R v Z (CA318/07)
[2007] NZCA 401
•10 September 2007
ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR PARTICULARS IDENTIFYING APPELLANT. NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA318/07 [2007] NZCA 401
THE QUEEN
v
Z (CA318/07)
Hearing: 27 August 2007
Court: Robertson, Wild and Fogarty JJ
Counsel: D R La Hood and K Laurenson for Crown
J J Corby for Respondent
Judgment: 10 September 2007 at 12 pm
JUDGMENT OF THE COURT
A
Leave to appeal is granted and the appeal is allowed.
B
An order is made that the interview and the reconstruction are admissible at trial. evidence of the
R V Z (CA318/07) CA CA318/07 10 September 2007
COrder prohibiting publication of name, address or particulars identifying appellant.
DJudgment not to be published in news media or on internet or other publicly accessible database until final disposition of trial.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 OF THE COURT
(Given by Robertson J)
Introduction
[1] The Crown seeks leave to appeal against part of a pre-trial ruling of
Baragwanath J delivered in the High Court at Auckland on 22 June 2007.
[2] The issue is the admissibility of both a video statement of the respondent to the police on 4 April 2006 and his reconstruction interview with the police a little later on the same day.
[3] Baragwanath J held they were inadmissible because the Crown had not shown that “Z comprehended the real substance of the likely allegations against him at the point of either the initial interview or the renactment”.
[4] The Crown submits that the Judge erred in fact and law in holding that Z did not have a true appreciation because he was not sufficiently aware of the jeopardy he faced resulting in a breach of s 23(1)(b) of the New Zealand Bill of Rights Act (BORA) and of s 215(1)(f) of the Children, Young Persons, and Their Families Act
1989 (CYPFA).
Background
[5] Z, who was 14 years of age at the time, was with a group of young males (the others being between 17 and 20) who attacked a Mr Martin in the early hours of the morning of 2 April 2006 at a reserve in Glen Innes.
[6] The Crown case is that Z’s co-accused assaulted the victim, knocking him unconscious and struck and kicked him while he 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.
[7] At 8 am on 4 April 2006, four police officers went to Z’s home. He answered the door, called his parents and they invited the police into the house. Detective Sergeant Nimmo explained that the purpose of his visit was to speak to Z in relation to the serious assault of a man at the Maybury Reserve over the weekend.
[8] Baragwanath J in his judgment continued at [5]:
… His parents told the detective sergeant that they were aware of the assault. Mr Z Sr told the detective sergeant that Z had told him that he had seen a man at the reserve and that he tried to call an ambulance but his cellphone battery had run out. Mr Z Sr said that he knew his son had knowledge of the assault and that he tried himself for over two hours to obtain a truthful account from his son and that he did not believe his son’s account of what happened. The detective sergeant said to Z and his parents that Z needed to be spoken to in relation to the assault and requested their assistance. He introduced Constable Mason to the parents and told him that he would speak with Z.
[9] Later that morning Constable Mason interviewed Z using the police youth justice checklist designed to ensure compliance with the CYPFA.
[10] There is no challenge to the fact that the police officer met procedural requirements under the CYPFA, including advising that Z did not have to accompany the police to the station, could leave at any time and that anything he said could be used in evidence. Z was told he could have a lawyer and was asked if he
understood what this was. He chose to have his father accompany him as a nominated person.
[11] Z was interviewed at the police station over several hours having been given further advice about his rights on his arrival there.
[12] Initially Z denied having kicked the victim, but eventually he made admissions of having done so. He was arrested for assault and given his rights. The father left the police station to tend to his sick wife.
[13] A little later Z was asked if he would assist the police with a video recorded reconstruction of the scene at the Reserve. His rights were again explained and his father returned. In the course of the interchange thereafter he made more incriminatory comments.
Legislative framework
[14] The relevant statutory provisions include s 23 of BORA which provides:
23 Rights of persons arrested or detained
(1)Everyone who is arrested or who is detained under any enactment - (a) Shall be informed at the time of the arrest or detention of the
reason for it; and
(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right;
…
As he was under 17, the CYPFA was engaged, in particular these three provisions:
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.
215Child or young person to be informed of rights before questioned by enforcement officer
(1) Subject to sections 233 and 244 of this Act, every 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 -
…
(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.
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.
