R v K CA179/02 [2002] NZCA 355 (22 August 2002)

Last Updated: 21 July 2018

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY s 139 CRIMINAL JUSTICE ACT 1985
COURT OF APPEAL OF NEW ZEALAND	CA 179/02

THE QUEEN

V

[S C K]

Hearing:	20 August 2002
Coram:	Gault P Paterson J Priestley J
Appearances:	A G Rogers for Appellant
	Y V Yelavich for Crown
Judgment:	22 August 2002

JUDGMENT OF THE COURT DELIVERED BY PRIESTLEY J

Introduction

[1] The appellant faces trial in the Auckland District Court on a count of sexual violation by rape.
[2] On 5 June 2002 Bouchier DCJ determined a s 344A application brought by the Crown in respect of challenged evidence. The learned District Court Judge’s decision was that the appellant had clearly waived his rights when he decided to continue to answer questions being asked by a police officer during a video interview. This occurred immediately after the appellant had spoken privately by telephone to a lawyer who had advised him not to answer further questions.

The issues

[3] The issues raised by the appeal are :

• [a] Whether the interview between the appellant and the police officer should have continued after the appellant had spoken to a lawyer.
• [b] Whether the accused’s decision to continue with the interview constituted a waiver of his right to silence, or whether instead the continuation of the interview constituted impermissible conduct on the part of the police.
• [c] An independent issue of whether the learned District Court Judge was correct in preventing the appellant’s counsel both from cross-examining and leading evidence on an attempt by an employee of the appellant’s solicitor to speak to the appellant by telephone whilst he was in police custody.

The interview process

[4] At 11.20 am on 1 June 2001, Constable Smallman went to the appellant’s workplace and spoke to him. The appellant was asked whether he would accompany the constable to the Glen Innes Police Station to talk about an allegation of rape. The appellant was informed of his rights under the New Zealand Bill of Rights Act including his right to consult with and instruct a lawyer.
[5] The appellant’s first language is Samoan. It is apparent both from the transcript of the video interview and from the evidence which he gave at the pre-trial hearing that the appellant has considerable fluency in and comprehension of English although some constructions present difficulty.
[6] The appellant told the constable that he understood his rights. He indicated that he did not wish to speak to a lawyer immediately but would go and see her during the weekend. He agreed to go to the police station.
[7] At 8.36 am a video interview began at the police station. A few minutes into the interview the constable asked the appellant whether he wished to speak to a lawyer. After some initial hesitancy the appellant indicated that he wished to telephone his lawyer. The interview ceased for 9 minutes.
[8] During that interval the constable made an attempt to contact an Auckland practitioner, Ms Woodroffe. A message and contact details were left with Ms Woodroffe’s office. The appellant was then asked whether he would like to speak to any of the lawyers whose names appeared on the Duty Solicitors’ list. The constable’s evidence was that the appellant declined that offer, saying that he would speak to Ms Woodroffe later. He confirmed this when the interview was resumed at 8.50 am.
[9] At approximately 9.07 am Mr Pa’u, a solicitor employed by Ms Woodroffe, telephoned the Glen Innes Police Station and asked to speak to the appellant. The interview stopped. Constable Smallman left the room. She telephoned Mr Pa’u and spoke to him. The appellant was subsequently given the opportunity to speak to Mr Pa’u in private.
[10] Mr Pa’u’s evidence was that he provided the appellant with advice and also received his instructions. Such advice was given primarily in Samoan. Mr Pa’u’s advice was that the appellant should answer no more police questions nor take any further part in a police interview.
[11] Straddling the telephone conversation between Mr Pa’u and the appellant were telephone conversations between Constable Smallman and Mr Pa’u. Two aspects of those conversations have significance. First Mr Pa’u proffered the information that he had been a guest at a party attended by both the appellant and the complainant which preceded the alleged offence. This information led Constable Smallman to the view that Mr Pa’u was a potential witness and that he was in a position of conflict making it inappropriate for him to participate in the interview at the police station. The second aspect, which on Mr Pa’u’s evidence occurred after he had spoken to the appellant, was his assertion that he requested Constable Smallman to make no further attempt to interview or question the appellant until Mr Pa’u could “arrange alternative legal representation” at the police station. This evidence was disputed by Constable Smallman.
[12] At approximately 9.25 am Constable Smallman recorded in her notebook the following exchange :

17. Would you like to keep on discussing the matter on video now you have spoken to a lawyer?
1. Yeah that’s fine.

The video camera was then switched on and the following questions and answers were recorded :

17. Is that Paul Pa’u?
1. Yeah.
17. And um, you happy to keep on talking.
1. Yeah.

The interview then continued. There was a short break at 9.55 am whilst the appellant had a cigarette. What followed the above exchange occupies a further 51 pages of transcript being (inclusive of the cigarette break) approximately 70 minutes of interview.

