THE QUEEN v RENEE ROONEY [2000] NZCA 266 (10 April 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 105/00

THE QUEEN

V

RENEE ROONEY

Hearing:	10 April 2000 (at Auckland)
Coram:	Thomas J Heron J Cartwright J
Appearances:	R O Gowing for Appellant M A Woolford for Crown
Judgment:	10 April 2000

judgment of the court delivered by thomas j

Introduction

[1] The Crown successfully applied in advance of trial for an order under s 344A of the Crimes Act declaring certain evidence to be admissible.

[2] The accused in this case, Ms Rooney, is charged, together with a co-accused, Mr Tahi, with two counts of murder and one of arson.The latter charge relates to a fire to a house in Kawerau on or about 13 August 1999.Two persons were burned to death.Hence the charges of murder.Mr Tahi was Ms Rooney's boyfriend at the time.

[3] Ms Rooney was interviewed twice by Police, once on 23 August and again, briefly, on 24 August 1999.The evidence which the Crown wishes to have declared admissible is from the second interview.

[4] As the trial is set down to begin tomorrow, we are delivering this judgment orally today.

Factual background

[5] Before turning directly to the second interview, it is convenient to set out the circumstances of the first.Between 13 August and 23 August, Ms Rooney had discussed the events of the 13th with the Police.On 23 August Ms Rooney was collected from her home by Police at approximately 9 am.She was taken to the Whakatane Police Station to make a statement.The officer she spoke to was Detective Watene.The exact length of time Ms Rooney spent at the Station is unclear, but it was at least until 4 pm that day, and possibly later.

[6] Ms Rooney said in evidence that she had not had breakfast and that during the course of the day she asked if she could leave the Station to get some lunch.Detective Watene, however,arranged for lunch to be brought to her. Later that afternoon Ms Rooney asked if she could collect her son but was asked by Detective Watene to make alternative arrangements.This she did.Ms Rooney completed her statement at around 4 pm.She claimed that she was then told not to leave the Station as there were certain discrepancies between her statement and evidence given by other witnesses.The Police evidence on this point is equivocal.Finally, Detective Watene drove Ms Rooney home.He told her that if she had any questions she should get in touch with him.Ms Rooney accepted in evidence that the Police were "friendly" throughout the course of the interview.

[7] Ms Rooney then said in evidence that she went back to the Station at 6 pm that same evening to add to her statement, but found the Station closed.

[8] On the same day the Police interviewed Mr Tahi.Mr Tahi admitted setting the house on fire.But he did not implicate Ms Rooney.In the course of the interview, however, he stated that he and Ms Rooney had visited the house twice on the night of the 13th and that he only successfully started the fire on the second occasion.Ms Rooney had not mentioned a second visit to the house in her statement to Detective Watene.

[9] The next day, 24 August 1999, at around 11.30 a.m. Detective Watene spoke to Ms Rooney in the foyer of the Whakatane District Court and asked her to return to the Police Station for further questioning.Ms Rooney expressed reluctance to attend as she planned to visit her mother.After being told that the additional questions would only take another half an hour or so she agreed to visit the Station.At approximately 11.45 a.m. she did so and asked for Detective Watene.He wasnot available, and a Detective McKenzie spoke to Ms Rooney instead.The interview with him took approximately three minutes. Detective McKenzie advised Ms Rooney that he had interviewed Mr Tahi and told her that Mr Tahi had said that she had gone back with him to "Googsie's" house when he lit the fire a second time rather than stay with one Sam Chase.The reply, as recorded in Detective McKenzie's notebook, was as follows:

Yeah that's true.I didn't want to tell the Detective that.I went back to the Police Station at 6 o'clock last night to change that part of my statement but it was shut.

When Jay [Mr Tahu] told me about the fire, we went back together to Googsie's house.He told me he was going to light the fire again and I agreed.The door was open when we got back there.I went inside with Jay.He lit the fires again on two black curtains and the sofa.Those curtains really go up because they are like bamboo sticks or slats.They go up quicker than a match.

I went through the house to check if Bob (Uncle Phil) was there.I couldn't find him but I did find Googsie asleep.I didn't care about him.

Q: Did you know that Googsie could die if the house caught on fire?

A: Yes, I didn't care about Googsie, I only cared about Phil.

[10] This was the evidence in issue at the voir dire.Immediately after this conversation, Detective McKenzie left the interview room and related the admissions made by Ms Rooney to Detective Watene.Detective Watene then came into the interview room, cautioned Ms Rooney and asked her if she wished to see a lawyer.She indicated that she did.As the Judge in the Court below noted, there is some conflict as to what happened next.It is common ground, however, that Detective Watene handed Ms Rooney a list of lawyers' names.Ms Rooney said that she pointed first to a lawyer named Jacki Cole, as she wanted a female lawyer.She claims that Detective Watene told her that a Mr Clews was a better lawyer than Ms Cole and that he would telephone him.As there was no telephone in the interview room, Detective Watene left the room to telephone Mr Clews.Detective Watene's evidence, however, was clear to the contrary.Ms Rooney had pointed to Mr Clews' name on the list and the detective had, he said, simply responded to this particular request.

