THE QUEEN v KERRY ANTHONY JOHANSEN [1999] NZCA 287 (2 December 1999)

ORDER PROBHIBITING PUBLICATION OF ANY PART OF JUDGMENT UNTIL COMPLETION OF TRIAL

IN THE court of appeal of new zealand

ca487/99

THE QUEEN

V

KERRY ANTHONY JOHANSEN

Hearing:	1 December 1999 (at Auckland)
Coram:	Blanchard J Anderson J Panckhurst J
Appearances:	A B Fairley for Appellant M J Thomas for Crown
Judgment:	2 December 1999

judgment of the court delivered by blanchard j

[1] This is a defence application for leave to appeal under s379A of the Crimes Act 1961 from parts of a decision of the High Court at Whangarei on 18 November 1999 ruling certain evidence admissible on the application of the Crown under s344A.The appellant, Kerry Anthony Johansen, who at the relevant time was 16½, faces trial next week on charges of murder, burglary and, with two others, conspiracy to commit aggravated robbery.

[2] It is alleged that on the afternoon of 10 May 1999 he broke into a sleepout on a farm at Hukerenui, 25 kms north of Whangarei, and found there a shotgun and ammunition and that he later fatally shot the occupant, Mr Steven Mitchell, upon his return to the sleepout.He is then said to have driven away in Mr Mitchell's car, taking with him the shotgun, a rifle and some liquor.In a suburb of Whangarei that evening he met the two other offenders and they formed a plan to rob a foodmarket.However, the speed at which Mr Johansen drove on his way to the foodmarket was noticed by policemen in a patrol car.When he did not stop at their request there was a chase until the car driven by the appellant ran out of petrol and he was arrested.He was in police custody from about 11pm.The firearms were discovered in the boot of the car.

[3] The police wanted to interview the appellant about the firearms and matters related to the way in which the car had been driven.They were also investigating whether the car and items in it had been stolen.They had no knowledge of the shooting of Mr Mitchell.

[4] The police were aware of the rights of children and young persons under Part IV of the Children Young Persons and Their Families Act 1989 (the CYPTF Act) and arranged for the appellant's mother to be present as his nominated person when he was questioned in a video interview by Constable Craig.The admissibility of that video was challenged in the High Court but there is no appeal against the Judge's ruling that it was admissible.At the commencement of the interview Constable Craig repeated to the appellant a statement of rights already given to him.The interview took about half an hour, concluding at 1.03am on 11 May.The appellant's parents then left the police station.

[5] At 1.12am Constable Glendinning received a telephone call in the Watchhouse.He called out loudly down the corridor to Sergeant Edwards who was in the meal room.In the interview room with the appellant Constable Craig heard Constable Glendinning say words to the effect that the owner of the car had been found badly beaten. Constable Glendinning was not aware at that time that there had been a shooting but he had been told that there was "lots of blood" and the woman who found the body (an owner of the farm) could not detect a pulse on the victim.Constable Glendinning said under cross-examination that it had entered his mind that Mr Mitchell might well be dead and that the police might possibly be looking at a homicide inquiry.Constable Craig immediately asked the appellant"What happened to Steve [Mitchell]?"The appellant broke down crying and answered "I didn't mean to, I just pulled the trigger.I didn't think it would hit him."Asked when giving evidence on the s344A application why he had put the question, Constable Craig said:

My understanding from what I overhead was that the owner of the car had been located and had been badly assaulted.I wanted to know what had happened to the owner and I thought Kerry may have some knowledge of how the car owner had come to be beaten.

[6] Explaining whether he had considered advising the appellant again of his rights, Constable Craig said:

No, I asked him essentially as soon as I was aware of the information, I put it to him immediately.I didn't consider at that time that Kerry was responsible for the assault on the owner of the vehicle.

[7] The constable then immediately went through the process of giving the appellant advice again of his rights under the New Zealand Bill of Rights Act 1990 and the CYPTF Act.After receiving that advice the appellant said "I don't know where I shot him, find that tape recorder.I recorded it to show my brother I could."The constable then said "You don't have to say anything Kerry" but the appellant went on: "He fell on the bed.I poked his leg with the gun and he went "Argh"".The appellant made a groaning sound.Constable Craig said, "I guess we should call your mum back then we can do another interview."The appellant said, "I just wanted the car.I saw the guns and they took over.My heart was going too fast."Constable Craig then advised the Sergeant of the admission made by the appellant and a little later he told the Sergeant what had been said about a tape recorder.That caused the police to commence a search in the course of which a tape recorder loaded with a cassette tape was found in Mr Mitchell's car.

