R v Yum

[2016] NZHC 1229

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-092-7210 [2016] NZHC 1229

THE QUEEN

v

MARTIN SANG YUM

Hearing:	1 and 2 June 2016
Appearances:	B Smith for Crown J-A Kincade and A Shendi for Defendant
Judgment:	10 June 2016

JUDGMENT OF LANG J

[on application for orders as to admissibility of evidence]

This judgment was delivered by me on 10 June 2016 at 11 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

R v SANG YUM [2016] NZHC 1229 [10 June 2016]

[1]      Mr Sang Yum is to stand trial in this Court on charges of maiming with intent to cause grievous bodily harm, intentional damage, theft and car conversion.  All of the charges were laid as the result of an incident that occurred in the early hours of Sunday 14 June 2015.

[2]      Mr Sang Yum was not arrested until 10 July 2015.  Immediately before his arrest he underwent a lengthy videotaped interview with two detectives at the Manukau Police Station.   During the course of the interview he made admissions regarding his involvement in the incident giving rise to the charges.  Mr Sang Yum now challenges the admissibility of the videotaped interview.  He contends he was denied important rights under the New Zealand Bill of Rights Act 1990 (NZBORA), and/or that the admissions were obtained unfairly.

The alleged offending

[3]      At about 2.36 am on Sunday 14 June 2015 the victim was driving his BMW motor vehicle through a carpark in Manurewa.  At the same time, Mr Sang Yum and his co-defendant were travelling in a yellow Suburu Impreza motor vehicle in the same carpark.   The Crown will allege that the victim noticed Mr Sang Yum’s vehicle following closely behind him through the carpark and then out onto Station Road.  A short time later the yellow Impreza motor vehicle stopped directly in front of the victim’s vehicle, forcing him to stop as well.

[4]      The Crown alleges that Mr Sang Yum approached the victim’s vehicle and struck up a conversation with him.  He was then joined by his co-defendant, who was carrying a tyre iron. When the victim tried to get back into his vehicle, he was punched in the head and the stomach by one of the two defendants. One of the defendants also struck the victim on numerous occasions on the head and body with the tyre iron. The Crown alleges that both defendants then assaulted the victim as he moved away from his vehicle, and that one of them placed him in a headlock and began to strangle him.

[5]      The Crown alleges that Mr Sang Yum then got into the victim’s motor vehicle and began chasing the victim. He eventually ran the victim down outside a residential

address on Lupton Road.   The vehicle Mr Sang Yum was driving then travelled through a fence and struck the concrete porch at the front of the address.

[6]      The Crown contends that both defendants assaulted the again victim after he had been run down.  They then left the scene, taking the victim’s vehicle with them. They abandoned the vehicle a short distance away after removing the victim’s cellphone and a jacket from it.

[7]      The victim suffered traumatic leg injury as a result of being struck by the vehicle. This ultimately caused him to lose his leg below the knee.

The interview

[8]      The police executed a search warrant at Mr Sang Yum’s address on the morning of 10 July 2015.   He was present at the time of the search and was spoken to by Detective Min Ho Lee.   Detective Lee then arrested Mr Sang Yum pursuant to a warrant issued by the Manukau District Court as a result of Mr Sang Yum’s failure to appear in that Court on 3 July 2015. Detective Lee advised Mr Sang Yum of his rights under the NZBORA, and then placed him in a police car.

[9]      After Detective Lee had placed Mr Sang Yum in the police car, the detective told him that the police were investigating a serious assault in which the victim had been assaulted by two unknown males and then run over by his own vehicle.  He also told Mr Sang Yum that the victim had lost his leg as a result of injuries suffered in the incident.

[10]     The detective asked Mr Sang Yum to think back to his movements in the early hours of Sunday 14 June 2015.  He then repeated the rights to which Mr Sang Yum was entitled under the NZBORA.  He said that he asked him if he understood those rights and Mr Sang Yum indicated that he did.  At that point Mr Sang Yum told Detective Lee that he was trying to think what he had been doing early on the Sunday morning, and that his partner did not like him going out at that time. He said he could not remember what he was doing at that time. A conversation then ensued about one of Mr Sang Yum’s neighbours, referred to as the man from “Missing Piece”.

