R v K CA216/02 [2002] NZCA 357; (2002) 22 FRNZ 319 (24 July 2002)

Last Updated: 22 July 2018

ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT UNTIL COMPLETION OF TRIAL

IN THE COURT OF APPEAL OF NEW ZEALAND

CA216/02

THE QUEEN

V

K

Hearing:	17 July 2002
Coram:	McGrath J Robertson J Gendall J
Appearances:	F P Hogan for the Appellant J C Gordon and S J Bonnar for the Crown
Judgment: Reasons for Judgment	18 July 2002 24 July 2002

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1] This is an appeal against a pre-trial ruling by a High Court Judge granting an application by the Crown for an order that statements by the appellant to the police are admissible at his trial on charges which include a count of murder. At the time of the alleged offending, and the police interview that gave rise to the statements, the appellant was aged 12 years 4 months. At issue is whether the statements by the appellant, in which he implicated himself in the alleged offending, were made in circumstances in which there was reasonable compliance with the protective regime of Part IV of the Children, Young Persons and Their Families Act 1989 (The Act).
[2] The appellant is one of six accused whose trial for the murder of Michael Richard Choy was scheduled to commence on Monday 22 July 2002. We heard his appeal against the pre-trial order, along with an appeal by another accused facing different counts in the indictment, on 17 July 2002. After reflecting on the submissions overnight we announced the Court’s decision in this appeal on 18 July:

The judgment of the Court is that the appeal is allowed with the consequence that evidence of the appellant’s statements to the police taking place after his father ceased to be present with him is excluded. The excluded material includes both the statements made during the video interview and the subsequent video reconstruction in which the appellant participated. The Court will give reasons for its decision in due course.

[3] As foreshadowed we now give our reasons for that decision.

Factual background

[4] The appellant, along with five other accused, faces charges including that of the murder of Michael Choy a driver who delivered pizzas and other takeaway food. The Crown says the appellant was one of a group who lured Mr Choy at night to a chosen location by a telephone order for home delivery. The allegation is that the group’s plan following the placing of the order was to wait in a driveway near the nominated address. When the delivery van arrived and the driver got out of the car some in the group would engage him in conversation concerning the order, enabling others to move in. One of them would assault the driver with a weapon and others would rob him of the food and cash.
[5] The plan was allegedly put into operation by the group on the evening of 12 September 2001 following an aborted attempt earlier in the week. The Crown’s case is that the appellant engaged the driver, Mr Choy, in conversation while another member of the group approached him from behind and struck him with a baseball bat to incapacitate him. A single blow was delivered to the side of the head by one of the accused. Others grabbed the food and drink. Mr Choy’s money belt was stolen from him a short time later. He died in hospital the following day.
[6] By Saturday 15 September 2001 the police were looking for the appellant. At about 8.45am Detective Sergeant Proctor, with Constable Marshall, went to a street in Papakura where the appellant was pointed out to them.
[7] It is convenient to record what followed by setting out the findings of the Judge made, following a voir dire, in which evidence was given by the appellant (referred to by the Judge as B) and the two police officers among others involved:

[3] Detective Sergeant Proctor, Constable Marshall and others located B skateboarding on a residential street in Papakura. When Constable Marshall said that he needed to talk to him and his father, B volunteered to go with the police to his father’s house nearby. At the house the two officers spoke to B and his father. Detective Sergeant Proctor explained that the police were investigating the death of the pizza delivery man and believed that B had been present when the pizza man was attacked, that the police wanted to speak to B, and that because he was only 12 years old someone had to be with him. B and his father said that they were happy to go to the police station to talk about it. When the father said that B had been at home all night on the night that the pizza man had been attacked B confirmed that.

[4] Constable Marshall set off for the Papakura Police Station with B and the father in the car. On the way Constable Marshall said to B that he did not have to make a statement, that he could stop making the statement at any time, that what he said could be used as evidence in a court case, and that he was entitled to consult and instruct a lawyer and any nominated person in private. He then said to the father “That is why you are here”. Upon inquiry B and his father said that they understood those rights.

