R v NIKA ARTHUR ABRAHAM [2003] NZCA 246 (28 October 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA139/03

CA330/03

THE QUEEN

v

NIKA ARTHUR ABRAHAM

Hearing: 15 October 2003

Coram: Tipping J

Anderson J

Glazebrook J

Appearances: B S Yeoman for Appellant

J C Pike and G J Burston for Crown

Judgment: 28 October 2003

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

[1] The appellant, Nika Arthur Abraham, was found guilty by a jury in the High Court at Wellington of murdering Mrs Kate Alkema on 13 April 2002.He appeals against his conviction and the 13 year minimum non parole order which was attached to his life sentence.The main point which he raises on his appeal against conviction is the contention that the police should have given him the information required by s23 of the New Zealand Bill of Rights Act 1990 at an earlier stage than they did.An associated submission is that the standard caution which was given to Mr Abraham should also have been given earlier.

[2] Following the discovery of Mrs Alkema’s body in some bushes on the bank of the Hutt River at about 4.15pm on 13 April 2002, it became apparent that she had been strangled by means of a black webbing strap.The police regarded Mr Abraham as a suspect shortly after the investigation began.He claimed to have found Mrs Alkema’s green jacket and was known to have been in possession of a strap bearing some resemblance to that which was used in the murder.He was initially interviewed on 15 April and subsequently on 23 April.During the course of the second interview, which took place in stages, he confessed to having killed Mrs Alkema.Nothing of present relevance occurred during the first interview during which no suggestion was made to Mr Abraham that he was responsible for Mrs Alkema’s death.

[3] On 23 April Mr Abraham was asked by the police to go to the Lower Hutt Police Station to follow up on the matters which had been discussed with him on 15 April.He indicated he was happy to do so.Before the first videotaped interview on this day was commenced, the interviewing officer told Mr Abraham that he did not have to talk to the police and he was not under arrest.At the start of the second videotape Mr Abraham was cautioned to the effect that he was not obliged to say anything and anything he did say would be recorded and could be used against him.This second stage of the interview commenced at 5.10pm and ended at 6.08pm.Nothing damaging to Mr Abraham had been elicited at this stage.He was then asked to wait while further inquiries were made.He did so and another videotaped interview commenced just after 9pm.The standard caution was again administered.At 9.19pm the tape which was then being used ran out.There was a break while it was replaced with a fresh tape.It was during this break that Mr Abraham confessed.

[4] The confession was repeated when the fresh tape commenced.This was done after s23 advice had been given.On the challenge to the admissibility of the confession, the trial Judge ruled that at the time it was made Mr Abraham was not detained for s23 purposes.That was a finding well open to the Judge on the evidence.Mr Yeoman, in presenting his submissions, recognised the difficulty of effectively challenging the Judge’s conclusion.While counsel did not abandon the point, he responsibly accepted that there was little he could say to challenge the trial Judge’s conclusion which had been reached after the Judge heard both the police and Mr Abraham give evidence on a voir dire.We consider the Judge was correct in the view he took of the matter which was based on the evidence which he heard and his assessment of Mr Abraham’s credibility.Mr Abraham was not in fact detained nor did the police give him any reason to think he was.

[5] There is a further basis upon which the s23 argument might well have failed, even if Mr Abraham had been detained at the relevant time.He had recently undergone some training for his intended career as a security guard.He had in the course of that training received instruction concerning police powers and the Bill of Rights.Before the sequence of interviews began on 23 April, Mr Abraham saw the standard s23 advice in written form at the police station and discussed it with the officer.In these circumstances it could well be said that he had thereby been adequately informed of his rights.This point may well also deal adequately with any issue about the standard caution which, in any case, was given and repeated prior to Mr Abraham’s confession.

[6] The arguments concerning the caution and s23 cannot succeed in the light of the circumstances to which we have drawn attention.We should add, however, that when the police did give Mr Abraham information concerning his s23 rights, which was done immediately after his confession and before it was recorded, we consider that exercise was not sufficiently done.Had the point been crucial the whole investigation could have been put at risk.While Mr Abraham was told he could speak to a lawyer, he was not told this could be done in private, nor was he offered the use of a telephone and the list of lawyers on the Police Detention Legal Assistance Scheme.Neither did the police officer tell Mr Abraham the advice need not cost him anything, albeit the Judge found that money was not an issue in this respect for Mr Abraham.

[7] If Mr Abraham had been detained and the giving of the s23 advice had been a material issue, we would probably have been obliged to hold that his rights were not adequately conveyed:see for example the recent discussion in R v Ji, CA333/03, 29 September 2003 and the cases there cited.We have thought it appropriate to express some concern that this now familiar exercise was not properly done.We should also indicate that having someone who is clearly a suspect at the police station for a lengthy period and questioning them with increasing intensity, without informing them of their s23 rights, could also jeopardise an investigation:see R v Koops CA5/02, 27 March 2002.But for the reasons given these matters make no difference in the present case.For completeness we add that for much the same reasons we cannot see any general unfairness in what took place which might have led to the confession being excluded from evidence on that basis.Furthermore there can be no suggestion of the confession having been obtained by any oppressive or sharp practice, nor of fatigue or other circumstances which would justify exclusion on grounds of that kind.