[11]     Mr Sang Yum and the detective arrived back at the Manukau Police Station at

12.41 pm.  At that point Mr Sang Yum told Detective Lee that he would make a statement.  Whilst still in the police car, the detective had showed Mr Sang Yum four photographs of items of clothing the police had found at Mr Sang Yum’s address.  Mr Sang Yum acknowledged that the items belonged to him.  Mr Sang Yum was then given an opportunity to have a cigarette before being taken to the interview room.

[12]     There followed a discussion about Mr Sang Yum’s rights under NZBORA. That discussion is at the heart of the present application.  Mr Sang Yum eventually agreed to speak to the police, and Detective Lee then conducted a lengthy videotaped interview of Mr Sang Yum.  The officer in charge of the case, Detective Sergeant Simon Potter, was also in the room during the interview and asked questions from time to time.

[13]     During the interview, Mr Sang Yum told Detective Lee that on the evening of the incident he had been picked up by his co-defendant, Mr Trevor Sang Yum (Trevor). The two men were driving through Manurewa when they stopped beside the victim’s vehicle. He said that through the window of his vehicle the victim asked them whether they wanted to buy some “white”.   This offended Trevor, who then followed the victim’s vehicle and eventually cut it off.

[14]     Mr Sang Yum said that at this point Trevor told him to go up to the other vehicle and to ask the driver why he had asked them whether they wanted to buy some white. Mr Sang Yum said that he followed these instructions because Trevor had threatened to shoot him if he did not.  While he was talking to the victim, he saw Trevor arrive carrying a tyre iron. Trevor then began punching the victim.  Mr Sang Yum said that, at or about this point, he obeyed a Trevor’s direction that he was to hold the victim from behind. A short time later, Trevor took the key from the victim’s car and threw it to Mr Sang Yum.  He then told Mr Sang Yum to drive the vehicle away.  He said he was reluctant to do so, but eventually complied because he was still scared of being harmed by Trevor.

[15]     Mr Sang Yum said that as he began to drive the vehicle away, the victim stood in front of it saying that it was his car.  Trevor then instructed him to run the victim

down.  Mr Sang Yum said that he obeyed this instruction because he was still scared of Trevor.  After the vehicle struck the victim he was thrown onto the bonnet of the vehicle.  The vehicle then travelled through a fence, and struck the concrete porch of a house.

[16]     Mr Sang Yum said that Trevor then directed him to follow him in the victim’s vehicle.  The two men then drove a short distance before stopping their vehicles and searching the victim’s vehicle.   Trevor removed a jacket and cellphone from the vehicle.  He gave the jacket to Mr Sang Yum after removing some money from it. They then drove away from the scene in Trevor’s vehicle.

[17]     Mr Sang Yum said that Trevor arrived at his address the next day, and they went to a pawn shop where they obtained $30 for the cellphone.  Mr Sang Yum said that he went into the shop and conducted this transaction acting on Trevor’s instructions.

Relevant principles

[18]     The application is governed by s 30 of the Evidence Act 2006 (the Act). That section applies in any case where the prosecution proposes to offer evidence in respect of which the defence raises the issue of whether evidence has been improperly obtained.1  In such a case the Judge is required to find, on the balance of probabilities, whether or not the evidence was improperly obtained.2   Evidence will be improperly obtained in this context if it is obtained in breach of any enactment or rule of law by a person to whom s 3 of the NZBORA applies, or if it is obtained unfairly.3

[19]     In  the  event  that  the Judge  finds  that  the  evidence  has  been  improperly obtained, the next step in the process is to determine whether or not the exclusion of the evidence is proportionate to the impropriety.4  This requires the Court to take into

account the factors prescribed in s 30(3) of the Act.