[8] The appellant's mother had been called back to the police station.In her presence and after another formal warning and advice another video interview was conducted commencing at 4.06am.This dealt with the death of Mr Mitchell. The interview adjourned at 5.25am.It was resumed at 6.18am by which time the police had played the cassette tape and the appellant was then questioned about the circumstances of the shooting in the light of what was recorded on the cassette tape.

[9] The Judge ruled admissible (1) the initial video interview by Constable Craig, (2) the answer and comments made to the constable about 1.12am (paras [5] and [7] above), (3) most of the later (two part) video interview and (4) the cassette tape recording.This appeal seeks to reverse that ruling only in respect of (2) and (4).

The answer and comments to Constable Craig - submissions

[10] Counsel for the appellant submitted that as soon as Constable Craig became aware that the owner of the stolen car had been seriously assaulted, the nature of the inquiry had significantly changed.Accordingly, the appellant should once more have been told or reminded of his rights under the CYPTF Act and the Bill of Rights.The Judge was wrong to have found that, by reason of s219 of the CYPTF Act, it sufficed that about 39 minutes earlier, at the commencement of the first video interview, such advice had been given.That section reads:

219. Explanations not required if child or young person already informed of rights-

Nothing in section 215 or section 215A or section 216 or section 217 of this Act requires any explanation to be given to a child or young person if the same explanation has been given to the child or young person not earlier than 1 hour before the later explanation would, apart from this section, be required to be given.

[11] The relevant reference is to s215:

215. Child or young person to be informed of rights before questioned by enforcement officer-

(1) Subject to sections 233 and 244 of this Act, every enforcement officer shall, before questioning any child or young person whom there are reasonable grounds to suspect of having committed an offence, or before asking any child or young person any question intended to obtain an admission of an offence, explain to that child or young person-

(a) Subject to subsection (2) of this section, if the circumstances are such that the enforcement officer would have power to arrest the child or young person without warrant, that the child or young person may be arrested if, by refusing to give his or her name and address to the enforcement officer, the child or young person cannot be served with a summons; and

(b) Subject to subsection (2) of this section, that the child or young person is not obliged to accompany the enforcement officer to any place for the purpose of being questioned, and that if the child or young person consents to do so, that he or she may withdraw that consent at any time; and

(c) That the child or young person is under no obligation to make or give any statement; and

(d) That if the child or young person consents to make or give a statement, the child or young person may withdraw that consent at any time; and

(e) That any statement made or given may be used in evidence in any proceedings; and

(f) That the child or young person is entitled to consult with, and make or give any statement in the presence of, a barrister or solicitor and any person nominated by the child or young person in accordance with section 222 of this Act.

(2) Nothing in paragraph (a) or paragraph (b) of subsection (1) of this section applies where the child or young person is under arrest.

(3) Without limiting subsection (1) of this section, where, during the course of questioning a child or young person, an enforcement officer forms the view that there are reasonable grounds to suspect the child or young person of having committed an offence, the enforcement officer shall, before continuing the questioning, give the explanation required by that subsection.

[12] Mr Fairley referred also to s208 which requires a court exercising powers under Part IV to be guided by principles which include:

(h) The principle that the vulnerability of children and young persons entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.

[13] It would, counsel submitted, pay scant regard to s208(h) to hold that advice given at 12.31am in relation to questioning on comparatively minor offending could still be sufficient protection for a young person 39 minutes later when the investigation had moved to a serious assault and possible homicide, particularly when the nominated person was no longer present. Counsel cited also the acceptance by this Court in R v Schriek [1997] 2 NZLR 139, 152 that where there has been a change in the direction of a police inquiry, the suspect needs to be informed so that he (or she) can effectively exercise the right to consult a lawyer and that without that information the advice under s23(1)(b) of the Bill of Rights is ineffective, referring to R v Black (1989) 30 CR (3d) 97 and R v Tawhiti [1993] 3 NZLR 594.It was submitted that when dealing with persons whose age brings them within the protection of the CYPTF Act regard must also be had to whether the child or young person continued to enjoy the intended benefit of the presence of the nominated person.

