The Queen v Haapu

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA88/02

THE QUEEN

V

MATENE BRUCE HAAPU

Hearing:	18 September 2002
Coram:	McGrath J Chisholm J Chambers J
Appearances:	T M Petherick for Applicant A Markham for the Crown
Judgment:	26 September 2002

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

A confession under challenge

On Thursday, 5 July last year, Matene Haapu, a young man aged 18 years, was arrested at his home by Senior Constable Pouwhare for breaching his bail. As well as arresting him for that matter, Constable Pouwhare advised Mr Haapu that he wished to speak to him about another matter entirely. That was the burglary of the Noel Leeming store in Hastings which had taken place a week or so earlier. The Police suspected that Mr Haapu had been involved in that burglary.
Mr Haapu was taken to the Hastings police station. He was questioned and then signed a statement. He denied being involved in the burglary but admitted receiving property from it. The Police formally charged Mr Haapu with receiving and breach of bail. He was then taken to the Police cells.
At about 9 pm that night, Senior Constable Pouwhare received a message from the watchhouse that Mr Haapu wanted to talk to him. A 20 minute conversation between Senior Constable Pouwhare and Mr Haapu then took place. Towards the end of that conversation, Detective Pritchard came into the room and joined in. We shall refer to the details of this conversation later in the judgment. Following this conversation, Mr Haapu returned to the Police cells.
The next morning, Senior Constable Pouwhare visited Mr Haapu again. On this occasion, Mr Haapu allegedly confessed to the burglary. It is that alleged confession which is at the heart of this appeal.
Mr Petherick, Mr Haapu’s lawyer, advised the Crown that the defence challenged the admissibility of the Friday morning confession. The Crown then applied under s 344A of the Crimes Act 1961 for a ruling that evidence detailing the Friday confession was admissible. That application was heard in the District Court at Napier on 20 February this year. The judge ruled that the evidence was admissible. From that decision, Mr Haapu has sought leave to appeal. His application for leave to appeal was filed out of time. The Crown did not, however, oppose the application for extension of time.

Issues on the appeal

There were essentially two issues on the appeal. The first was whether the Police had acted improperly with respect to their interviewing of Mr Haapu. Mr Petherick, who appeared on the appeal for Mr Haapu, submitted that the overall effect of the Police techniques was improper. He submitted that there had been breaches of the New Zealand Bill of Rights Act 1990, breaches of the Judges’ Rules, and that generally the alleged confession was unfairly obtained. Ms Markham, for the Crown, accepted that there had been a breach of the Judges’ Rules but rejected the other complaints.
The second issue was what consequence should follow if we were to find improper Police conduct. Mr Petherick submitted that the evidence should be declared inadmissible.
We shall consider those issues in turn.