1      Evidence Act 2006, s 30(1)(a).

2      Section 30(1)-(30)(2)(a).

3      Section 30(5)(a) and (c).

4      Section 30(2)(b).

[20]     There is no dispute that Mr Sang Yum was detained at the time he spoke to the police.  He had been arrested on the warrant issued by the District Court, and was being held in custody on that basis.  The present application focuses on whether Mr Sang Yum made an informed decision to waive his right under s 23 of NZBORA to seek legal advice and to talk to the police.

[21]     Section 23 provides:

23       Rights of persons arrested or detained

(1)      Everyone who is arrested or who is detained under any enactment—

(a)       Shall be informed at the time of the arrest or detention of the reason for it; and

(b)       Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

(c)       Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

(2)      Everyone who is arrested for an offence has the right to be charged promptly or to be released.

(3)      Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.

(4)      Everyone who is—

(a)      Arrested; or

(b)      Detained under any enactment—

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

(5)      Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[22]     The right to obtain the services of a lawyer is now well understood. A suspect who has been detained must subjectively understand that he or she has a right to consult a lawyer before being interviewed by the police.   The police officer who advises the suspect of his or her rights must ensure that the content of the right is

brought home to the suspect.  In particular, the suspect must understand that the right is exercisable before any questioning begins.5

[23]     In R v Mallinson the Court of Appeal observed:6

[5]       … Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused's answers at face value. If following advice as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights. But more than a bare statement of the s 23(1)(b) right and a bare acknowledgement of understanding is likely to be required where, for example, the person arrested is intoxicated or under drugs or appears to have a mental or physical disability which could interfere with his or her comprehension of the rights.

[24]     To  similar  effect,  the  Court  of Appeal  observed  in  Attorney-General  v

Udompun:7

[119]    Moving now to s 23(1)(b), the test set out by this Court in Mallinson requires effective communication to a detainee so that the detainee (subjectively) understands that he or she has a right to consult a lawyer without delay. It is, however, made clear that, where a person at the relevant time acknowledged an understanding of the right, there has to be an evidential basis (other than mere assertion of not understanding) put forward for an argument that a detainee did not in fact understand the right. If there is such an evidential basis, it is then for the Crown to prove understanding. To provide an evidential basis a detainee must point either to there not having been an objectively effective communication of the right, or to some special circumstance or characteristic (whether known to the police or not) that could have hindered understanding.  …

The challenge

[25]     Ms Kincaid submits on Mr Sang Yum’s behalf that Detective Lee ignored no fewer than three separate requests by Mr Sang Yum to obtain the services of a lawyer. She also submits that the detective did not appreciate that Mr Sang Yum was confused by the sequence of events that was to occur.  In particular, he was not aware, and the detective did not advise him, that he was entitled to seek advice from a lawyer before

he underwent an interview by the police.

5      R v Mallinson [1993] 1 NZLR 528 (CA) at 531.

6      At 531.

7      Attorney-General v Udompun [2005] 3 NZLR 204 (CA) at [119].

[26]     Ms Kincaid submits that these factors prompted Mr Sang Yum to undertake the interview, and in doing so he made damaging admissions.   In particular, he acknowledged holding the victim from behind at or about the point where Trevor was punching him. He also admitted driving the vehicle that caused serious injuries to the victim and damaged the fence and concrete porch, as well as the conversion of the victim’s vehicle and the theft of the cellphone. She says that Mr Sang Yum would not have made any of these admissions if he had been permitted to obtain the services of a lawyer.   She therefore submits the only proportionate response is to exclude the videotaped interview in its entirety.

The psychological evidence

[27]     The defence called evidence from Dr Joseph Sakdalan, an experienced clinical forensic psychologist and neuropsychologist.  Dr Sakdalan has interviewed Mr Sang Yum over the course of approximately four hours on three separate occasions. During these interviews Dr Sakdalan took the opportunity to conduct several tests designed to assess Mr Sang Yum’s cognitive ability and neurocognitive functioning. In particular, he administered the Wechsler Adult Intelligence Scale – 4th Division (WAIS-IV) and the Repeatable Battery of Neuropsychological Status – Update (RABANS-Update).

