R v Z

[2008] NZCA 246

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA604/07 [2008] NZCA 246

THE QUEEN

v

Z (CA604/07)

Hearing:         24 April 2008

Court:            Glazebrook, Hammond and Ellen France JJ Counsel:  A Markham and K A L Bicknell for Crown

J J Corby for Respondent

Judgment:      17 July 2008 at 4.00 pm

JUDGMENT OF THE COURT

A        Leave to appeal is granted.

B        The appeal is dismissed.

R V Z (CA604/07) CA CA604/07 [17 July 2008]

COrder prohibiting publication of the judgment and any part of the proceedings in news media or on internet or other publicly accessible database until final disposition of trial.  Publication in law report or law

digest permitted.

REASONS

Glazebrook and Hammond JJ  [1] Ellen France J  [134]

GLAZEBROOK and HAMMOND JJ

(Given by Glazebrook J)

Table of Contents

Para No

Introduction  [1] Procedural history  [6] Woodhouse J’s judgment  [13] The parties’ contentions  [16] Issues  [22] Should leave to appeal be granted?  [23] Does the CYPFA require police to inform children and young

persons of their entitlement to free legal advice?  [24]

Legislative provisions  [24] Parties’ submissions  [28] Discussion  [32]

Were the police obliged, under the test in Alo, to advise Z of his entitlement to free legal advice?  [46] The test in Alo  [48] Submissions of the parties  [49] Discussion   [52]

Did Z understand his rights?  [54] Advice given  [56] Did the police adequately explain Z’s right to consult with and

have a lawyer present in addition to his father?  [69] Did Z appreciate the nature of assistance a lawyer can provide?  [72] Did Z appreciate the use to which his statements could be put?  [80] What was the role of Z’s father?  [83]

Should the Canadian practice of advising nominated persons to ensure that the child or young person receives legal

advice be adopted?  [92]

Was there reasonable compliance with s 215?  [97]

Was there unfair cross-examination and/or unfair use of

co-accused’s statements?  [98]

Are the parts of the video where the police had left the video

room admissible?  [109]

Result  [118]

Appendices

Introduction

[1]      Z faces a charge of murdering Mr Thomas Martin.  Z was 14 at the time and was with a group of young males (aged between 17 and 20) in the early hours of the morning of 2 April 2006 in a reserve in Glen Innes.   It is alleged that the group (allegedly all members or associates of the Young East Side and Koe Ha Street gangs) had assembled at the reserve to fight a rival gang.  Mr Martin, who is not a member of the rival gang, was attacked as he walked through the reserve.

[2]      The Crown case is that one of the other young men, Penisimani Kulitapa, knocked Mr Martin unconscious and he and others struck, kicked and stomped on him while Mr Martin was lying on the ground.  It is alleged that Z kicked Mr Martin once in the back of the head while he was on the ground in what has been described as a “soccer style kick.”  Mr Martin was left lying unconscious in the rain, bleeding heavily from head wounds and with laboured breathing.  He was on life support until he died four days later on 6 April 2006.

[3]      On 4 April 2006, Z was interviewed on video at the Glen Innes police station about the incident.   In the course of the interview, Z admitted kicking Mr Martin. Z later undertook a video recorded reconstruction of the scene at the reserve and made some more incriminatory statements.

[4]      On 5 November 2007 Woodhouse J, in HC AK CRI 2006-204-487, ruled the interview and reconstruction inadmissible.  The Crown seeks leave to appeal against that decision.

[5]      Before moving to a consideration of the Crown’s application, we set out the procedural history and summarise Woodhouse J’s decision and the contentions of the parties.

Procedural history

[6]      This is the second time this matter has been before this Court.  The first time was after Z had challenged the admissibility of the interview and reconstruction on the ground that s 215(1)(f) of Children Young Persons and their Families Act 1989 (“CYPFA”) obliged the police to advise Z of his entitlement to free legal advice under the Police Detention Legal Assistance Scheme (PDLA) or, in the alternative, that Z did not have a true appreciation of the jeopardy he faced when he waived his right to counsel.

[7]      Baragwanath  J,  in  HC  AK  CRI-2006-204-487  22  June  2007,  ruled  the statements and video reconstruction inadmissible on the jeopardy ground.  He made no finding on whether Z should have been told of his right to free legal advice but did say, at [25], that there is a “powerful case for making mandatory advice to young suspects as to how they can realistically secure legal advice”.

[8]      The Crown appealed against this inadmissibility finding.  On 10 September

2007, in R v Z (CA318/07) [2007] NZCA 401, the appeal was allowed. In relation to the jeopardy issue, this Court said that, on the totality of the evidence called by the Crown, there was a more than adequate establishment of the fact that Z knew the gravity and seriousness of the matter about which he was to be interviewed.

[9]      In relation to the free legal advice issue, this Court declined to adjudicate. The Court said that Baragwanath J had reached no conclusion on the factual position. Nor did he reach a considered conclusion on the legal test.  In those circumstances the Court did not consider it appropriate to enter into the matter without a proper factual foundation.  The Court said that the matter may require further consideration in the High Court prior to trial.

[10]     The question of whether Z should have been advised of his entitlement to free legal advice came before Woodhouse J, resulting in the judgment in respect of which the  Crown  seeks  leave  to  appeal.     A  further  point  was  also  dealt  with  by Woodhouse J.   This was whether the interviewing police officer had adequately explained,  and  whether  Z  sufficiently comprehended,  the  following  elements  of s 215 of the CYPFA:

(a)     Z’s entitlement to consult with a lawyer and have a lawyer present in addition to his entitlement to consult with and have present a nominated person.

(b)     The nature of the assistance a lawyer can provide.

(c)The meaning of the expression “any statement made or given may be used in evidence”.

[11]   Woodhouse J’s judgment is summarised below.   In anticipation of this application for leave to appeal against the judgment of Woodhouse J, the Crown sought and obtained severance of Z’s trial from that of his co-accused.   The co- accused have been tried.   Daniel Houma was convicted of murder and wounding with intent to cause grievous bodily harm, and both Timakoi Lanivia and Penisimani Kulitapa  were  convicted  of  manslaughter  and  wounding  with  intent  to  cause grievous bodily harm.

[12]     As  Courtney  J  remarked  in  her  severance  decision  at  [15]  (HC  AK CRI 2006-204-487 23 November 2007), it is most unfortunate that all the matters bearing on the admissibility of Z’s video interview and the video reconstruction were not canvassed at the same time.  Indeed, even now Mr Corby, for Z, seeks to raise new points that were not dealt with by Woodhouse J.

Woodhouse J’s judgment

[13]     As noted above, Woodhouse J held the interview and video reconstruction to be inadmissible at Z’s trial.  In his view, the police were obliged, under s 215(1)(f) of

the CYPFA, to inform Z of his entitlement to free legal advice under the PDLA.  In the alternative, Woodhouse J held that the police were obliged to advise Z of his entitlement  to  free  legal  advice  under  the  principles  set  out  in  R v Alo  [2008]

1 NZLR 168 (CA). It was common ground that no such advice was given.

[14]     Woodhouse J held that the situation was exacerbated by the fact that Z’s father was under the misapprehension that Z was a mere witness and thus that Z’s father as a consequence would not have considered Z needed a lawyer.   Further, Woodhouse J held that it was doubtful that Z understood that he could have both a lawyer and his father with him at the interview and the video reconstruction.  He also did not consider that Z had a sufficient understanding of the assistance a lawyer could provide or of what was meant by the advice that the recordings could be used in evidence.

[15]     Woodhouse J raised two further points, upon which he, however, expressed no view.  The first was whether there had been impermissible cross-examination and whether statements of co-accused were improperly or unfairly put to Z.  The second was whether the video recording of discussions between Z and his father, in the absence of the police, should be admissible on behalf of the prosecution.

The parties’ contentions

[16]     The Crown submitted that s 215 of the CYPFA is a code.  Parliament did not provide in s 215 for children and young persons to be told about the existence of free legal advice and it should not be read in as a requirement.  In terms of the test in Alo, the Crown submitted that there was no evidential foundation for any assertion that cost played any role in Z’s decision not to take legal advice.

[17]     The Crown contended further that there was proper  compliance with the statutory code.   Z was given his rights under s 215 of CYPFA on a number of occasions  and  repeatedly  confirmed  that  he  understood  them.    There  was  no evidence led from Z or his father (or from any other source) to indicate that Z’s actual level of understanding was not reflected in the affirmative answers he gave. In these circumstances, the Crown argued that it was not open to Woodhouse J to

conclude that Z did not have an adequate understanding of his rights.  In addition, the Crown submitted that there was no improper cross-examination of Z in the video interview.

[18]     The Crown accepted that, if the Court rejects its submissions and finds that the interview should be excluded in its entirety, the video reconstruction similarly ought to be excluded.  If the Court considers that the only objectionable part of the interview is that relating to the kicking of the head, however, the Crown argued that it may be that the video reconstruction could be edited to omit that part.

[19] On behalf of Z, Mr Corby supported Woodhouse J’s decision in its entirety. He also wished to raise the two additional matters referred to by Woodhouse J set out at [15] above. In his submission, Z was subject in the second part of the interview to unacceptable badgering, bullying, emotional pressure and cross- examination. Further, this Court, in the decision referred to above at [8], relied on conversations between Z and his father when they were alone in the video room. In Mr Corby’s submission, these conversations are absolutely privileged under s 226 of the CYPFA.

[20]     Mr Corby also argued that to have interviewed Z in the presence of his father who did not know the jeopardy Z faced offended the “special protection” regime in the CYPFA.   It was Z’s father who had first declined a lawyer but without a full understanding of the situation.  Mr Corby submitted that Z deferred to his father who took no part in the interview, apart from pressuring Z to tell the truth.

[21]     Finally, Mr Corby argued that current New Zealand practice is inadequate to protect young persons and that the Canadian practice of trying to ensure legal advice is arranged by parents and  guardians should be adopted in New  Zealand – see Appendix Two where extracts from the brochure prepared for nominated persons are reproduced.

Issues

[22]     The issues that arise are:

(a)     Should leave to appeal be granted?

(b)Does the CYPFA require police to inform children and young persons of their entitlement to free legal advice?

(c)Were  the  police  obliged,  under  the  test  in  Alo,  to  advise  Z  of  his entitlement to free legal advice?

(d)     Did Z understand his rights?

(e)     What was the role of Z’s father?

(f)     Should the Canadian practice of advising nominated persons to ensure that the child or young person receives legal advice be adopted?

(g)     Was there reasonable compliance with s 215?

(h)Was there unfair cross-examination and/or unfair use of co-accused’s statements?

(i)Are the parts of the video where the police had left the video room admissible?

Should leave to appeal be granted?

[23]     Woodhouse J’s decision is of significance not just to this case but generally. The evidence that has been excluded is also of major importance to the Crown’s case.  It is therefore appropriate to grant the application for leave to appeal.

Does the CYPFA require police to inform children and young persons of their entitlement to free legal advice?

Legislative provisions

[24]     Part 4 of the CYPFA deals with youth justice.   The Part begins with the principles set out in s 208.  Section 208(h) contains the principle that children and young  persons  need  special  protection  during  any  investigation  into  possible criminal offending by that child or young person.   Section 208 is expressed to be subject to s 5 which contains the general principles to be applied in exercise of the powers under the CYPFA.  The relevant principles for these purposes are contained in s 5(d) and (e).