[8] We can deal with the other three matters raised on the appeal against conviction rather more quickly.We are of the view that it was well within the trial Judge’s discretion to allow the jury to have the transcripts of the video interviews.His direction to the jury as to the way they should use them was adequate.The same can be said of the Judge’s decision to allow the jury to have the schedules and maps of “possible sightings”.

[9] The third point concerns a spontaneous statement made by Mr Abraham’s grandmother, who had been his principal caregiver, at the end of her evidence.In essence she expressed her sorrow at Mrs Alkema’s death.The Judge told the witness, in the presence of the jury, that there would be an opportunity for her “to make your apology” to the Alkema family at some later date.While the Judge’s use of the word “apology” was not particularly apt, we do not consider this incident caused any miscarriage of justice.The witness was not ascribing responsibility to Mr Abraham.She would have been seen as simply expressing her sympathy to the Alkema family in their loss.To the extent the Judge might be seen to have exacerbated the matter by making it appear she was apologising on behalf of her family for her grandson’s actions, we are confident that the jury, after hearing the Judge’s contemporaneous direction to them on the point, and his summing-up which directed them as how to go about determining the issues, would not have been improperly influenced by what Mr Abraham’s grandmother said.We would in any event have applied the proviso to s385(1) of the Crimes Act on this point in the light of the overall strength of the Crown case.

[10] For the various reasons we have given, the appeal against conviction cannot succeed.

[11] For the purpose of dealing with the appeal against sentence, it is necessary to describe the circumstances of the offence in more detail.It is difficult to know how much premeditation was involved in the crime.In one sense the case has the appearance of a random attack on a woman who was simply out walking by the river on a Saturday morning.On the other hand there is some evidence from which it seems that Mr Abraham may have been watching Mrs Alkema walking through the area where she was killed prior to the day of the murder.The fact that Mr Abraham had the black webbing strap with him may also suggest a degree of pre-planning.

[12] Whatever view one takes of those matters, the simple fact is that on the morning of 13 April 2002 Mr Abraham attacked Mrs Alkema without any warning and for reasons that are not easy to determine.The Crown suggests that there was a brutal and psychopathic randomness about the murder.It is not clear whether there was any sexual motive but it should be noted that after he had killed Mrs Alkema Mr Abraham dragged her into riverside bushes and adjusted her upper and lower clothing so as to expose her breasts and genital area.He then scattered some vegetation over her body which partially concealed her nakedness.Mr Abraham callously left her to be found in that state, and this is how she was indeed found later in the day by her brother.Mr Abraham took her green jacket away with him.It was, as earlier mentioned, that factor which was largely responsible for him becoming a suspect when his partner reported his alleged finding of the jacket to the police.

[13] The black webbing strap, which had been used to strangle Mrs Alkema, was still tightly round her neck when she was found.Mr Abraham told the police that he had exposed her body to make it look like a sexual attack.He was no more forthcoming about his actual motivation than that.Although the killing was sudden and brutal, it is clear that mercifully Mrs Alkema’s suffering was not prolonged.Her final moments must, however, have been terrifying in the knowledge that she was going to die at the hands of a dispassionate killer.Her killing has naturally had a devastating effect on her husband, family and friends.

[14] Mr Yeoman did all he responsibly could to try to mitigate the seriousness of the crime.It was of course committed before the coming into force of the Sentencing Act 2002.The jurisdiction to impose a minimum non parole period then depended upon whether the circumstances of the murder were sufficiently serious to justify such an order.Mr Yeoman argued they were not; but even if they were, a lesser period should have been imposed.He recognised, quite rightly, that the relevant purpose of a minimum non parole order was to achieve, in sufficiently serious cases, an appropriate level of denunciation, deterrence and punishment.By reference to other cases such as R v Lundy [2002] NZCA 197; (2002) 19 CRNZ 574, R v Bell CA80/03 judgment 7 August 2003, and R v Howse CA444/02, judgment 7 August 2003 Mr Yeoman contended that the 13 year period in the present case lacked relevant parity and was out of balance with the circumstances of the offence.

[15] We have given this aspect of the case careful consideration but are left in no doubt that the circumstances of this crime made it sufficiently serious to justify a minimum non parole order.Equally we are in no doubt that the period of 13 years fixed by the Judge was well within his discretion.In short, this was a brutal, merciless killing with an unusual and rather chilling combination of randomness and apparent premeditation.Its seriousness was compounded by the desecration and indignity of the way Mrs Alkema’s body was left exposed.The case clearly called for greater condemnation, denunciation and punishment than would have been achieved by the standard 10 year non parole period.

[16] For these reasons the appeal against sentence is dismissed, as is the appeal against conviction.

Solicitors:

Bryan Yeoman, Lower Hutt for Appellant

Crown Law Office, Wellington