High Court case
[15] It was argued on behalf of Z that the statement and the video reconstruction were inadmissible because:
(a) Z was not told he could obtain free legal advice; and
(b)He had no true appreciation of the consequences of waiving his rights to a lawyer because he did not appreciate the seriousness or the jeopardy he was in.
[16] Baragwanath J indicated a degree of sympathy for the first proposition and noted the conflicting views of the Judges in this Court in R v Alo [2007] NZCA 172. He did not reach a concluded position as he decided that the respondent must in any event succeed on the alternative challenge.
[17] On the issue of whether Z had a true appreciation of the consequences of giving up the right to legal advice, the Judge repeated what he had said in R v Warhaft HC AK CRI-2006-057-1581 7 June 2007.
[18] Baragwanath J noted the treatment of another suspect in respect of the death of Mr Martin and said at [35]:
Defence counsel contrast the method of interviewing Z with that of a co- accused, Mr Houma, who is aged 19. That interviewing officer informed him of the allegation of the assault on Mr Martin and said:
This is a serious matter as this man is in hospital in a critical condition and in a coma where he may die. We do not know if he will or not. You need to be aware of how serious the situation is. Do you understand?
He gave an affirmative answer and declined to say anything. The defence say that, in the absence of such approach in relation to Z the Crown has failed to show that when Z made the decision to dispense with counsel he understood the sort of jeopardy he faced.
[19] The Judge concluded at [39]:
It is unnecessary to consider whether in the case of an adult one would be prepared to draw the conclusion that death and a consequential charge of murder were in prospect. In the case of a 14 year old the Crown must surmount two hurdles. The first is that the accused would appreciate the likelihood of death. Mr Z Sr may or may not have told Z of what he had heard; there is no evidence that he did. To assume he did would be to speculate. The second is that the accused would be likely to appreciate that his contribution to the attack could find him facing a murder charge. That conclusion would require some understanding of causation and perhaps of the law of parties. In the absence of a clear warning from the officer I am not satisfied that such a state of mind can be attributed to this 14 year old.
The relevant test
[20] It is common ground that the standard to apply was described by this Court in
R v Robinson CA16/97 12 May 1997 at 5:
… an allegedly voluntary wavier of an accused’s right to counsel must be properly informed: that is, an accused must be possessed of sufficient information to enable him or her to make an informed decision as to whether to speak to a lawyer (R v Tawhiti [1993] 3 NZLR 594, and the [Canadian] authorities therein referred to). It follows that a suspect must know the real substance of the likely allegations against him or her at the point of interview (see R v Etheridge (1992) 9 CRNZ 268; and R v Tihi (1990) 5 CRNZ 472
…) … the appellant did not have to know the precise charge in this case, although that is not to say that there may not be cases in which the precise character of a charge would have to be made to the interviewee.
The Crown’s case
[21] Applications of the approach are to be found in R v Ji [2004] 1 NZLR 59 (CA) and R v Fukushima CA128/04 CA130/04 13 September 2004.
[22] Mr La Hood acknowledged that he faced a substantial hurdle in overturning a finding of fact, but emphasised that, as in the High Court, the respondent did not give or call evidence and the Judge’s findings were based on the evidence of the two police officers called by the Crown together with the transcripts of the relevant interviews. This Court was in as good a position as Baragwanath J to draw inferences.
[23] It was noted that Baragwanath J accepted that, at his home, Z was told that the police wanted to speak to him in relation to “the serious assault of a man at the Maybury Reserve over the weekend”. The evidence was clear that Z knew of the incident being spoken about because he had told his mother about it two days prior to the police questioning him.
[24] Although the police did not directly tell Z that Mr Martin was likely to die, the Crown submits it was unnecessary for them to do so because Z was aware of the substance of the allegations he faced and had the requisite knowledge to enable him to make an informed decision whether to speak to a lawyer.
[25] The Crown argued that the total picture demonstrated this conclusively. Mr La Hood catalogued the crucial evidence, pointing out that the Judge had made no reference to some of it.
[26] First, Z’s answers to the police during interview demonstrated that he knew:
(a)Mr Martin was punched to the ground and rendered unconscious (he referred to him snoring);
(b)whilst in that state, Mr Martin had been repeatedly punched about the head, punched in the genitals, kicked to the head and stomped on the face;
(c) following that, he had himself kicked Mr Martin ‘hard’ once to the back of the head;
(d) following his kick, a co-accused raked his shoe on Mr Martin’s face.
