The Queen v Twidle

[2006] NZCA 339

IN THE COURT OF APPEAL OF NEW ZEALAND

CA339/06

THE QUEEN

v

RENE TWIDLE

Hearing:23 November 2006

Court:Glazebrook, John Hansen and Harrison JJ

Counsel:N Deobhakta for Appellant

M A Corlett for Crown

Judgment:7 December 2006 at 3pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST CONVICTION IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]       Rene Twidle appeals against his conviction on 4 August 2006 following trial before a Judge and jury in the District Court at Hamilton on four counts of unlawful possession of a firearm and one of unlawful possession of explosives.

[2]       Mr Twidle’s notice of appeal is uninformative.  The grounds given are “Caution administered by police officer 1; Interviewed by officer 2, without a caution pursuant to the Bill of Rights Act”.  The written synopsis of submissions filed by Mr Twidle’s counsel, Mr Deobhakta, did not materially illuminate this ground.  However, it became apparent in oral argument that Mr Twidle’s appeal lay against a decision by Judge Burnett delivered before trial dismissing his challenge to the admissibility of an inculpatory statement made to a police officer.

District Court

[3]       Evidence was given at the pre-trial hearing that at about 3 pm on 28 September 2005 members of the police armed offenders squad at Hamilton, including Constable Paea, were called to an incident at Ngaruawahia about 25 km away.  Constable Paea located and spoke to Mr Twidle on the roadside at about 4.06 pm.  The officer asked Mr Twidle to put his hands in the air and advised of his intention to detain and search him pursuant to s 61 of the Arms Act 1983. 

[4]       Constable Paea said that he then advised Mr Twidle:

… that if he wished to consult or instruct a lawyer or solicitor he could do that in private without delay if he so wished and that what he had to say could be given in evidence.

[5]       The Judge accepted that this advice accorded with the officer’s statutory obligation: s 23(1)(b) New Zealand Bill of Rights Act 1990 (NZBORA).  However, Mr Deobhakta submitted that Constable Paea should have gone further and inquired whether Mr Twidle did in fact wish to consult and instruct a lawyer rather than merely informing him of this right.  Judge Burnett rejected this proposition.  She also found that Mr Twidle communicated to Constable Paea his understanding of the nature and effect of the officer’s advice.

[6]       At about 4.10 pm Constable Paea passed responsibility for Mr Twidle’s custody to Detective Sergeant Ross.  The detective twice advised Mr Twidle of his s 23(1)(b) right to consult or instruct a lawyer; first at 5.15 pm at the Ngaruawahia Police Station and second at 5.45 pm at the Hamilton North Police Station.  Before Judge Burnett, Mr Deobhakta did not challenge the adequacy of this advice.  Instead he argued that its effect was spent or expired before Mr Twidle made an inculpatory oral statement to the detective shortly after 5.45 pm.  The interview lasted for about 10-15 minutes.

[7]       The Judge also rejected this submission and concluded that evidence of Mr Twidle’s statement to Detective Sergeant Ross was admissible at trial.

Decision

[8]       Mr Deobhakta’s argument on appeal was based on two grounds.  First, Mr Deobhakta submitted that Constable Paea’s original s 23(1)(b) advice to Mr Twidle was defective or inadequate because he failed to inquire whether he wished to instruct a lawyer and that Judge Burnett wrongly found to the contrary.  When pressed to provide a jurisprudential basis for this submission, Mr Deobhakta answered that it arises out of the plain words of s 23(1)(b).  He did not attempt to develop this submission by a reasoned statutory analysis or reference to the leading authorities.

[9]       The Court has settled the relevant principles: see R v Mallinson [1993] 1 NZLR 528 per Richardson J at 531. In summary, the inquiry in a case of this type is whether or not the suspect’s constitutional rights were adequately brought home to him. His or her statutory entitlement is to be informed of the right to consult and instruct a lawyer without delay whenever he or she is arrested or detained under any enactment. An officer when advising a suspect of his or her s 23(1)(b) rights is not under a duty to go further and give advice designed to facilitate the exercise of that right. Any duty to facilitate the manner of the exercise of the right is not triggered until the suspect indicates a desire to consult a lawyer. Proof of advice of the right should lead to the inference that the suspect has understood it unless the circumstances call for obvious care and further inquiry.