[25]     Section 5(d) requires the wishes of the child or young person to be taken into account, to the extent they can be ascertained and that they be given such weight as is appropriate given the age, maturity and culture of the child.  Section 5(e) states that endeavours should be made to obtain the support of the parents or guardians and the child or young person to any exercise or proposed exercise of powers.

[26]     Section 215 requires an enforcement officer to explain to children or young persons being questioned in relation to the possible commission of on offence their rights.  These include the right to a lawyer, the right not to make any statement, the fact that any statement may be used in evidence and the right (under s 222) to nominate a person to assist them as well as having a lawyer present.  Section 215A requires further explanation as to the matters in s 215 to be given when an inquiry (or what can be seen as an inquiry) on any of the matters set out in s 215 is made.  Any such explanations must be given in age  appropriate language – see ss 218  and

221(2)(a).   The consequence of not complying with the requirements of s 215 is inadmissibility of the statement – see s 221.  This is subject to s 224, which provides that reasonable compliance with the requirements suffices.   For completeness we note also that s 221 does not apply where a child or young person has made a spontaneous statement before there is a reasonable opportunity to give the required explanations: s 223 of the CYPFA.

[27]     The legislative provisions are set out in relevant part in Appendix One to this judgment.

Parties’ submissions

[28]     The Crown submitted that Part 4 of the CYPFA comprises a code of special protection for children and young persons.   It accepted that the protections extend beyond those conferred by the usual caution in s 23(1) and (4) of the New Zealand Bill of Rights Act 1990 (BORA).   However, the Crown pointed out that, despite these enhanced protections, Parliament has not seen fit to include in the prescriptive code a requirement to inform children and young persons of their entitlement to free legal advice. The Crown submitted that any expansion of the requirements should be for Parliament.   This is because failure to comply with s 215 leads to automatic inadmissibility  (subject  to  the  reasonable  compliance  provision,  s 223,  and  the spontaneous utterance provision, s 224).   For the purposes of this argument, the Crown accepted that the balancing exercise in s 30(6) of the Evidence Act 2006 does not apply to statements deemed inadmissible under s 221 of the CYPFA.

[29]     Woodhouse J relied on the use of the word “explain” in s 215 (in contrast to “inform” under s 23 of BORA) to hold that the obligation on the police is to “do whatever  is  required  to  ensure  that  the  child  or  young  person  has  a  full comprehension of what the various rights amount to”.  The Crown submitted that the obligation on police officers is to explain (in age appropriate language) the specific matters listed in s 215(1).  Provided the suspect understands what is said, the Crown contended that there is no obligation to go beyond the specific matters listed.  In the Crown’s submission, this interpretation is supported by the use of the word “informed” in the section heading:   Interpretation Act 1999 s 5(3).   Further, the Crown  argued  that  the  purpose  of  a  nominated  person  is  to  compensate  for  a suspect’s immaturity in understanding his or her rights and deciding whether to exercise them.

[30]     Finally, the Crown submitted that Woodhouse J’s conclusion that s 215 of CYPFA as a “matter of law” requires PDLA advice to be given, is inconsistent with R v DH (CA215/02) CA215/02 18 July 2002.  In that case, this Court rejected the

submission that, if the right to legal advice was to exist in a “real sense”, a young person needed to be informed of the availability of free legal assistance and that s 215 of the CYPFA should be interpreted accordingly.  The Crown noted that, in reliance on the decision in R v DH, the Youth Justice Checklist used by Constable Mason in this case did not instruct officers to inform suspects of the PDLA scheme.

[31]     Mr Corby supported the judgment of Woodhouse J.  He submitted that the CYPFA requires enforcement officers to explain to children and young persons the practical means of obtaining a lawyer.   In his submission, this obligation is not affected by the majority decision in Alo.

Discussion

[32]     The starting point in any discussion of what is required under Part 4 of the CYPFA when questioning a child or young person must be the over-riding principle set out at s 208(h).  In our view, this places a positive obligation on investigators to accord special protection to children and young persons during any investigation relating to the possible commission of any offence by that child or young person. That special protection must be given in a manner that respects the autonomy of the child or young person and with (if possible) the support of his or her parents or guardians, in accordance with the principles set out at s 5(d) and (e) of the CYPFA.

[33]     We do not consider that this positive obligation to accord special protection will necessarily be met merely by doing what is specifically provided under the following sections.  For example, we consider that s 208(h) would require language appropriate to the age and level of understanding of the particular child to be used in all questioning of children and young persons and not just in relation to the explanations required by s 215.  Further, s 208(h) would require children and young persons to be questioned as far as possible at age appropriate times and in age appropriate  conditions,  taking  into  account  any  special  characteristics  of  the particular child or young person, such as any medical condition or disability.

[34]     Whether any failure to meet the s 208(h) special protection standard would lead to inadmissibility of any interview would of course depend on the seriousness of

any such failure and its effect on the interview. Admissibility would also be subject to the balancing exercise in s 30(6) of the Evidence Act. (Contrast the likely position in relation to a failure to comply with the specific protections set out at s 215 and following – see below at [41].)

[35]    In our view, the over-riding principle in s 208(h) must also be used in interpreting the specific requirements of the following sections, as Woodhouse J correctly held.  Seen in that light, s 215, properly interpreted, requires police officers to  explain  a  child  or  young  person’s  rights  in  a  manner  that  ensures  that  the particular child or young person understands the various rights and how to exercise them.  We agree with Woodhouse J that this conclusion is reinforced by the use of the term “explain” in s 215 of CYPFA, as against “inform” in s 23 of BORA.  We also consider our conclusion as to the necessity to ensure full comprehension reinforced by the existence of s 215A, which requires further explanations to be given where a child or young person makes an inquiry or what could reasonably be interpreted as inquiry.

[36] It is true, as pointed out by the Crown, that the section heading of s 215 of the CYPFA uses the word “inform”. We do not consider that this can change the plain wording of s 215 itself. Section 5(1) of the Interpretation Act provides that the meaning of any provision is to be derived from its text in light of its purpose. Under s 5(2) meaning can also be ascertained from indications in the statute, including, under s 5(3), section headings. These “indications” are, however, to be used in finding meaning in accordance with s 5(1) and not in contradiction to it. Further the word “explain” permeates the whole of the Part 4 provisions dealing with questioning – see ss 215A(b), 216, 217, 218, 221(2)(a) and 222(4).

[37]     With regard to legal advice, it seems to us that s 23(1)(b) of BORA is drafted on the assumption that most adults will have, from personal experience, at least a basic understanding of what a lawyer does and some idea how one might find one. The CYPFA, by contrast, is drafted on the assumption that most children and young persons will have no or limited understanding and experience of what a lawyer is, how to instruct one and what functions the lawyer would perform.  Hence the use of the more expansive term “explain” in s 215 of CYPFA.

[38]     In  addition, merely informing a  child  or  young person  of  the  right  to  a lawyer, even in age appropriate language, would not meet the requirements in s 218 because it would not be dealing with the level of understanding of the particular child or  young person.   The obligation to explain  (as  against  inform)  does  not necessarily dissipate due to the fact that a young person has had prior contact with the police.  That will depend on the actual circumstances of that prior contact.

[39]     Further, we do not accept the submission that the presence of a nominated person can in any way diminish the responsibilities on police officers to explain the rights in language that is appropriate to the age and level of understanding of the child or young person involved.  The s 215 explanations are designed to enable the child  or  young person  him  or  herself  to  understand  the  rights  and  to  make  an informed decision whether or not to exercise them.  Such a decision can of course be made after consultation with the nominated person in accordance with s 221(2)(b) of the CYPFA.

[40]     Even for adults, it is clear from R v Mallinson [1993] 1 NZLR 528 at 531 (CA) that the person must have understood his or her rights. In the absence of circumstances indicating special care, assertions from adults of understanding of even a bare statement of rights can be taken at face value. It is, however, for the Crown to prove understanding on the balance of probabilities, if an evidential basis is raised at the time or subsequently, that the person may not have understood their rights. See also Attorney-General v Udompun [2005] 3 NZLR 204 at [119] – [120] (CA).

[41]     As noted above, the scheme of CYPFA is different.   A bare statement of rights is unlikely to be sufficient to meet the s 215 requirements.  If there is a failure to meet the s 215 explanations, then, absent reasonable compliance under s 224 or a spontaneous utterance under s 223, the statement is inadmissible: s 221(2).   For present purposes, as we did not hear full argument on the point, we assume (without deciding) that inadmissibility under s 221(2) of the CYPFA would not be subject to the balancing exercise contained in s 30(6) of the Evidence Act.  This assumption accords with the Crown concession in this case and our preliminary view of the effect  of  the  statutory provisions  in  the  CYPFA  and  the  Evidence  Act,  and  in

particular s 7(1)(a) of the latter, although s 225(a) of the CYPFA might point in the other direction.

[42]     In   accordance   with   the   above   principles,   s 215(1)(f),   interpreted   in accordance with the principles set out in s 208(h), requires police officers to explain, in a manner which depends on the age and level of understanding of the particular child, the right to instruct a lawyer, the assistance that a lawyer could provide, and the mechanics of instructing a lawyer.   This is with the view of ensuring that the child or young person understands the right and can make an informed decision whether or not to exercise that right.

[43]     Looked  at  in  the  above  light,  it  is  understandable  that  Woodhouse J concluded that there was an obligation under s 215 to explain the entitlement to free legal advice under the PDLA scheme.  We do not, however, uphold his conclusion. This is because it would involve overruling R v DH.   Overruling R v DH would impose a retrospective requirement on police to have given advice on the PDLA scheme.   Moreover, this would lead, subject to ss 223 and 224 of the CYPFA, to automatic exclusion of any statement where advice had not been given.  This would be the case even if concern about cost had no effect on the child’s or young person’s decision not to exercise their right to consult with and/or have a lawyer present at any interview.   Concerns  about  retrospectivity were  important  to  the  majority’s decision in Alo (see at [66]).  Further, the majority in Alo referred, at [47], to R v DH without any apparent disapproval.

[44]     We  are  bolstered  in  our  decision  not  to  overrule  R  v  DH  by the Chief Justice’s Practice Note, [2007] 3 NZLR 297, which applies from 1 August 2007. Under [2] of that Practice Note, the police are now required to advise that legal advice is available without charge under the PDLA Scheme. Such advice must be given where the police have sufficient evidence to charge a person with an offence or whenever the police question a person in custody. The Practice Note obviously applies to children and young persons as well as adults. We leave open whether the requirement to give an explanation as to the PDLA scheme would be imported into s 215 of the CYPFA from 1 August 2007. We also leave open whether such advice should be given in all cases where a child is being questioned in respect of the

commission  of  an  offence  rather  than  being  confined  (as  is  the  case  under  the Practice Note) to cases where there is sufficient evidence to charge that child or young person or where the child or young person is in custody.

[45]     We do, however, note that, in R v DH, the 15 year old appellant had not just been informed of a bare right to a lawyer.  He had been told that there was a duty list of lawyers available or, if he wished to use his own lawyer, he could use the phone book to find the contact details.  In our view, similar advice should have been given in this case.  It was not.