[5] The three arrived at the police station at 8.56am and went straight to an interview room. There Constable Marshall explained to them the content of a police form (“POL 388”) which outlined the rights of children when questioned by the police. Essentially it was an amplification of the matters outlined in the police car. He then summarised the content of another police form (“POL 388A”) designed for the person nominated to support the child during the interview. The Constable wrote on the form the words “this form was read to [B and his father] at 0900 hours on the 15/09/01” and it was signed by the Constable and the father.

[6] The Constable and the father briefly discussed the father’s suggestion that B had an alibi. The Constable then left B and his father alone in the interview room for a minute while he discussed the matter with his senior officer Detective Sergeant Proctor. The Detective Sergeant decided that given the father’s potential role as a witness he should not continue as the person nominated to be present during the forthcoming interview with B. He told the father that he was unsuitable and discussed possible replacements with him. The father said that he did not know where B’s mother lived or how to contact her but that he did have an adult daughter who lived with him in his Papakura home. The Detective Sergeant decided that it would be better to bring in an independent person. The father went along with this. Another officer then took the father aside to interview him and obtain a statement. From that point the father had no further contact with B.

[7] The police kept a list of community-minded people available to sit in on youth interviews. The police had given these people training as to the relevant portions of the CYP Act and the role of nominated persons during these interviews. One of these was Ms Atherton. The Detective Sergeant arranged for her to come to the Papakura Police Station.

[8] Ms Atherton arrived at the Police Station at 9.30am. On arrival Constable Marshall explained the situation to her. She spent three minutes with the father discussing her role as a nominated person. When asked the father said that there was no-one else available to sit in and that he was happy to have Ms Atherton do the job.

[9] Ms Atherton then had four minutes discussion with B, most of it alone. B recognised Ms Atherton from an earlier encounter when she had accompanied a truant officer dealing with him. He agreed to have her as the person to sit in on his interview. Ms Atherton explained the full rights referred to in form POL 388A. She went on to explain that the police would make a telephone and list of lawyers available and that he could speak with a lawyer in private without cost if desired. She said that a lawyer was a person who could help him now and in court and that the lawyer would be able to sit in on the interview. B said that he did not need a lawyer.

[10] Constable Marshall returned to the interview room at 09.43am. In the presence of Ms Atherton he asked B a series of questions and answers, recording the exchange in his notebook. B agreed that at various times on the night in question he had been with the group responsible for the attack on Mr Choy. He denied that he had been with the group when the attack took place. After about 20 minutes he agreed to the Constable’s suggestion that they continue the interview on video.

[11] The video interview commenced at 10.19am. At the commencement of the interview the Constable repeated the rights that had originally had been explained to B in the police car, namely that he was not obliged to make a statement, that he could stop making a statement at any time, that the statement could be used as evidence, and that he could talk with a lawyer and a person nominated by him in private. B said that he understood those rights and that he was content to continue. With two short breaks the interview continued until lunch time at 12.05pm. At one point during the morning B and Ms Atherton had a brief discussion in the Constable’s absence. There was also a 12 minute break at 11.15am while the tapes were changed and drinks brought. Towards the end of the morning B admitted that he had been with the group when Mr Choy was attacked. He said that he and one other member of the group were the ones who met Mr Choy as the ostensible customers, this allowing others hiding nearby to attack him from behind. At 12.05pm there was a lunch break of 38 minutes. At the recommencement of the video interview at 12.43pm the Constable repeated the four rights outlined in the patrol car. The interview continued until 12.58pm.

[12] Later that afternoon B agreed to take part in a videotaped reconstruction at the scene. Constable Marshall explained that he did not have to do it and that all of his rights as explained earlier still applied. He agreed to continue. At 5.31pm Constable Marshall repeated that B did not have to take part in the video reconstruction if he did not wish to. B indicated that he was happy to continue. Constable Marshall, B and Ms Atherton and a police officer with a video camera went to the scene of the attack on Mr Choy. On the way the Constable said again that the rights outlined earlier still applied. On arrival at the scene with the video running Constable Marshall repeated that B did not have to do the reconstruction if he did not wish to, that he could stop at any time, that he was allowed to talk to a lawyer and that anything he said could be used in evidence. In response to questions B indicated that he did not wish to speak to a lawyer, nor did he wish to have a quick word with Ms Atherton in private before the reconstruction started. The group then walked to various places in the vicinity where B described without hesitation the way in which the group had planned the ordering of the pizzas, their dealings with Mr Choy, their departure to a nearby house, and then a further encounter with Mr Choy when his money belt and contents were taken from him.