[28]     The WAIS-IV test revealed that Mr Sang Yum had a full scale IQ of 78. Taking into account a 95 per cent confidence interval, this translates to an IQ of between 74 and 83.  This places Mr Sang Yum in the seventh percentile of the adult population. Mr Sang Yum’s overall cognitive ability was found to be in the borderline range of intellectual functioning.  In particular, his verbal comprehension was found to be in the extremely low to borderline range.  Under this sub-test, Mr Sang Yum fell within the fourth percentile of the adult population.   His perceptual reasoning, working memory abilities and processing speed abilities were found to be in the borderline to low average.  Under the RABANS Update, Mr Sang Yum’s overall neurocognitive functioning was found to be in the borderline range. He was found to have significant impairment in the fields of immediate verbal memory, language and attention. By way of contrast, however, his visual-spatial constructional and delayed verbal and visual memory faculties appeared to be intact.

[29]     Dr Sakdalan also administered a test known as the Gudjonnson Suggestibility Scales (GSS).  This test was developed for forensic and research purposes to identify people who might be particularly susceptible to giving erroneous accounts of events when subjected to questioning. The test is also designed to provide a reliable measure of interrogative suggestibility.  Based on these test findings, Dr Sakdalan considers that Mr Sang Yum has an unusually high degree of suggestibility.  He falls within the

95th percentile of the adult population in this regard.

[30]     Finally, Dr Sakdalan administered another test known as the Gudjonnson Compliance Scale (GCS).  Dr Sakdalan administered this test in order to assess Mr Sang Yum’s degree of compliance. The assessment indicated that he had an unusually high degree of compliance.  His score was higher, in fact, than individuals who were found to be false confessors.  Dr Sakdalan says that this indicates that Mr Sang Yum has an “extremely high degree of eagerness to please and tendency to avoid conflict in confrontation”.

[31]     The Crown called evidence in rebuttal from Dr Nuth, a registered clinical psychologist and specialist assessor. Dr Nuth did not examine Mr Sang Yum. Instead, he was asked to critique the testing undertaken by Dr Sakdalan.  Dr Nuth was critical of the fact that Dr Sakdalan did not incorporate within his procedures a means of testing Mr Sang Yum for the effort he was making to undergo the tests.   Dr Nuth considered that the failure to include effort testing meant that it was impossible to say whether the results that Dr Sakdalan obtained were valid and reliable.   Dr Nuth’s opinion is that Dr Sakdalan’s conclusions may well be correct, but in the absence of effort testing there is no reliable way of concluding that this is so.

The initial portion of the interview in greater detail

[32]     The Crown rightly does not place reliance on the fact that Detective Lee provided Mr Sang Yum with his NZBORA rights on two occasions prior to the point at which they arrived at the police station. The detective agreed that he did not explain the rights to Mr Sang Yum on these occasions. Nor did he make any attempt to satisfy himself that Mr Sang Yum understood his rights.  The real issue for present purposes is whether the detective was able to sheet home the essence of Mr Sang Yum’s right to

speak to a lawyer before he began asking him about his involvement in the incident giving rise to the charges.

[33]     Two aspects of the videotaped interview are relevant in this context.  The first is a series of exchanges that occurred during the initial part of the interview.  During these the detective endeavoured to ensure that Mr Sang Yum knew and understood his rights. The second occurred after Mr Sang Yum had described his involvement in the events giving rise to the charges for the first time.  During the second exchange Mr Sang Yum endeavoured to explain to Detective Lee why he had decided to tell the detective about his involvement.  For ease of convenience I have annexed copies of the relevant pages of the interview as an appendix to the judgment.

[34]     After initially advising Mr Sang Yum that the police wanted to talk to him about the incident that happened on 14 June 2015, the detective went on to explain his NZBORA rights to him.  The first of these was the right to remain silent.  When the detective asked what that meant to Mr Sang Yum, he responded:

Um you have to right, I have the right to remain silent, like to do, I have the right, um, to, um, do a statement?

