence must be fairly put.
[143] The defendant relies here on the use of the term “accident” as not fairly putting the case. The Crown submits “accident” seen in context is a contrast to execution and so is not misleading. I have concluded otherwise for reasons that need not be repeated. The Crown inferentially accepts, or at least does not contest, that a misuse of “accident” would engage Guideline 4.
[144] I consider there is indeed yet another breach of a guideline. One would normally dismiss the potential misleading effect of this word as a clumsy use of language, but I have previously reviewed how it was used and then eventually turned on its head to become Mr X’s conception of events which he had to explain and justify. If it were just an inapt choice originally, the way the interviewers ran with it created a misrepresentation of what was known about the incident and what police thought. It needs to be recalled the event which “accident” is being used to describe:
(a)four men breaking into a house at midnight;
(b)carrying a loaded shotgun and a weapon such as a machete;
(c)doing so for the purposes of drug enforcement;
(d)cutting the victim on her thigh; and then
(e)killing the victim with a single shotgun blast to the neck.
[145] It is difficult to see “accident” as anything other than a significant misrepresentation of the event. It was a planned word or concept that was used repeatedly throughout the interview. It constitutes a breach of Guideline 4.
Guideline 5
[146] This is the guideline concerning the use of video recording. For the reasons already given, I consider there was a breach of this guideline.
Conclusion on s 30(5)(c) – an unfairly obtained confession
[147] The first interview involved breaches of Guideline 4 (the use of “accident”), Guideline 5 (off-record interviewing) and Guideline 3 (cross-examination). These formal conclusions reflect a more general assessment of an unfair interview where Mr X has been manipulated and his explanations rejected in the face of no contrary evidence. His emotions and confused value set have been exploited and he has been left with a belief that his world has changed, he has put his friends in trouble, and that he needs to act with urgency to solve the problem he has created.
[148] In relation to the phone call there was a breach of Guideline 2. I consider Mr X should have been given a caution at the outset, but if wrong in that, then as the conversation developed.
[149] The next issue is whether these breaches were causative of the admissions made in the second interview.25 The Crown emphasises the time that elapsed since the first interview. Further, Mr X made it plain in the phone call that he had been reflecting on his situation, and then after that call had a further night to reflect before the second interview. It is submitted he is an adult male who has thought about matters and reached his own decisions independent of the events on the first day.
25 As noted in Chetty, a causative link is almost always necessary between the unfairness and the impugned evidence: R v Chetty, above n 10, at [47].
[150] It is a reasonable submission with some basis for it, but not one I agree with. Objectively, the phone call is clearly linked to the first day. It is a planned follow-up where DS Ross has advanced the line that he is going out of his way – “not something I normally do.” If not a normal practice, then, in my view, it can only reflect a recognition of how the first interview ended and the likelihood of there being more to come. More generally, the first interview left Mr X believing he had put his mates in trouble, something he had made clear was not a situation he could accept. What followed, in my view, reflects that.
[151] I accept there is a further night’s reflection before the second interview, but by then the die was cast and the same motivations existed. On a simple “but for” analysis, there is no way the phone call admission and the second interview would have occurred but for the first interview and how it was conducted. Further, the seeds sown on the first day were still operative.
[152] In terms of a more direct link between breach and admission, I would first conclude that the entire first interview was unfair and causative of what happened on the next two days. Addressing specific breaches:
(a)I doubt the absence of a warning in the phone call mattered because by then Mr X had been induced to believe he needed to protect his friends whom he had implicated;
(b)the misleading characterisation of the incident as an “accident” is reflected in Mr X’s adopting it, and then the idea of manslaughter. The link between the softer option of accident, and Mr X’s use of manslaughter is apparent when it is appreciated that the next day Mr X would tell the officers that he shot Ms Tolley deliberately. He would understand that is a description of events that does not constitute manslaughter;
(c)the cross-examination breach is an aspect of the wider interview style which I have already commented on and which in my view was unfair and improper; and
(d)the off-camera discussions were deliberate breaches of the rule. In my view those discussions clearly influenced the path of the first interview.
[153] I conclude therefore that the evidence was improperly obtained by an unfair process involving multiple breaches of the guidelines which were causative of the admissions made at the third interview, and in the phone call.
Should the evidence be excluded?
[154] Having determined the evidence was improperly obtained, s 30(2)(b) then requires the Judge to determine whether exclusion of the evidence would be proportionate to the impropriety. The test is identified as a balancing process weighing up the need for an effective and credible system of justice but giving appropriate weight to the impropriety. Section 30(3) identifies a range of factors to which a Court may have regard.
