R v Z (CA318/07) - [2007] NZCA 401

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 NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.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DJudgment not to be published in news media or on internet or other publicly accessible database until final disposition of trial.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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v Z (CA318/07)

Details

AGLC: R v Z (CA318/07) [2007] NZCA 401
Case: [2007] NZCA 401
Decision Date: 10 September 2007

CaseChat Overview and Summary

In the case of R v Z, the Crown appealed against a pre-trial ruling of Baragwanath J, delivered in the High Court at Auckland on 22 June 2007. The issue before the Court of Appeal was the admissibility of a video statement and a reconstruction interview of the respondent, Z, with the police on 4 April 2006. Baragwanath J held that these were inadmissible because Z did not comprehend the real substance of the likely allegations against him at the point of either the initial interview or the reenactment. The Crown argued 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 the New Zealand Bill of Rights Act (BORA) and the Children, Young Persons, and Their Families Act 1989 (CYPFA).

The Court of Appeal found that the totality of the evidence called by the Crown established that Z knew the gravity and seriousness of the matter about which he was to be interviewed. Z knew that it was likely that Mr Martin could die, and that Mr Martin's condition was a result of the beating he had suffered at the hands of Z and his co-accused. The Court was satisfied that Z had the requisite knowledge to make an informed decision about whether to speak to a lawyer. The absence of perfection in the police approach was not the test; the question was whether, in all the circumstances, the Crown had established that Z knew enough to make an informed decision. The assessment was not of what the police said, but of what the suspect knew. Z clearly knew what had occurred and its full ramifications. He knew the real substance of the likely allegations against him.

The Court of Appeal allowed the appeal and made an order that the interview and the evidence of the reconstruction were admissible at trial. The Court declined to adjudicate upon the issue of whether Z was told he could obtain free legal advice, as this point had not been properly addressed in the High Court.

Orders