[35]     This was clearly incorrect. The exchange that followed, however, suggests that the detective had cured Mr Sang Yum’s misunderstanding of the right to remain silent. This is evident from the fact that Mr Sang Yum said that he understood the word “silent” to mean “quiet”.8

[36]     The detective then went on to explain that Mr Sang Yum did not have to make any statement.   When he asked what that meant to Mr Sang Yum, Mr Sang Yum replied:9

It means you don’t have to do any statement.

[37]     It is difficult to tell from this response whether Mr Sang Yum truly understood what the detective was saying, because he had merely repeated back what the detective

had said.

8      Appendix – page 12, lines 11 to 26.

9      Appendix – page 13.

[38]     The detective then went on to explain that anything Mr Sang Yum said would be recorded and may be given in evidence in Court.10   When he asked what Mr Sang Yum understood those words to mean, Mr Sang Yum responded:

It means, um, everything that you say is gonna go to the Court.

[39]     This response and the exchange that followed,11 suggests that Mr Sang Yum understood that what he was going to say would be used in Court.

[40]     The detective then explained that Mr Sang Yum had the right to speak with a lawyer.  When he asked what Mr Sang Yum understood that to mean, Mr Sang Yum responded:12

It mean you have the right to speak with a lawyer.

[41]     When the detective asked what lawyers do, Mr Sang Yum responded:13

Um, the people that you go and um, tell what happened or something, yeah.

[42]     This was obviously not correct. The detective then endeavoured to explain that lawyers were there to help and to provide Mr Sang Yum with legal advice.14   When the detective went on to explain that he could speak to a lawyer without delay and in private, a confusing exchange occurred.15  This prompted the detective to explain that if Mr Sang Yum was asking for a lawyer the police would call a lawyer as soon as practicable and would give him a private moment so that he could speak to the lawyer with nobody hearing him. Mr Sang Yum acknowledged he understood that by saying “Yep”.

[43]     A lengthy exchange then occurred in which the detective again endeavoured to explain the right to a lawyer.16   Mr Sang Yum appeared to understand this, because at

the end of the exchange, he repeated his understanding in the following terms:

10     Appendix – page 13, lines 3 to 4.

11     Appendix – page 13, lines 11 to 31.

12     Appendix – page 14.

13     Appendix – pages 14-15.

14     Appendix – page 15, lines 2 to 9.

15     Appendix – page 15, lines 12 to 21.

16     Appendix –  pages 15-17.

Oh, like when you fellows asked me…like about what happened…yeah…I

like can say …oh, I, I need a lawyer…yeah.

[44]     The detective then advised Mr Sang Yum that the police had a list of lawyers and that he could speak to a lawyer for free.  Mr Sang Yum appeared to understand that he could speak to a lawyer for free.

[45]     At that point, apparently satisfied that Mr Sang Yum understood his rights, the detective moved on to ask Mr Sang Yum about what had happened on 14 June 2015.

Mr Sang Yum immediately brought the conversation back to the issue of whether or not he could have a lawyer. The following exchange then occurred:17

MSYAnd, um, can, can I, um, because, um, I never speak to a lawyer before.

ML     Mm.

MSY    ‘Cos, um, I never been like this.

ML     Mm.

MSY    Yeah, um, but I still, I still, um, can I still have a lawyer?

ML     Yep. That’s your right, okay.

MSY    And, um, I still gonna make my statement with youse, with you fellas?

ML     Yep. MSY         Yep.

[46]     The detective then explained that the police would need to stop the DVD and arrange for Mr Sang Yum to choose one of the lawyers on the list.  He said the police would then make a phone call so that he could speak to the lawyer.  He also said that he would tell the lawyer why Mr Sang Yum was at the police station and that the lawyer would then speak to Mr Sang Yum and might give him advice.   At the conclusion of this advice the detective asked Mr Sang Yum whether he wished to stop the video recording.  This prompted Mr Sang Yum to ask whether he was “still going to do his statement.”

[47]     There followed a lengthy exchange that ended with Mr Sang Yum agreeing to be interviewed by the detective without first seeing a lawyer. I consider this in greater detail in the next part of the judgment.