Were the police obliged, under the test in Alo, to advise Z of his entitlement to free legal advice?

[46]     Z’s interview took place on 4 April 2006.   The majority’s decision in Alo represents  the  law  with  respect  to  police  questioning  undertaken  prior  to  the Chief Justice’s Practice Note becoming operative on 1 August 2007:  R v Tye [2008]

1 NZLR 214 (CA).

[47]     The next question therefore is whether Woodhouse J was right to hold, in the alternative, that advice on the PDLA scheme should have been given in terms of  the test set out by the majority in Alo.

The test in Alo

[48]     The three pronged test set out by the majority in Alo is as follows:

[72]   We conclude that there is no absolute requirement for the police to advise suspects of the existence of the PDLA scheme. But a failure to give such advice will result in a breach of s 23 if:

(a)     the circumstances at the time of the interview, including the suspect’s age, experience and remarks, provide a substantial basis for believing that the suspect might not have appreciated that he or she had a practical ability to obtain legal advice;

(b)     the defendant provides an evidential basis for the contention that he or she chose not to take legal advice because of cost considerations; and

(c)     the  Crown  cannot  disprove  the   contention   on  the  balance  of probabilities.

Submissions of the parties

[49]     It  is  submitted  by  the  Crown  that  there  was  no  “substantial  basis  for believing” that Z might not have appreciated that he had a practical ability to obtain legal advice.  In the Crown’s submission, Z’s age, while a relevant factor, does not provide  a  “statutory  presumption”  that  the  test  in  [72](a)  of  Alo  is  satisfied. Although Z is young, the interviewing officer was aware that he had had previous dealings with the police.  Further, Z was accompanied by his father, and, prior to the interview commencing Z and his father were left alone to speak in private.  Neither raised any issue about the cost of a lawyer.   Z repeatedly confirmed that he understood his rights and did not want a lawyer present.

[50]     Secondly, in terms of [72](b) of Alo, the Crown submitted that there is no “evidential basis” for the contention that Z chose not to take legal advice because of cost considerations.  Indeed, there is no evidence whatever to this effect.  Neither Z nor his father gave evidence at any stage during the s 344A proceedings before either Baragwanath J or Woodhouse J.  It is submitted by the Crown that this point alone is conclusive.

[51]     Mr Corby again supported Woodhouse J’s judgment on this issue.

Discussion

[52]     In light of the fact that children and young persons would not generally have knowledge or experience of the mechanics of instructing a lawyer, we consider that youth alone may well satisfy element (a) in [72] of Alo.  With regard to element (b), however, we accept the Crown’s submission that there was nothing (apart from youth) to suggest, either at the time or later, that Z did not exercise his right to consult with and have a lawyer present because of cost considerations.   There is equally no suggestion that Z thought that his family did not have the means to pay a lawyer.

[53] The same can be said of Z’s father. Z’s father has a managerial role in a large company. What evidence there was could therefore be seen as suggesting that Z’s father had some familiarity with lawyers and that the family’s financial position was not precarious. The fact Z’s father did not consider his son needed a lawyer was likely to have arisen not from cost considerations but rather from a misunderstanding of the position his son found himself in – see above at [14].

Did Z understand his rights?

[54]     The next issue is whether Z understood his rights.  There are three sub-issues: (a)     Did the police adequately explain Z’s right to consult with and have

present a lawyer in addition to his father?

(b)     Did Z appreciate the nature of assistance a lawyer can provide? (c)     Did Z appreciate the use to which his statements could be put?

[55]     Before discussing those sub-issues, we set out the advice that was given to Z, adding some preliminary comments.

Advice given

[56]     Detective Sergeant Nimmo and a team of four other police officers went to Z’s house on 4 April 2006 to execute a search warrant and to interview Z in connection with the assault on Mr Martin.   Detective Nimmo deposed that he explained to the family that the purpose of his visit was to speak with Z in relation to the serious assault of a man at the Reserve over the weekend.   He requested the parents’ assistance in this matter.  Both parents told him that they were aware of the assault.

[57]     Z’s father said that he knew Z had knowledge of the assault and that he had tried himself for over two hours to obtain a truthful account from his son.  He also said that he did not believe his son’s account of what happened.  Z had told his father

that he had seen the man at the Reserve and that he had tried to call an ambulance but his cellphone battery had run out.

[58]     Detective Sergeant Nimmo introduced Constable Mason to both parents and told them that the constable would speak with Z but that he would prefer Z to go to Glen Innes police station with one of the parents present.  Both parents agreed and Z’s father said that he would like to be present during any discussions his son had with Constable Mason.

[59]     We comment here that [1] of the Chief Justice’s Practice Note, referred to above at [44], provides that police must not suggest that it is compulsory for the person questioned to answer.  In this case what was said to the parents could have been taken as suggesting that Z had to be questioned by the police and the only choice was whether that should be done at the police station or at home.  While the Practice Note was not in force at the time, on this point it did not purport to change or extend the existing law.

[60]     Once Constable Mason had been introduced, he gave Z his rights in the presence of his father.  In the course of this, the constable did, however, make it clear that Z did not need to speak with him.  He said:

I told [Z] his rights, in the presence of his father, as outlined in the Youth

Justice Checklist which was in my possession at the time.

Isaid:       [Z] I would like us to go back to the Glen Innes Police Station to have a talk about what happened in the Maybury Reserve on Saturday night and early Sunday morning of the weekend.

[Z] said:    OK.

Isaid:       You don’t need to come back to the Glen Innes Police Station if you don’t want to.

[Z] said:    I’ll come with you.

Isaid:       Do you understand that you don’t need to come back if you don’t want to?

[Z] said:    Yep.

Isaid:       If you come back to the Police Station, you can change your mind at any time and leave.

[Z] said:    Yep.

Isaid:       Do  you  understand  that  if  you  come  back  with  me  you  can change your mind and leave at any time?

[Z] said:    Yep.

I said:      [Z] if you want to speak with me you can. [Z] said:      Yep.

Isaid:       If you decide to speak with me, you can stop at anytime you want to and that’s alright.

[Z] said:    Yep.

Isaid:       [Z] do you understand that you don’t need to speak with me if you don’t want to.

[Z] said:    Yep.

Isaid:       What we talk about will be written down and or video taped and that this can be used as evidence.

[Z] said:    Yep.

I said:      [Z] do you understand what this means? [Z] said:        Yeah.

Isaid:       [Z] you can bring a nominated person with you to sit in with your interview.   That person can be anybody you like.   Do you understand what that means?

[Z] said:    Yep.

Isaid:       [Z] who would you like to bring to the Police Station to sit in with you while we talk?

[Z] said:    Dad.

Isaid:       You  can  also  speak  with  a  lawyer  if  you  want  to.    Do  you understand what this means?

[Z] said:    Yeah.

I said:      [Z] can you tell me what a lawyer is?

[Z] said:    A lawyer is someone you speak with in Court and they help you.

Isaid:       You can speak with the nominated person and lawyer whenever you want to in private.

Isaid:       [Z] the person you choose to come to the police station with you, will be present when I speak with you and you can also have a lawyer with you as well.  Do you understand what this means?

[Z] said:    Yeah. [Emphasis added]

[61]     Constable Mason then took Z to the police station, Z’s father having arranged to follow a bit later.  During the short trip back to the Glen Innes police station, the constable confirmed with Z that he wanted his father as a nominated person:

Isaid:      [Z] now that we are alone.  Do you still want your dad to sit in with you during the interview or would you like somebody else?

[Z] said:    No I want Dad.

[62]     When  Z’s  father  arrived  at  the  police station  he  and  Z were  left  in  the interview room to speak in private (at 8.47am).  At 9.08am the constable gave Z’s father an information sheet for adults supporting young persons during an interview. The constable explained the contents of the document to Z’s father and let him read it.  Z’s father signed the information sheet, indicating that he understood its contents. The information sheet included a description of the role the father was to perform, including making sure that Z knew what was happening and being satisfied that Z understood his rights (which in this case had already been explained at the house). At 9.17am the video interview began.   It does not seem that Z’s father had an opportunity to speak with Z alone after reading the information sheet for adults.

[63]     At the beginning of the video interview, the constable asked some questions about Z’s name and address and family circumstances.  He confirmed that Z did not mind the interview being videoed.  He then said:

CAlright. OK so now I’m going to, going to give you a caution and I’ll explain those rights again to you that I explained to you at the house ok.

[Z]            (nods head)

COK so you are not obliged to say anything unless you wish to do so but anything you do say will be recorded and maybe shown in evidence.  Do you understand what this means?

[Z]            (nods head) Yes.

COk so it means that anything you say is obviously going to be recorded.

[Z]            (nods head)

CBy in the microphone and on the video and that’s going to be shown in evidence, may be shown in evidence.

[Z]             Yep.

COk. Cause you’re a ah, cause you’re, you’re classed as a, as a Young Person you’ve got some special rights ok and I’m going to explain these rights to you in a language that you understand ok. I already did this at the house ok and I’m just going to do it again on, on video ok. Alright so that you’re not obliged to make a statement, that means that you don’t, you don’t have to speak to me. Ok. You understand that you don’t have to speak to me?

[Z]             (nods head) Yes.

CAnd, and if you want to speak to me you can stop at any time and that’s ok, I won’t get angry, you’re dad won’t get angry ok?

[Z]             (nods head)

C               You understand what that means? [Z’s father]  (lifts his hand in direction of [Z]) [Z]             (nods head) Yes.

COk and that this statement or this video tape statement will be used in evidence, that means that it’s, it may be shown to other people. Do you understand what that means?

[Z]             (nods head) Yes.

CYep  ok  that  you’re  entitled  to  consult  with  and  make  a statement in the presence of a lawyer or any nominated person. Basically this means that you’re dad’s come down to make a, to make a statement, to sit in here when you’re making a statement and that you want that, you want you’re dad to be here eh?

[Z]             Yep.

C              Yep. Did you want, did you want a lawyer to be here with you? [Z’s father]  (shakes head)

[Z]             No. (shakes head)

CNo ok. Do you understand, do you understand what a lawyer is?

[Z]             Sort of.

CSort of. Can you tell me what you think what a lawyer, what a lawyer is and does?

[Z]             They defend you ok or whatever. (shrugs)

C              Like on, like on, on tv eh?

[Z]            Yeah.

C              They defend yah when you go to court and stuff?

[Z]            Yep.

C              Ok. And they help you out?

[Z]            Yep. [Emphasis added]

[64]     The interview then proceeded.  At 10.26am a second tape was inserted and the interview recommenced.  Before it recommenced, the constable said:

COnce again you know all those, you know all those rights I gave you at, at the beginning?

[Z]            Yeah.

CThat you don’t have to speak to me if you don’t want to and you can withdraw the consent any time, that all still applies ok so you understand all that?

[Z]            Yeah.

