THE QUEEN v ARTEMIY VLIDIMIROVITCH DUBOVSKY [2000] NZCA 65 (25 May 2000)

IN THE court of appeal of new zealand

ca 104/00

THE QUEEN

v

ARTEMIY VLIDIMIROVITCH DUBOVSKY

Hearing:	23 May 2000
Coram:	Thomas J
	Anderson J Panckhurst J
Appearances:	A G James and M J Robertson for Appellant
	J C Pike for Crown
Judgment:	25 May 2000

judgment of the court DELIVERED BY PANCKHURST J

1. Artemiy Dubovsky appeals against a pre-trial ruling in which challenges to the admissibility of a confessional video interview were rejected.He awaits trial upon a charge that on 22 October 1999 he committed aggravated burglary of a house in Christchurch, being armed with a replica pistol at the time.There is a further charge under the Arms Act 1985 of carrying an imitation firearm without lawful or proper purpose.
2. Mr Dubovsky is a Russian aged 35 years.He has been in New Zealand since late 1997 and has refugee status.The alleged burglary was of a house occupied by a Russian couple who were known to him.They returned to their home on Friday, 22 October at about 3.15 pm.There were signs that an intruder had been there.The male occupant was then confronted by an armed and disguised man.A struggle ensued, before the male complainant and his wife fled from the scene.The man considered that Mr Dubovsky was the intruder, based upon his view of the assailant’s eyes and from hearing a short comment spoken in Russian.
3. An armed offenders squad call-out resulted.However it was not until Sunday, 24 October that Mr Dubovsky was interviewed by the police.In the meantime Mr Walter Topshij was retained by the police to assist them.He is Russian-born but has been a New Zealand resident for about 50 years and has extensive experience as an interpreter.He knew both the appellant and Mr Dubovsky senior, who resides in Christchurch, initially as a result of acting as an interpreter at an earlier interview between the police and the appellant.Mr Dubovsky senior was in telephone contact with his son who was aboard a Russian ship at Lyttelton.With Mr Topshij acting as an intermediary, an arrangement was made for the appellant to surrender himself at the Christchurch Police Station on the evening of 24 October.Mr Topshij and Mr Dubovsky senior uplifted the appellant from the ship at about 7 pm, returned him to his father’s home for a shower and food, and took him to the police station shortly before 9 pm.Commencing at 9.03 pm a half hour interview was conducted by Constable Taylor.Mr Topshij acted as interpreter.The appellant admitted he was the intruder involved in the burglary on the previous Friday, but said he could not recall many aspects of the event on account of intoxication.
4. An application to exclude the video interview pursuant to s344A of the Crimes Act 1961, was heard in the District Court on 20 March 2000.The learned Judge heard evidence for over a half day from Mr Topshij, Constable Taylor who conducted the interview, and the appellant.The witnesses were cross-examined at various length.The challenge maintained was three-fold:

1. that the confession was involuntary, in that an inducement was offered which was likely to bring about an untrue admission of guilt,
2. that the appellant was not properly advised of his right to consult and instruct a lawyer without delay (s23(1)(b) New Zealand Bill of Rights Act 1990),and
3. that the interview should be excluded as a matter of discretion having been unfairly obtained.

In a considered judgment delivered on 27 March the learned Judge held the evidence was admissible.He was significantly influenced by credibility findings, namely that Mr Topshij and Constable Taylor were balanced and truthful witnesses whereas the appellant was not.