Decision

[48]     Viewed overall, the portions of the interview referred to above indicate that the detectives were dealing with a person who had very little prior knowledge of complex concepts such as  legal  rights.   Mr Sang Yum  also displayed some difficulty in understanding those concepts even when they were explained to him in simple terms. I consider, however, that up until the concluding portion of the discussion Mr Sang Yum’s answers to Detective Lee’s questions suggest that he understood enough of what he was being told to be able to make an informed decision as to whether or not to talk to the police without first obtaining legal advice.

[49]     I also reject Ms Kincade’s submission that Mr Sang Yum asked to see a lawyer on three occasions during the interview.  Although Mr Sang Yum asked about his ability to consult a lawyer on several occasions, I do not consider that he went so far as to actually exercise that right.

[50]     I consider, however, that the position altered significantly in two respects during the final portion of the discussion.  First, Mr Sang Yum reiterated that he felt comfortable talking to Detective Lee, and that was why he wished to make a statement to the police without first seeing a lawyer.18   He also gave an explanation to the effect that he had been scared about what had happened and felt unable to speak to anybody about it. It is clear from these passages that Mr Sang Yum felt he could trust Detective Lee and that it would be safe for him to make the statement to the police for that reason.

[51]     I consider that these exchanges provide a clear illustration of Dr Sakdalan’s conclusion that Mr Sang Yum has a level of compliance that amounts to being eager to please those around him.  Provided Mr Sang Yum understood what Detective Lee

had told him about his rights, however, that fact would not render the resulting interview open to challenge.

[52]     I am concerned, however, that Mr Sang Yum based his decision to talk to the police on a belief that it was “safe” to do so when that was clearly not the case.  Mr Sang Yum’s belief that it was safe to talk to the police suggests that he had not understood Detective Lee’s earlier advice that anything he said could be used in evidence against him.

[53]     More importantly, the discussion that took place immediately before Mr Sang Yum decided to make a statement indicates clearly that he did not understand the difference between talking to a lawyer and talking to the police. The most significant aspect of this exchange is as follows:19

ML     So you want start now? MSY      Yep.

ML     What about the, ah, the thing you just told us about.

MSY    Um …

ML     Do you want talk to us now or and then, what.  ‘Cos … MSY         Oh, um, do I have to go to the lawyer first, eh?

ML     It’s up to you whether you wanna go to lawyer first or you just tell us what you know about it, okay.

MSY     So if, um, like what’s the different like between like, like telling you fellas like, um, about the thing …

ML     Mm, don’t tap it because it’s recording it here.

MSY    Oh, sorry.

ML     It’s okay, yeah.

MSY     Um, how, what’s the different like, um, with, with like giving you fellas, like me making my statement…

ML      Yes.

MSY     …and, and, um, go talk to a lawyer?  It’s like different, is it, hahaha.

ML      Is it, is it, you’re gonna tell something different to us and then tell something different to lawyer?

MSY     No I’m gonna tell the same thing.

ML      Yeah. And w-, wh-, what is gonna make different? All I ask you to do, I need u-, this, I said, all I need you to do is tell us the truth…

MSY    Yep

ML     … only the truth about what happened that night and what you know about what was your involvement about.

MSY    What is that word, tell me.

ML     What, what you did there… MSY Nah, nah, involvement or…

ML     Involvement? MSY        Yep.

ML     What was, what was, what were you doing there? How you were part of it…

MSY    How …
ML     … how you take, take the part of that incident.

MSY    Um, because, um, then I, we was talking about it, eh?

ML     All right, so, so it’s up to you. You wanna talk about it now? MSY Yeah, but I then, um, I still goes to the lawyer too?

ML     Yes
MSY    And I’m gonna tell the same thing too.

ML     So I’m telling you so you make decision now. You tell us now, or you wanna talk to lawyer first. It is up to you.  Okay?

MSY    No, I’ll get it through with you fellas ‘cos you fellas are officers.