District Court decision

[13] The appellant’s instructions to his counsel were to oppose the admissibility of all the police interview which followed Mr Pa’u’s advice. The information imparted by the appellant to the police officer is largely exculpatory. The appellant has maintained that stance.
[14] The conflict (paragraph [11] supra) between the evidence of Constable Smallman and Mr Pa’u on aspects of their telephone conversation was resolved substantially in Mr Pa’u’s favour.

[9] When Mr Pa’u spoke to the accused he did so in private and I accept that Mr Pa’u told him that he did not have to speak to the police and that he could stop then and he gave advice not to speak to the police – again which is common advice given to suspects who are being spoken to by the police about crimes. Mr Rogers indicated that there was a conflict that the Court must resolve. I do not really see it as being particularly a conflict. Constable Smallman could not remember particularly the conversation but I accept what Mr Pa’u said about that situation, that he told the constable that he had given that advice and told the accused not to speak further with the police.

[15] The learned District Court Judge further held that the appellant understood his legal position and when asked by Constable Smallman, “Would you like to keep on discussing the matter on video now that you have spoken to a lawyer” he answered in the affirmative with a clear understanding of his legal rights.
[16] The appellant gave the following evidence in the District Court in response to questions from his counsel :

17. In view of the advice you have received from Mr Pa’u and the response you said you gave to that advice, why did you agree to continue the interview?
1. Perhaps two reasons why, one is that I was asked by the Constable to continue the interview and second was that I didn’t really know who Paul Pa’u was at that stage. I didn’t really know whether – what he was saying to me, whether it was good advice or not, I was not too sure.

[17] This evidence clearly impressed the Judge to whom counsel had submitted, on the basis of R v Accused MAT (Auckland Registry, T000515, 7 June 2000, Chambers J), that continuation of the interview after Mr Pa’u had given his advice was tantamount to trickery. The Judge held :

[11] So in my view, having made those findings, there is no element of trickery as far as the police are concerned, there is no requirement on them to not ask any further questions unless there is a clear indication that the person does not want to. Never at any stage did [the accused] say that he did not want to answer questions, and if he had said after speaking to Mr Pa’u ‘No I don’t want to speak to you any further’ and the constable had continued asking him questions then of course she would breach the dicta that is set out in the case of R v MAT, but she asked a simple question, he said ‘yes that’s fine’ and he gave the reasons for it in evidence. He said he did not really know who Mr Pa’u was at that time and he did not know whether that was good advice or not so he decided to carry on. I accept that as being fact. So therefore the police in my view have complied with s 23 of the Bill of Rights Act in all its subsections and there was a clear waiver of the rights. The statement I find to be admissible.

Discussion

[18] We do not need to resolve the issue of whether the Judge’s refusal to allow the appellant’s counsel to cross-examine and advance argument on the topic of an employee of the appellant’s solicitor attempting to speak to the appellant on the telephone was a denial of natural justice. That issue is not determinative.
[19] It is common ground that although the appellant had not been formally arrested he was detained for the purposes of the New Zealand Bill of Rights Act 1990. Section 23(4) provides :

23. Rights of persons arrested or detained

...

(4) Everyone who is—

(a) Arrested; or

(b) Detained under any enactment—

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

[20] The critical issue is whether Constable Smallman’s continuation of the interview after the appellant had received Mr Pa’u’s advice subverted that right. Inextricably linked is whether, in the face of Mr Pa’u’s advice, the appellant waived his right to refrain from making a statement.
[21] The learned District Court Judge found Constable Smallman knew, because Mr Pa’u had told her, that the appellant had been advised to speak no further to the police.
[22] The right to consult and instruct a lawyer conferred by s 23(1)(b) and the s 23(4) right to refrain from making a statement are rights which the law obliges police officers to respect. It is unacceptable for those rights, which a police officer must offer arrested and detained people, to be diminished and diluted if exercised.
[23] In a situation where an interviewing police officer has been informed by the lawyer of a detained or arrested person that a client wishes to exercise the right to refrain from making any statements, a police officer should not attempt to continue an interview. The policy underlying this approach was clearly stated in R v Accused MAT (op cit) :

[10] .... Once a suspect or a suspect’s lawyer has indicated that the suspect wishes to say nothing, the police should not attempt to question the suspect further, unless the suspect later clearly indicates a change of mind. Otherwise conscientious lawyers will feel compelled to remain with their clients throughout their police ordeals just to ensure that the police do not attempt to resume questioning the moment they have gone.

