R v X - [2021] NZHC 2444

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v X

Details

AGLC: R v X [2021] NZHC 2444
Case: [2021] NZHC 2444
Decision Date: 17 September 2021

CaseChat Overview and Summary

The defendant, Mr X, is one of four men who have been charged with the murder of Ms Lois Tolley. Three statements by Mr X are the subject of this ruling. The first is a recorded interview on 15 August 2019. Mr X was in prison on unrelated matters and was visited by officers involved in the investigation of Ms Tolley’s death. He was asked 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. The second statement is 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. The third statement is a recorded interview on the next day, 17 August, at the end of which Mr X admits to being the shooter. The Crown submits the statements were lawfully obtained. Mr X contends the evidence was obtained unfairly and improperly, and should be excluded from evidence. The issues before the court are whether the evidence was improperly obtained under s 30(5) of the Evidence Act 2006, and whether it should be excluded under s 30(2)(b). The court found that the evidence was improperly obtained, and should be excluded. The court found there were breaches of the guidelines concerning the obligation to caution a suspect before questioning them, the prohibition on cross-examination, the use of video recording, and the use of misleading language. The breaches were deliberate and amounted to an unfair interview process which was causative of the admissions. The court found the breaches to be serious, and the evidence to be unreliable. The court found that exclusion was proportionate to the impropriety.

Orders