[14] Under s215 there had to be reasonable grounds to suspect the young person of having committed an offence.The warning and advice were therefore related to and given in respect only of the offence of which that person was suspected when they were given.Section 219 was not to be read as extending them to other suspected offending.

[15] In any event, Mr Fairley argued, there was a breach of s221(2)(c):

221. Admissibility of statements made by children and young persons

...

(2) Subject to sections 223 to 225 and sections 233 and 244 of this Act, no oral or written statement made or given to any enforcement officer by a child or young person to whom this section applies is admissible in evidence in any proceedings against that child or young person for an offence unless-

...

(c) The child or young person makes or gives the statement in the presence of one or more of the following persons:

(i) A barrister or solicitor:

(ii) Any person nominated by the child or young person in accordance with section 222 of this Act:

(iii) Where the child or young person refuses or fails to nominate any person in accordance with section 222 of this Act,-

(A) Any person referred to in paragraph (a) or paragraph (b) of section 222 (1) of this Act; or

(B) Any other adult (not being an enforcement officer).

[16] Counsel said that it was significant that Constable Craig himself recognised the need to get the appellant's mother back to the police station before any further interview took place.

[17] In reply for the Crown, Miss Thomas said that after viewing the videotape of the interview conducted by Constable Craig the Judge was impressed that the appellant had answered questions clearly and without apparent reluctance or embarrassment or difficulty.He was not confused, Miss Thomas argued, about the seriousness of the situation.This was not a situation like that of someone involved in a minor way in an assault leading to death but facing culpability as a party to a very serious offence and perhaps not appreciating the jeopardy therefore faced.The appellant knew that he had shot the deceased in the head while standing close to him, with much resultant splattering of blood.He must have at least had a strong suspicion that he had killed Mr Mitchell.The Judge had rightly considered that there was no unfairness or unreasonable act on the part of Constable Craig which should cause the Court to decide that there was a breach of the Bill of Rights or any other provision of the law so as to make what was a "spontaneous question and answer interchange" inadmissible.There was no reason, the Judge thought, to suppose that the appellant would have behaved any differently if he had been told beforehand by Constable Craig that Mr Mitchell had been badly beaten and given advice about his rights.Miss Thomas submitted that if, however, there was a technical breach of the CYPTF Act, the Crown was entitled to rely upon s224:

224. Reasonable compliance sufficient-

No statement shall be inadmissible pursuant to section 221 of this Act on the grounds that any requirement imposed by that section has not been strictly complied with or has not been complied with at all, provided that there has been reasonable compliance with the requirements imposed by that section.

[18] If there was a breach, counsel argued, it was of a technical nature only and nothing substantially unfair or seriously contrary to the purposes of the Act had taken place.

The answer and comments to Constable Craig - conclusions

[19] It is apparent from the account given by Constable Craig, who it can be accepted acted in good faith throughout and endeavoured to comply with the requirements of the two statutes, that the appellant was overcome by emotion when asked what had become of Mr Mitchell.He had appeared calm and in control of himself during the video interview conducted by Constable Craig but it is to be remembered that at that time he was being questioned only about lesser offending.He was not under the immediate pressure of being suspected by the police of involvement in serious violence (indeed, violence which he may well have suspected had caused death).

[20] It is also to be observed that at the critical time the police were not operating under pressure of time.It was not a situation of emergency justifying immediate questioning of a suspect in the interests of public safety or even in the interests of a particular victim.Medical assistance, for whatever good it might do, had already been summoned to the farm.

[21] The next observation we would make is that Constable Craig's question which reduced the appellant to tears and led to the exchange recorded in paragraphs [5] and [7] was one which, although seemingly asked on the spur of the moment, was intended to elicit a response.And it was asked in circumstances in which the character of the police investigation had markedly changed so that much more than before might hang upon the appellant's response. In that circumstance, even if he had been an adult, it would be very arguable that before resumption of any questioning the police would have been obliged to renew their advice concerning his rights and to renew their caution (R v Schriek [1997] 2 NZLR 139, 152).All the more so when the questioning was directed to a child or young person to whom the law accords under the CYPTF Act rights additional to those guaranteed by the Bill of Rights.