[65]     There was no explicit repetition of the right to consult with a lawyer at this point.   The interview continued and near the end of the second tape, Z admitted kicking Mr Martin.  Just after that, at 11.25am, they took a break so that Z’s father could have a cigarette.  Z and his father were offered a drink.  Z’s father had a glass of water but Z declined.  There was then a third video tape inserted and the constable again asked if Z remembered his rights and said they still applied.   The interview continued and culminated in Z being arrested for assault at 12.12pm.  The constable then said:

C… So cause, cause you are under arrest you do have some ah, you’ve  got  rights  as  well  ok  so  you’re  not  obliged  to  say anything but anything you do say may be given in evidence alright you understand that?

[Z]            (nods head)

COk and that you have the right to consult and instruct a lawyer in  private  and  without  delay  ok  and  you  have  the  right  to refrain from making a statement and these rights will be ah, these rights will be ah given to you as soon as practicable. Do you understand what that means?

[Z]            (shakes head)

CNo.  Alright  what  it  means  is  you’re  under,  you’ve  done something really bad eh and you are under arrest now ok you don’t have to speak to me anymore ok, you don’t have to but if you do speak to me I’m going to write everything, everything down as well and get it all on video tape as well ok. You can, you can talk with, with your dad still in private and if you want to, cause you’re dad’s you’re nominated person and if you want to, you’re dad and you can speak with a lawyer and talk to a lawyer in private. Do you understand that?

[Z]            (nods head) [Emphasis added]

[66]     Z’s father then went home to check on his wife who was ill and Z had some lunch.  Constable Mason’s evidence was that at 1.11pm he asked Z if he would assist the  police  with  the  video  recorded  reconstruction  of  the  scene  at  the  Reserve showing what had happened in the park.

I ask [Z] if he would like to help us with a video showing what happened in the park.

Isaid:         [Z] would you like to show us what happened at the park?  It will be recorded on video as you show us.

[Z] said:     I don’t mind.

Isaid:         [Z] would you like to have someone with you when we make the video?

[Z] said:     Yeah dad.

At 1.20pm I called [Z’s] father and informed him that [Z] wanted to show us what happened in the park and that [Z] wanted him to be present.

At 2pm [Z’s father] arrived at the Glen Innes Police Station.  [Z] and [Z’s father] spoke in private.

At 2.05pm I entered interview room and spoke with [Z] in the presence of his father.

I explained [Z’s] rights to him in a language that he understood, this was done in the presence of his father.

Isaid:         [Z] you don’t have to help out with the video if you don’t want to, would you like to help us out?

[Z] said:     Yes.

Isaid:         If you decide to help us out with the video you can stop at anytime you want to and that’s ok, nobody will get angry.

Isaid:         [Z] you don’t need to speak with me if you don’t want to and if you do speak with me you can stop at anytime and that’s ok.

Isaid:         [Z] the whole thing will be recorded and that video may be shown in evidence.

Isaid:         [Z] you can nominate anybody you like to be present with you during the video.  You can also have a lawyer present with you if you want. [Z] do you understand what this means?

[Z] said:      Yes.

I said:         Who would you like to be with you while we make the video?

[Z] said:      I want my Dad.

I said:        [Z] do you understand what is happening? [Z] said:    Yes.

Again I explained to [Z] that we would be going down to Maybury Reserve and he would show us what happened at the Reserve in relation to the assault.  I again informed [Z] that the interview would be recorded on video. [Emphasis added]

[67]     Before  the  video  reconstruction,  a  further  explanation  was  given  by

Constable Mason:

C[Z] just before we go into the scene, we’d just like to, we have spoken about this back at the Station, for the tapes, I’ll explain those rights to you, do you remember those rights?

[Z]             (nods head) Yep.

CI’m just going to go over those rights again ok. You don’t have to help us out here, if you don’t want to ok. Would you like to help us out with this video re-construction?

[Z]             Yes.

CDo   you   understand   what   I   mean   when   I   say   video reconstruction?

[Z]             No.

CJust um this gentleman here’s (turns to his left, facing camera and back to looking at [Z]) going to video tape us walking through the scene and I’m going to ask you a series of questions relating to where you were, where you saw ah the victim and your, your mates were on the night and I’m going to ask you to point out um the places where they were all standing so do you understand what that means now?

[Z]             (nods head) Yes.

C              Like I said, you don’t have to help us out if you don’t want to.

It’s great that you do. If we get into the scene and you decide that you’ve had enough and you don’t want to, and you don’t want to help us out anymore, that’s ok, no one’s going to get upset or angry with you ok. Do you under, understand that?

[Z]            Yes.

CNow you’ve um, you have a nominated person here that you’ve picked out that you would like to be with you, is that correct?

[Z]            Yes.

CAnd that’s your dad, [Mr Z Snr]. Do you understand what I’m saying [Mr Z Snr]?

[Z’s father]  (No response)

COk and you also have the right to speak with a lawyer. You understand what a lawyer is eh?

[Z]            Yep. (nods head)

C              Can you tell me what you think a lawyer is?

[Z]            Help you in court.

C              Yep and they give you some advice and that eh?

[Z]            Yep.

CAlright you understand that if you’d like to, you can speak with a lawyer at any time and you can speak with your dad at any time ok. Do you understand that this is being, that this is going to be recorded ok and it can be shown in evidence in court. Do you understand all that?

[Z]            Yes.

CDo you have any questions that you’d like, you’d like to ask me?

[Z]            No.

C              Alright. [Emphasis added]

[68] We now move to a consideration of the sub-issues identified above at [54].

Did the police adequately  explain Z’s right  to  consult  with  and  have  a  lawyer present in addition to his father?

[69] Woodhouse J said that he was not satisfied on the balance of probabilities that Z understood he could have a lawyer present in addition to his father. While that was explained at the house, in the car a contrary impression was given – see above at [61]. Also at the beginning of the video interview the constable stated that Z could have his father present or a lawyer – see above at [63].

[70]     The Crown submitted that the Judge took these passages out of context and that it was made plain at the house that Z was entitled to have both persons present, and could also speak privately with both.   While at the beginning of the video interview Z was told he could consult with and make a statement in the presence of a lawyer or any nominated person, the Crown argued that any ambiguity was resolved when the officer confirmed that Z wanted his father present, and then went on to ask him whether he wanted a lawyer present.

[71]     We accept the Crown submission that it was made plain at the house that Z could have a nominated person and a lawyer present.   However, that was not the impression given in the car.  Further, it was not what was said at the beginning of the video interview.  It is true that Z was asked to confirm he wanted his father present and then asked if he wanted a lawyer.  We do not, however, consider it was made clear that this could be in addition to his father.  At the least, there was confusion over this issue.  We are therefore not able to say that Woodhouse J was wrong to find as he did.

Did Z appreciate the nature of assistance a lawyer can provide?

[72]     Woodhouse J had general concerns about Z’s level of understanding of his rights.   He noted that some of Z’s monosyllabic acknowledgements of apparent understanding  were  accompanied  by  a  shrug.     While  Z’s  responses  to  the explanations of his rights could have indicated actual understanding, the Judge was of the view that they were at least as likely to indicate the reluctance of a 14 year old boy to display ignorance in the face of propositions he did not fully understand,

coming from a person in authority and where agreement would not cause him any apparent harm.

[73]     The Judge said that his conclusion on the balance of probabilities that Z’s responses were prompted by the latter considerations was not dependant solely on his assessment of the behaviour of 14 year old males.   It was also an approach required by the CYPFA.  The principles in ss 5(d) and 208(h) expressly guide the courts, as well as enforcement officers.

[74]     Woodhouse J also had a degree of uncertainty as to Z’s understanding of the way in which a lawyer could assist him, in particular the assistance that could be provided before and during the video interview and the video reconstruction (as against in court).   The Judge also had a concern about the language the constable used to explain the role of a lawyer.  He recognised that the constable was trying to fulfil his obligation under ss 218 and 221(2)(a) to explain “in a manner  and in language” appropriate to the age and level of understanding of Z.  Unfortunately, the Judge considered that the words Constable Mason chose to use contributed to the difficulty.  He gave the example of the following exchange (set out in full above at [63]):

C              Like, like on, on TV eh? [Z]  Yeah.

C              They defend yah when you go to court and stuff? [Z]  Yep.

[75]     The Judge considered that simple and direct language would have been better than inapt analogies and vague words, albeit words commonly enough  used  by young males.

[76]     The Crown submitted that there was no risk that Z may have mistakenly understood that a lawyer’s role is restricted to appearing in court.  In its submission, Z was specifically told he was entitled to speak with a lawyer at the police station, and entitled to have a lawyer present during the interview and reconstruction.  The Crown argued that it is clear that Z understood that lawyers “help you” and give

“advice” – see passages set out at [60], [63] and [67].   Further, in the Crown’s submission, Z’s conduct of the interview does not disclose any particular communication or comprehension difficulties.  Z was able to assert himself and seek clarification where required.

[77]     We do not accept the Crown submission.  We agree with Woodhouse J that there are serious doubts as to whether Z understood his rights.   Z, understandably given his age, seemed very unsure of a lawyer’s function (“they defend you ok or whatever”, said in a tone showing uncertainty and accompanied by a shrug – see italicised passage near the end of the extract at [63] above).  Having been given the explanation by the constable set out at  [63], Z from there on displayed  a  very simplistic view of a lawyer’s purpose and seemed fixated on lawyers’ functions in court – see above at [67].  It was never explained to Z how a lawyer could help or advise in the interview process, even when it was obvious that he was labouring under the misapprehension that lawyers helped and advised only in court.

[78]     This  contrasts  with  the  position  in  Canada  where  there  is  an  explicit explanation of how a lawyer can advise during any interview on whether police questions should be answered. – see Department of Justice Canada Statement of  a Young  Person  Form  9.1  Section  146  Youth  Criminal  Justice  Act  SC  2002,  c.1

< (last accessed 1 July 2008).   The Canadian guidelines (which appear to be the equivalent of New Zealand’s Youth Justice Checklist – discussed above at [30]) provide:

You have the right to retain and instruct counsel in private, without delay. This means that you can talk to and get advice from a lawyer now without the police present.  A lawyer’s job includes telling you what your rights are and giving you advice about whether you should answer my questions or sign this form.

[79] Further, we agree with Woodhouse J’s general concerns set out above at [69] as to Z’s level of understanding. We also consider that Z’s later indication prior to being arrested that he did not understand the string of rights read out to him, including the right to consult a lawyer, places significant doubt as to whether he understood those rights at the beginning of the interview – see above at [65].

Did Z appreciate the use to which his statements could be put?

[80] Woodhouse J said that he was not satisfied that Z had a sufficient understanding of what was meant by advice that any video recording “could be used in evidence”. The Judge recognised that, at his home, Z had said that he understood what was meant – see above at [60]. Z’s acknowledgement of understanding at that time was, however, subject to the reservation the Judge had earlier expressed in respect of Z’s monosyllabic acknowledgements of understanding. More importantly, in the Judge’s view, the constable gave inaccurate explanations at the police station as to what was meant by using the video interview in evidence. He said: “[i]t means that anything you say is obviously going to be recorded” – see above at [63]. And then he said: that it “… will be used in evidence, that means that it’s, it may be shown to other people” – see above at [63].

[81]     The Judge was not suggesting that Constable Mason sought to mislead Z.  He was in fact satisfied that the constable was conscientiously seeking to explain.  But, as with the explanation of the role of the lawyer, the particular words chosen resulted in a failure to comply with the requirements of the CYPFA.  The Judge considered that direct and simple words would have been better.   For example: “What this means is that if you get taken to court for the attack on the man in Maybury Reserve, what you say on this video will be played back to the Judge and the jury”.

