R v K CA5/02 [2002] NZCA 370 (27 March 2002)

Last Updated: 13 August 2018

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA5/02

THE QUEEN

V

[W K]

Hearing:	20 March 2002
Coram:	Blanchard J Salmon J Chambers J
Appearances:	L J Postlewaight for Appellant K Raftery for Crown
Judgment:	27 March 2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] The appellant is charged with selling methamphetamine and morphine sulphate, both class B controlled drugs. This application for leave to appeal is against a ruling by a High Court Judge on 14 December 2001 under s344A of the Crimes Act 1961, admitting in evidence at her trial admissions the appellant is said to have made to the police at an interview at a police station which followed a search of her home under a search warrant.

The facts

[2] At 10:45am on 28 June 2000 the police executed a search warrant at the appellant’s residence in Whangarei looking for evidence of heroin or morphine sulphate or other items associated with the production of heroin. The appellant was given a copy of the search warrant, cautioned and given the usual Bill of Rights advice. During the search the police located three syringes, a small quantity of cannabis in a matchbox and a small quantity of cannabis oil on a spoon wrapped in tinfoil.
[3] The appellant was personally searched by a female constable soon after the search of the residence began and after that a Detective Huys stayed with her. Detective Huys accepted the appellant was detained at this time. At the end of the search the detective asked the appellant to accompany him to the police station. It is at this point that the accounts of events diverge.
[4] Detective Huys gave evidence that the appellant agreed to his request to accompany him, saying “Yeah, no problems.” The appellant claimed she did not want to go to the police station and, when told she was not obliged to go, said she would not go. She said Detective Huys then said that if she did not come willingly she would be charged in relation to the cannabis found during the search and made to come anyway, and the best thing she could do was co-operate because if she did not, the police would make it harder for her. She said she did not want to go but felt she had no choice.
[5] En route to the police station the appellant, at her request, was allowed to go into a shop to purchase cigarettes without being accompanied by a police officer.
[6] When they arrived at the police station the appellant was allowed to go to the toilet unaccompanied. The details of this incident differed between the appellant and Detective Huys.
[7] At around midday, a discussion commenced in the interview room between the appellant and Detective Huys. No further caution or Bill of Rights advice was given. The detective said that he left the interview room at about 1pm, leaving the appellant unattended, and discussed the position with Detective Sergeant Moetara, returning to the room about 1.25pm. During this period he wrote down his recollection of the discussion between midday and 1pm, omitting any passages of general discussion. The entirety of what he recorded appeared as follows in his notebook:

IS. Are you happy to talk about what we found?

45. Yes.

IS. When was the last time you used methamphetamine?

45. Months ago

IS. Was the cannabis Steven’s?

45. No, he’s clean. He’s got nothing to do with this.
0. We did the search warrant today, because certain people have been talking about your activities?
45. Yes, who was it?
0. I can’t tell you that but I want you to tell me what you’ve been up to?
45. Well you tell me what you’ve heard and I’ll tell you whether its true or not.

IS. I’d rather it came from you first.

45. Well, when I split up from Possum a couple of months ago I did something wrong. I wanted to make some money because the mortgage was up to $300 so I bought some misties [morphine sulphate tablets] and tried to sell them on. It didn’t work out. I lost $1,000 because the people I gave the misties to got it ‘on tick’ and they never ended up paying me back. The ones who I got the misties from put pressure on me to pay them back, I’ve only just settle up with them.

IS. What else have you been doing?

45. I’ve been using meth occasionally.

IS. Have you sold any of that on to make some money?

45. Yes

IS. How much?

SS. Only about 5 grams but I’ve stopped selling it now.

[8] After the resumption of the interview at 1.25pm the appellant was asked for more details relating to the alleged admissions. Again, no caution or Bill of Rights advice was given. In this resumed interview, according to Detective Huys’ notes, which were recorded in question and answer form as the second portion of the interview progressed, the appellant admitted selling about 10 misties; that they were 60s and 100s; that she had sold them for $80 for a 60 and $130 for a 100; and that she sold the methamphetamine for about $130 a gram. She stated that she had not sold the misties and methamphetamine to people under 18 years of age. After that discussion, which evidently took about an hour, Detective Huys told the appellant she was likely to be charged with selling methamphetamine and morphine sulphate. The appellant subsequently refused to sign a copy of the record of the interview prepared by Detective Huys.
[9] The appellant’s position when she gave evidence at the pre-trial hearing was that she had made no admissions, as recorded by Detective Huys, but that if Detective Huys’ version of what she said was accepted, then it should not be admitted. She said his written record of the interview was a distorted version of what was actually said. The Judge stated that the issue of what was or was not said was a matter which could be determined by a jury at trial. He took the view that the only issue at this time was as to admissibility.