[24] In R v Toka (1994) 11 CRNZ 607 this Court held that, in a situation where police took advantage of the absence of counsel to question an accused further notwithstanding that counsel had advised the accused to say no more, a finding was open to the High Court Judge that there had been a deliberate attempt to undermine the value of that accused’s right to legal advice under s 23(1). Consistent too with the approach taken in R v Accused MAT (op cit) is the approach taken in R v Beazley (1997) 4 HRNZ 233. There an accused’s lawyer gave a police officer handwritten advice that the accused was exercising her right to refrain from making a statement. Despite that, 20 minutes after the lawyer had left the police station, the police officer discussed interview transcripts with the accused and, without re-cautioning her, persuaded her to endorse those transcripts to the effect that they were true and correct.
[25] Although Constable Smallman had twice informed the appellant of his rights, first at his place of work and secondly at the outset of the video interview, she failed to advise the appellant of his rights when she resumed the interview in the wake of the appellant’s telephone conversation with his lawyer. The interview was resumed with the exploratory question, “... are you happy to keep on talking” by a police officer fully aware that the appellant’s lawyer had advised him not to speak with the police any further.
[26] Cross-examination of Constable Smallman on this topic was at best desultory. Counsel was more concerned to explore the issue of why the police officer failed to inform the appellant of specific matters she had earlier discussed with Mr Pa’u. But there is no doubting that Constable Smallman elected to continue with the interview :

17. ... was it that you were very keen for this video interview to continue?
1. No I just wrote it in my notebook and I wasn’t that keen, I offered him a smoke break and offered him a coffee and just wrote it in my notebook, it’s just the choice that I made at that time and that’s what I did, I have no reason or ulterior motive of doing that or anything like that.
17. Unless you didn’t want to say anything in front of [the appellant] which might discourage him from continuing with the interview?
1. No.

[27] This is a situation where, at an early stage of his involvement with the police, the appellant showed an interest in obtaining legal advice. He had a specific lawyer in mind, Ms Woodroffe. The appellant asked to speak to his lawyer when the police officer approached him at his workplace requesting him to accompany her to the police station to talk about a rape allegation. The police officer had not at that stage informed him of his rights. When informed of his rights, possibly not appreciating the seriousness of the situation, the appellant said that he would see his lawyer during the weekend.
[28] On arrival at the police station the appellant gave the police officer his lawyer’s telephone number. Shortly after the video interview began he asked specifically to speak to his lawyer. A message was left at the lawyer’s office despite which the interview continued. That in itself is questionable.
[29] Mr Pa’u, who was an employee of the appellant’s preferred lawyer made contact, proffered advice, and informed the police officer of the nature of that advice. Whether or not the appellant knew that Mr Pa’u was an employee of Ms Woodroffe is uncertain. His evidence on this topic (supra para [16]) certainly suggests some uncertainty. Constable Smallman knew what advice had been given. She also knew that the arrival of a lawyer at the police station was not imminent since she had effectively prohibited Mr Pa’u from participating in the interview.
[30] Contact with the lawyer in which the appellant had expressed an interest at an early stage had occurred. The legal advice given to the appellant would have been predictable to the police officer. Moreover she knew what it was. Against that background she asked the appellant if he was prepared to continue the interview when she knew full well he had been advised against that course.
[31] In these circumstances we consider that what occurred in the wake of the appellant’s telephone conversation with Mr Pa’u undermined the value of the legal advice which had been given to the appellant and his right to refrain from making further statements.
[32] We decline to find, in this situation, that the appellant waived his s 23(4) right. The finding of the learned District Court Judge that the appellant never informed the police officer (the person in authority) that he did not wish to answer further questions ignores the fact that the lawyer Mr Pa’u effectively did just that. To condone a police officer going behind the clear advice of counsel by seeking to continue an interview would be significantly to dilute the right to counsel. It was an error to find that there had been a clear waiver of the appellant’s rights in a situation where the police officer pressed on with the interview knowing full well the advice the appellant had been given.
[33] Counsel argued this appeal without any reference to R v Shaheed [2002] 2 NZLR 377. Counsels’ approach appears to be that if we were satisfied there had been a breach of the appellant’s relevant rights the challenged evidence would be inadmissible. Had we been required to undertake the balancing exercise set out in R v Shaheed we would unhesitatingly have regarded exclusion of the challenged evidence to be a proportionate response to the breach of the right which occurred.

Result

[34] For these reasons the determination of the Auckland District Court that the portion of the interview on 1 June 2001 between Constable Smallman and the appellant at the Glen Innes Police Station which occurred after line 10 on page 20 of the transcript is admissible is quashed.
[35] That portion of the interview is inadmissible in the appellant’s forthcoming trial.

Publication

[36] There is an order prohibiting publication of the appellant’s name or this judgment until the conclusion of the appellant’s trial.

Solicitors:
Crown Solicitor, Auckland