[82]     We agree with Woodhouse J’s assessment.   At best, the explanation given was confused.

What was the role of Z’s father?

[83]     Woodhouse  J  also  expressed  concerns  as  to  the  role  of  Z’s  father  as nominated person.  He commented that from the beginning, the police officer had an indication that Z’s father’s misunderstood the situation.   Woodhouse J found that, from what the father had said when the police arrived at the house, it should have been obvious that the father thought his son had been merely a witness and that his only concern was ensuring that his son told the truth about what he had witnessed.

[84]   We do not agree that it should have been obvious that Z’s father had misunderstood the situation.   The police officers were at the house to execute a search  warrant.    In  the  circumstances  the  natural  conclusion  would  be  that  the parents would understand that the police wanted to speak to Z was because they had reason to believe Z might be involved (although in this case seemingly Z’s father did not come to that conclusion).   We do, however, agree with Woodhouse J that the police should have explained in broad terms at the house the jeopardy Z was in and the reason they suspected his involvement in the assault.  That would have obviated any misunderstanding.

[85]     In support of the view that Z’s father thought his son was merely a witness, Woodhouse J pointed to an exchange between Z and his father when the constable was out of the video room where Z stated about the victim “I didn’t do anything to him” and his father replied “I know”.  Woodhouse J also referred to a passage after Z admitted kicking Mr Martin where Z’s father is shocked when Constable Mason asks Z if he had told anyone else and Z said he had told his mother the next morning:

C              You told your mum that? [Z’s father]  Did you?

[Z]            Yeah. (Nods head).

[Z’s father]  Didn’t know that.  You didn’t tell me that yesterday when I ask

[sic] you.

[86]     We also note that, just after Z had admitted kicking Mr Martin, Z’s father had asked to go out and have a cigarette as he was a “[b]it upset at the moment”.  We agree therefore that it was by no means clear that Z’s father realised when he agreed that his son could go to the police station that his son was a suspect and not a mere witness.

[87]     Under s 222(4) of the CYPFA, the role of a nominated person includes taking reasonable steps to ensure that the child or young person understands the rights explained to the child or young person and providing support to the child or young person during questioning and the making of a statement.  The nominated person is not merely a cipher.  To carry out their role, the nominated adult needs to know the jeopardy faced by the child or young person they are to support.  If in this case Z’s

father had known of the peril his son was in, he may have urged his son to obtain legal advice.  He may also not have been so insistent that Z tell the truth and that he not exercise his right to silence – see below at [105] and [111].

[88] A further point troubled Woodhouse J, particularly in light of Z’s father’s likely misunderstanding of the purpose of the interview. He said that, at the beginning of the video interview, Z’s father shook his head immediately when the question of legal representation was addressed. This seemed to influence his son’s reaction. In Woodhouse J’s view, there had been a distinct pause after Z’s father had shaken his head before Z said no. The passage Woodhouse J was referring to is set out in full above at [63]. In relevant part, it says:

CYep.   Did you want, did you want a lawyer to be here with you?

[Z’s father]  (Shakes head).

[Z]            No. (Shakes head).

[89]     We agree that there was a pause but it was not clear to us whether Z was deferring to his father or just thinking.  Nevertheless, this does raise the issue as to whether the decision not to instruct counsel was Z’s or his father’s and whether Z may have been deferring to his father because he did not want to disabuse his father of the notion that he, Z, was just a witness.  In our view, the constable should have made sure it was Z’s decision not to instruct a lawyer and one made for the right reasons and not just to please his father – see s 5(d) of the CYPFA, which requires the recognition of Z’s autonomy and s 208(h), which requires special protection for children and young persons being investigated.

[90]     We also have some concern that the constable may not have made it clear to Z’s father that one of his roles was to make sure Z understood his rights.  After Z had been given his rights, the constable said:

CWe’re going to have a chat, basically we’re going to have a chat in and if you want to stop having a chat at any time that’s ok, alright and that the chat, and the chat that we can have will be used as, may be used as evidence in court ok and that you’re dad’s here to help you out, to act, to act for you to make sure you’re getting treated fairly.

[Z]            Yep.

COk.  Alright.  (picks up green paper from his right side below table)    Now  um [Z’s  father],  I’ve  um  I’ve  given  you  a,  a POL338, that’s a um the copy of a Adult’s supporting for a child, supporting a child.  You understand everything that’s in there?

[Z’s father]  Yep, yes I do.

C              You understand that you’re here to, to support your son? [Z’s father]  Yes.

CYep. Ok and if you’ve got any questions feel free to, free to ask ok but primarily you’re here just to support your son.

[91] We acknowledge that making sure the child or young person understands his or her rights is one of the roles explained on the POL338 referred to by the constable and which Z’s father confirmed he had read and understood. After reading the form, Z’s father was, however, not given the opportunity to speak in private with his son to ensure Z understood his rights – see at [62] above.

Should the Canadian practice of advising nominated persons to ensure that the child or young person receives legal advice be adopted?

[92]     Apart from the above matters, we do have a general concern that Z was facing questioning over such a serious charge without having had the benefit of legal advice.  There must be a real issue, given the duty to offer special protection under s 208(h), as to whether more ought to be done to try and ensure that a child or young person in Z’s situation takes legal advice.

[93]     The Canadian approach is to do just that.  The brochure given to parents and guardians  is  set  out  in  Appendix  Two.    It  positively  encourages  parents  and guardians to ensure that legal advice is obtained for their children.   It also tells parents not to urge their children to “confess” straight away as that will rarely be in their best interests.

[94]     We were referred by Mr Corby to an article by Quinn and Jackson, “Of Rights  and  Roles:  Police  Interviews  with  Young  Suspects  in  Northern  Ireland” (2007) 47 Brit J Criminol 234.  The authors, at 245, report on their observations of

different roles played by nominated persons.   They say some parents were angry with their children for being “in trouble” and were therefore either unhelpful during the interview or put pressure on the young person to make admissions.  The authors noted that police officers often welcomed this pressure, which made their job at interview easier.  Other parents were either overawed by the police or antagonistic and too interventionist.

[95]     Quinn  and  Jackson  conclude,  at  252,  that  parents,  although  providing  a measure  of  comfort  for  their  children,  seemed  incapable  of  providing  impartial advice and assistance because of their emotional involvement.   They noted too, at

248, that parents were often influential in any decision whether or not to take legal advice.  The authors’ view was that children needed professional legal advice – see at 253.  They suggested, at 252, that young suspects should automatically be put in touch with a duty solicitor to discuss the question of legal advice.  See also Parry “Protecting the juvenile suspect: what exactly is the appropriate adult supposed to do?” (2006) 18(3) Cfam 373.

[96]     We  consider  it  probable  that  nominated  persons  in  New  Zealand  would display the same range of reactions as observed by Quinn and Jackson.  In our view, serious thought may need to be given as to whether advice to nominated persons, similar to the Canadian advice set out at Appendix Two, should be provided in New Zealand.

Was there reasonable compliance with s 215?

[97]     Woodhouse J concluded that there had not been reasonable compliance with the  requirements  of  s 215  of  the  CYPFA.    In  his  view,  the  instances  of  non- compliance were not simply matters of form, with the essential requirements of the CYPFA having been met in substance.  This was so, in his opinion, in relation to each of the points taken separately and also on a cumulative basis.  Apart from his conclusions on the PDLA scheme, we agree.

Was there unfair cross-examination and/or unfair use of co-accused’s statements?

[98]     Mr Corby objected to the admissibility of the entire interview after Z had completed his version of events and the police officer had stated that his account did not match that of the other witnesses and asked Z to tell him what “really happened”. Mr Corby contended that the interview was characterised by badgering, bullying and emotional manipulation which amounted to unfair cross-examination.

[99]     Although he mentioned it, this point was not dealt with by Woodhouse J as it had not been argued before him.  Because it was raised at the hearing of the appeal, we gave the parties time to file further submissions.

[100]   In  those  further  submissions,  in  response  to  Mr  Corby’s  arguments,  the Crown submitted that there is no unfairness in questioning suspects in respect of serious crime and going beyond merely seeking to clarify ambiguity.   The Crown contended that testing explanations offered by questions  in  the  nature  of cross- examination is not objectionable provided the process is not oppressive, overbearing or unfair:  R v Latuselu (2003) 20 CRNZ 70 at [11] (CA), citing R v Admore [1989]

2 NZLR 210 (CA); R v Dally [1990] 2 NZLR 184 (HC).

[101]   In the Crown’s submission, there is nothing inherently objectionable in an interviewing officer refusing to accept a suspect’s explanations or denials of the offending.    Indeed,  it  may  be  unreasonable  to  expect  the  officer  to  accept  the suspect’s explanations, particularly where they are clearly inconsistent with the evidence:  Admore at 220 per McMullin J.  The police have a duty to ask questions in order to ascertain the true facts: R v Weaver and Hammon [1956] NZLR 590 at

592 (SC).  The Crown submitted that the police actions in this case did not exceed these bounds.

[102]   The Crown also pointed out that Z gave no evidence that he was “overborne” by the style of questioning and the police officer was not cross-examined regarding any unfairness in his technique.  The absence of such evidence was considered to be “significant” in Latuselu.   In particular, at the conclusion of the interview, Z was

asked how he felt and he replied “normal”.   (We note, however, that there was a significant pause before Z answered and that immediately afterwards he agreed with the constable that he felt a bit upset.)

[103]   We  accept  the  Crown’s  description  of  the  legal  test.    We  leave  open, however, whether it still applies under the Chief Justice’s Practice Note.

[104]   In order to assess the Crown’s submission that the questioning in this case did not breach the applicable bounds, it is worth setting out the critical passages in full. The first passage is as follows:

C              Just get you to take your hand away from your mouth mate.

Did you get involved in it?

[Z]             I was standing with, with Isi and Daniel, I think Daniel was next to Mahunga and like we were, we were here (points right index finger to right side of him) and it was happening here, Isi was over here standing up (points right index finger to side with arms folded) and Daniel was over here (right hand goes out of view of video) and Mahunga was over there and that was the bush over there, the fijoa trees or somewhere.

[Pause]

C              And you didn’t do anything? [Z]      I was standing there.

C              Did you want to jump in?

[Z]            No.

C              Give him a kick in or a bash in?

[Z]             He was already on the ground, that’s all, that’s when yeah, when he just fell on the ground, then the person who um made him fall on the ground, he punched him then he was doing all of it and then another person jumped in and Peni, it was Peni that took of his shoes, yeah, Peni took off his shoes, and, and Mahunga was laughing, cracking up and yeah, then that dude with the hat, he just done that thing that I told you, stood on his face and that.

CLike I was saying before [Z], we’ve um, we’ve spoken to, to a lot of people eh ok?

[Z]            Yeah.

C              And they’ve told us that you’re involved in it?

[Z]            What?

CThat you, that you did something in the fight so I want you to tell me what you did to him there?

[Z]             I didn’t do anything, I didn’t even do anything to him.  I was just standing there.

C              Why did you kick him?

[Z]             I didn’t kick him.   I never done anything to him.   I just kept away and the just felt sorry for him.