The High Court judgment

[10] We summarise only such portions of the High Court judgment as are relevant to the points argued on this appeal. It was submitted to the Judge that Ms Koops had been arbitrarily arrested or detained when she was taken from her home to the police station and throughout the period leading up to and during the interview. The Judge noted that it had been accepted by the Crown that there had been a detention at the home while the search warrant was being executed, but as nothing said by Ms Koops during that time amounted to an admission or was otherwise adverse to her interest, nothing turned on that. The Judge said that whether there had been a detention thereafter was essentially a question of fact. Ms Koops was not under arrest at the time she was asked to accompany Detective Huys to the police station. The police could not have required her to go with them. Having heard both the detective and the appellant the Judge concluded:

She was not as willing to go to the police station as Dt Huys indicated, and felt under some pressure to do so, but that she went, knowing she was not under arrest and not obliged to go.

The Judge noted that this view received support from her being allowed to leave the police car unaccompanied to buy cigarettes.

[11] The Judge also found that the appellant was not detained at the police station until a decision was made after the resumed interview to arrest and charge her. In making this finding, the Judge placed reliance on the timing of the arrest, the circumstances in which Ms Koops came to the police station and the fact that the questioning was part of a general investigation, rather than directed to obtaining incriminating statements about a particular crime believed to have been committed by Ms Koops. Furthermore, the police had not had reasonable and probable grounds to believe that the appellant had committed the offences which she is now said to have admitted. The questioning had been general rather than confronting her with evidence of her guilt. The lack of a caution at the police station did not lead to a conclusion that there had been a detention. There had been no other overt conduct on the part of the police which would reasonably have led Ms Koops to believe she was not free to go.
[12] The Judge also rejected the appellant’s submission that Rule 2 of the Judges’ Rules was breached. Rule 2 requires that whenever a police officer has made up his mind to charge a person, he should caution the person before asking any question or any further questions, as the case may be. The caution in this case was given after the detective had written up his record of the interview. The Judge accepted the Crown’s contention that the decision to charge was only made at that stage. A breach of the Judges’ Rules therefore did not occur. The Judge then went further to say that, even if the interview which took place after 1.25pm could be considered a breach of the rule, he did not believe considerations of fairness would require the exclusion of the evidence so obtained.

• [13] The Judge also rejected counsel’s submission that since the appellant denied making any of the admissions and there was no other evidence supporting the truth of the confessions, the evidence should be excluded. The Judge considered that it was appropriate for the matter to be left to the jury to determine whether the evidence of the confessions was reliable.

