THE QUEEN v STEVEN ROGER WILLIAMS [2000] NZCA 148 (31 July 2000)

ORDER PROHIBITING PUBLICATION UNTIL AFTER VERDICT AT TRIAL

IN THE court of appeal of new zealand

ca 101/00

THE QUEEN

V

STEVEN ROGER WILLIAMS

Hearing:	20 July 2000
Coram:	Tipping J Baragwanath J
	Panckhurst J
Appearances:	J K W Blathwayt for Appellant J C Pike for Crown
Judgment:	31 July 2000

judgment of the court DELIVERED BY PANCKHURST J

[1] The appellant awaits trial in the District Court upon charges that on 29 May 1999 at Featherstone he was unlawfully in possession of a firearm and recklessly discharged it, a .22 calibre rifle.The gist of the Crown case is that, following a disagreement at an hotel, the appellant uplifted a rifle and in a drive-by incident discharged it in the vicinity of four young men who had earlier been at the hotel.

[2] The admissibility of a video interview conducted on Saturday, 29 May 1999 about nine hours after the shooting incident, was challenged.On 3 February 2000 a District Court Judge heard extensive evidence upon a voir dire and subsequently, on 22 March 2000, ruled that the interview and various oral exchanges which preceded it were admissible.The appeal is against that ruling.

Background

[3] Sometime after 10 pm on Friday 28 May the appellant and two friends went to the Empire Hotel at Featherstone.Later in the evening there was an altercation, which involved one of the appellant's friends.In the result all three were required to leave the hotel.

[4] There is independent evidence that at about 12.30 am the appellant and one of his friends uplifted a .22 rifle from shearers' quarters occupied by an acquaintance of theirs.Shortly after 1 am the four complainants left the Empire Hotel and were proceeding on foot along Johnson Street, Featherstone.A Mitsubishi Mirage car drove past them.It contained two occupants.The group suspected the front seat passenger had a firearm.When the car did a U turn the group took cover and as the vehicle drove past them a number of shots were fired in their general direction.They obtained the registration number of the car.The appellant was its owner.

[5] An armed offenders' operation resulted.It was centred upon the appellant's address at Kahutara in South Wairarapa.When required to the appellant vacated the house and was detained by an armed offenders' squad (AOS) officer.He was then given into the custody of Detective Finlayson of the Featherstone police.This was at about 4.50 am.

[6] At that point there was a brief oral exchange between the appellant and the detective.Although its content was exculpatory, Mr Blathwayt challenged the admissibility of this evidence on grounds relating to both the actions of the AOS officer and of the detective.

[7] The appellant was taken to the Featherstone Police Station.At about 5.40 am Detective Finlayson spoke to him again, briefly, in an interview room. Substantially the appellant repeated the explanation he had given earlier at the roadside.His answers were recorded in a notebook entry.This evidence is also challenged on detailed grounds.

[8] Needless to say general police inquiries were in train.A .22 rifle was recovered from the porch of the shearers' quarters occupied by the appellant's acquaintance.A search of the appellant's Mitsubishi car revealed a spent .22 shell case and a live .22 shell.A search of the scene of the shooting resulted in recovery of a further spent .22 shell case.The appellant's alleged co-offender, Mark Pallesen, underwent a video interview at the Featherstone Police Station, which was completed at about 9.15 am.He admitted being the driver of the Mitsubishi Mirage at the operative time and identified the appellant as the gunman.

[9] At about 10.15 am Detective Finlayson again spoke to the appellant.He referred to Pallesen's interview and a short, but significant, exchange resulted.Following it the appellant agreed to participate in a video interview himself, provided he could first view the interview earlier conducted with Mark Pallesen.

[10] Commencing at about 10.40 am Detective Finlayson interviewed the appellant on video.Admissions were recorded concerning the drive-by shooting incident, albeit the appellant disputed that he had fired towards the complainants, rather that he deliberately fired above and to scare them.The admissibility of both the oral exchange at 10.15 am and of the video interview itself is challenged, again on detailed grounds.

