THE QUEEN v WOO JIN BAE [1999] NZCA 2 (4 February 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND CA395/98

THE QUEEN

V

WOO JIN BAE

Coram: Henry J

Thomas J

Blanchard J

Hearing: 4 February 1999

Counsel: J F Mather for the Applicant

J C Pike for the Crown

Judgment: 4 February 1999

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JUDGMENT OF THE COURT DELIVERED BY HENRY J

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Woo Gin Bae seeks leave to appeal a pre trial ruling made in the District Court holding as admissible statements made by him on interview by the police, one of which was recorded on videotape.The applicant has been committed for trial on a series of charges arising from an incident which occurred on 9 May 1998.The Crown case is that the applicant and a co-offender planned the robbery of an elderly Korean woman.Her house was entered by subterfuge and the co-offender, having accosted the woman, used tape supplied by the applicant to bind her eyes and mouth.The plan was for the applicant to steal cash which was known to be in the house.The woman managed to escape from the co-offender who then fled but before that her grandson had been threatened with a knife by the co-offender which, to the knowledge of the applicant, he was carrying.At the time of the incident the applicant, also a Korean, was a high school student aged 18 years.When first interviewed by the police at his home on the evening of the incident he denied any involvement.

Some few days later, armed with additional information, in particular a statement from the co-offender, the police again visited the applicant's home. At the outset the applicant was told that he did not have to say anything but if he did it may be used in evidence and he was also informed of his right to legal advice in accordance with the New Zealand Bill of Rights Act 1990.The applicant said he understood what he had been told.He was then asked to go back to the police station which he did.He was not arrested.On the way to the police station the applicant said that he had not told the truth on the occasion of the first interview and proceeded to make some admissions as to his complicity in the incident.

Following arrival at the police station a videotape interview was commenced in the presence of an interpreter.The applicant was again given his relevant rights, and as a consequence asked if he could ring a Korean lawyer.The interview was interrupted for about an hour for that purpose.In that time a Mr Hong was contacted and came to the police station, but it was ascertained that he was unqualified although employed as a law clerk.Reference was made by the police officer to some possible difficulties as to privilege arising from that fact and Mr Hong withdrew.The interview then continued and was completed, all in the presence of the interpreter.

There is an express finding by the District Court Judge that the applicant understood what was said to him by the police officer when given his rights at the outset of the videotaped interview.That is not now under challenge.The primary issue raised in the District Court was whether the applicant had been arbitrarily detained in breach of s22 of the New Zealand Bill of Rights Act 1990 and if so whether the interview should as a consequence be declared inadmissible.

The Judge held that although the applicant had not been arrested there had been in effect an arbitrary detention.He held further that because the appropriate rights as to silence and obtaining the services of a lawyer had been given and the applicant had nevertheless "elected" to be interviewed, the statements should be admitted in evidence.

Although a number of issues were traversed in Mr Mather's written submissions, in the end he responsibly accepted that the question of admissibility hinged on s22 of the Act.He submitted that the arbitrary detention, which constituted a breach of the section, warranted the remedy of exclusion of the statements.

The mere fact of a breach of s22 does not automaticallylead tothe remedy of exclusion of evidence obtained after thebreach.There must be an appreciable causal link between the detention and, here, the statements. (R v Grey [1995] NZCA 100; [1995] 2 HRNZ 254,259 and R vTe Kira [1993] 3 NZLR 257,272).Althoughit is well established in a case such as the present that the onus is on the Crown to establish on the balance of probabilities that the breach did not materiallycontribute to the obtaining of the admissions, there is no presumption to that effect and as a general rule the Court will require some evidential foundation to support a claim that there wassuch a sufficient link.That may well come from the Crown evidence, and does not necessarily require evidence from or on behalf of an accused person.As was stated in Grey it is a matter of looking at all the circumstances and then exercising a judgment.Although here the Judge did not say so in express terms, it is apparent from his reasons for judgment that was his conclusion.That apart, looking at those circumstances afresh ourselves, we have reached the same clear conclusion.

There is no suggestion of coercion, forbearance, or oppression either in the factual background or arising from the applicant's ownevidence given at the hearing.He made no claim to any link such as that now in question.The most that could be put forward was his being conveyed to the police station and his subsequent presence as an 18 year old of foreign extraction in that environment.Against that he was aware of and ultimately waivedhis right to a lawyer and also his right to silence.The Judge's expressfindings on these issues were properly made, and give no cause for concern.The end result is that the resulting detention, such as it was, was inconsequential and cannot form the basis for excluding the challenged evidence.

It is unnecessary to consider s23, which has no significance in the present circumstances beyond that which has already been addressedunder s22.

For the above reasons the application for leave to appeal is dismissed.

Solicitors

Crown Law Office, Wellington