[13] B, the Constable, Ms Atherton and the photographer returned to the police station. At 6.07pm B was arrested for murder and related charges which were read to him along with a formal caution. Nothing further was said of evidentiary consequence.

The statutory scheme

[8] Special provision for Youth Justice is made under Part IV of the Children Young Persons and Their Families Act 1989 (the Act). Under s208 those exercising powers under Part IV are guided by principles which include:

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.

[9] Within Part IV ss215 to 220 stipulate Rights of Children and Young Persons When Questioned, Charged with Offence, or Arrested and s221 to 226 are among Provisions Relating to Admissibility of Statements Made by Children and Young Persons. They make common provision for children and young persons. The appellant is a “child” under s2 of the Act, being below 14 years of age, and we discuss the provisions that apply to him in that context. An “enforcement officer” is defined in s2 of the Act to include any member of the police.
[10] The rights of a child facing questioning by an “enforcement officer” are set out in s215, which also requires the enforcement officer to explain those rights to the child before asking any questions intended to obtain an admission of an offence. The first right stipulated concerns the potential consequences of the child failing to give his name or address to the enforcement officer (s215(1)(a)). The rights relevant for present purposes are that:

• The child is not required to go with the police to be questioned and if consenting to do so can withdraw that consent at any time (s215(1)(b)).
• The child is under no obligation to make or give a statement (s215(1)(c)).
• If the child consents to make a statement the consent can be withdrawn at any time (s215(1)(d)).
• Any statement that is made or given may be used in any evidence in any proceedings (s215(1)(e)).
• The child is entitled to consult with and make a statement in the presence of a lawyer and/or a person nominated by the child, under s222 of the Act (s215(1)(f)).

[11] These rights are protected by provisions in the Act controlling admissibility of statements made by a child in evidence in proceedings brought against the child. For such statements to be admissible three conditions must be satisfied. First, before the statement is made, the police must have explained to the child, in language appropriate to his or her age and level of understanding, the child’s rights under s215 (s221(2)(a)). Secondly, in any case where the child has not been arrested or detained, if the child wishes to consult with a lawyer, or a person nominated by the child (under s222), that must be provided for the child before making the statement (s221(2)(b)).
[12] The third condition, applicable in all circumstances, is that the child has made the statement in the presence of one or more of a lawyer, a person the child nominated under s222 or, if the child refused or failed to make a nomination, another person who might but need not necessarily be a parent, guardian or family or whanau member (s221(2)(c)).
[13] An important part of the statutory scheme of special protection of children and young persons is the opportunity given to the child to nominate someone whose role is to provide explanations of rights and to give support to the child during the process. The Act spells out who a child may nominate and the circumstances in which the police may refuse to allow consultation with the nominated person by the child. It also specifies certain duties of the nominated person.
[14] A child may nominate a parent or guardian or adult member of the child’s family, whanau or family group. Alternatively the child may nominate any other person selected by the child (s222(a) (b) and (c)). If the child “refuses or fails” to nominate such a person there is a default provision under which the police may nominate an adult who is not an enforcement officer for the purpose (s222(1)(d)).
[15] The circumstances in which the police may refuse to allow consultation between a nominated person and a child are also stated. They are where it is believed on reasonable grounds that the nominated person “would be likely to attempt to pervert the course of justice” if permitted to consult with the child or if the nominated person “cannot with reasonable diligence be located, or will not be available within a period of time that is reasonable in the circumstances” (s222(2)).
[16] The duty of a nominated person, including one nominated under the default provision, was spelt out in the 1994 amendment to the Act. It is, first, to take reasonable steps to ensure the child understands his or her rights as explained under s221 and, secondly, to support the child before and during questioning and during the making of a statement if the child agrees to do so (s222(4) as inserted by s32 of the 1994 amending Act).
[17] This regime of special protection does not apply where an oral statement is made spontaneously and before there has been a reasonable opportunity to comply with the requirements of the regime (s223). There is also provision overriding the protective regime of s221(2) under which reasonable compliance with requirements of s221 is sufficient. Section 224 provides:

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.