The Roadside - 4.50 am

[11] At this stage the appellant acknowledged having been to the Empire Hotel and the involvement of members of his group in an altercation.However he denied knowledge of or involvement in the shooting incident at about 1.00 am. The challenge to this evidence was multi-faceted : that the appellant was unlawfully detained by an AOS officer and that Detective Finlayson did not warn nor extend to the appellant his rights, when he was in custody.The challenge was based upon sections of the Arms Act 1983, the New Zealand Bill of Rights Act 1990, and the Judges Rules.

[12] The appellant was required by the AOS to leave the house where he was asleep as the operation began.On leaving the house a constable, who gave evidence at the voir dire, required the appellant to lie face down on the ground, where flexi cuffs were applied and a momentary search for weapons was conducted.The appellant was then walked a short distance and given into the care of Detective Finlayson.The AOS officer gave evidence that he cautioned and advised the appellant of his rights during this process.His evidence was accepted.The officer said he did not arrest the appellant, nor did he have the requisite suspicion to do so, rather that he was intent upon following standard AOS procedure which was designed to establish that the person was not armed and then to achieve their immediate removal from the midst of an AOS operation.We note that the methods employed were very similar to those described in Dunlea and Others v Attorney General,CA306/98, judgment 14 June 2000 (at least with reference to Messrs Buxton and Graham, two of the plaintiffs in that case).

[13] Mr Blathwayt argued the AOS-style detention of the appellant was unlawful as there was no justification for it in terms of the Arms Act, much less pursuant to the Crimes Act 1961.Hence, he argued, matters got off to a bad start and such beginning remained relevant to a consideration of the cumulative effect of further criticisms of the process which followed.Counsel also criticised the effectiveness of the caution and the advice of rights, in a situation where the appellant was face-down on the ground at gunpoint.

[14] Detective Finlayson inquired of the AOS constable and was assured that a caution and advice of rights had been given moments earlier.He then told the appellant, whom he knew, that the police had arrested him on suspicion of involvement in the shooting incident in Featherstone a few hours earlier.A fresh caution was not given, nor was the appellant's right to consult a lawyer restated, in the rather less tense circumstances which then prevailed.The flexi cuffs were removed by another officer.In a brief roadside discussion the appellant confirmed who he had been with the previous night, said they had gone to the Empire Hotel, that one of the group was involved in a fight, but that after they left the hotel he and his companions dispersed to their homes without further incident.No immediate record was made of this exchange.

[15] Mr Blathwayt argued that Detective Finlayson erred in relying upon the AOS officer's caution and advice of rights, since these were of dubious worth and, in any event, the advice of arrest effected a shift which required the detective to begin afresh.

[16] In reasons quite subtly expressed the Judge accepted that the appellant was detained by the AOS officer, that such detention was at least technically unlawful because the officer did not purport to arrest the appellant nor to have the requisite knowledge (suspicion) to effect an arrest pursuant to s315 of the Crimes Act.But such detention, he considered, was "at most a technical consideration" because the officer acted in good faith in a context of urgency.Moreover, Detective Finlayson perfected the process of arrest by advising the appellant why he had been detained moments earlier, that officer having on an objectively assessed basis good cause to suspect the appellant's involvement in the shooting itself.Although "less than ideal" the Judge accepted that the brief period of unauthorised detention of the appellant by the AOS officer was something borne of the exigencies of the situation.Moreover, he considered that the detective was entitled to rely upon the AOS officer's caution and advice of rights, since only seconds had passed and there was no shift in the course of the inquiry to require their extension afresh.