(Emphasis added)

[54]     Although Detective Lee advised Mr Sang Yum that he had the right to talk to a lawyer before talking to the police, he never answered Mr Sang Yum’s initial question regarding the difference between making a statement to the police and telling his lawyer what had happened.   This clearly suggests that Mr Sang Yum had not understood Detective Lee’s earlier explanation to him about the role of a lawyer. More significantly, it also indicates that Mr Sang Yum viewed talking to the police and talking to a lawyer as being essentially the same thing. When he sought guidance from Detective Lee regarding that issue, the detective mistakenly believed Mr Sang Yum was saying he proposed to tell his lawyer one thing and the police another.  For that reason the discussion was diverted away from Mr Sang Yum’s question, and Detective Lee did not attempt to answer it.  In the end, Mr Sang Yum appears to have made his final decision to make a statement on the basis that Detective Lee and his colleague were “officers”.

[55]     This aspect of the interview persuades me on the balance of probabilities that Mr Sang Yum did not properly understand his right to seek advice from a lawyer before making a statement.  In particular, he did not appreciate that seeking advice from a lawyer was a completely different exercise to telling the police what had happened. For that reason I am satisfied that Mr Sang Yum did not make his decision to talk to the police on an informed basis.  It follows that the statement was obtained in breach of Mr Sang Yum’s NZBORA rights, and the statement was improperly obtained in terms of s 30(2) of the Act.

The balancing exercise under s 30 of the Evidence Act 2006

[56]  Several factors point in favour of the statement being admissible notwithstanding the fact that it was improperly obtained.  The first is that the charge is undoubtedly serious, and the statement will assist the Crown to prove that Mr Sang Yum committed the offences with which he is charged.  I also have some sympathy for the situation in which the two detectives found themselves.  They had no way of knowing of Mr Sang Yum’s borderline intelligence, or of his difficulties in verbal comprehension.  Furthermore, he appeared to acknowledge that he understood what he was being told when Detective Lee explained his rights to him. Initially at least, the detective can be forgiven for believing that was the case.

[57]     Detective Lee should have realised that something was amiss, however, during the latter part of the discussion immediately before Mr Sang Yum decided to undertake the videotaped interview.  By that stage it must have been reasonably obvious to both detectives that Mr Sang Yum was having difficulty understanding what he was being told, and that earlier explanations had not sunk in.   In particular, he still did not understand what role a lawyer played, and the difference between talking to a lawyer and talking to the police.  With the benefit of hindsight, it would have been wiser for the detectives to have arranged for Mr Sang Yum to see a lawyer when he continued to say that he wanted to speak to a lawyer as well as make a statement to the police. Although the police did not act deliberately or in bad faith, they failed to pick up the cues that suggested Mr Sang Yum did not understand his rights. The conduct giving rise to the impropriety could therefore be described as inadvertent.

[58]     On the other side of the coin there are strong factors pointing to exclusion as the only appropriate form of remedy. The most compelling of these is the undisputed principle that the right to seek advice from a lawyer is a fundamental right, in part because it can also determine whether or not the suspect should exercise his or her right to silence. In the present case it is highly likely that a lawyer would have advised Mr Sang Yum not to talk to the police because of the incriminating nature of what he was likely to say.  It is therefore difficult to see how any remedy other than exclusion could be appropriate.

[59]     Furthermore, the statement is not vital to the prosecution case.  There is other evidence to prove Mr Sang Yum was the driver of the vehicle, including eyewitness evidence from the victim.  Mr Sang Yum also left DNA evidence on a wrapper in the vehicle.  Counsel advised me during the hearing that they are currently in the process of reaching agreement as to admissions to be tendered to the jury under s 9 of the Act. These will confirm that Mr Sang Yum committed the physical acts underpinning the charges on which he is to stand trial. The videotaped interview did not shed any light on his intentions at the time that he committed those acts.   The Crown case will therefore not be greatly affected if the videotaped interview is excluded.

[60]     These factors persuade me that exclusion is the only proportionate remedy for the breach that has occurred in the present case.

Result

[61]     I make an order under that the videotaped interview is inadmissible at Mr Sang

Yum’s trial.

Lang J

Solicitors:

Kayes Fletcher Walker, Manukau