[11] Mr Clews arrived with a Ms Griffiths, also a lawyer.They conferred with Ms Rooney for approximately one and-a-quarter hours.At around 2 pm Detective McKenzie re-entered the interview room in the presence of Mr Clews and Ms Griffiths.Detective McKenzie said he showed Ms Rooney his notebook in which he had recorded her earlier statement.He asked her to read the first paragraph aloud and then to sign it.He deposed that she did so.

[12] At 3 pm Detective McKenzie arrested Ms Rooney.

The voir dire hearing

[13] In the High Court, counsel for Ms Rooney, Mr Gowing, submitted that both the statement made on 24 August and Detective McKenzie's evidence in relation to the statement should be excluded on the following grounds:

* The statement was obtained in breach of s 23(1)(b) of the New Zealand Bill of Rights Act 1990.This section need not be repeated.

* The statement was obtained in breach of Rule 2 of the Judges' Rules.This Rule states:

Whenever a Police Officer has made up his mind to charge a person he should first caution such person before asking him any questions or any further questions, as the case may be.

* In the alternative, and even if Detective McKenzie is allowed to give evidence of the statement made to him, the Court should exercise its general discretion to exclude the statement itself on the grounds of unfairness.

[14] Potter J ruled that none of the grounds were made out.She held, first, that Ms Rooney was not detained within the meaning of s 23(1) when she made the statement in issue.While she had remained at the Police Station for a long time on 23 August and was given every encouragement to do so, any question that there may have been a requirement that she remain, whether by words or conduct of the Police, was dispelled when she was delivered to her home that evening. It is also relevant, the Judge considered, that on that same evening, without request, Ms Rooney had attempted to make contact with the Police to provide further information but had been unable to do so.The learned Judge concluded that there was nothing in the events of 24 August, up until Ms Rooney's arrest, which would have led to a reasonable belief on her part that she was restrained from leaving.

[15] In relation to the objection in respect of Rule 2, Potter J held as follows:

The Police must handle interview situations in a manner which ensures they observe fairness at all times to persons being interviewed.That requires that a suspect must be cautioned before an interview takes place or proceeds, but it is an unwarranted counsel of perfection, I believe, to suggest that an officer, albeit that he is alert to the crucial aspects of an inquiry, should be required to exercise such precision timing that he interrupts a witness in the course of a response, to deliver a caution.With the benefit of hindsight, and analysis of the record made by Detective McKenzie of the interview, it may be possible to argue, as the defence have done, that Detective McKenzie might have determined the interview earlier.However, I do not consider it rational, reasonable nor incumbent upon him, arising from his duty of fairness to the witness, that he should have done so.If there was a breach, then it is not such a serious breach that it should result in the latter part of Ms Rooney's response being excluded from evidence.

[16] The submission founded on lack of fairness was based on two grounds; first, that Ms Rooney did not get her counsel of choice and, secondly, that in any event, Mr Clews was not independent as he was also representing Mr Tahi. In respect of the first ground, the learned Judge rejected Ms Rooney's evidence that she had asked for Ms Coles.The Judge therefore held that Ms Rooney was provided with her counsel of her choice.In respect of the second ground, Potter J held that Mr Clews did not have a conflict of interest at the time the statement was made because at that stage Mr Tahi had not implicated Ms Rooney.

[17] Potter J therefore allowed the Crown's application and made the following order:

The following evidence is admitted -

[a] The evidence of Detective Jonathan Mark Thomas McKenzie at pages 101-103 of the depositions;

[b] The evidence of Detective Brett Tukene Watene at pages 111, 112 (excluding the two lines "I asked her, What do you want a lawyer for?"She replied, "Because I set fire to the couch"), and page 114 (excluding the two lines "The accused Rooney acknowledged that my notes were correct, however, she did not sign it").

Submissions to this Court

[18] Mr Gowing refined his submissions in this Court.He submitted, first, that Potter J had erred in fact and law in reaching her conclusion in respect of Rule 2 of the Judges' Rules that there had been no breach of that Rule. Secondly, that the learned Judge had erred in law in concluding that Mr Clews was independent at the time he advised Ms Rooney and, as a result, Ms Rooney had not received effective advice under s 21(3)(b) of the New Zealand Bill of Rights Act 1990.

Rule 2 of the Judges' Rules

[19] We agree with the Judge in the Court below.In our view there was no breach of Rule 2 of the Judges' Rules.We would point out, as Mr Gowing accepted, that the exclusion of evidence for a breach of the Judges' Rules is a matter within the discretion of the trial Judge.In respect of Rule 2, not only will the question whether the Police Officer had grounds to believe there was a prima facie case against the person being interviewed be in issue, but the general question whether the alleged breach of the rules unfairly prejudiced the accused in his or her defence will also be relevant.Mr Gowing failed to persuade us that the learned Judge has exercised her discretion wrongly.

[20] In the first place we are not satisfied that Potter J was in error in holding that the point had not been reached where Detective McKenzie was obliged to determine the interview or give Ms Rooney a caution.As the learned Judge said, it would be a counsel of perfection to have expected Detective McKenzie to interrupt Ms Rooney at any point prior to her final statement to the effect that she had not cared about "Googsie" dying, but only about "Phil". Detective McKenzie acting correctly in ceasing questioning at that point and referring the matter to Detective Watene.

