The Queen v Ratahi

[2006] NZCA 121

IN THE COURT OF APPEAL OF NEW ZEALAND

CA135/06

THE QUEEN

v

SHANNON RATAHI

Hearing:29 May 2006

Court:O'Regan, John Hansen and Gendall JJ

Counsel:C R Horsley for Appellant

K G Stone for Crown

Judgment:12 June 2006 

JUDGMENT OF THE COURT

Leave to appeal is granted but the appeal is dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1]       The appellant was escorted to a police station for questioning in relation to an offence.  As he entered the police car, he was informed of his right to consult a lawyer and his right to silence under the New Zealand Bill of Rights Act 1990 (Bill of Rights).  He then made inculpatory statements.  Once at the police station, after again being given his rights, he exercised his right to consult a lawyer and resolved not to make any further comments.  He did, however, acknowledge a written summary of what was said in the car and correct one part of it.  The Crown sought to adduce evidence of the statements made in the car at the appellant’s trial.  The appellant opposed this, and the Crown filed an application under s 344A of the Crimes Act 1961.  The statements were ruled admissible.  The appellant seeks leave to appeal to this Court against the s 344A ruling.

Background

[2]       The appellant was 18 years old at the relevant time.  He lives at a holiday park, which his grandfather owns.  On 20 October 2005 a police officer, Constable Morris, attended the holiday park.  He wanted to talk to the appellant about a relationship he was having with the complainant, then a 14 year old girl.  The complainant had come to the attention of police after persistently running away from home to be with the appellant.  Police had been informed of allegations made by the complainant’s parents of a sexual relationship between the appellant and the complainant.  The appellant had previously stayed at the complainant’s parents’ house.

[3]       Constable Morris asked the appellant to accompany him to the police station for an interview.  The appellant agreed.  As the appellant was entering Constable Morris’ police car, Constable Morris advised the appellant that, although he was not under arrest, he was being detained and he had the right to consult and instruct a lawyer in private without delay.  The appellant was also advised of his right to refrain from making a statement and told that anything he said could be adduced in evidence. 

[4]       During the drive from the holiday camp to the police station, the appellant and Constable Morris had a conversation covering a number of topics.  These included the appellant’s sexual relationship with the complainant, and when he became aware that she was 14 years old.  The appellant admitted he had had sex with the complainant and that he had continued the sexual relationship after he found out she was 14 years old.

[5]       Upon arrival at the police station, Constable Morris and the appellant went into an interview room.  At that point, Constable Morris repeated the Bill of Rights warning.  A written record of the statement of the appellant records that the appellant’s first question for police, following acknowledgement that he understood the Bill of Rights warning was, ‘Can I ring a lawyer?’.

[6]       The appellant contacted a lawyer by telephone.  Following the conclusion of his conversation with the lawyer, the appellant was asked if he wished to make a statement.  The recorded reply was ‘Nah’.  Constable Morris then wrote a paragraph summarising the contents of the conversation he had had with the appellant in the police car.  The paragraph began, ‘Just to clarify what we talked about earlier’.  Having written the paragraph, Constable Morris asked the appellant, ‘Is that about right?’.  The appellant responded ‘Nah the first time we had sex was when I moved into her house’.  The appellant then went on to briefly clarify what happened when he moved into the complainant’s parents’ house.

[7]       This summary and exchange was verified and signed by the appellant.

[8]       The appellant was charged with having sexual intercourse with a girl under the age of 16, pursuant to s 134(1) of the Crimes Act 1961.

District Court decision

[9]       In the District Court, Constable Morris read his brief and was cross-examined.  He did not say, and was not asked, whether he had inquired whether the appellant had understood his rights after he had been cautioned in the police car.  Nor did he say whether the appellant had waived his right to counsel.  The appellant did not give evidence at the s 344A hearing, so the only evidence of what happened in the police car came from the constable.

[10]     The District Court Judge, Judge Harding, found that although the appellant was of young age, he was given a Bill of Rights warning in the police car and elected to answer the questions put to him during the car journey.  The Judge found that the fact that the appellant elected to consult a lawyer following his later Bill of Rights warning at the police station demonstrated that the appellant had understood the warning given as he entered the police car to the same extent that it demonstrated that the appellant had a prior desire to seek advice.

[11]     The Judge further noted that if Constable Morris had not afforded the appellant the opportunity to read and acknowledge the summary of the conversation in the car, there would have been a breach of the Judges’ rules.

[12]     The Judge considered that the situation did not ‘smack of unfairness’.  The Bill of Rights warning had been given twice, and availed of once.  Accordingly, there was no basis upon which to exclude the summary of the conversation in the car.

Appellant’s submissions

[13]     Counsel for the appellant, Mr Horsley, submitted that while in the police car there was no evidence that the appellant properly understood his rights so as to make them meaningful and exercisable.  He said it was obvious the appellant could not exercise the right to consult a lawyer when he was in the police car.

[14]     Mr Horsley referred us to this Court’s decision in R v Mallinson [1993] 1 NZLR 528 where this Court said that the onus of proving admissibility lies with the Crown (at 531). Mr Horsley said that once a person is informed of the right to consult a lawyer, an opportunity must be afforded to the person to exercise that right. He argued that, on the evidence before the Court, the Crown could not prove there had been a valid waiver by the appellant of his right to counsel. He said that, in view of the appellant’s youth and lack of sophistication, Constable Morris was not justified in assuming the appellant had understood his rights and waived them.

[15]     Mr Horsley submitted that, if there was a breach of the appellant’s rights, then the balancing exercise mandated by this Court’s decision in R v Shaheed [2002] 2 NZLR 377 should lead to a decision to exclude the evidence of the statements made in the police car.

Respondent’s submissions

[16]     Counsel for the Crown, Mr Stone, submitted that the appellant was properly cautioned and advised of his rights to consult a lawyer and to remain silent.  Mr Stone characterised the statement that the appellant signed as being no more than a formal, written record of evidence, from the conversation in the police car, which was already admissible.

[17]     Mr Stone submitted that, in the absence of any evidence to the contrary, the only reasonable inference is that the appellant understood the Bill of Rights warnings given by Constable Morris.  Mr Stone said Judge Harding was justified in inferring that the fact the appellant subsequently elected to consult a lawyer indicated he understood the effect of the earlier warning given in the police car. 

[18]     Mr Stone said the appellant’s stance at the police station following his discussion with a lawyer, that he did not wish to make a statement, simply meant he did not wish to make a further statement in addition to what he said in the car.  In other words, the subsequent refusal to make a statement did not vitiate the previous statement made in the car.

Discussion 

[19]     In our view this case falls to be determined entirely on the facts.  The Judge inferred from the evidence before him that the appellant had understood the cautions given to him by the constable in the police car, and had waived his right to counsel.

[20]     The appellant did not give evidence at the s 344A hearing, so the Judge did not have the benefit of his version of events.  Instead, he drew an inference from the fact that the appellant exercised his right to counsel after he received the Bill of Rights caution at the police station that it was likely the appellant had understood that right on the previous occasions.  In our view that inference was available to the Judge on the evidence before him, and in the absence of evidence indicating the contrary.

[21]     The factual finding made by the Judge meant there was no factual basis for the appellant’s argument that a breach of the Bill of Rights occurred in this case.  On the facts as found by the Judge, he was entitled to conclude that no breach had occurred and that the evidence of the statements made by the appellant in the police car was admissible.  There is no basis for us to interfere with that finding.

Result

[22]     We grant leave to appeal but dismiss the appeal.

Solicitors:
Adams & Horsley, Tauranga for Appellant
Crown Law Office, Wellington