The Police conduct

Mr Petherick submitted that the Police conduct should be assessed not only in context but also for its cumulative effect. Clearly, that is right. So far as context is concerned, Mr Petherick stressed that Mr Haapu was an 18 year old who had never before been to prison. He was arrested on the breach of bail matter at about 11.30am on the Thursday. Accordingly, by the time of the alleged confession on the Friday, he had been in custody for almost 24 hours. It is quite clear from the evidence that Mr Haapu was extremely concerned about his predicament and was desperate to obtain bail.
Mr Petherick’s first complaint about Police conduct relates to the Thursday night conversation. Mr Haapu was brought from the Police cells to an interview room where he talked first to Senior Constable Pouwhare and later to Detective Pritchard as well. By the time of this interview, Mr Haapu had given his statement and had been arrested and charged with respect to receiving. Neither police officer made any notes with respect to this interview. According to Senior Constable Pouwhare, the main thrust of this conversation was in relation to bail. Mr Haapu gave a number of personal details to the police officer. Senior Constable Pouwhare then told him that he should try to tidy up everything. He said that he did not believe that he was not involved in the burglary. Senior Constable Pouwhare ‘put it to him that he in fact had done the burglary’. He said that he should make a ‘clean start’. Mr Haapu continued to deny involvement in the burglary.
At some point, Detective Pritchard entered the room. According to Senior Constable Pouwhare, he too ‘challenged Mr Haapu in relation to the burglary’. Senior Constable Pouwhare also admitted under cross-examination on the voir dire that Detective Pritchard made a comment along the lines that Mr Haapu was leading to a life of crime, the implication being that, if he wanted to make ‘a fresh start’ as he said he did, then he should make a frank confession of his role in the burglary. Detective Pritchard added, according to Senior Constable Pouwhare, ‘You’re so young. If you go into prison, [you will be sodomised].’ The interview ended, according to Senior Constable Pouwhare, with him advising Mr Haapu to ‘sleep on it, think about it’. His final comment was, ‘Let’s hear the truth in the morning.’
Mr Petherick submitted that the challenges to the truth of Mr Haapu’s earlier statement amounted to a breach of r 7 of the Judges’ Rules. Rule 7 reads:
A prisoner making a voluntary statement must not be cross-examined, and no question should be put to him about it except for the purpose of removing an ambiguity in what he has actually said. For instance, if he has mentioned an hour without saying whether it was morning or evening, or has given a day of the week and day of the month which do not agree, or has not made it clear to what individual or what place he intended to refer in some part of his statement, he may be questioned sufficiently to clear up the point.
It has previously been said in this court that the Judges Rules ‘in their literal form [are] largely obsolescent’: see R v Butcher [1992] 2 NZLR 257 at 266. This is certainly true of rule 7 which, in its literal form, has ‘an element of unreality’, as the learned authors of Adams on Criminal Law have remarked: see para Ch2.4.07(1).
We do not find it necessary to determine whether there was a breach of rule 7. We nonetheless see the Thursday night conversation as an important backdrop to the Friday morning conversation. All we need say is that, as a general rule, the Police should not, after a suspect has made a statement and has been arrested and charged, express doubts to the accused about the truthfulness of his or her statement in an attempt to encourage the accused to confess. This was not a situation where the Police had any fresh information on which they might legitimately seek comment after administering normal rights and a caution.
Much more serious than the challenge to the truthfulness of the statement were Detective Pritchard’s comments. It was quite inappropriate to tell an 18 year old who had never been to prison that, if he went to prison, he was likely to be sodomised. There can have been only one purpose in saying that to Mr Haapu. It was intended to frighten him. We accept Mr Petherick’s submission that it was threatening. There was clearly too, at the very least, a promise implicit in the threat: you may be able to avoid that fate if you confess. Think on it. Sleep on it.
The next morning, Senior Constable Pouwhare saw Mr Haapu again in one of the interview rooms. He made no attempt to see whether video interview facilities were available. He said that that was because he did not know what Mr Haapu wanted to speak to him about. He said he thought Mr Haapu might simply want to supply information about recovery of property. Instead, he started talking about the burglary itself. He said that Mr Haapu spoke in detail about the burglary. He agreed that he had asked questions ‘to clarify and elicit information’. Apart from making some very rough notes, Senior Constable Pouwhare made no attempt to record Mr Haapu’s statement or his own questions and the answers to them.
After the interview was over, Senior Constable Pouwhare did go away and write up some notes. They were not in question and answer format. At no stage did he return to see Mr Haapu to have the notes checked and signed.
Mr Petherick made a number of complaints about this interview. The first was whether, at the start of the conversation, Mr Haapu should have been reminded of his right to consult and instruct a lawyer and whether he should have been cautioned that anything he said would be taken down in writing and might be given in evidence. It was common ground that Mr Haapu was not advised of his rights at any time on the Friday morning.