C              You’d tell me if you kicked him, honestly?

[Z]            (shakes head) I didn’t kick him. C     No but would you tell me …? [Z]     Yep.

C              If you kicked him?

[Z]            Yep.

CCause the boys that we’ve spoken to ok and they’ve told us everything that’s happened and it’s exactly like you’ve said it at this time not when you were lying to me last time that how you met up and saw Isi have a fight, everything ok and they’ve given us a description of what clothing you were wearing and everything and they’ve and they’ve said that you were involved in the fight, that you kicked the guy in the head.

Now if they’re right with everything else, they’ve, they’ve, they’ve all said that they, that they were altogether with you at Isi, with Isi at your house at Anderson Avenue at the Reserve, how the boys went over and got some smokes, came back, then they went to the flat to drink and the guy came over, there were the words about, “what’s your name?” “Tom GILBERT” and the punches.

[Z]            Yep.

CAnd they’ve all told us it as well so we believe everyone about that and the other boys have said that you’ve kicked this guy so why would the other boys make that up?

[Z]             I didn’t  kick  him.    I never  got  involved.   I  didn’t even do anything to him.  I was sitting next to Isi.

C              So.

[Z]            And just yeah. I never kicked him, never done anything to him.

C              What did you do to him?

[Z]             Nothing.  I just told Mahunga to call the Ambulance after when they left, there was telling, just shaking him to wake up and then he got up, stood up and fell back over.

[Pause]

CYou were the boy that, that kicked him in the head, you were the boy that stomped on his head?

[Z]            I didn’t, I didn’t do it (shakes head).

C              Were you just angry at the time?

[Z]            Huh?

C              Did you just get angry at the time and do it?

[Z]             I didn’t do it, I didn’t like do anything to him.  I felt sorry as for him that’s why I told Mahunga to call the Ambulance but phone was low battery.

[Pause]

C              Did you feel sorry for, for him after you kicked him?

[Z]            I didn’t kick him.

CWhy would half a dozen other boys who have all, all said that where they were through the night time, have all not pointed directly at you, but you were with them, so all the stories match up through everything, the stories match up about Peni punching, the stories match up about someone else punching him so why would all those other boys make that up that you kicked him, you tell me?

[Z]            To probably save somebody else that stomped him.

C              Who else do they have to save?

[Z]             I don’t know, cause they don’t, they don’t know me that much and then that’s why they probably blame it on me.

C              You got some pretty good mates in there though eh and some

Cousins, why would they say it was you?

[Z]            I don’t know.

C              Cause it was eh?

[Z]             I didn’t, I didn’t even do it, I didn’t, they didn’t do anything to him, I was standing with Isi and talking to Daniel and then next minute that dude got punched to the ground and Daniel stood away.  I didn’t, how come they said that?

C              Well.

[Z]            Did they?

CHow come they said everything else as well and everything else that they said is true so why would they be making up that bit there?

[Z]             I don’t know, to save someone probably, to get, to get me in trouble and somebody else away from who done it.

CMm but  they’re  getting  other  boys  into  trouble  as  well  by saying that, they’re getting themselves in trouble by saying it?

[Z]            Yeah but I didn’t do anything to him, I just felt sorry for him.

C              Ok.  Give me a couple of minutes, alright I’ll be back shortly

[Emphasis added].

[105] There was then a break while the constable left the room. During the break, Z tells his father that he thinks the officer is lying about what the other witnesses/co- accused had said and that the constable was trying to “trick” him – see below at [111]. His father urges him to tell the truth (probably still under the misapprehension his son was a witness only).

[106]   When the officer finally returns, Z admits kicking Mr Martin.  The passage after the break went as follows:

CWe’re talking with Inep, with Peni, with Peni ok, he’s in trouble too eh, cause he’s punched the guy so he’s, he’s in big trouble alright and he’s told us all the same story about his brother getting rolled and everything like  that  so  he’s,  he’s  coming clean.   He said that you’ve kicked this boy in the head once, you’ve kicked him in the head and he’s, he’s, he’s got nothing to lose by telling us that cause he’s already in trouble, you kicked him in the head eh?

[Z]             No.  (shakes head) I never kicked him.  I was standing around him but like I was there and then like when he fell on the ground they was stomping on him, on, I stood up and then stood next to Junior, Junior was right in front of him and then I was looking at him to look what he looked like and he was all bleeding.

CWhy would two people, now we’ve got two people that can confirm that you kicked this guy in the head and these people haven’t spoken to each other so why, you kicked him in the head, it’s time, it’s time to come clean [Z].   It’s time to be a man, you know you’ve done something wrong ok, you’re gonna, you’re gonna, you’re gonna be a man if you come through and, and admit what you did ok, do you understand that?  Do you understand that we’ve got a group of people that have outlined your  movements  as  well  as  they’re  movements  through  the whole night.  Everything that you’ve told me and they’ve told my colleagues matches up, up until when Inep punched him and he fell to the ground.

[Z]            Yep.

CPeople are saying that you kicked this guy in the head and you did, didn’t you?

[Z]            Yep.

COk, put your hands down ok alright.  I want you to go through and I want you tell me exactly what you did ok.  We’re going to take it nice and slowly ok and I want, I want to thank you for being honest cause it takes a man to be honest ok.   Peni’s punched this guy, he’s fallen, fallen down, what’s happened then?

[Z]             Then um that dude with the afro told everyone to shush and then heard him snoring and then he stood oh um that other dude came with the hat and stood over him and told him something and then started punching him and then Junior was laughing and then I just done little kick to the head, to the back of the head but it wasn’t hard, it was like just play around and we were laughing, me and Junior and then Junior was going have that and then, then I was feeling sorry for him after and I just let them, sat on the side and yeah and then they were stomping on him and some, someone kicked him in the balls, between his legs but he didn’t move.

CWe’ve got two people ok who’ve said you kicked him in the head ok and you’ve just admitted that you did kick him in the back of head ok, now these people don’t describe it as a small kick, they describe it like, you were, they, like you were kicking a soccer ball.  It wasn’t a big, it wasn’t a small kick it was a big kick in the head he?

[Z]             (shakes head) I didn’t like, we do like um, I was like, it wasn’t like that.  Oh.  I like never kicked hard as, like hard as I could. I never kicked it like that.

CYou didn’t kick it as hard as you could, but you kicked him pretty hard eh?

[Z]             I just went like that (does a nod of his head to demonstrate) and then Junior was laughing and he was going to give him a kick but then I don’t know.  I just turned my back and walked away, walked and sat next to Isi and Isi goes, “oh did you give him a kick bro”? and I went, “yeah”.

CBut the kick wasn’t, wasn’t soft eh, wasn’t a gentle kick, it was a hard kick, you kicked him hard?

[Z]            Yep.

CIt might not have been the hardest that you kicked him but you kicked him hard eh?

[Z]            Yep. [Emphasis added]

[107]   This issue was not the subject of the Crown’s s 344A application in the

High Court and was not dealt with by Woodhouse J.  We do not need to decide if we

have jurisdiction to deal with the point as we have upheld Woodhouse J’s finding as to inadmissibility on other grounds.   We do, however, note that we have some concern about the effect of the italicised passages set out above at [104] and [106]. While we agree with the Crown that the questioning was calm and measured, it was persistent and repetitious.  There was an element of emotional blackmail (“it’s time to be a man” and “you’re gonna be a man if you come through and, and admit what you did”), a number of long pauses before questions and the questions were closed ones with the admissions fed to Z.   There was even an attempt to trick Z into an admission (“Did you feel sorry for him after you kicked him?”).  We consider that the questioning exceeded acceptable bounds, particularly given Z’s age.  In addition, the constable gave his own view as to whether the co-accused were telling the truth which is inappropriate – see above at [104].

[108]   There is a further point.  Under s 27 of the Evidence Act, statements of co- accused are not admissible against another accused.   In these circumstances, there may be questions as to the fairness of putting a co-accused’s statement to an accused (especially where that accused is an unrepresented child or young person) without explaining that such statements cannot be used in evidence against him or her (although the co-accused could choose to give evidence at trial).  We leave this point open.

Are the parts of the video where the police had left the video room admissible?

[109]   During the interview, which took several hours, the constable left the room periodically.  Mr Corby argued that, during his absence, some evidence was revealed which ought to have been excised from the transcript.  Woodhouse J identified this issue in his judgment but without making any finding on the point.  The Judge did say that, if the discussions between Z and his nominated person when the police officer left the room amounted to consultation under s 221(2)(b) of the CYPFA, then the communications are not admissible.

[110]   The first such interruption occurred reasonably early on in the interview:

There’s a knock at the door

C              So. (turns around)

Unknown person says, Can I just borrow you?

C              Yeah you just um just excuse me for a couple of minutes.

What’s, what’s going to happen is the video tape will just be kept, be kept running ok.

[Z’s father]  Yep.

[111]   At this hiatus, Z did not reveal anything incriminating.   Later on in the interview when Z had admitted witnessing the fight and had described watching it, the constable again left the room.   This time nothing was said about the video continuing to record.   We set out the discussion after the constable left the room between Z and his father as follows:

C leaves room

[Z]            Oh.

[Z’s father]  (inaudible words).

[Z]            I didn’t do anything to him. [Z’s father]  I know.

[Z]            Yeah that’s why I’m getting angry.

[Z’s father]  You don’t have to get angry.  It’s part of the job they asked the question.  So what it makes you (inaudible words [Z] speaks over L)

[Z]            I reckon he’s lying. [Z’s father]  Ha?

[Z]            I reckon he’s lying.

[Z’s father]  He’s not lying, he’s doing his job.

[Z]             Oh. Yeah but like to try and trick me or something so that he can just say that.

[Z’s father]  No just tell the truth, that’s it, no one can dare the truth. [Z]    But I never kicked him.

[Z’s father]  Right if that’s the truth, that’s the truth. [Z]    Yeah but then he keeps going on about it.

[Z’s father]  Well that’s his job. You tell the truth and that’s it. No one can change the truth, otherwise we going to sit here all day.

[Z]             (inaudible  words)  whoever  said  that  I  kicked  him,  they probably just want to save someone.

[Z’s father]  Oh but that’s what you’re friends put down.

[Z]            Probably trying to nark on me so they can save someone else. [Z’s father]  There’s nothing you can say but tell the truth, if that’s the truth

that’s it, that’s all you can say, is the truth.

[Z]            Hard out lies. [Pause]

[112]   Z’s father’s telephone then rings.  He answers it and a woman’s voice can be heard on the other end.  During this call, the constable comes back and reveals which co-accused have said that Z was involved and more detail of what the co-accused have said about Z’s involvement.   Very soon after, Z admits that he kicked the victim in the head.

[113]   After Z had admitted that he had kicked the victim and Z had talked about his involvement in the fight with the constable, the constable left Z and his father alone. The following conversation was recorded:

[Z’s father] Didn’t know that you got second … [reference to the second attack relating to count 2 in the indictment]

[Z]             Nah but I didn’t do anything with that one. I just didn’t, he cause, he was, he was angry.

[Z’s father]  Who?