High Court judgment

[18] The High Court Judge found that, in the course of their dealings with the appellant, there were breaches by the police of their duty to explain to him all of his rights under the Act before he was questioned.
[19] The police did not, at the outset, advise the appellant he did not have to accompany them to the Papakura police station for interview. They did not advise him that he could withdraw his consent to being interviewed at any time and, in the absence of arrest, then leave the police station. The police did however advise the appellant he had a right to consult a lawyer and the Judge found the appellant understood the offer of the opportunity to have that assistance. He also had a basic knowledge, at least, that lawyers were there to help people in trouble with the police and the Courts.
[20] The police did not advise the appellant that, in addition to the consultation, he could have a lawyer sit in during the interview but, during her discussion with the appellant, Ms Atherton did so. The breaches identified by the Judge were failures to advise, or fully advise, the rights given the appellant by s215(1)(b) and (f). The effect of the Judge’s finding overall, however, was that the appellant understood the substance of those rights.
[21] The Judge also found the police had failed correctly to apply the statutory process for the appellant to nominate a person who would support him and take reasonable steps to ensure he understood his rights. In particular the police had not, when a substitute had to be found for the father, invited the appellant to nominate the replacement. They had also failed to follow up the possibility that the appellant’s mother or adult sister might be available having concluded, without good reason, that the mother could not be located and that the sister was unsuitable. The Judge recognised that the primary expectation under s222 is that the nominated person will be a parent, guardian or member of the family and pointed out that if the appellant had been consulted he might have been able to provide his mother’s address.
[22] Finally, there was a failure by the person who did act in the capacity of the nominated person to explain to the appellant that he could withdraw his consent to being interviewed and, if not arrested, leave the police station. This failure was due to an inadequacy in the standard form. The failures in relation to the nominated person process were in breach of the appellant’s rights under s222(1), (3) and (4)(a) and s215(1)(b). The Judge was also concerned that the person who acted as the nominated person had not discussed with the appellant the advantages or disadvantages of having a lawyer or the pros and cons of making a statement.
[23] The Judge went on to consider whether the police had been in reasonable compliance with the statutory requirements. Mere failure to comply with the technical requirements of s221 would not be fatal if there was reasonable compliance with the sections requirements in terms of s224.
[24] The Judge saw the statutory scheme as addressing the inherent likelihood that a child would not adequately understand the concepts involved in instructing a lawyer, or talking to the police about actions which might lead to criminal proceedings. The Act sought to assist the child to bring a mature judgment as to the wise course of action to follow and to help the child not to be over-awed by the police. The requirement for the presence of the nominated person was to be seen in that context. The Judge also thought the role required some discussion of the potential advantages and disadvantages of engaging a lawyer. That had not been done in this case.
[25] On the other hand, the most critical of the rights, to instruct a lawyer, and not to have to make a statement, had been explained repeatedly to the appellant during the day. The appellant’s father had been with him in the initial stages. The appellant’s demeanour during interview was reassuring and he had been confident and intelligent during the voire dire. There was nothing unfair or oppressive about the way the interviews were conducted. While the case was near the borderline the Judge was of the view that there had been reasonable compliance with the Act. He ordered that the statements made by the appellant should be admitted.