[22] The Crown is not able to show that the appellant would, for example, have dispensed with his opportunity to consult a lawyer if reminded of his right to do so after he had been told of the finding of Mr Mitchell "badly beaten" and before he had blurted out an apparently incriminating statement.Even if he himself might then have declined the opportunity to consult a lawyer, it is not to be assumed that if, as should have happened, all further questioning had been postponed until his nominated person, his mother, had returned to the police station, she would at that time have been content to see him forgo that right.She had not intervened after he was advised of his rights at the beginning of the video interview, but at that time she must have thought that her son was likely to face charges of only moderate seriousness.If she had been informed that he was suspected of causing grievous bodily harm, and even more so if an inquiry made by her of the police had revealed that a murder charge was a possibility, it is a real possibility that she would have urged her son to talk to a lawyer before submitting to any further interview.

[23] Obviously what would have occurred is a matter of speculation, but the burden lies on the Crown to show that the appellant's rights were not compromised by the police failure to comply with the Bill of Rights and the CYPTF Act, and in our view the Crown has failed to do so.It has not been shown that the appellant was effectively given the opportunity to make an informed choice whether or not to exercise his rights in the new context of an investigation into a very serious offence.

[24] It will be clear from what we have said that we agree with Mr Fairley's submission that s219 is not to be read as dispensing with the need for compliance with s215 when there has been a material change in the police appreciation of the nature of the offending under their investigation since an explanation of rights had been given to a suspect, and notwithstanding that the explanation occurred less than an hour before.It follows also that we are not satisfied that, in terms of s224, there was reasonable compliance with s221.

[25] We have considered whether the whole of the exchange between Constable Craig and the appellant referred to in paras [5] and [7] is inadmissible or only that portion of it which preceded the point at which Constable Craig did repeat the advice to the appellant of his rights.We have concluded that it would be artificial in circumstances where the appellant had already broken down and, more importently, made a damaging admission to treat the balance of the exchange as unaffected by these events.It was a continuous dialogue. What was said after the advice from the Constable continued to flow from the original question and answer.

[26] The answer and comments to Constable Craig must be ruled inadmissible.

The cassette tape recording

[27] After finding that what had been said to Constable Craig was admissible, the High Court Judge went on to consider whether the content of the audio cassette was independently admissible on the basis of the doctrine of inevitable discovery.He recorded his view that if the appellant had said nothing about the tape recorder, it would have been virtually inevitable that the police would have found it, have played the tape and have become aware of the relevance of what was recorded on it.At the depositions hearing Constable Mortensen, one of the police in the patrol car which pursued the Mitchell car driven by the appellant, had said that shortly after the appellant had been seized he noticed a dictaphone lying on the ground where another constable and he had been struggling with the appellant.He had picked up the dictaphone and placed it on the bonnet of the car.There was also evidence from a tow-truck driver who had gone to the scene and taken the car back to the police station. Before doing so he said he had taken a tape recorder from the boot of the car and placed it on the back seat.In these circumstances the Judge thought that it was an irresistible inference that, following the discovery of the death of the owner of the car, the police investigation would have led to the tape recorder and that, although it was marked with words indicating it had something to do with a dairy, "it would have been a very remiss investigator who did not press the button and find out just what was on the tape to either include it or exclude it as source of relevant material."

[28] For the appellant it was submitted that the police would not necessarily have realised the significance of the tape because of the way it was marked ("Farm Feed" according to the evidence of Sergeant Edwards).If the appellant had not made the comment to Constable Craig about the tape, the police would have had no reason to look for it.They already had evidence that the appellant had shot Mr Mitchell at the farm.The tape was not found there.

[29] The Crown, however, submitted that the Judge was clearly correct in concluding that the homicide inquiry would inevitably have led the police to the tape recorder either because of Constable Mortensen's report or because it would have been found when the car was examined.

[30] Mr Fairley accepted that there was a great deal of force in the reasoning of the Judge on this point and in the Crown's submissions.We need only say that we entirely agree with the Judge that once the police appreciated that they were investigating a homicide and carried out a review of events, it would inevitably have been recollected that a tape recorder, apparently a hand-held dictaphone, had been found when the appellant was arrested, and that the tape would have been played to see if it contained anything which might throw any light upon the killing.It is not without some moment that there has in recent memory been a murder trial in Whangarei in which a central piece of evidence for the Crown was a tape recording of the murder.

Result

[31] The application for leave to appeal is granted and the appeal is allowed in part.The answer and comments to Constable Craig are ruled inadmissible. The Judge's ruling that the cassette tape recording is admissible is confirmed.

Solicitor

Crown Solicitor, Auckland