[155] But for the seriousness of the offence I would have no hesitation in excluding the evidence which is the product of an unfair process and which is not to be encouraged. However, this is an admission to shooting a woman in her home, and hesitation in excluding such evidence is to be expected.
[156] I consider the breaches to be serious. Whether by design or not, the effect is to subvert the rules and protections surrounding the taking of statements. Those rules are important in an area where the power of a confession is well known. The passages cited from Chetty point to the known dangers.
[157] Since it is relevant to the balancing exercise, some formal conclusions on whether the breaches are deliberate are required. My assessment is that the conduct which has the effect of being unfair is deliberate, but that the interviewing officers have a wholly unreal perception of what is happening. This is apparent in their genuine belief that they are merely after the truth without any apparent recognition that they seemingly hold a set view on what the truth is and doggedly pursue a process until there is an admission to that truth. As an illustration of this, at the end of interview one, DS Ross expresses disappointment to Mr X about Mr X’s inability to make the admission, observing that he thought he would be braver. This comment can only
reflect a view that there is a correct answer out there known to the officers and Mr X is letting everyone down by not giving it.
[158] As observed, the breaches of the guideline concerning videoing all relevant discussions must be seen as deliberate. The officers know the rules and it is clear they are engaging in substantive conversations off-camera.
[159] The same conclusion I made about the goal of “truth” also applies to the analysis of whether the manipulation is deliberate. What is believed by the police officers to be engagement for the person’s own benefit is achieved by a process of skilful exploitation of the interviewee’s beliefs, values, weaknesses and vanities. The “Prince of Wellington” comment made by DS Ross at the end of interview one is a small example. Appealing to values, and exploiting weaknesses is undoubtedly a question of degree and some of this conduct is found in most interviews. I do not conclude the interviewing officers recognised how manipulative their conduct was, but have no doubt these techniques were used to unacceptable excess.
[160] None of the other s 30(3) factors are particularly relevant to the present balancing exercise, although I record that on my understanding of the evidence, the case against Mr X will collapse without the confessions. That and the seriousness of the charge make exclusion a truly significant outcome but one justified by these breaches. It would only not be justified if these sorts of serious causative breaches of the guidelines were never enough to merit exclusion in such serious circumstances.
[161] Although reliability of the confession is not a formal ground of challenge, I consider it is relevant to the exercise of the discretion.26 It is the primary evidence against Mr X and its strength merits assessment. The issue falls to be addressed under two topics:
(a)whether there are aspects of the admissions that suggest the admissions are true, or false;27 and
26 The Supreme Court has indicated that “concerns about reliability are relevant to the s 30 analysis”: see R v Wichman, above n 5, at [69] [326] and [507]–[511]; and R v Chetty, above n 10, at [64].
27 I note that the s 28 reliability test focuses not on the truth of admissions, but rather whether the circumstances under which the confession was obtained are, in general conducive to unreliability.
(b)the Court’s observations on the admissions having viewed the interviews, and considered the transcript on several occasions.
[162] Five matters are identified as being incorrect statements by Mr X about what is known to have happened. The defendant submits they point to the unreliability of the statements. The Crown disputes that any represent errors, and counters that there are aspects of the admissions that suggest Mr X is speaking with the knowledge of someone actually present.
[163] The first topic is the location of the fatal wound, which entered the right side of Ms Tolley’s neck, and exited the left. It has the features of a contact or near-contact wound. The Crown submits that Mr X’s statements, and his gesture during the interview where he points to the side of the head (temple/ear region) are not inconsistent with this. Mr X said the wound was:
(a)“in the head, at the back, the side not right in the back because she was spinning around”; and then later
(b)“I don’t know where I shot her. I didn’t look where I shot her. I must to had to shoot her in the head for to have that much mess you know” (sic).
The words speak for themselves. Mr X is incorrectly describing where Ms Tolley was shot and there is no reason to ignore, as the Crown submission does, the opening words which are that he shot her in the back of the head. The later qualifications do not alter this fundamental description.
[164] The second topic is Mr X saying Ms Tolley was stabbed in the face. The Crown submits that Mr X is by his own admission speculating or saying what he thinks happens because he came in later. The Crown further submits the photos show blood smears on Ms Tolley’s face which suggest that Mr X was there and saw something,
However, the Supreme Court in R v Wichman held that the truth or falsity of a defendant’s statement and its compatibility with objective facts is a relevant consideration of the s 28 enquiry: R v Wichman, above n 5, at [84].
but just mistook the origin. These are submissions available to be made to a jury. On their face, however, the statements by Mr X are simply wrong. There was a significant cutting wound to the back of Ms Tolley’s leg.
