The Queen v Justin Richard McGinty

[2002] NZCA 220

IN THE COURT OF APPEAL OF NEW ZEALAND CA129/02

THE QUEEN

V

JUSTIN RICHARD MCGINTY

Coram:	Keith J McGrath J Glazebrook J
Counsel:	J D Dallas for the Appellant A Markham for the Crown
Judgment (on the papers):	25 September 2002

JUDGMENT OF THE COURT DELIVERED BY KEITH J

1. This appeal against conviction has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001. The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

2. On trial before a jury in the District Court at Wellington the appellant was convicted on one count of possession of cannabis for the purpose of sale.  He was sentenced to nine months imprisonment.  The ground on which the appeal is based is that the trial Judge erred in allowing the appellant’s videotaped statement to be admitted at trial. The appeal against sentence has been formally abandoned and is accordingly dismissed.

Facts

1. In March 2001 the police executed a search warrant at the appellant’s address.  Two cannabis cigarettes were found in the appellant’s wallet and 21 cannabis bullets were found in the room in which the appellant was sleeping. The appellant, then aged 19, was advised of his rights and at the police station exercised his right to contact a lawyer.  After speaking to the lawyer in private the appellant invited Detective Reece to speak to his lawyer.  The lawyer advised Detective Reece that he had advised the appellant not to make a statement.  Detective Reece spoke to the appellant telling him that, although he respected the advice that he had been given, it was ultimately a decision for the appellant whether or not to make a statement.  He also told him this was the only opportunity he would have to explain how the cannabis bullets came to be in his bedroom.  The videotaped interview then began.

2. In the videotaped interview, the appellant denied owning the cannabis bullets, but did admit to owning the cannabis cigarettes.  The police subsequently found the appellant’s fingerprints on the tinfoil from two of the cannabis bullets.  The appellant changed his story at trial, saying that he had been given a bag of cannabis and had then packaged it into bullets for the purpose of ‘rationing them out’. 

3. On the morning of the trial counsel for the appellant raised objection to the admissibility of the videotaped interview.  Counsel for the appellant had argued that although the appellant had indicated that he did not want to make a statement, he had felt pressured into doing so.  The appellant gave evidence that he was told the interview was part of the procedures to record his name and details.  After voir dire, the Judge found that the interviewing police officer had advised the appellant of his rights on several occasions throughout the process and had ensured that the appellant understood them. The appellant had exercised his right to consult a lawyer in private. The right of the appellant to decline to say anything was impressed upon him three times during the interview and the appellant demonstrated his own understanding of this by answering some questions but declining to answer others. The appellant had expressed no unwillingness to undergo the interview, and his statement was largely exculpatory. The Judge accordingly held that the appellant was not pressured so as to render the video statement unfairly obtained. It was thus held to be admissible at trial.

Decision

1. On appeal the appellant repeats the submission made in the High Court that the appellant was pressured to make a statement on video tape.  The appellant submits the statement was therefore obtained in breach of ss23(4)(b) and 25 of the New Zealand Bill of Rights Act 1990 which provide for the rights of persons arrested or detained, and those charged with an offence. 

2. The applicability of the Bill of Rights was not raised in the District Court.  The District Court Judge approached the matter on the basis of fairness.  There was no evidence directed to establishing that at the time of the interview the appellant had been arrested, detained or charged with an offence.  Unchallenged evidence was given that the appellant voluntarily accompanied Detective Reece to the police station.  However, whether the appellant was arrested or detained under an enactment so as to engage the Bill of Rights, is not in our view the crucial question.   Rather, it is whether the admission of the videotaped interview would in all the circumstances be unfair. The real issue is whether the questioning of the appellant, in context, established unfairness to a degree where the proper exercise of a discretion to exclude the evidence required its rejection (T v R (CA 99/99, 30 June 1999)).  This will always be a question of fact and degree (R v Owen (1994) 11 CRNZ 457).

3. We are satisfied that in this case the requisite degree of unfairness was not established and the evidence was rightly admitted.  The appellant was advised of his rights on two separate occasions at the address and again while on video.  It is clear from the appellant’s actions in contacting his lawyer and refusing to answer certain questions on the video he understood those rights.  We do not consider the Detective’s reiteration of the appellant’s choice to make a statement or not as constituting pressure to make a statement.  There is no evidence of inappropriate conduct by Detective Reece in questioning the appellant.  The appellant made no admissions of guilt, repeating only the denials of knowledge he had given when initially questioned by Detective Reece at his address.

4. Further we are not satisfied that the admission of the largely exculpatory videotaped interview resulted in a miscarriage of justice.  The issue at trial was essentially whether the cannabis was for the appellant’s personal use or was packaged for sale.  The only relevance the interview had to the jury was that it showed the appellant telling lies, denying any knowledge of the cannabis.  However the appellant had already made the same denials to Detective Reece when initially questioned at his address.  The evidence of these initial statements was not challenged and was before the jury. The Judge gave a suitable lies direction in the summing up, which is not challenged on appeal.  In these circumstances we do not consider this could have had such an influence on the jury's assessment of the evidence as a whole as to lead to a miscarriage of justice.  

Result

1. The appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington.