The Queen v Whareumu
[2000] NZCA 380
•12 December 2000
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA 204/00 |
THE QUEEN
V
KARA WHAREUMU
| Hearing: | 23 November 2000 |
| Coram: | Thomas J Keith J Tipping J |
| Appearances: | T Ellis and A Shaw for Appellant J C Pike for Crown |
| Judgment: | 12 December 2000 |
| JUDGMENTS OF THE COURT |
Judgments
Para Nos
Thomas J [1] – [17]
Keith and Tipping JJ [18] – [50]
THOMAS J
Introduction
The Bill of Rights is a critical document in the constitutional framework of this country. It affirms the fundamental rights and freedoms of all citizens. Integral to that affirmation is the imperative that those fundamental rights and freedoms be protected. This Court must therefore be alert to any erosion of those rights and freedoms and concerned to provide effective remedies where there has been a breach of the Bill of Rights. The jurisprudence which has been developed by this Court since the enactment of the Bill of Rights in 1990 confirms that it has consciously and deliberately discharged that responsibility.
The present appeal, however, falls far short of attracting this protection. Three of the arguments raised by counsel for the appellant, Mr Whareumu, are so without merit they can be, and are, disposed of in a few sentences in the main judgment of Keith and Tipping JJ, delivered by Keith J. The remaining argument relating to the breach of s 23(3) bears an incontrovertible semblance of unreality. Mr Whareumu complains that, had he been taken to Court as soon as possible as required by s 23(3), he would not have made the inculpatory statement – which he denies he ever made! How can there be a causative connection between a breach and a confession if there is no confession? The incongruity in Mr Whareumu’s position is plain to see.
But, says Mr Ellis, who together with Mr Shaw, appeared for the appellant, Mr Whareumu is entitled to rely upon the finding of fact in the Court below that he did in fact make a confession. On this basis, Mr Ellis argued, the confession would not have occurred “but for” the fact Mr Whareumu was not taken to Court as soon as possible. Notwithstanding Mr Ellis’ proclaimed reliance on R v Te Kira [1993] 3 NZLR 257, such a test is clearly contrary to the requirement established in that case that there must be a “real and substantial connection” between the breach and the inculpatory statement. A mere temporal link does not establish the requisite connection.
Indeed, the reasons which Mr Whareumu gave for delaying his confession were that he was waiting to see the strength of the evidence which the police had against him, and that he was reluctant to be the only one held responsible for the burglaries being investigated.
An appeal which is without substance, it must be said, belittles the Bill of Rights. It trivialises a document which should be respected and valued, not only by the citizens it protects, but also by the practitioners who ply their calling under its banderole. The challenge which is mounted incurs the risk of appearing to be less concerned with the estimable purpose of protecting the civil liberties of the subject and more directed at the plebeian function of utilising the Bill of Rights “to get the client off”.
Te Kira distinguished
It may also be mentioned that the departure from the requirement in Te Kira that there be a “real and substantial connection” between the breach and the inculpatory statement is not the only difference which counsel seemingly failed to acknowledge. Consider the following:
Mr Te Kira was uncooperative and obstructive, and was placed and left in a cell while the police carried out investigations elsewhere. Mr Whareumu was co-operative, held in an interview room rather than a cell, and questioned regularly on an apparently amiable basis. Although intermittent, it was an ongoing interview.
In Te Kira the environment at the police station was seen to have been intimidating. It can hardly be said that the environment at the Whangarei Police Station was intimidating to Mr Whareumu. During the course of the day he conversed with the interviewing Constable on such topics as sport, family, and common acquaintances.
In Te Kira the delay resulted from police inquiries which were unrelated to any interview with Mr Te Kira. The cause of the delay in this case related to the ongoing interview with Mr Whareumu. Allegedly stolen articles found in the search of his house were put to him for comment as they came to hand.
In Te Kira the police acted in a way which demonstrated a blatant indifference to Mr Te Kira’s rights. There is no indication of that sort of attitude on the part of the police in the present case. While the detention was prolonged, there can be no suggestion of bad faith. The police did not set out to break down Mr Whareumu’s resolve by virtue of the coerciveness inherent in prolonged detention. He was held so that further items of evidence could be put to him with the expectation that this evidence would carry its own force.
As already indicated, in Te Kira the accused did not deny making a statement. In this case Mr Whareumu denied ever making a statement.
As also indicated above, in Te Kira Mr Te Kira did not give any reason for making an inculpatory statement. In this case, Mr Whareumu explained why he had delayed making an inculpatory statement in explicit language. It had nothing to do with the delay in taking him to court. In response to the question why he had waited so long to admit to the burglaries, he said:
I was just waiting to see what youse had on me. I wasn’t gonna put my hand up for all that … and be the only nigga in here. … that.
Further, it would not be the end of the matter even if a “real and substantial connection” were established between the breach and the confession. It would still be necessary for the appellant to confront two questions:
Whether the appellant was brought to court “as soon as possible” having regard to the reasonable requirements of the police investigation,
Whether the prima facie exclusion rule should apply so as to render the appellant’s confession inadmissible.
“As soon as possible”
Section 23(3) of the Bill of Rights requires anyone who is arrested for an offence and not released is to be brought before a court as soon as possible. Having regard to the length of Mr Whareumu’s detention it is probable that this requirement would not have been difficult to satisfy in this case. But it is a question which would need to be addressed.
It is correct that opinions on this point differed in Te Kira. On the one hand, the line of authority in England beginning with Dallison v Caffery (1965) 1 QB 348, was rejected by Richardson J (at 270), with whom Casey J agreed (at 275). On the other hand, I took the view that the question should be left open (at 277-279). I accepted that the obligation to bring the accused before the court as soon as possible after arrest did not allow for unwarranted trespasses upon a person’s right to personal liberty. To the extent that the English decisions beginning with Dallison v Caffery compromised that position they should not be followed (277-278). But I thought it unwise to foreclose the wider question whether, or to what extent, police questioning must be suspended in order to take an arrested person to court.
I suggested that, with the closer scrutiny possible in the context of an actual case giving rise to relevant facts, the words “as soon as possible” may be found not to preclude reasonable investigatory steps. Continuing questioning to complete the interview of the person arrested as a necessary part of the police investigation is not incompatible with the protection of personal liberty. An interview, prior to which the accused had been properly cautioned and informed of his right to counsel, would nor necessarily need to be cut short in order to take the accused to court. The phrase “as soon as possible” is to be interpreted to read as soon as reasonably possible. Support for this proposition exists in the English line of authorities following Dallison v Caffery, supra, the decision of the Supreme Court of Canada in R v Storrey (1990) 53 CCC (3d) 316 at 325-327, and the judgment of Gibbs CJ in Williams v The Queen (1986) 161 CLR 278, at 284. As to be expected, further cases have been decided in all three jurisdictions which may be found to be relevant to this issue. See, for example, R v Kerawalla [1991] Crim LR 451; R v Keane [1992] Crim LR 306; and R v Khan [1993] Crim LR 54; but see R v Raphaie [1996] Crim LR 812, in the United Kingdom; R v Sullivan (1991) 305 APR 7 (Nfld CA); R v Tam (1995) 100 CCC (3d) 196 (BC CA); and R v MacPherson (1995) 100 CCC (3d) 216 (NB CA) in Canada, and see also R v Clune [1989] VR 567 in Australia.
Since Te Kira was decided, the Law Commission has published a report on police questioning. (Police Questioning, NZLC 31, October 1994). The Report points out that other countries; the United States, England, Scotland and Australia, all of which are parties to the International Covenant on Civil and Political Rights, have legislated to permit delays from 6 to 24 hours in bringing arrested persons to court. Subject to specified safeguards, the Commission recommended that the police be authorised to detain and question a person who has been arrested for a period of six hours from the time the person was or should have been first cautioned where a police officer believes on reasonable grounds that questioning is necessary to preserve or obtain evidence or to complete the investigation into the offence or another offence. The Commission envisaged that application could be made to the District Court for an extension of that period.
It is, of course, not open to this Court to seek to establish the legislative regime proposed by the Commission. But in reaching its decisions this Court is often influenced by the reports of the Law Commission. See, for example, R v Hines [1997] 3 NZLR 526, at 540 and 548-550; R v L [1998] 2 NZLR 141, at 150; and New Zealand Air Line Pilots’ Association Inc v Attorney-General [1997] 3 NZLR 269, at 285. The Commission is Parliament’s official law reform agency and its reports follow extensive research and consultation. Consequently, the Commission’s conclusion (paras 90-91, at 30-31) that its recommendations comply with the Bill of Rights may properly be taken into account. So, too, the Commission’s view (para 102, at 35) that the law needs to be reformed to reflect an appropriate balance between the public interest in effective law enforcement and the public interest in protecting individual rights, bearing in mind that respect for individual rights is itself a public interest, is no less a consideration which this Court should take into account.
The prima facie exclusion rule
Establishing that the prima facie exclusion rule should apply to exclude Mr Whareumu’s confession in this case may well have posed a real difficulty. His counsel will not be unaware of what this Court said in R v Grayson and Taylor [1997] 1 NZLR 399, at 411-412. Although the issue of remedy did not arise for determination in that case, the Court chose to make some brief comments on that question. The Court first observed (at 411-412) that a rights-centred approach might emphasise remedies favouring the person aggrieved, but a broader perspective also looks to the general underlying public interest. That interest involves, in particular, the tension between the affirmation of the rights of the individual and the recognition to be found in particular provisions of the fact that there are limitations on the rights. Notable among these provisions is s 5 of the Bill of Rights, which authorises “reasonable limits prescribed by law [which] can be demonstrably justified in a free and democratic society”. Stressing the importance of correct procedures, the Court mentioned the possibility of other remedies such as a reduction in penalty, an appropriate order for costs, the possibility of police disciplinary proceedings, a criminal prosecution, civil proceedings leading to damages or compensation, a declaration, or future-looking relief.
The Court then briefly referred (at 411) to the experience in other jurisdictions and confirmed that combining the identification of a broad approach to rights with inflexible remedies could lead to an imbalance in individual and community rights. A robust and rights-centred approach to individual rights, it said, is not necessarily inconsistent with flexibility of remedies where rights are breached. A remedy is no less an effective remedy because it is appropriate to the circumstances of the breach rather than a remedy inflexibly applied in respect of all breaches. The Court concluded (at 412):
The formulation of appropriate remedy should be approached broadly. To settle upon a single remedy to be applied in all cases rather than keeping open the full range of possible remedies risks inflexibility and the rejection of possibly more appropriate remedies in particular cases. Similarly the response to any particular breach arguably should be at the appropriate level. It should be no less an effective remedy because it is fashion to bear some relationship to the nature and seriousness of the breach. Whether there should be the same response to breaches of rights in the course of activities resulting in the discovery of real evidence as to breaches of rights in the course of obtaining, for example, confessional evidence also requires careful consideration.
Having regard to the above matters, the Court indicated that, on an appropriate occasion, it would be prepared to re-examine the prima facie exclusion rule. In a case such as the present, particularly having regard to the fact that the appellant denies making the confession which he argues he was induced to make by virtue of his prolonged detention, counsel would be unwise to assume that the prima facie rule of exclusion would be applied without re-examination.
I undertook such a re-examination of the prima facie rule in Te Kira (at 279-288). It is unnecessary to repeat that lengthy exposition. My conclusion was that there were sound reasons to reintroduce a greater measure of flexibility into the application of the exclusion rule. I suggested that a prima facie rule may well impede a proper balancing of the interests of the arrested person and the community in the vindication of fundamental rights with the public interest in the due enforcement of the criminal law. What is important, I suggested, is that the Court, in the exercise of a discretion as to whether or not to preclude the incriminating evidence, should accord the right in issue the weighting which is its due as a fundamental right affirmed in the Bill of Rights. Once this weighting is accorded the right, there is no need to inhibit the Court’s discretion with a prima facie rule which may preclude proper attention being given to a wide range of factors. Prime among these factors will be the nature and seriousness of the breach and the objective of obtaining an effective remedy which is not disproportionate to the breach. While the relevant factors cannot be exhausted and will depend very much on the facts of a given case, the question whether an accused is prejudiced or his or her ability to obtain a fair trial is affected need not be excluded from consideration. Ultimately, the decision whether to exclude the evidence or not must follow from a pragmatic consideration of all relevant factors without at any time losing sight of the basic values underlying the fundamental rights and freedoms affirmed in the Bill of Rights.
It should also be mentioned that the Law Commission in its report, Police Questioning, referred to above, has suggested a change in the law which would effectively make the interests of justice paramount. The Commission recommends (para 102, at 35) that all improperly obtained evidence should be presumptively inadmissible, with special attention being drawn to breaches of the Bill of Rights, but that the Courts should have the ability to admit the evidence if admission is in “the interests of justice”. In determining this interest the Commission stipulated (pp 100-103) that among other relevant factors the Court should consider the significance of the Bill of Rights as an Act to affirm, protect and promote human rights and fundamental freedoms in New Zealand, the nature and gravity of any impropriety, whether any impropriety was the result of bad faith, and whether the evidence existed and would have been discovered or otherwise obtained regardless of any impropriety. With the qualification that, notwithstanding a breach of the Bill of Rights, the Court can admit evidence where the exclusion of the evidence would be contrary to the interests of justice, the Commission’s recommendation does not represent a significant departure from the existing law. But the qualification that the interests of justice are overriding is a vital and important qualification.
KEITH AND TIPPING JJ
(DELIVERED BY KEITH J)
Mr Whareumu, the appellant, was convicted of three counts of burglary following a trial before a Judge and jury on 10 and 11 May 2000. He has appealed against his conviction. The grounds of his appeal centre on the admissibility of a “confession” allegedly given to the Police by Mr Whareumu during a lengthy interview conducted after his arrest, and after the time when he should, it is argued, have been brought before a Court, as required by s23(3) of the New Zealand Bill of Rights Act 1990. The Court is required to consider the effect of that provision, an issue previously addressed by this Court in R v Te Kira [1993] 3 NZLR 257.
A feature of this appeal which gives it an air of unreality is that Mr Whareumu previously denied on oath that he had made the confession in issue. Through his counsel and in spite of the jury’s verdict, he still denies making the confession. Consequently, the Court is in the strange position of considering the admissibility of a confession on the ground that it was induced by the delay in taking Mr Whareumu to Court when he denies making the confession at all. It is a moot point whether the appellant can attempt to take advantage of such an inconsistent stance.
Factual background
Mr Whareumu is a 38 year old resident of Whangarei who, before his arrest, lived with his partner and four children aged eight to 15 years.
(1) The search
At 7:56am on Friday, 23 April 1999, approximately five armed Police arrived at Mr Whareumu’s address to execute a search warrant which had been issued the previous day. The officers were under the supervision of a Constable Kelly Penney. The basis for the search warrant was that, on or about 22 April 1999, Mr Whareumu’s name had been mentioned to Police by an informant in connection with a number of burglaries in the Whangarei area. Firearms were believed to be among the stolen items.
When the Police arrived, Mr Whareumu was asleep. Constable Penney gave evidence that Mr Whareumu’s partner answered the door. The Constable informed her that the Police were there to execute the warrant, and he showed her a copy. He then asked where Mr Whareumu was and was directed towards the bedroom. Mr Whareumu was asked to get out of bed and was then properly cautioned. In reply, he said, “yeah yeah yeah I know all that I’ve been down that road mate”. Constable Penney then handed Mr Whareumu a list of suspected stolen property and asked for his co-operation in locating it. He directed the Police to various items. The Constable also asked Mr Whareumu whether he had any drugs on the premises. He replied in the affirmative and handed the Police a tin containing less than five grams of cannabis leaf.
At 8:20am, Constable Penney arrested Mr Whareumu for possession of the cannabis, cautioned him again, and directed him to come to the Whangarei Police Station. In reply, Constable Penney’s notes record Mr Whareumu as stating:
Yeah. Kelly, straight up man. My missus is straight as. She’s got nothing to do with any of this stuff. Anything you find is what I brought in. I’m gonna go for receiving but I didn’t do no burglaries.
(2) The interview
Constable Penney and Mr Whareumu arrived at the station at 8:37am. Mr Whareumu was taken to an interview room. At 9:00am Constable Penney entered the interview room. Mr Whareumu then asked for a list of the stolen property, perused it, and confessed to receiving certain items on it. Constable Penney’s notes record Mr Whareumu as stating:
I definitely ain’t got no firearms and I didn’t do the burglaries. I’ll put my hand up to receiving but not the burglaries.
Constable Penney’s notes then record him engaging Mr Whareumu in general conversation about sport, family and common acquaintances whilst the Constable waited for “information from search team at [the] address”. This conversation continued “in [the] same vein” for over three hours until 12:35pm. There were short interruptions during this time as Constable Penney sought instructions from his senior officer, Sergeant Ruth, and was updated on other information. At one of these briefings, at 9:24am, Sergeant Ruth informed the Constable and Mr Whareumu that another burglary suspect, a Mr Grimmer, had confessed to the burglaries and had implicated Mr Whareumu. In another update, at 10:44am, the Sergeant informed Constable Penney and Mr Whareumu that Mr Grimmer had taken the Police to an address and had stated that Mr Whareumu was the driver of the car involved in the burglaries. At 12:35pm, an officer involved in the search of Mr Whareumu’s property entered the interview room with items uplifted from Mr Whareumu’s house. Mr Whareumu was then given a comfort stop. At 12:39pm the interview recommenced and lunch was delivered to the interview room.
At 12:56pm, another officer entered the interview room with a signed statement from Mr Grimmer giving details of four properties that he confessed to having burgled together with other associates, including Mr Whareumu. Constable Penney showed this statement to Mr Whareumu, who examined it for two to three minutes. Constable Penney’s notes relate that the Constable explained the full extent of the evidence against Mr Whareumu. The notes then record Mr Whareumu as having confessed to being involved in the burglaries. In answer to the question why he had waited so long before making that confession, he replied in graphic language that he was waiting to see what the police had on him and on his alleged co-offenders; he was not going to be the only one accepting guilt.
The notes record that the interview was concluded at 3:45pm. Mr Whareumu was cautioned again and then asked to sign the notes. He did so, at the top of a fresh page, in these words:
I have read this note book a [sic] it is a accurate record of the events and discussions I have had today with Constable Penney.
At 4:07pm Constable Penney formally charged Mr Whareumu in respect of two burglaries. It is not clear precisely when Mr Whareumu was charged with possession of cannabis. The Crown tentatively submit that he was charged at 9:00am. Mr Pike, who appeared for the Crown, was not confident, however, that Mr Whareumu had not been charged with the cannabis offending until later in the day. Mr Whareumu was then placed in the Police cells. He remained there overnight and was taken to Court the next day, Saturday. Bail was opposed and Mr Whareumu was remanded in custody until 30 August 1999, following the depositions hearing.
Mr Whareumu gave a different account of the interview at his trial. He stated that at around 9:30am Constable Penney informed him that Mr Grimmer and another person had made statements implicating him. He stated that he asked to see the statements and was shown them. He continued to deny involvement with the burglaries and asked for the interview to be terminated. He claims that it was not. He then stated that he only signed the Constable’s notes because he was threatened that, if he did not, his partner would be charged with receiving. He stated that he was never given an opportunity to read the notes he was required to sign.
The proceedings
Between his arrest and his trial, Mr Whareumu had three hearings under s344A of the Crimes Act 1961 in which he sought to have the evidence of his confession excluded from trial. At the first hearing, on 29 October 1999, Mr Whareumu represented himself after having dismissed his counsel. Following discussions with the Judge and opposing counsel, this hearing was abandoned “without prejudice to the accused’s right to renew the application and have it heard afresh after taking legal advice”.
The second hearing was held on 27 January 2000 before Lance DCJ. Three grounds on which Mr Whareumu’s challenge to the admissibility of the confession was based are noted in the Judge’s ruling:
(1)That the confession was extracted at an interview conducted after Mr Whareumu had been arrested for possession of cannabis and had declined to answer any further questions.
(2)That Mr Whareumu generally denied much of what was recorded in Constable Penney’s notes of the interview; and
(3)That Mr Whareumu’s signature was obtained as a result of an inducement.
Lance DCJ concluded as follows:
I have a clear view. The Constable impressed me as a credible witness and one who had taken considerable care in writing up his notebook. The questions and answers are in some occasions written in the vernacular and in terms of continuity, flow and make sense… .One issue gave me slight concern. He was prone to be a little irritated and short at times which is somewhat consistent with what the accused said about how he dealt with him. Nevertheless I find the Constable’s evidence truthful.
Lance DCJ also stated that he did not accept that Mr Whareumu, who “has had some experience with the police”, would “readily sign a notebook saying he had read it and that it was correct if he had not”. Nor did the Judge accept that Mr Whareumu had been offered any inducement to sign. He therefore dismissed the application.
The third voir dire was held before Doogue DCJ on the morning of the trial on 10 May 2000. Not unexpectedly, the Judge expressed displeasure at the short notice of the application. The Judge confined himself to the single ground of the application, namely, that the police had failed to meet their obligations under s23 of the Bill of Rights. He properly declined to consider evidence presented at any earlier hearings, as he had not presided at those hearings and had “no way of making findings on the basis of that evidence”.
The Judge considered that, on the evidence before him, there was no Court sitting on Friday 23 April 1999 in Whangarei. But he accepted that a Court might have been convened if notice had been received before 8:45am that an opposed bail application required a hearing. This notice would have allowed sufficient time to organise a Justice of the Peace to hear the application. The Judge held, however, that the convenience of the Justices needed to be taken into account. Therefore, while it would have been strictly possible to organise a hearing on the Friday, the Police were not obliged to do so. The Judge accordingly dismissed the application.
The trial, on three counts of burglary, proceeded. Mr Whareumu was found guilty on each count and sentenced to three years and nine months imprisonment.
The submissions
Mr Whareumu’s counsel on appeal argued that the Judges in the second of the two s344A applications erred in declining to declare the “confession” inadmissible. They advanced four grounds of appeal:
(1)Failure to rule inadmissible the confession on lack of voluntariness (Lance DCJ);
(2)Failure to rule inadmissible the confession by virtue of s23 of the Bill of Rights (Doogue DCJ);
(3)Breach of natural justice and s27(1) of the Bill of Rights by Doogue DCJ in declining to consider the earlier s344A evidence or giving Mr Whareumu’s counsel an opportunity to recall those witnesses, thereby creating an unfair trial; and
(4)The unreasonableness of the search which contributed to the extended detention and the unreasonably and/or unfairly obtained “confession”.
We consider that the only argument of any significant merit is that advanced under ground (2), viz., that the confession is inadmissible by virtue of the breach of s23 of the Bill of Rights. We briefly address the other grounds of appeal.
The voluntariness of the confession
As to ground (1) above, looking at all of the evidence adduced at trial, we are not convinced that the circumstances of the interview were so oppressive that innocent persons in such a position would have been likely to confess to a crime which they had not committed: see R v Fatu [1989] 3 NZLR 419, 430. On the contrary, the interview was relaxed, conversational and even breezy in places. This ground of appeal fails. We do not see any merit in the additional submission that the Judge erred in law by not giving sufficient reasons for his decision.
A breach of natural justice?
As to ground (3) above, Mr Ellis was not able to indicate how any of the evidence given at the two earlier hearings (about the alleged inducement to make the confession and inaccuracy of the notebook) was relevant to the particular issue arising under s23. Further, it is quite contrary to principle for such a course to be followed, in the absence at least of the agreement of the parties and the Judge. Moreover, the substantive issue before Doogue DCJ is before this Court under ground (2) in any event, and Mr Ellis has been able to draw on all of the evidence given in the course of the process to the extent that he has considered it helpful in arguing that ground. No miscarriage of justice could possibly be identified in support of this ground of appeal. It also fails.
An unreasonable search?