[165] The third statement concerns Mr X’s suggestion of having “painted the walls” by shooting Ms Tolley and of there being blood splatter. The Crown submits the photos indeed show blood splatter, with the ESR report noting “numerous small bloodstains” on the wall. The Crown submits that to a person pulling the trigger and seeing splatter it could have seemed and been remembered as worse than the scene actually is. Again I see this as a matter for submission while observing that Mr X’s language is evocative of a much more dramatic scene than the reality. I do not accept that it necessarily supports the Crown’s case that Mr X was present.
[166] I note the Crown in these submissions in part explains Mr X’s errors by his explanation of coming in later after the others. The topic is not addressed further in the submissions but my understanding is that the CCTV footage is inconsistent with this and instead shows four men entering at the same time.
[167] The next topic is the lack of identification of Mr X by any of the available witnesses. Mr X has distinctive bulldog tattoos on each cheek, and it is submitted by the defendant to be significant that none of the witnesses identify him. For example, the group of men initially knocked on a neighbour’s door. The neighbour described the front two men, neither of whom would be Mr X. The second of those people probably had the weapon. If Mr X’s statement is true it would probably be him. Yet there is no mention of the tattoos. The Crown disputes this, noting other witnesses talk of the men having hoods up. This is not an issue that I see as advancing matters at this pre-trial stage, other than to confirm there is no identification evidence supporting the charge.
[168] The Crown submits some aspects of Mr X’s statement strengthen the case that he was there. The first matter is said to be that he knew the men had gone to the wrong door. However, this submission seems to overlook that Mr X was told this in the first interview (and expressed surprise at the time, as well as scorn for the men’s ineptitude).
[169] Next is the statement by Mr X that he was the one who stopped and looked back. This conduct is submitted to be consistent with a witness’ observation of the conduct of one of the offenders. Having considered what the witness says, in my view, this submission is a stretch – Mr X’s statement can be viewed as not inconsistent with what the witness is saying, but she does not talk of anyone stopping and looking back.
[170] The Crown next seeks to place weight on known public facts not mentioned by Mr X. The submission is that not mentioning these shows that he is not just relaying back to the officers what he has seen in the media. I cannot accept this. It is placing far too much speculation on why a fact is not mentioned.
[171] The Crown then submits Mr X has displayed specific knowledge only someone involved could have. The first is his linking of the offender to the Wellington apartment, and his knowledge the motive was a drug debt. However, it is clear from the outset of the first interview that Mr X believes that those he was with at the apartment that night were involved. The particular information he is said to have flows from this and is consistent equally with him speculating, and then taking responsibility off his friends whom he has implicated.
[172] Several other matters are raised. None seem to me to be at all determinative of particular knowledge that only an offender would have. The closest is his knowledge that there was a lot of screaming.
[173] The second consideration is my own assessment of reliability. I address this last for a reason, namely the recognition that the credibility of the evidence is a jury question and a Judge’s view of its soundness is generally not relevant. However, the context is that the evidence has been unfairly obtained, and one is now balancing various factors in determining whether to exclude the evidence. It is in that context that I proffer my assessment.
[174] I do not regard the admissions as credible. The dangers noted in the Chetty passages, and generally well known in relation to confessions, are present here. A persistent denial was persistently rejected. A man with an unusual and, to my eye, confused way of thinking has been further confused by an unfair interview process
which leaves him believing he has done the one thing most against his beliefs – namely implicating others, and particularly a person to whom he feels a very close attachment and duty.
[175] Mr X knows something of the criminal justice system. He knows for example what a discharge under what was s 347 of the Crimes Act is. And yet, on day two, a man with this knowledge who is asking to see police in order to confess to a murder committed by shooting at point blank range asks about manslaughter. He is confused and floundering as he seeks a resolution for the dilemma he believes he has created and concerning which he has been induced to believe there needs to be an urgent fix.
[176] The following day comes an apparent admission. Mr X plainly struggles when pressed for detail and hops around until he settles on a version at the end. It is a version different from the one at the start of the interview, and one which has undergone changes all the way through the interview. My assessment is that he has claimed things about the shooting which are just wrong, and known to be so. One might be comfortable in most cases to leave these matters to submission and to a jury’s assessment, but in this case I consider that would be an incorrect approach in relation to a very flawed admission which constitutes the only real evidence.
[177] In summary I consider exclusion is proportionate to the impropriety. That decision reflects the seriousness of the breaches and the fact that they occur in relation to a form of evidence that carries recognised dangers of miscarriage. On its face I consider the evidence manifests these risks to an extent that makes exclusion the correct outcome. My own assessment is that the admissions are not credible.
[178]For these reasons all three statements are ruled inadmissible.