[10]     A number of cases have since considered situations where, in the particular circumstances, more is required from a police officer than a bare statement and acknowledgement of rights on the basis that the suspect was not in a position to make an informed choice: R v Schriek [1997] 2 NZLR 139; R v Ji [2004] 1 NZLR 59. However, Mr Deobhakta did not suggest that Mallinson, which is binding on us, or any of the later authorities were wrong or identify any circumstances which might have required Constable Paea to take the positive step of inquiring whether Mr Twidle did in fact wish to instruct a lawyer.  He acknowledged that he was bound by Judge Burnett’s factual finding that Mr Twidle understood the nature of the officer’s advice.  That conclusion spelled the obvious end to his argument. 

[11]     Second, Mr Deobhakta submitted that Detective Sergeant Ross was legally obliged at 4.11 pm to repeat the same advice given by Constable Paea at about 4.06 pm.  He described the involvement of the second officer as “a new intervening circumstance”, raising a requirement for fresh advice.  He said that the detective’s failure to administer a caution at that point was a prima facie breach of the NZBORA and “renders all statements by [Mr Twidle] from this point on as inadmissible evidence”.  The apparent purpose of this argument was to exclude an oral statement made by Mr Twidle to the detective starting at 4.12 pm.

[12]     Mr Deobhakta was unable to articulate the basis for this novel duty.  He did not cite any authority in support, and we have not found any in the terms of the statute or at common law.  He did not, for example, refer to any evidence that Mr Twidle had forgotten Constable Paea’s advice in the six minutes before speaking with Detective Sergeant Ross.  The futility of this submission was demonstrated by Mr Deobhakta’s acceptance that Mr Twidle’s oral statement given at 4.12 pm was exculpatory.  Its exclusion would not have assisted his defence at trial.  We reject this submission.

[13]     Mr Deobhakta accepted the adequacy of the s 23(1)(b) advice given again by Detective Sergeant Ross to Mr Twidle separately at 5.15 pm and 5.45 pm.  He did not pursue his brief written submission that any or all of the three s 23(1)(b) cautions were spent or inadequate by the time Mr Twidle made his inculpatory statement to Detective Sergeant Ross just after 5.45 pm.  He was correct not to do so.  The submission was obviously unsustainable.  Indeed, during the hearing Mr Deobhakta accepted that the statement was clearly admissible.  It is thus inexplicable that Mr Twidle, who had no defence as a consequence of Judge Burnett’s ruling, did not plead guilty and obtain the appropriate sentencing credit. 

[14]     Mr Deobhakta’s written synopsis contained a submission that this Court’s decision in R v Shaheed [2002] 2 NZLR 377 “is in need of revision”. He opened by forecasting his intention to “test the waters”. Apart from failing to identify a legal or evidential foundation for invoking the Shaheed principles, Mr Deobhakta does not appear to understand the fundamental principle of stare decisis.  This Court is bound by its own decisions except in a very limited category of case: R v Chilton [2006] 2 NZLR 341 (CA). We record also that Shaheed was decided by a Full Court (seven members) and that its principles are now adopted in the Evidence Bill which has been passed by Parliament.

Conclusion

[15]     This appeal was misconceived and we dismiss it.  Mr Deobhakta confirmed that Mr Twidle was in receipt of a grant of legal aid and that he had certified to the Legal Services Agency that the appeal was arguable.  At the conclusion of the hearing Mr Deobhakta accepted that the appeal must fail.  He explained that he had only come to that conclusion with the benefit of observations from members of the Court. 

[16]     That explanation does not justify counsel’s pursuit of hopeless grounds or an abject failure to provide reasoned argument in support.  We direct the Registrar to send a copy of this decision to the Legal Services Agency and to the President of the Waikato District Law Society.

Solicitors:

Crown Law Office, Wellington