[17] Submissions were made concerning whether s60(2)(b) of the Arms Act perhaps justified the actions of the AOS officer.Thereby, upon suspicion that a person is in possession of a firearm and may cause injury with it, such person may be detained and searched without warrant.In giving evidence at the voir dire the AOS officer was forthright in his acknowledgement that he followed armed offenders' process, unmindful of statutory justification, in removing the appellant from the operational area.Mr Pike was somewhat constrained by this evidence and the concession of illegality made in the District Court from challenging the finding that s60(2)(b) did not apply.We agree with his stance that even if there may arguably have been a basis for reliance upon the subsection, it was foreclosed in the circumstances.Accordingly this is not an occasion to consider the potential ambit of s60(2)(b).Nonetheless we consider that the necessity to remove the appellant from the danger area and into the hands of non-AOS personnel is a compelling consideration when the issue of unauthorised detention is weighed in the present context.Realism is necessary, which we consider likewise characterised the approach of the Full Court in Dunlea.

[18] With reference to the admissibility of the oral exchange at the roadside we are not persuaded that the Judge below erred in the conclusions he reached. We agree that Detective Finlayson had grounds to arrest the appellant and did, objectively assessed, effect an arrest at the point he advised the appellant of the reason for his detention : s316(1).The more anxious point is the detective's reliance upon the earlier caution and advice of rights.We are not prepared to differ from the view reached in the Court below.Importantly, the learned Judge heard evidence from all of the participants, including the appellant, and concluded that the earlier advice was not spent, but remained operative.That view we think was open on the evidence.We simply add that the safer and the better course would have been for Detective Finlayson to have revisited the caution and Bill of Rights advice as an added safeguard.

Police Station Discussion - 5.40 am

[19] Soon after Detective Finlayson and the appellant returned to the Featherstone Police Station an oral interview occurred in an interview room. Significantly the detective both warned and told the appellant of his right to legal advice, at the outset.He then recorded questions and answers in his notebook.The appellant gave a more detailed account of his movements the previous night.In particular he gave additional particulars concerning the altercation at the Empire Hotel, including reference to the participants by name.He was also questioned concerning his car and explained that in the past it had been used for shooting hares with a .22 rifle.Otherwise the account given by the appellant followed that supplied at the roadside an hour or so earlier.

[20] Mr Blathwayt challenged the admissibility of this evidence for breaches of the Judges Rules, notably Rule 9 that statements should be taken down in writing and signed by the interviewee after invitation to read and correct the record.It was common ground that the notes were not signed, nor indeed was the appellant given an opportunity to read and correct them.However, the appellant in evidence at the voir dire made no complaint concerning the accuracy of Detective Finlayson's evidence of this brief interview.He did dispute that it was preceded by a caution and advice of rights, but the Judge preferred the evidence of the detective on that point.

[21] In our view there was a technical breach of Rule 9, but we do not consider it affords any basis for exclusion of the evidence of interview.The content of the interview is simply not in dispute.Had admissions been made, about which there was dispute as between Detective Finlayson and the appellant, the position may have been different.But that is hypothetical, given the facts of this case.

Video Interview - 10.40 am

[22] More accurately the challenge relates to both the brief oral exchange at 10.15 am when the appellant responded to a reference to Mark Pallesen's interview, and the twenty minute interview which was video-taped commencing almost half an hour later.

[23] A senior constable conducted the interview of Mr Pallesen (who incidentally died by suicide in June 1999).In it he described uplifting the .22 rifle and the shooting incident itself, for which he was the driver and the appellant the gunman.Detective Finlayson did not view the video but the gist of the admissions were related to him.At 10.15 am he returned to the cell block and spoke to the appellant.He said words to the effect that we now know of the incident through the eyes of the complainants and, moreover, Mr Pallesen's version put him (the appellant) shooting at the people walking down Johnson Street.The accused replied "I didn't shoot at them, I put three shots over them, not at them.He (Mark Pallesen) was winding me up, lets get a gun.He wanted to do it as much as me".The detective then asked the appellant whether he would be interviewed on video, to which the appellant responded he would provided he could view Mr Pallesen's interview first.This was done, after which the appellant gave his final version, namely that he set out only to scare the complainants and therefore fired in the air, towards the hills, rather than in their direction.