Privileged communications
[179] On behalf of Mr X it is submitted that from the time in the phone call to the prison when Mr X started talking about deals, s 57(2A) of the Evidence Act applied. It provides:
(2A) A person who is a party to a criminal proceeding has a privilege in respect of any communication or document made or prepared in connection with plea discussions in the proceeding.
[180]Criminal proceeding is not separately defined, but proceeding is:28
proceeding means—
(a)a proceeding conducted by a court; and
(b)any interlocutory or other application to a court connected with that proceeding
[181]Section 14(1) of the Criminal Procedure Act 2011 says that:
14 Commencement of criminal proceedings
(1)A criminal proceeding in respect of an offence is commenced by filing a charging document in the office of the District Court that is—
(a)nearest to where the offence is alleged to have been committed; or
(b)nearest to where the person filing the charging document believes the defendant can be found.
[182]Of s 57(2A) the Court of Appeal has observed:29
[27] At the time the Evidence Act was passed, New Zealand criminal procedure did not specifically recognise plea negotiations. The practice of plea negotiations received recognition in the Criminal Procedure Act 2011. In its 2013 review of the Evidence Act the Law Commission recommended s 57 of that Act be amended so as to explicitly extend the privilege covered by that section to plea negotiations in criminal cases. Parliament accepted the Law Commission’s recommendations when, in 2017, it amended s 57 of the Evidence Act.
[28] The purpose of the privilege over communications associated with plea negotiations is to encourage frank discussions between prosecuting authorities and defendants in criminal prosecutions with the aim of enhancing the prospect of agreement being reached concerning pleas to charges. Such discussions need to occur in an environment in which defendants and prosecutors are confident that admissions or acknowledgements they make during such discussions will not be used against them in the event there is no agreement. Without that confidence, it is unlikely that parties to criminal proceedings will be encouraged to enter into plea negotiations.
[183] As noted by the Court of Appeal, the provision is a later addition to the Act. The Law Commission initially was of the view that there was no need for such a
28 Evidence Act 2006, s 4.
29 T v R [2020] NZCA 15 (footnotes omitted).
provision. However, the recognition of plea bargaining by the Solicitor-General in the Prosecution Guidelines prompted a change.30
[184] The Crown’s submission, which I accept, is that at the time of the phone call and the second interview there were no proceedings, so s 57(2A) does not apply. The opening concept of “party to a proceeding” need not impose a temporal limit; it can be seen as defining who has the privilege, not when it arose. However, the latter concept of “plea discussions in the proceeding” does impose a temporal limit. The definition of proceeding is something before a Court, and there is then no reason not to identify the commencement of a proceeding before a Court by reference to the Criminal Procedure Act. This approach is consistent with the Prosecution Guidelines which make plain that plea bargaining under those Guidelines may only occur between counsel.31 I recognise that on occasions counsel may well be involved before the laying of charges. The suggested approach to s 57(2A) would take those discussions outside its scope, but would not totally determine the issue of privilege. There is no reason why the general s 69 confidentiality privilege could not be used in appropriate situations.32
[185] If wrong in my interpretation, I would not have considered the second interview to be caught in any event. It was not a plea negotiation. It was Mr X purporting to set out his role in the event. I also doubt the telephone inquiry as to “what am I looking at” constitutes plea discussions. Closer to the concept is the discussion as to whether MC could obtain a discharge and DS Ross’ query as to what would he be getting in return.
[186] Finally, if the evidence were otherwise admissible, I would have exercised the power under s 57(2B)(c) to disallow the privilege as contrary to the interests of justice. I do not consider the provision is intended generally to apply to such interactions, and when the relevance is to a charge of murder, public interest is in disclosure. I note
30 Law Commission | Te Aka Matua o te Ture The 2013 Review of the Evidence Act 2006 (NZLC R127, 2013) at [10.85]–[10.94].
31 Crown Law | Te Tari Ture o te Karauna Solicitor-General’s Prosecution Guidelines (1 July 2013) at [18.2].
32 Relevant here is R v X (CA553/09) [2009] NZCA 531, [2010] 2 NZLR 181 which de-emphasised the importance of a relationship in favour of viewing s 69 as being able to protect information when there is a reasonable expectation of privacy: at [32]–[48].
here that the communication was initiated by an individual to an interviewing officer in circumstances where no prior inquiry as to confidentiality was made. I do not consider that Mr X believed it was confidential, and there is no evidence to support such a claim.
[187]I accordingly dismiss the claim of privilege.
Conclusion
[188]The three statements by Mr X are ruled inadmissible.
Simon France J
Solicitors:
Crown Solicitor, Wellington for Crown
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