As to ground (4) above, Mr Ellis was again not able to link those features of the search which he alleged to be unreasonable to Mr Whareumu’s making of the confession. The complaint related particularly to the involvement of persons other than the police in the search (at least some were those who had been burgled) and the removal of Mr Whareumu’s partner from the house, leaving four children aged eight to 15 alone in the house. Mr Whareumu, however, knew nothing of those events at the time he allegedly made the confession. It follows that the affidavit prepared by Mr Whareumu’s partner testifying to those matters is not relevant. Nor does it provide evidence that could not have been adduced before or at the trial. Accordingly, we decline leave to it being submitted.
This ground too must fail. We now turn to the principal issue.
A breach of s23(3) of the Bill of Rights?
Section 23(3) provides that:
Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.
As this Court stressed in Te Kira, this critical right of the arrested person is also to be found in the Crimes Act 1961 s316(5) and earlier in the common law:
It is not surprising that the common law should insist that anyone arrested must be taken before an independent authority as soon as reasonably possible. That salutary rule is a check on the abuse of power. It prevents the police from keeping those arrested incommunicado and from exerting unreasonable pressure on them in a coercive environment. It facilitates any challenge to the lawfulness of the arrest and allows for the earliest judicial determination of bail. In that way it allows the subject the earliest opportunity of regaining his or her liberty. (Richardson J at 266; see similarly Hardie Boys J at 275)
The evidence was that there was no sitting of the District Court in Whangarei on the day of the arrest and questioning. The Court officer who gave evidence on this matter said that, had the Police had called at noon or 1pm and indicated they had an opposed bail application to be dealt with, they would have been advised that there was no one available. The hearing would have had to be the next day. Justices of the Peace, she said, were called in only first thing in the morning unless there was an emergency. They would normally have to be advised by 8.45am. The Judge summarised that evidence and asked himself whether the Crown had persuaded him that there was no breach of the obligation under s23. While the Police had not, as the Crown accepted, taken steps to get a Court convened, he concluded that:
In my view there was no such requirement. The convenience of the Justices of the Peace, amongst other things, needs to be taken into account. There has to be some reasonable and fair period of notice given to the Justices before they should leave their daily pursuits and come into the Court. It seems reasonable that the Court should require notification by 8.45am. Strictly speaking, it might have been possible to bring the accused straight from his residence to the Court for those purposes, but looking at it on the basis of reasonableness, I do not believe that the Police were required to do so. Accordingly I do not consider that there was any breach of the Act.
Mr Pike rightly accepted that Mr Whareumu was not brought before the Court as soon as possible. As Hardie Boys J said in Te Kira
It need hardly be said that for the right to be effective, judicial officers must be available. It cannot have been contemplated that Court proceedings should be interrupted, but it is to be expected, and of course is the case, that appropriate opportunity will be provided when the Court rises during or at the end of the day. The police obviously have no control over this, but it is incumbent on them as soon as the decision not to release is made to put in train arrangements for the person to be brought before a judicial officer as soon as one is available. (276)
That obligation is of course subject to practical limits of time, distance and circumstance, but no such problem is established in this case.
The breach of the Bill of Rights is accordingly made out, but does it follow that the confession should not have been admitted? We think not, because the making of the confession lacked any “real and substantial connection” with the breach of s23(3) (Cooke P in Te Kira at 261, Richardson J at 273, Casey J at 275, Hardie Boys J at 277 and Thomas J at 288). Mr Ellis faintly suggested a “but for” temporal test, but that cannot be argued on the present state of the law. His position rather was that, on the facts, the length of the detention and questioning (nearly eight hours), the presentation of the allegedly stolen items to the appellant and the production of the second statement by the co-offender had a causative, coercive effect. But we can see nothing wrong at all in those matters being put to him – on the contrary it is appropriate police practice. Furthermore, and most importantly, any possible presumption of a connection based on those factors is defeated by Mr Whareumu’s own explanation of the cause of his confession : it was his reading of the statement of his co-offender that led to the acknowledgement that he too had participated in the burglaries (para [26] above).
This ground of appeal also fails.
Result
It follows that the appeal is dismissed.
Solicitors
Crown Law Office, Wellington for Crown
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