Argument and discussion

[14] Ms Postlewaight’s first submission to us was that, contrary to the finding of the Judge, Ms Koops should be considered to have been detained in breach of s22 of the New Zealand Bill of Rights Act 1990 from the time when she was taken from her home to the police station. That argument was made in the face of a finding by the Judge, which we have already recorded, that Ms Koops went with the police knowing she was not under arrest and knowing that she was not obliged to go. Although the Judge did not at this point in his judgment refer to the test of whether a detention exists in terms of the Bill of Rights, he did so later on and obviously was mindful of it. That test is whether the defendant had a reasonably held belief, induced by police conduct, that he or she was not free to leave (Everitt v Attorney-General [2002] 1 NZLR 82 at para [7], citing R v M [1995] 1 NZLR 242 at 245). The Judge’s finding was that Ms Koops did not have any such belief; she knew she did not have to go. Ms Postlewaight was not able to point to any relevant matter which the Judge may have overlooked in coming to a factual determination which was plainly open to him on the evidence.
[15] Ms Postlewaight’s second submission, which does not appear to have been put before the Judge in this manner, was that nevertheless there was a detention by the time the interview commenced and certainly after the questioning moved beyond the things found at the house (very small quantities or traces of cannabis, cannabis oil and methamphetamine). This occurred when, in response to very general questions about the appellant’s activities (“what you’ve been up to”), she volunteered that she had done “something wrong” and immediately referred to trading in “misties”. From that point the inquiry concerned dealing rather than possession and a different drug from those found at the house. Importantly, it was submitted, the appellant had admitted to something serious enough to be likely to lead to an arrest and charge, as she would know.
[16] We agree with Ms Postlewaight that once the tenor of the interview changed in that way following the admission concerning sale of morphine sulphate tablets, it is probable that Ms Koops would then have believed that she would no longer be permitted to leave if she chose to do so. She herself maintained that she was of such belief throughout the interview and we accept her evidence so far as relates to the questioning after she had made that admission. The police had thus created a situation akin to one in which a suspect is told that they are not free to leave. There was accordingly a situation of detention. As the police had in the circumstances no power to detain the appellant without arresting her and did not take that step until after the completion of the interview, the detention must be regarded as arbitrary and in breach of s22.
[17] It is then necessary to determine whether it follows that the evidence of the balance of the interview should be excluded because of the breach of Ms Koops’ right. We have no doubt that it should be. Our concern is not just with the breach of s22 per se but with the consequence for Ms Koops that she was effectively denied the opportunity which must be afforded to persons arrested or detained under an enactment of being advised of her right to consult and instruct a lawyer (s23(1)(b)) and of her right to be informed of her right to refrain from making any statement (s23(4)). She had been given advice to that effect at the house but the nature of the investigation shifted considerably once the admission concerning morphine sulphate had been made. Technically, as Ms Koops was not lawfully detained, s23 was not triggered (R v Goodwin [1993] 2 NZLR 153) but she was in practical terms in the same position as someone who is being held lawfully by the police and questioned in custody.
[18] This unfortunate situation would have been avoided, notwithstanding the arbitrariness of the detention, if the police officer had adopted the sensible common practice of giving a caution and Bill of Rights advice concerning the right to legal counsel and to refrain from making a statement before beginning an interview with a person suspected of criminal activity, or at the very least had done so as soon as an admission of dealing in drugs emerged. We find it especially surprising that when Detective Huys returned to the interview room he failed even at that stage to take this by now elementary step. We strongly deprecate also his failure to keep a full record of the content of the interview and the absence of note taking during the course of the first part of the interview. That required him to reconstruct from memory crucial portions of a conversation which occurred over the space of almost an hour. It led to the danger of inaccurate recollection of key questions and answers and, from the detective’s perspective, exposed him to the possibility, which has in fact happened in this case that, even if his recollection was substantially accurate, his reconstruction would be challenged and doubt cast upon its reliability.
[19] It was said by the detective that his “standard procedure” was to take a suspect into an interview room “to strike up a rapport” and that they usually then went to a video interview during which they would discuss all the events prior to that time and “then discuss further details” but “the stage we got to with the defendant in this case was there wouldn’t have been any point in offering her a video giving her reaction after she was charged”.
[20] We have to say that we find this explanation unconvincing. This Court has had cause, in admittedly somewhat different circumstances, to criticise a police practice of having an unrecorded interview at a police station before the taking of a written statement (R v Ali (CA253/99), 8 December 1999). It is open to abuse, although we are not saying any occurred in the present instance. It also leaves the police open to an allegation of unfair practices during the “informal” period before the interview proper begins. As well, we find it of concern that where a video facility was apparently available, it was not used.
[21] We have therefore concluded that evidence should not be admitted concerning any portion of the interview between Detective Huys and the appellant subsequent to her statement concerning the buying and selling of “misties”, her loss of $1,000 because she did not get paid and the pressure put on her to settle up with her suppliers. That requires exclusion of the last three questions and answers in the first part of the interview and the entirety of the second part of the interview.
[22] Ms Postlewaight’s third submission was that the whole of the interview should be excluded from evidence because Ms Koops disputes the accuracy of what Detective Huys recorded and that record is the only evidence against her. It is said that in order to put this defence at trial it will be necessary to refer to prior events in order to support an allegation that Ms Koops was misled by the police and this might involve some need to refer to Ms Koops’ other involvement with drugs which would prejudice her in the eyes of the jury. However, whilst, for the reasons we have given, the police have only themselves to blame for creating a situation in which a jury could take the view that the remaining evidence from the interview is insufficiently reliable, we do not regard the fact that there is a challenge to the credibility of the detective’s record as requiring that his evidence should not be given. We agree with the Judge that it is a matter for the jury to assess the evidence and, if it is indeed necessary for Ms Koops to refer to the aspects mentioned by her counsel, the trial Judge will give appropriate directions as to the way in which that material should be approached.

Result

[23] Leave to appeal is granted and the appeal is allowed to the extent that the last three questions and answers in the first part of the interview and the whole of the second part of the interview are ruled inadmissible at the appellant’s trial.

Solicitors:
Crown Solicitor, Auckland