Submissions on appeal

[26] Mr Hogan, for the appellant, submitted that the breaches of rights identified by the High Court Judge, including the failure to afford the appellant his right to have a person of his choice following withdrawal of his father, were fundamental. Mr Hogan described the nominated person right as the “cornerstone of protection” and the failure to give it effect, in his submission, was fatal to the argument of reasonable compliance. The failures to fully inform the appellant of his rights, in dealing with the police, he argued, reinforced the inadequacy of their attempts to comply with the Act’s requirements. He criticised the withdrawal by the police of the appellant’s father as a nominated person and the substitution of him by a person he said was lacking independence and competence for the role.
[27] Mr Bonnar for the Crown accepted that the interviewing officer had failed to explain to the appellant he did not have to go to the police station and that once there, he could leave at any time unless arrested. It was accepted also that the appellant’s right to leave was not explained to him by Ms Atherton. In the Crown’s submission the Judge was right to find those breaches were not significant and that they had no impact on the course of events.
[28] The Crown also submitted that the failure to go back to the appellant to get a nomination of someone in place of his father was merely a technical breach of s222. Mr Bonnar emphasised that the appellant’s father had agreed with the view of Detective Sergeant Proctor that an independent nominated person should be obtained as a substitute. When Constable Marshall explained this, and the reasons why, the appellant and his father both indicated that they understood. The appellant’s father had also indicated to Ms Atherton, with whom he spoke, there was no-one else who could sit in on the interview. She had asked him if he would like to sit in with her but he said he was happy for her to be the person to sit in with his son.
[29] Counsel also suggested it was significant that at the material time the appellant was not in the custody of his parents. There was an interim order in force, placing him in the custody and care of the Chief Executive of the Department of Child Youth and Family Services, at the time he was interviewed. It was relevant also that the appellant was not living with his mother at the time of interview.
[30] Mr Bonnar also argued that the failure to ask the appellant to nominate a person in place of his father was not fatal to the admissibility of the appellant’s subsequent statements because s224 provided that reasonable compliance with the statutory required would suffice. In the end what mattered, he submitted, was the adequacy of explanations and support actually provided to the appellant on the day. The appellant had plainly indicated his willingness to speak to the police while his father was present supporting him, having had the opportunity to discuss with his father the course the appellant should take. The failure of the nomination process thereafter was not of any consequence. The appellant had a good grasp of the seriousness of the situation he was in and knew the likelihood that the videotaped interview would be used in Court. He did not see the person supporting him as part of the police camp and during the day established a rapport with her. In all the circumstances according to the Crown’s submissions there was reasonable compliance with statutory requirements and the statements should be admitted.

Discussion

[31] The statutory prohibition on admission in evidence in any proceedings, of statements which do not meet the conditions set out in s221(2), is expressed by its opening words to be subject to the overriding stipulation that reasonable compliance under s224 is sufficient. Furthermore the language of s224 itself is expressed very broadly so that reasonable compliance can cover situations in which s221 has been neither strictly complied with, nor complied with at all. Nevertheless, in deciding whether there has been reasonable compliance with s221 requirements, the nature and extent of any failures by the police must be closely considered by the Court. In particular, the language of s224 is not apt to categorise as reasonable compliance with the protective scheme situations where there has been no attempt to comply with steps intended by Parliament to be central in its operation.
[32] This approach to s224, in our view, reflects the scheme and language of the crucial provisions in Part IV of the Act. It is consistent with that applied in earlier decisions of this Court concerning those provisions. In R v Accused (1991) 8 FRNZ 119 the Court said that reasonable compliance is necessarily a question of degree. The Court described the degree of non-compliance on the facts of that case as “not inconsiderable”. However, in relation to the explanation of his rights by the police, the 14 year old boy accused was given a clear indication that he could obtain legal advice and that if he consented to give a statement he could withdraw his consent at any time. Furthermore, although he was not invited to nominate a person for consultation and attendance, his mother was present throughout his questioning by the police. The Court observed that the accused’s mother was “manifestly the very sort of person contemplated by the legislature.” In this context the Court found the trial judge was entitled to find reasonable compliance and upheld the High Court’s decision to admit the evidence. The considerable deviation from the specific requirements of s215 was matched by the provision of adequate protection for the child, within the specified heads of the legislation.
[33] Similarly, in R v S (1997) 16 FRNZ 102 CA, the mother of the 15 year old accused was present throughout the interview. When the accused was asked about his right to have a nominated person present he said he was happy for his mother to be there. He did not want his father present. On the facts of the case the Court held there was compliance with s221 in that the young person was aware of this right to consult a lawyer and in the circumstances had elected not to consult.
[34] Of importance to the present case is the Court’s indication in R v S that, in articulating in s224(4) the duty to give support, the legislature did not envisage a judicial inquiry into the nature and quality of the support given in any particular case. Attitudes as to what was appropriate in this context would vary among different individuals, family and cultural groups. The mother in that case had advised her son to face up to the position he was in and tell the truth. The Court pointed out that, understandably, the Act had placed emphasis on the family. On the other hand the Court recognised that in some situations the requisite support might not have been made available in a real sense leaving the young person in a state of vulnerability. That was found not to be so in that case. In the Court’s view there had been actual compliance with s221.