1. In light of certain findings made in the District Court the argument on appeal was recast.Furthermore it underwent significant refinement in the course of the hearing before us.In these circumstances we go direct to those matters which assumed significance at the end of the day, rather than dwelling upon the decision in the Court below.Ultimately two interrelated arguments were advanced :that in terms ofR v Mallinson [1993] 1 NZLR 528 (CA) the case was one where the only safe course was for the police to facilitate a consultation with a solicitor, or alternatively, that in all the circumstances the manner in which the confession was obtained involved such unfairness as to require its exclusion as a matter of discretion.
2. Certain background features were of common relevance to both aspects of the argument.The appellant was known to the police to suffer from post-traumatic stress disorder caused by the living conditions he had experienced before he came to New Zealand in 1997.In particular during 1999 he was involved in episodes of bizarre conduct which resulted in his coming to the attention of the authorities.The details of these events are not presently relevant.It was common ground at the voir dire hearing that the appellant was in an exhausted state on the evening of 24 October, after his having been in hiding throughout the previous two days.English was of course his second language but, as evidenced in the video record of the interview, Mr Dubovsky understood a fair measure of English.
3. Next was the circumstance that Mr Topshij fulfilled a dual role : he acted both as an intermediary in securing the controlled surrender of the appellant to the police and then as a translator at the interview.As the Judge in the District Court noted this was less than ideal, but was simply a reflection of the way matters developed.Counsel relied heavily upon R v Narayan [1992] 3 NZLR 145 (CA), a s23(1)(b) case in which the use of a police officer as an official interpreter was a factor in the decision to exclude a confession.However, we see the present as a quite different case particularly in light of the finding in the District Court that Mr Topshij was a decent and honest man who in the course of the interview process, if anything, displayed partiality towards the appellant and his family rather than towards the police.
4. The most specific criticism made of Mr Topshij related to the outset of the interview when the appellant’s right to instruct and consult a lawyer without delay was explained to him.With reference to this aspect the appellant gave evidence to the effect he went to the police station with the understanding that matters were viewed in a mental health, rather than a criminal, light.Hence, when his right to counsel was explained to him, he was confused.He could not appreciate any need for the services of counsel.At that point of the interview, as evidenced by an agreed translation of the exchanges which occurred in Russian, whether a solicitor was necessary or whether to proceed without one were raised as issues.The appellant asserted Mr Topshij raised his voice, indicated irritation, and thereby pressured him to proceed without taking legal advice.Such approach was contrasted with that on at least one previous occasion when at interview Mr Dubovsky had exercised the right to counsel.
5. It was urged upon us that these factors, in combination, gave rise to a breach of s23(1)(b) or to exclusionary unfairness.For the Crown, Mr Pike did not shrink from the fact that this particular combination of circumstances could have given rise to a situation of difficulty in relation to the admissibility of the confession.However, he drew attention to findings of the learned District Court Judge which, in his submission, led inevitably to a conclusion to admit the relevant evidence.We shall turn to these findings shortly.
6. The need for particular care where confessions are challenged against the background of a significant depressive illness, especially where there is a risk that admissions were delusional, is well recognised.R v Cooney [1994] 1 NZLR 38 (CA) is an example of such a case.Likewise, as accepted by this Court in Mallinson, there can be cases where circumstances dictate that the police facilitate access to a lawyer, albeit that the exercise of that right has not been unambiguously triggered.This case however, is not one of either type.
7. Properly analysed the argument for the appellant required acceptance of two factual conclusions as the basis for findings of breach of the New Zealand Bill of Rights Act and of unfairness.These were that the appellant laboured under the misunderstanding at interview that he was not in criminal peril, rather that the issues to be confronted were mental health ones, and that this misapprehension, coupled with Mr Topshij’s promptings, effectively negated the exercise of his rights pursuant to s23(1)(b).In short had he appreciated his predicament and had Mr Topshij not influenced him against it, the appellant would probably have taken legal advice and the interview may have taken a different course.
8. We are unable to accept either proposition.These very issues were raised in the District Court, although in the context of an argument which has undergone considerable refinement since then.Nonetheless the learned Judge made express findings that the appellant was aware of his situation throughout the interview and, equally, well understood his right to counsel when that issue was raised.As to the former we think the finding made was inevitable.The background was a serious criminal allegation which resulted in deployment of the armed offenders squad.Following a two day stand off the appellant voluntarily surrendered to the police with the assistance of Mr Topshij and his father.Once at the police station a formal interview ensued.There was a camera recording the event, a translator to ensure proper understanding, the presence of a parent, and the administration of warnings that the appellant was not obliged to answer questions and, if he did, such answers could be used in evidence.Moreover, the situation was not an unfamiliar one for him, given the appellant’s recent previous involvement in formal police interviews.
9. With reference to s23(1)(b), we are satisfied the conclusion reached, that the appellant understood his rights and elected not to consult a solicitor, was entirely open.Significantly the exchange relevant to this aspect was preserved on video tape and we therefore enjoyed the advantage of viewing it with the assistance of an agreed translation.We accept that Constable Taylor did not exert close control over the interpreter at the point when the right to counsel was offered.However, we do not accept that Mr Topshij influenced the appellant against instructing counsel.To the contrary, we are satisfied he deliberately abstained from influencing Mr Dubovsky conscious that the decision to be made was his alone.
10. For completeness, and with reference to the unfairness argument, we note certain other features of the case.The appellant’s presence at the police station followed a period of about two hours during which he was in the company of his father and Mr Topshij.This time was utilised to enable the appellant to shower and obtain refreshments.The interview itself occupied only about 35 minutes.Moreover, we agree with the assessment of the learned Judge that it was conducted in a low-key, indeed sympathetic, manner.Consistent with that approach the police sought a psychiatric assessment of the appellant as a condition of his remand when he appeared in court the following day.These matters we see as further indicators of the manner and fairness of the process which was adopted.
11. It follows that the challenges pursuant to s23(1)(b) and on grounds of unfairness, are rejected.The appeal is dismissed.

Solicitors:

Brockett James, Christchurch, for Appellant

Crown Law Office, Wellington