[Z]             That afro dude, cause how his girlfriend lost the phone and it was his phone and then that’s why he, oh I don’t know why he done the first dude and but he knocked over that other dude [the victim] cause when he was beating up that dude who’s, oh who’s they said that he’s going to die, when he was beating up him, that’s when he lost his phone and then …

[Z’s father]  … I tell you what, you’re going to go inside and fourteen years old, make it worse if this guy die, you going to be class as murder at fourteen years old, does that make you feel bad? Show your friends and school that this is, you a strong boy, this is what happened …

[Z’s father]  Maybe a small kick but that’s still the kick that killed him. [Z] No. I wasn’t the (inaudible) last one to touch him.

[114]   Under s 226 of the CYPFA, no evidence of any communication that occurs between a child or young person and any person with whom that child is consulting under s 221(2)(b) of the CYPFA is admissible on behalf of the prosecution against that child or young person.  While s 221(2)(b) refers to consultation before making the statement to the police, this must be read broadly to include any communication with the nominated person where the police are not present and while the nominated person is still fulfilling his or her role.

[115]   It is, in any event, not correct to see a police interview as one continuous statement.  If there is a break, the next part of the interview must be seen as a new statement, at least for the purpose of s 211(2)(b).  We do not think it sufficient to tell the suspect and the nominated person that the video is to be left running.   Such warnings can easily be forgotten in times of stress and it is unrealistic (and cruel) to expect that a child or young person would not wish to communicate privately with his or her nominated person during any break.  Further, in this case, the warning was only given once and it was never made clear that the sound recording (as well as the visual recording) would be continuing during the break.

[116]   Another indication supporting the above premise is that, s 221(2)(b) includes the right to consult with a barrister or solicitor before the making of a statement.  The confidentiality of communications to a barrister or solicitor cannot be limited to communications made prior to the making of the statement and must include communications made to the barrister and solicitor during the interview when the police officer leaves the room or in breaks.   The same must therefore apply to communications  to  the  nominated  person  when  a  police  officer  is  out  of  the interview room.

[117]   We deal with this point because in the previous judgment of this Court, there was reliance on the passage set out above at [113] in coming to its conclusion that Z knew of his jeopardy (see at [27] of the previous judgment).  As the communication was absolutely privileged under s 226, it should not have done so.  It is a pity that this was not raised with the Court at the time of the earlier hearing (but that is just part of the unfortunate procedural history of this matter – see above at [6] - [12]). The previous decision of this Court must, however, be treated as per incuriam to the

extent it relied on privileged material.   As we have held the video interview inadmissible on other grounds, it is not necessary for us to decide if the Court would have come to the same conclusion on jeopardy even without the impugned passage.

Result

[118]   Leave to appeal is granted. [119]   The appeal is dismissed.

[120]   Order prohibiting publication of the judgment and any part of the proceedings in news media or on internet or other publicly accessible database until final disposition of trial.  Publication in law report or law digest permitted.

[121]   Woodhouse J made an order suppressing Z’s name, address and identifying particulars until trial.  That order still stands.

APPENDIX ONE Relevant CYPFA provisions

[122]   The starting point is s 208, which provides (in relevant part):

208    Principles

Subject to section 5 of this Act, any Court which, or person who, exercises any powers conferred by or under this Part … shall be guided by the following principles:

…

(h)     The  principle  that  the  vulnerability  of  children  and  young persons entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.

[123]   Section 5 sets out the general principles to be applied under the CYPFA.  The relevant principles are:

5       Principles to be applied in exercise of powers conferred by this

Act

… [A]ny Court which, or person who, exercises any power conferred by or under this Act shall be guided by the following principles:

…

(d)     The principle that consideration should be given to the wishes of the child or young person, so far as those wishes can reasonably be ascertained, and that those wishes should be given such weight as is appropriate in the circumstances, having regard to the age, maturity, and culture of the child or young person:

(e)     The principle that endeavours should be made to obtain the support of—

(i)   The parents or guardians or other persons having the care of a child or young person; and

(ii)  The child or young person himself or herself—

to the exercise or proposed exercise, in relation to that child or young person, of any power conferred by or under this Act:

[124]   There are then provisions dealing specifically with the rights of children and young persons when they are being questioned:

Rights of children and young persons when questioned, charged with offence, or arrested

215    Child or young person to be informed of rights before questioned by enforcement officer

(1)  … [E]very enforcement officer shall, before questioning any child or young person whom there are reasonable grounds to suspect of having committed  an offence,  or  before  asking any child  or young person  any question intended to obtain an admission of an offence, explain to that child or young person—

…

(b)   Subject to subsection (2) of this section, that the child or young person is not obliged to accompany the enforcement officer to any place for the purpose of being questioned, and that if the child or young person consents to do so, that he or she may withdraw that consent at any time; and

(c)   That the child or young person is under no obligation to make or give any statement; and

(d)   That if the child  or  young person consents  to  make  or  give  a statement, the child or young person may withdraw that consent at any time; and

(e)   That any statement made or given may be used in evidence in any proceedings; and

(f)   That the child or young person is entitled to consult with, and make or give any statement in the presence of, a barrister or solicitor and any person nominated by the child or young person in accordance with section 222 of this Act.

(2)  Nothing in paragraph (a) or paragraph (b) of subsection (1) of this section applies where the child or young person is under arrest.

(3)  Without limiting subsection (1) of this section, where, during the course of questioning a child or young person, an enforcement officer forms the view that there are reasonable grounds to suspect the child or young person of having committed an offence, the enforcement officer shall, before continuing the questioning, give the explanation required by that subsection.

[125]   Section 215A requires further explanations to be given if there is an inquiry from the child or young person as to the matters dealt with in s 215:

215A Rights to be explained to child or young person on request

Subject to sections 233 and 244 of this Act, where—

(a)   Any enforcement officer is questioning any child or young person in relation to that child's or young person's involvement in the commission of any offence or suspected offence; and

(b)   That   child   or   young   person   makes   any   enquiry   of   that enforcement officer, being an enquiry that relates (in whole or in part), or that may reasonably be taken as relating (in whole or in part), to any of the matters set out in any of paragraphs (a) to (f) of section

215(1) of this Act,—

that enforcement officer shall explain to that child or young person such of those matters as, in the circumstances of the particular case, are appropriate to the enquiry that was made.

[126]   Section  218  provides  that  all  explanations  have  to  be  given  in  child- appropriate language:

218    Explanations to be given in manner and language appropriate to age and level of understanding of child or young person

Every explanation required to be given to a child or young person pursuant to section 215 … of this Act shall be given in a manner and in language that is appropriate to the age and level of understanding of the child or young person.

[127]   Section 221 deals with the admissibility of statements made.  It provides:

Provisions relating to admissibility of statements made by children and young persons

221    Admissibility of statements made by children and young persons

(1)     This section applies to—

(a)     Every child or young person who is being questioned by an enforcement officer in relation to the commission or possible commission of an offence by that child or young person:

(b)     Every child or young person—

(i)     Who has been arrested pursuant to section 214 of this

Act; or

(ii)     Whom any enforcement officer has made up his or her mind to charge with the commission of an offence; or

(iii)    Who has been detained in the custody of an enforcement officer following arrest pursuant to section 214 of this Act.

(2)     Subject to sections 223 to 225 … of this Act, no oral or written statement made or given to any enforcement officer by a child or young person to whom this section applies is admissible in evidence in any proceedings against that child or young person for an offence unless—

(a)     Before  the  statement  was  made  or  given,  the  enforcement officer has explained in a manner and in language that is appropriate to the age and level of understanding of the child or young person,—

…

(ii)     The matters specified in paragraphs (c) to (f) of section

215(1) of this Act; and

…

[128]   Section 222 deals with the role of nominated persons.  It provides:

222    Persons  who  may  be  nominated  for  the  purposes  of  section

221(2)(b) or (c)

(1)     Subject to subsection (2) of this section, a child or young person may nominate one of the following persons for the purposes of section 221(2)(b) or (c) of this Act:

(a)     A parent or guardian of the child or young person:

(b)     An adult member of the family, whanau, or family group of the child or young person:

(c)     Any other adult selected by the child or young person:

(d)     If the child or young person refuses or fails to nominate any person referred to in any of paragraphs (a) to (c) of this subsection, any  adult  (not  being  an  enforcement  officer)  nominated  for  the purpose by an enforcement officer.

(2)     Where an enforcement officer believes, on reasonable grounds, that any person nominated by a child or young person pursuant to subsection (1)(a) or (b) or (c) of this section,—

(a)     If permitted to consult with the child or young person pursuant to section 221(2)(b) of this Act, would attempt, or would be likely to attempt, to pervert the course of justice; or

(b)     Cannot with reasonable diligence be located,  or  will  not be available within a period of time that is reasonable in the circumstances,—

that enforcement officer may refuse to allow the child or young person to consult with that person.

(3)     Where, pursuant to subsection (2) of this section, a child or young person is not permitted to consult with a person nominated by that child or

young person pursuant to subsection (1) of this section, that child or young person shall, subject to subsection (2) of this section, be permitted to consult with any other person nominated by that child or young person pursuant to subsection (1) of this section.

(4)     It is the duty of any person nominated pursuant to subsection (1) of this section—

(a)     To  take  reasonable  steps  to  ensure  that  the  child  or  young person understands the matters explained to the child or young person under section 221(2)(a) of this Act; and

(b)     To support the child or young person—

(i)     Before and during any questioning; and

(ii)     If the child or young person agrees to make or give any statement, during the making or giving of the statement.

[129]   Section 223 deals with spontaneous utterings.  It provides:

223    Section   221   not   to   apply   where   statement   made   before requirements of that section can be met

Nothing in section 221 of this Act applies to an oral statement made by a child or young person spontaneously and before an enforcement officer has had  a  reasonable  opportunity  to  comply  with  the  requirements  of  that section.

[130]   Section  224  deals  with  the  situation  where  there  has  been  reasonable compliance:

224    Reasonable compliance sufficient

No statement shall be inadmissible pursuant to section 221 of this Act on the grounds that any requirement imposed by that section has not been strictly complied with or has not been complied with at all, provided that there has been reasonable compliance with the requirements imposed by that section.

[131]   A further provision that may have some relevance is s 225, which provides:

225  Other enactments relating to admissibility of statements or confessions, or requiring information or particulars to be given, not affected

Nothing in section 221 of this Act limits or affects—

(a)  Any other enactment or rule of law (not being an enactment or rule of law inconsistent with the provisions of that section) relating to the admissibility of statements and confessions; or

…

[132]   Finally,  s 226  deals  with  the  inadmissibility  of  consultation  with  the nominated person.  It provides:

226    Evidence of communications during consultation not admissible

Notwithstanding any other enactment or rule of law, no evidence of any communication (whether oral, written, or in any other form) that occurs between a child or young person and any person with whom that child or young person is consulting pursuant to section 221(2)(b) of this Act while that consultation is taking place shall be admissible on behalf of the prosecution in any proceedings against that child or young person for any offence.

APPENDIX TWO

Canadian Brochure for Parents and Guardians

[133]   The Canadian brochure produced by the Department of Justice Canada for parents and guardians provides as follows (< last accessed

1 July 2008):

If Your Child is in Trouble with the Law

Information for Parents and Guardians

This fact sheet contains general information for parents and guardians of children who are in trouble with the law. It is not intended as a substitute for professional legal advice.