Conclusions

[35] On application of these principles, for reasons we can state relatively shortly, we disagree with the Judge’s decision to admit the appellant’s statements and his reasoning. The present appeal is concerned with breaches of rights said to give rise to a failure to meet two of the three conditions for admissibility under s221(2). Although both counsel took issue to some extent with the Judge’s findings of breaches of s221(2) we see no reason to depart from that aspect of his findings. In relation to the duty of the police under s221(a) to explain the appellant’s rights to him the crucial finding of the Judge was that the police did advise the appellant that he had the right to consult a lawyer; he understood that advice and also had a basic knowledge of how a lawyer could help him. In our view this satisfied the fundamental requirements of the statutory scheme in relation to explanations of the appellant’s rights. While, in some respects, there were failures by the police to comply strictly with s221, in our view, other than in relation to the nominated person requirements, no major departures from the statutory scheme were involved. Had this been the extent of police errors we would have upheld the finding of substantial compliance in terms of s224.
[36] When, however, the police concluded that the appellant’s father should not continue in the role of a nominated person supporting the appellant they were required by s222(3) to give the appellant a genuine opportunity to nominate another support person in his father’s place. It is in our view a fundamental feature of the statutory scheme that a child or young person in the position of the appellant will have the opportunity to be supported by a parent, adult family member, or other chosen person as is preferred. That presence also provides an opportunity for such a support person to intercede during the process on behalf of a young person including to press the need for taking legal advice before answering further questions. The right to support of a person of that kind is lost only if the child refuses or fails to nominate such a person, thus waiving the right or, in the circumstances of inability of the police to locate or unavailability of the nominated person which s222(2) sets out. Only where there is a refusal or failure to nominate by the child or young person does the statute envisage the required support will be provided by a person nominated by the police under the default option provision.
[37] In the present case the Judge found the appellant was not personally given the opportunity to nominate a substitute for his father and that the police, without good reason in terms of the Act, in any event had excluded the appellant’s mother and sister from being nominated to support the appellant. The Judge rightly did not accept that the father’s agreement and the appellant’s own subsequent acquiescence to the appointment of Ms Atherton amounted to compliance with the requirements of the Act. He went on, however, to hold there had been reasonable compliance putting weight on the initial participation of the father in the process, the awareness and demeanour of the appellant, and the absence of unfairness or oppression in the interview.
[38] In failing, however, to ask the appellant to choose which family member or adult he wished to support him the police dispensed with a procedure that was central to the statutory scheme. As already indicated, a failure to that degree puts the police outside of the scope of the broad coverage of reasonable compliance with s221(2)(c), under s224. The support role that could reasonably be expected of a fair minded stranger is not what the legislature had in mind, other than in situations where the young person refused or failed to nominate someone to whom he or she was close to or at least known. Nor do we accept that the Act contemplates that judgments should be made by the police as to the suitability of family members for the role by reference to whether they have custody or care of the child or not.
[39] Despite the apparent confidence of the appellant in the situation he faced, there is no way in which a Court can ascertain whether a support person who was a parent, family member or friend would have made a difference, in particular to seeking legal advice, during the day. We do not know whether or not he was actually prejudiced. We are however satisfied that the appellant faced his police interview without the particular type of special protection, in relation to the vulnerability of a person of his age, that Parliament intended he should have. That lapse is such a major departure from the scheme of protection, especially when it involves a 12 year old boy being investigated as a suspect on a murder charge, that it cannot be cured by the reasonable compliance provision.
[40] For these reasons we allowed the appeal and made the order set out in paragraph [2] of these reasons for judgment.

Solicitors
Crown Law Office, Wellington