Mr Martin then appeared to have got to his feet but stumbled over again at which point a co-accused again punched him in the face and slammed his face into the ground;
(e) after the attack concluded, Mr Martin was bleeding, mumbling, taking loud deep breaths and had a massive cut and gashes to his head;
(f) after the group left, he and two co-accused went back to scene to look for a phone that a co-accused’s girlfriend had lost. On returning they saw Mr Martin get to his feet, stumble then fall to the ground again at his feet unconscious. Although Z suggested calling an ambulance, there was a problem with the co-accused’s cellphone battery. They then ran from the scene; and
(g) He lied to the police initially about the shoes that he was wearing during the attack. He had hidden the shoes that he had used to kick the victim.
[27] In addition, it was submitted that an interchange between Z and his father in the absence of the police towards the end of the video interview, had material significance. It went thus:
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.
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 [Mr Martin] 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 …
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 …
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.
[28] The Crown argued that the only logical inference from the first two questions and answers was that Z indeed knew at the time he was informed of his right to talk to a lawyer that Mr Martin was not only likely to die, but his co-accused had said Mr Martin was going to die. Mr La Hood submitted that, in the absence of evidence from the respondent to counter the inference or explain the comment, it was not open to the Judge to conclude that Z did not know of the likelihood of death.
[29] In a fall back submission, the Crown argued that at least the latter part of this evidence established beyond doubt that from that point on Z knew of the possibility of death and how Z could be guilty of murder even if he was not the principal offender. Therefore, at least the evidence of the reconstruction should be admitted.
The defence response
[30] Mr Corby argued that on the totality of the evidence it was not established that either Z or his father understood that he was being interviewed as a suspect on a charge of murder if Mr Martin were to die. Although the father knew that Mr Martin’s condition was serious, he was not aware of the alleged extent of his son’s involvement, as confirmed by his indicating how shocked he was when he heard Z admit kicking the man in the head in the course of the interview.
[31] He submitted that the crucial question of whether Z was sufficiently aware of the jeopardy he faced had to be considered from Z’s perspective, that is, the view of a 14 year old boy. He argued in particular that the Court in any event should not treat the admissibility of the videotaped interview and the reconstruction as separate issues but as sides of the same coin.
Conclusion
[32] With respect to the High Court Judge, we are unable to accept that, on the totality of the evidence, it was an available conclusion that this young man did not know the real substance and the seriousness of the likely allegations against him.
[33] It is clear that Z knew that it was likely that Mr Martin could die. He said so during the video interview. Z also knew that Mr Martin’s condition was as a result of the beating he had suffered at the hands of Z and his co-accused. In such circumstances the proper inference is that Z knew that he was being questioned as a party to a potential homicide. No evidence was given by Z or his father to contradict this inference.
[34] We are left with no doubt that the totality of the evidence called by the Crown, bearing in mind inevitable inferences to be drawn from it, and in the absence of any evidential challenge to that material, 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.
[35] Of course it would have been sensible and better if the police officer had been completely forthright in informing Z of the seriousness of the situation, as was the officer who interviewed Mr Houma as noted in [18] above. But the absence of perfection in the police approach is not the test. The question is whether, in all the circumstances, the Crown has established that even although Z was not told of the precise potential charge, he knew enough to make an informed decision. The assessment is not of what the police said, but of what the suspect knew. We are satisfied that Z had the requisite knowledge.
[36] In terms of the additional provisions in the CYPFA nothing arises because there was proper compliance with the statutory code.
[37] Nor is this a case, such as Tawhiti, where the police were holding back information so as to disadvantage or lull a suspect. Z clearly knew what had occurred and its full ramifications. He knew the real substance of the likely allegations about them.
Free legal advice
[38] Baragwanath J, although flagging this issue, reached no conclusion on the factual position, nor did he reach a considered conclusion on the legal test. In those circumstances it is not appropriate for us to enter into a matter without a proper foundation. We therefore decline to adjudicate upon that point. It may require further consideration in the High Court prior to trial.
Result
[39] On the point which was alive in this Court, leave to appeal is granted and the appeal is allowed. An order is made that the interview and the evidence of the reconstruction are admissible at trial.
Solicitors:
Crown Law Office, Wellington
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