Ms Markham submitted that there was no need for Mr Haapu to be advised of his rights on the Friday morning because he had been told those rights the previous day. It is true that he had been given his rights at 12.30 pm the previous day before he gave his written statement. It may well be that the rights were repeated at the conclusion of the interview when Mr Haapu was formally charged. But a long period of time had elapsed and it must have been clear to Senior Constable Pouwhare as a result of the Thursday night conversation that Mr Haapu might well want to give a fresh statement or an additional statement on the Friday morning. That, after all, had been the point of the Thursday night conversation from the Police perspective. It had been intended to put pressure on Mr Haapu to come clean, to tell the truth. It is disingenuous for Senior Constable Pouwhare to excuse his failure to give Mr Haapu his rights on the Friday morning by an assertion that he did not know what Mr Haapu wanted to talk to him about. He knew that the topic would be Mr Haapu’s offending. He admitted at one point in his examination-in-chief that he did go ‘expect[ing] to hear about the Noel Leeming burglary’, a statement he repeated in cross-examination. But even if, as he also said, he thought that it was just going to be a talk ‘about him supplying information about recovery of property’, he should still have given Mr Haapu his rights.
We believe that he did not accord those rights because he feared that if he did so, Mr Haapu would clam up. That is precisely why the rights must be given. Statements to the Police must be voluntarily given by people properly informed of their rights. It is only in that way that the courts can be satisfied of the voluntariness of the statement and of an informed waiver of the right to silence.
The absence of the communication of rights and caution was then compounded by Senior Constable Pouwhare’s conduct during the rest of the interview. He did not make notes in question and answer form. He did not suggest a videotaped interview. The manner in which the interview was conducted was in clear breach of the Judges’ Rules and of proper Police practice. Ms Markham described the breach as ‘technical’. We do not agree. We consider that Senior Constable Pouwhare adopted the practice he did because, once again, he was fearful that, if he recorded the interview as he should have done, Mr Haapu would realise that what he was saying would be used in evidence. Senior Constable Pouwhare obviously thought that this would stop the confession flowing.
Senior Constable Pouwhare accepted, in answer to a question from the judge, that he had developed a relationship of confidence with Mr Haapu and had become in effect ‘a shoulder to cry on’. Senior Constable Pouwhare clearly wanted to take advantage of that confidence on the Friday morning. Had he started to record questions and answers, as he should have, he no doubt perceived a risk that Mr Haapu would once again regard him as investigating police officer rather than ‘a shoulder to cry on’.
Finally, we then have Senior Constable Pouwhare’s unusual behaviour after the interview. He made no attempt to write up his notes in Mr Haapu’s presence. According to his deposition statement, he did not write up his notebook until after Mr Haapu had returned to the cells. He did not record the statement in question and answer form, despite conceding that at least part of the interview had been conducted in that way. No doubt that was because he could not remember precisely the questions and answers. No one could criticise him for that. It is because the exact questions and answers so quickly disappear from mind that the Judges’ Rules and proper Police practice dictate that questions and answers should be recorded contemporaneously.
Even after writing up his notebook, he did not, however, show it to Mr Haapu so that he could sign it and correct it if he wished. There was a clear breach of rule 9 of the Judges’ Rules. Senior Constable Pouwhare’s reason for not showing it to Mr Haapu was that he was called away on other urgent Police business. That would not have prevented him, however, showing his notebook entry to Mr Haapu as soon as possible thereafter. Indeed, he did see Mr Haapu in prison the following Monday. He accepted that he had his notebook with him when he saw Mr Haapu. He did not, however, show him the entry or have him confirm it. When asked why he did not, he replied, ‘Probably too late, I would imagine.’ Better several days late than not at all.
In reciting what happened on 5 and 6 July last year, we have relied entirely on the evidence given by Senior Constable Pouwhare, as Mr Haapu did not give evidence on the voir dire. We are disturbed at what happened on the Thursday evening and the Friday morning. There were, in our view, clear breaches of the Bill of Rights and of the Judges’ Rules. We also consider the references to sodomisation in prison to be improper. The overall circumstances and their cumulative effect are what is important. They leave us distinctly uneasy about the evidence which Senior Constable Pouwhare would now seek to give reading from his notebook. The notes, if made when Senior Constable Pouwhare says they were made, would be sufficiently close to the event to justify giving him leave to refer to the notes for purposes of refreshing his memory. The consequence will be, as Eichelbaum CJ observed in R v Dally [1990] 2 NZLR 184 at 190, ‘the reconstructed version assumes the appearance of a proper contemporaneous record’. The reality is, as the former Chief Justice observed, that it is rare indeed for an accused to be able to mount a successful attack on the accuracy of the evidence given in these circumstances. We consider that that observation applies forcefully in the present circumstances.