[21] Ms Gowing sought to argue that Ms Rooney's short narrative of her involvement would have been made in response to a number of questions from the Detective.There is no evidential foundation for that submission.Even if there were, we would not be inclined to find a breach of Rule 2.The interview was extremely short.Ms Rooney was obviously prepared to tell the Police what she had wished to volunteer the previous evening and, whether in response to a series of questions or not, it could not be said that objectively considered the evidence supported a prima facie case against her until she had confirmed her attitude to the lighting of the fire.

[22] In the second place, even if there was, as the Judge was prepared to entertain, a possible argument that the interview should have been determined earlier, we do not consider that there was any illegitimate prejudice to Ms Rooney arising out of the procedure which was followed.Ms Rooney wished to clarify the error in her earlier statement by admitting to her involvement in the crime;her statements were entirely voluntary;and there was no breach of the Bill of Rights.We do not consider that it would be unfair to admit her statement into evidence.

Independence of counsel

[23] Notwithstanding Mr Gowing's determined argument in support of his submission that Mr Clews was in a position of conflict and that, as a result, Ms Rooney did not receive the effective advice to which she was entitled under s 21(1)(b) of the Bill of Rights, we do not agree that there was a breach of that subsection.We accept that the right to consult and instruct a lawyer without delay is a substantial right.It must be honoured in the spirit as well as the letter of the law.We also accept that, if Mr Clews was in a position of conflict and therefore lacked independence, Ms Rooney would have been effectively deprived of that right.We do not, however, accept that Mr Clews was in such a position of conflict as to suggest that he lacked the necessary independence to advise Ms Rooney of her rights under the Bill of Rights.

[24] The only conflict which Mr Gowing could point to was the fact that Mr Tahi had not implicated Ms Rooney in his statements to the Police, whereas Ms Rooney had implicated herself.This inconsistency represents, at best, a conflict in the evidence of the two persons being interviewed but it does not in the circumstances amount to the position where Mr Clews was disqualified from advising Ms Rooney because of a conflict of interest.Defence counsel regularly act for co-offenders.The difference in evidence was a point to be addressed, and, indeed, in due course the statements of Mr Tahi and Ms Rooney did substantially coincide, but at that time the disparity did not represent a conflict which would have impaired Mr Clews' independence.

[25] We also note that, at this stage, Mr Clews' task in advising Ms Rooney was to ensure that she was aware of her fundamental rights.Even if there had been an incipient or potential conflict we are unable to see how Mr Clews' capacity to properly advise Ms Rooney of her rights had been compromised in any way.

[26] We are also cognisant of the fact that at the time Mr Clews saw Ms Rooney the damaging statement had already been made.Evidence could be given of it irrespective of the fact Ms Rooney might have subsequently declined to sign the Detective's notebook.Mr Gowing contended that the fact Ms Rooney had signed the notebook was nevertheless prejudicial to the defence.Underlying this argument was undoubtedly the suggestion that Mr Clews had failed to act in Ms Rooney's best interests and that this pointed to a lack of independence on his part.We cannot accept that submission.It was not suggested in the Court below or before us that counsel had acted incompetently.Further, Ms Rooney subsequently, in the presence of Mr Gowing, reaffirmed to the Police what was written in the notebook was correct, although she added that she had not told the Detective the truth.Consequently, we are of the view that there was no breach of s 23(1)(b) of the Bill of Rights.

[27] Before leaving the matter there is one point which we should perhaps clarify.In her judgment the learned Judge appears to have taken the view that a question of conflict of interest is primarily a matter for counsel and client.She did not consider that intervention by the Court should extend to an inquiry into the relationship between solicitor and client which might give rise to such a conflict.Mr Woolford, for the Crown, endorsed this point in his submissions to this Court.Mr Gowing, however, clarified that he was not seeking to rely upon or enter into an inquiry as to what might have transpired between Mr Clews and Ms Rooney.The conflict, he contended, did not arise out of matters that were raised between Ms Rooney and her counsel but out of the information Mr Clews already possessed and the new information which he received from Detective Watene relating to Ms Rooney on arriving at the Police Station.We accept that this was Mr Gowing's position.We would not want it to be thought, however, that in a criminal matter, especially one where a breach of the Bill of Rights is alleged, the question whether there is a conflict of interest, such as to deprive the accused of a fair trial or other fundamental right, is primarily a question for counsel and his or her client. Of course counsel's responsibility to recognise a conflict or potential conflict of interest remains unimpeached.But the Court must, if necessary, examine the evidence without intruding upon the solicitor/client privilege in order to determine objectively whether a conflict of interest existed which would deny the accused a fair trial or impair one or more of his or her fundamental rights.

[28] For the reasons given above the appeal is dismissed.The order made by Potter J at the Court below will stand.Mr Gowing's application for legal aid is refused.

Solicitors

Gowing & Co, Whakatane for Appellant

Crown Solicitor Auckland for Crown