[24] The challenge to this evidence, as finally formulated, is that it was unfairly obtained.A number of matters are relied upon : a breach of Rule 3 of the Judges Rules (persons in custody should not be questioned without the usual caution first being administered), a breach of Rule 8 (statements of co-offenders should be furnished to a suspect without invitation to reply), inaccuracy in reporting Mark Pallesen's account by suggesting he said shots were fired "at" the complainants when such was not the case, and proceeding with the two interviews (oral and video) at all when the first need was to secure the appellant's appearance in court in the aftermath of his arrest : s23(3) New Zealand Bill of Rights Act.For completeness we note that reliance was also placed upon the rights enshrined in s23(1)(b) and 23(4), given that the right to consult a lawyer was not re-extended, nor a fresh caution given, at 10.15 am before the initial admission, when the inquiry had entered a new phase.

[25] It is apparent from the decision below that this aspect of the case was put rather differently in the District Court.In particular the emphasis then was that the oral and video-taped admissions were involuntary, in that in all the circumstances the appellant was induced to make an untrue confession of guilt : s20 Evidence Act 1908.The circumstance that he had had very little sleep, had been in custody for some hours, was worried because he was subject to a suspended sentence, and was misled by the detective's assertion that Mark Pallesen claimed he shot "at" the complainants, were all stressed.The learned Judge weighed each of these matters but, not surprisingly, concluded both that the admissions were voluntary and that it was most unlikely an untrue admission of guilt was elicited.We agree.

[26] However, the argument reformulated with reference to unfairness is rather more formidable.Detective Finlayson had given the appellant his rights at about 5.40 am.When they spoke again, over four and a half hours later, not only had an appreciable time passed, but the police inquiry had reached a much more advanced stage.Items of interest had been located in the appellant's car and, more particularly, Mr Pallesen had been interviewed.Yet no caution or advice of rights preceded the crucial oral exchange in which the detective reported the effect of Mr Pallesen's account.Unlike earlier at Kahutara this was a measured setting, devoid of the exigencies which prevailed on the roadside.

[27] Mr Blathwayt submitted these shortcomings were compounded by an inaccurate reporting of what Mr Pallesen had said.Whether Detective Finlayson was inaccurate was debated before us.We were supplied with a transcript of Mr Pallesen's video interview.Interpretation of it is not straight-forward.It certainly conveys that he drove the Mitsubishi car while the appellant fired shots from the passenger's side window but, as one might expect, it is equivocal concerning the direction in which the shots were aimed.This difficulty of interpretation underscores the wisdom of Rule 8, that a co-offender's statement should be furnished to the suspect, rather than an officer's summary of its alleged effect.

[28] In the end result we are driven to the conclusion that the post 10.15 am admissions were unfairly obtained and should be excluded.In terms of admissibility no distinction can be drawn between the oral admission and that recorded on video.Although the latter was preceded by a caution and advice as to rights, by then the damage was done.The appellant had made the operative admission at 10.15 am when he admitted he fired the shots but not "at" the complainants.From that point the die was cast and he had little option but to participate in the further and fuller video interview.This conclusion is prompted by our concerns at the failure to warn and give rights at the outset, the breach of Rule 8, and the possible inaccuracy of what the detective reported.

[29] We are also influenced on account of the circumstance that the appellant was not "brought as soon as possible before a court" after arrest : s23(3).As to this the learned Judge accepted that the accused ought to have been brought before Justices of the Peace on Saturday morning and that such was a feasible course.However, he regarded this breach as after the event in relation to the "accused's initial denials and ultimate admissions".We agree that his denials occurred at times earlier than a court appearance was attainable.However, by 10.15 am, when the admissions began, the appellant had been in custody for over five hours and it was beyond the normal sitting time for a Saturday morning court.Alone this factor may not have been decisive, but in combination with the other matters to which we have referred, it cannot be ignored.

Conclusion

[30] The appeal is allowed to the extent that the oral admission to Detective Finlayson at 10.15 am and the subsequent video interview are ruled inadmissible.

Solicitors:

Wolleman Cooke & McClure, Carterton, for Appellant

Crown Law Office, Wellington