Should the confession be ruled inadmissible?

We have found that there was a breach of Mr Haapu’s rights under the Bill of Rights and under the Judges’ Rules. That does not mean, however, that Senior Constable Pouwhare’s evidence as to what Mr Haapu allegedly said at the Friday meeting should be ruled inadmissible. What is now required is that we undertake the balancing exercise set out in R v Shaheed [2002] 2 NZLR 377. This court said in Shaheed that the balancing exercise would not be necessary in cases where the breach of an accused’s rights was ‘obviously trivial’ (ibid at para 146). It will be apparent from the above discussion that this case is not in that category.
The first point to be made is that the rights surrounding the taking of statements by the Police are very important rights. The risks inherent in improper Police conduct in the taking of statements have long been recognised by the courts. They are reflected in the promulgation of the Judges’ Rules almost a century ago. They are reflected in the guaranteed right to a lawyer on arrest or detention and to be informed of that right. The primary purpose of that right is so that suspects and accused know that they do not need to give any explanation to the Police and that, if they do, what they say can be used in evidence. As this court said in Shaheed, the more fundamental the value which the right protects and the more serious the intrusion on it, the greater will be the weight which must be given to any breach (ibid at para 147).
The next matter to be considered is whether the ‘breach has been committed deliberately or in reckless disregard of the accused’s rights or where the police conduct in relation to that breach has been grossly careless’ (ibid at para 148). Breach, in such circumstances, will almost always lead to exclusion of evidence obtained as a result of breach. We think that in this case the Police conduct was at least ‘grossly careless’.
The next matter which should be considered is the nature and quality of the disputed evidence. In that regard, this court noted that ‘the reliability of confessional evidence obtained by means of a breach of a right will often give rise to concerns that its use at trial would be unfair’ (ibid at para 151). Here, we do have some concern about the reliability of Senior Constable Pouwhare’s evidence. It is only his recollection of a reasonably lengthy interview. He made no attempt to have it checked by Mr Haapu, even though he had it with him when he saw Mr Haapu several days later. His explanation that he did not show it to him because it was ‘too late’ makes little sense. The effect of the evidence is likely to be very significant, however. It will be read from the notebook as if it were a contemporaneous record. Despite cross-examination as to how that record was completed, it is unlikely that its superficial appearance of accuracy will be able to be dented.
The next factor to consider is the seriousness of the crime and the centrality of the evidence to the prosecution’s case (ibid at para 152). While burglary is a serious offence, it is not in the same league as, say, murder. As well, the Crown does have other evidence supporting the charge of burglary, including an alleged confession to a mate. In addition, the Crown still has Mr Haapu’s confession to receiving. This is not a case where the exclusion of the evidence will necessarily of itself lead to failure of the Crown case. In any event, if the consequence of our ruling is an inability to prosecute Mr Haapu for burglary, it cannot be said that it would be a remedy disproportionate to the breach.
Balancing all these considerations, we are satisfied that Senior Constable Pouwhare’s evidence of the Friday morning interview must be excluded. We are satisfied that that response is proportionate to the character of the breach and that its exclusion will not undermine ‘an effective and credible system of justice’ (ibid at para 156). Indeed, we consider that exclusion of the evidence is important for upholding ‘an effective and credible system of justice’.

Result

For these reasons, we give Mr Haapu leave to appeal against the order of the District Court declaring the evidence to be admissible. We allow his appeal. We set aside the District Court order and in its place we make an order declaring Senior Constable Pouwhare’s evidence as to the Friday morning interview inadmissible.

Solicitors
Gresson Grayson & Calver, Hastings, for the Appellant
Crown Law Office, Wellington

[2002] NZCA 254

26 September 2002