If your child is in trouble with the law, it is best to seek professional legal advice as soon as possible. Having a child involved in the youth criminal justice system is stressful and confusing for both you and your child.

You can help by:

•   giving your child support and encouragement through the process;

•   making sure that he or she gets legal advice;

•   finding out how certain decisions can affect your child, both in the short term and in the long term;

•   learning how the youth justice system works and what role you can play at various stages; and

•   staying informed about what is happening with your child.

The Youth Criminal Justice Act recognizes the important role that a parent or guardian’s support and guidance play in a young person’s life. That is why the Act says that parents and guardians should be kept informed of their child’s involvement in the youth justice system. The Act also provides opportunities at different stages of the process for parents and guardians to get involved.

Your Child Needs Professional Legal Advice

Your child has a right to a lawyer. The Charter of Rights and Freedoms gives this right to anyone who is detained. The Youth Criminal Justice Act confirms and reinforces this right. It also says that the right to a lawyer applies at any stage of the youth justice process. This means that your child has a right to a lawyer whether he or she has been charged, arrested or detained. One of the most important things you can do to help your child is to make sure he or she has the assistance of a knowledgeable criminal lawyer as soon as possible.

Your child should have a lawyer:

•   whether or not you think he or she is guilty;

•   regardless of how serious you think the offence is;

•   who is experienced in criminal law; and

•   as soon as possible.

Getting a Lawyer

Your child has a right to a lawyer. The police must tell your child about this right upon arrest. If your child has to go to court, then he or she has a guaranteed right to a lawyer. This means that even if your child cannot afford to pay for a lawyer, the law says that he or she can get a lawyer anyway. The government will pay for the lawyer in such a case. However, in certain cases, the provincial government may seek reimbursement for the costs of the lawyer after all the court proceedings are done.

Your Child is the Client

It is important to remember that your child’s lawyer works for your child, not for you, even if you are paying for the lawyer’s services. Your child is the client. This means that the lawyer cannot reveal any information about the case to you without your child’s consent. The lawyer’s duty to maintain confidentiality about a case applies to all their clients - in this case, your child. Decisions about how to handle the case will be made by the lawyer and your child, working together.

At the Police Station

Your son or daughter has the right to consult a lawyer and to have a parent or other adult with them when being questioned by police.

Parents often – understandably – respond emotionally when they are called down to the police station to meet their child. You may intuitively want your child to “confess” right away. This is usually not the best way to help your child.

If your child is being questioned at the police station, you should:

•   not try to “fix” the problem yourself;

•   not try to address all of the issues immediately;

•   not make statements to the police;

•   not force your child to make statements to the police; and

•   not encourage your child to waive his or her right to consult with a lawyer.

You should:

•   recognize that your child needs professional legal advice;

•   help your child obtain legal assistance as quickly as possible;

•   take your child home as soon as you can;

•   allow yourself some time to collect your thoughts and to calm down before taking action or making decisions; and

•   provide moral and emotional support for your child, even though it may be difficult to do so.

…

ELLEN FRANCE J Introduction

[134]   I agree with the majority that leave to appeal should be granted but that the appeal should be dismissed.  I also agree that the explanation given to Z about his right  to  consult  and  have  a  lawyer  present  did  not  meet  the  requirements  of s 215(1)(f) of the CYPFA.  In addition, like the majority, I consider the questioning of Z became oppressive.  However, because I take a different view on some of the conclusions of the majority and so would decide the matter on a narrower basis, I am writing separately.

Compliance with s 215(1)(f)

[135]   When considering compliance with s 215 the courts will look carefully at whether or not, consistently with the principles in the CYPFA, the child or young person has understood the rights afforded to them under the Act.  That consideration

will involve an assessment of whether the language being used is appropriate given the age and level of understanding of the child:  s 218.

[136] However, I do not see a need to engraft on to the statutory provisions any additional requirements such as those suggested by the majority at [33] above. In my view, the principle in s 208(h) is reflected in the provisions which follow. In addition, the child or young person will have the benefit of protections available to adults under other statutes such as the BORA and the Evidence Act (s 225 of the CYPFA). The imposition of any other additional protections is a matter for the legislature.

[137]   It follows that I agree that there was no obligation under s 215 to explain the entitlement to free legal advice under the PDLA scheme.  In my view, R v DH was correctly decided.

[138]   The Chief Justice’s Practice Note will apply to questioning of children from

1 August 2007 just as it will to questioning of adults in the situations provided for in the Practice Note.  There is plainly good reason after 1 August for a child to be told, just as adults are, that the right to consult and instruct a lawyer may be exercised without charge under PDLA scheme.

[139]   The majority leave open the question of whether this is a requirement which would be imported into s 215 ([44] above refers).   However, the imposition of such an obligation would involve reading the Practice Note caution into s 215 and also, in effect, into s 221.  That is because s 221 provides that evidence obtained as a result of  non-compliance  with  s  215  is  inadmissible  subject  to  s 224  (reasonable compliance).  Such an approach does not fit with the detailed set of provisions made for the questioning of children or young people in the CYPFA.

[140]   The majority also leave open the question of extending the requirement to inform children about the right under the PDLA scheme to all cases where a child is being questioned in respect of the commission of an offence (see [44] above).  The practicality of such a requirement would be an important factor in deciding that question.  Obviously, in a particular case an officer dealing with, for example, a very

young child may choose to go beyond the strict requirements but whether there is an obligation to do so is more problematic.

[141]   In  this  context,  I  do  not  place  a  great  deal  of  weight  on  the  apparent differences in terminology, that is, between the requirement to “inform” persons of the right to consult a lawyer in s 23(1)(b) of the BORA and the requirement of s 215(1)(f) of the CYPFA to “explain” that right to the child or young person.   In both cases, there may well be issues about whether the explanation is such that it was understood and some weight must be given to the heading to s 215 which is “to … inform…”.  Further, the requirement to “explain” in s 215 is to explain “in a manner and in language that is appropriate to the age and level of understanding of the child or young person” (s 218).  By contrast, the duty of the Court and counsel to explain proceedings to a child in s 10(1)(a) of the CYPFA, for example, is to explain in a manner and in language “that can be understood” by the child or young person.

[142]   I acknowledge that there is some indication that the two words “inform” and “explain” are perhaps intended to import some differences in that when the child is taken to the “enforcement agency office” for questioning about the commission or possible commission of an offence (s 227), the requirement is to “inform” the child of the right to a lawyer.  Ultimately, however, I do not consider that this difference in language will have much practical impact on the nature of the obligation imposed.

[143]   On my analysis, it is not necessary therefore to decide whether or not youth alone would satisfy element (a) in Alo.

[144]   I turn then to whether the officer explained the right to consult a lawyer to Z in a way which complied with s 215(1)(f).  The issue is whether, using the words in R v DH at [17], it was “brought home” to Z that he could get advice from a lawyer about his options at the point at which the police wanted to interview him.

[145]   This Court in R v S (CA220/97) (1997) 15 CRNZ 214 at 220 indicated that where a person expressly elects not to consult a lawyer “it will in general require an extreme case to hold that the statutory provision has nevertheless been breached”. The Court stressed the need for a requirement to be given “a realistic operation”

(at 220).   It does concern me that the end result here is the inadmissibility of the video interview concerning a very serious charge where the Court has not had any evidence from either Z or his father about what they understood.

[146]   I am however, satisfied that when Z said he “sort of” understood what a lawyer was and then went on to agree with the proposition that a lawyer “defend[ed] you “like on TV” and assented to the constable’s question that a lawyer “defended yah when you go to court and stuff” ([60] and [63] above), there was a breach.

[147] In reaching that view I do not place much weight on what are described as Z’s monosyllabic answers (referred to in the context of a discussion of Woodhouse J’s approach at [72] above). He was after all a young boy in a difficult situation and I do not think that in the general case, absent evidence of a misunderstanding, that the officer will be required to go beyond a positive affirmation.

[148]   In my view, Z should have been told that a lawyer could talk to him about matters such as whether or not he should speak to the police, how he answered questions, and generally that the lawyer could tell him about his options.   The recognition that a lawyer could “help you out” did not take matters very far given the focus was on the idea of a lawyer defending a person in court.  The same issues were apparent both before Z went to the Police Station and in the interview.  I agree with the majority that there is useful guidance in the Canadian guidelines on the explanation to be given as to the nature of the right to a lawyer and on the lawyer’s role (see [78] above).  Z should also have been told that he could talk to his lawyer on his own if he wanted that and that the lawyer as well as his father could sit in on the interview.

[149]   I should make it clear that I consider Z did understand he could have a lawyer present as well as his father ([71] above refers).  I do not believe the brief comments in the car would have altered that ([61] above).  But what he did not understand was the role the lawyer could perform for him.

[150]   The case can be decided on the basis of non-compliance with s 215(1)(f).  It is not necessary then to consider matters such as whether or not there was a duty to ensure that legal advice was provided.  In that respect it is relevant that s 4(f)(i) of the CYPFA gives as one of its objects ensuring that where children or young people commit offences they are held accountable and encouraged to accept responsibility for their behaviour.

[151]   I add that I also consider that Z’s father, having read form POL 338, did understand that his role included helping Z to understand his rights (see [91] above). The form says that.  Z’s father said he understood that and there is nothing to suggest that the Court should go behind that affirmation.

Did the interview become oppressive?

[152] I agree that the interview became oppressive broadly for the reasons given by the majority at [107]. The question of the approach to the statements of prospective co-accused is a difficult one. In some cases it would plainly be artificial and unfair not to give the person being interviewed the opportunity to comment on matters which have emerged from the interviews of other possible co-offenders. For example, where the police have information that someone in Z’s position was at the scene of the crime it would be odd if Z was not given the opportunity to comment on that and an interview proceeded on the basis of the suspect’s assertions he was not there.

[153] The problem in this case arose because of the way in which this sort of material was put to Z as is illustrated by the passage from the interview set out at [106]. Having said that, I consider it would be unduly complex (and unnecessary) to require the officer to explain that a co-accused’s statement cannot be used in evidence against the child as discussed in [108] above. Depending on matters of timing, for example, the impact of provisions such as s 27 of the Evidence Act may simply not be known.

Admissibility of parts of the video

[154]   As I take a different view on this aspect ([114] – [117]), I briefly make the following comments.

[155]   First, in terms of s 226 of the CYPFA, I consider it is possible there may be a difference between admissibility to prove a trial issue as opposed to satisfying the court of Z’s understanding in a pre-trial context.

[156]   In any event, I do not consider that the earlier decision in R v Z is wrong. Even if it is not possible to look at what occurred while the interviewing officer was out of the room, the other information relied on by this Court in R v Z (see [26] of the previous judgment) is sufficient to show that Z knew the jeopardy he was in. For example, at [26] the Court noted that Z lied to the police initially about the shoes that he was wearing during the attack. He had hidden those shoes. There is no explanation for this lie other than he knew the nature of his jeopardy. He also plainly did know that the victim was in trouble, because, for example, he talked about how the victim kept “snoring” and did not move although he was kicked in the genitals.

Conclusion

[157]   For these reasons, I agree that the appeal should be dismissed.

Solicitors:

Crown Law Office, Wellington