R v Neho CA84/03 [2003] NZCA 391 (26 March 2003)

Last Updated: 12 January 2019

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RE-TRIAL.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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA84/03

THE QUEEN



v



ABRAHAM NEHO

Hearing: 19 March 2003

Coram: Gault P Keith J Anderson J

Appearances: R G Glover and R D Maguire for the Appellant
J C Pike for the Crown

Judgment: 26 March 2003

JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1] Mr Neho, the appellant, is charged with the murder of Hussein Ndongo in Latimer Square in Christchurch on the night of 25-26 January 2002. Mr Ndongo had been accused by a prostitute of stealing a jacket. She had chased after him and the appellant, who with others was sitting on a bench nearby, intervened to help her. The appellant punched Mr Ndongo who fell to the ground and then kicked him in the head. Mr Ndongo died of asphyxia.
[2] On being apprehended on 27 January, the appellant made a written statement about his involvement in the killing. After making the statement in the course of the afternoon he went with police officers to Latimer Square and between about 5.45pm and 6.27pm, while walking through the Square, he recorded on video what he said was his role in the attack.
[3] The appellant challenged the admissibility of the video recording. The High Court rejected the challenge and Mr Neho applies for leave to appeal to this Court.
[4] The two grounds argued in this Court are the same as those put to the Judge in the High Court:

(a) the accused’s involvement in the video filming was secured in breach of his rights under the New Zealand Bill of Rights Act 1990

(b) the video recording is inadmissible in any event as an unsatisfactory reconstruction of the fatal events.

A breach of the Bill of Rights?

[5] Mr Glover for the appellant contended before us, as he had in the High Court, that his client was not a voluntary participant in making the video recording. The challenge is essentially on the facts, rather than on the Judge’s statement of the law. The submission is that the police officers knew full well that the appellant did not wish to be interviewed on video. First, at 12.05pm on 27 January, immediately after taking legal advice on his arrival at the police station, he told the detectives that he would not participate in a video interview; he would however provide a written statement. Secondly, at 3.48pm after speaking to his solicitor for a second time he had said, in answer to the question whether there were still issues he wished to clarify,

No comment. I don’t want to make any more comment on the advice of my lawyer.

[6] The argument is supported by reference to the appellant’s evidence that contrary to his clearly stated wishes not to be in a video recording he was pressured into it. The challenge is directly aimed at the Judge’s findings on the facts. Those findings include the following:

[11] In light of the evidence which I heard I have a clear preference for the evidence of Detective Sweeney over that from the accused. The former impressed me as restrained and careful in his dealings with the accused. By contrast Mr Neho said things in the course of his evidence which were self-serving and which lacked credibility. For example the assertion that the recording of the written statement was deficient, even skewed, was at odds with the manner in which additions to it were duly recorded after it was read back.

[12] More importantly I have the benefit of the video tape itself of the events at Latimer Square. At the outset Detective Sweeney, after reference to ”a walk through reconstruction of events”, advised Mr Neho that he was not obliged to say anything, and that what he did say would be recorded and may be given in evidence. Further, he had the right to consult a lawyer in private and to refrain from making any statement. The accused acknowledged that he understood his rights and then fully cooperated in the process.

[13] To my mind the striking feature of the video is the level of cooperation displayed by Mr Neho. He identified several positions where relevant events occurred. Markers were placed in each such position. At the point where the blows were struck he demonstrated the nature of the punch, the deceased’s position as he got to his knees, and the kicking action which he employed. The actions and dialogue recorded on the video tape are not those of an uncooperative suspect. To the contrary Mr Neho was forthcoming to a degree which I consider is totally at odds with his version what he was cajoled into participation in a situation where he had no real choice. To my mind the video indicates a level of cooperation consistent only with someone who was remorseful and anxious to demonstrate how the fatality occurred.

[7] We can see no possible basis for disagreeing with this conclusion. It is firmly based on the evidence including answers given by the appellant to the Judge. We can also see no basis for disagreeing with the Judge’s finding that there was no erosion of the appellant’s rights when the detectives, at about 5pm, invited him to go to Latimer Square and participate in the video demonstration:

[17] Mrs Currie [for the Crown] ... submitted that this was not a case where a police officer ignored a suspect’s right under the Bill of Rights Act. At no stage did Mr Neho exercise his right to refrain from making a statement. Rather he indicated his preparedness to do so, but in a particular form. This was respected. Some considerable time later, and in light of admissions already made, Detective Sweeney raised the question of the video demonstration with Mr Neho. Later still, after the written statement had been read back and additions made, Mr Neho agreed to that process. Importantly his participation in the demonstration was preceded by a further extension of his rights.

[18] In these circumstances, counsel suggested, this was a case of an evolving process of interview, during which the suspect changed his mind and, contrary to the advice he received some hours earlier, voluntarily decided to provide a statement in the form of the video demonstration.

[19] Despite Mr Glover’s strong submissions to the contrary, I accept this analysis. I do not think that with the passage of time Detective Sweeney set out to circumvent the indication at the outset that Mr Neho would not participate in a video interview. Rather matters evolved. The accused admitted and explained his involvement in the fatal events, but the verbal description was not entirely satisfactory. Therefore the detective sought the accused’s participation in the video demonstration and this was agreed to. It was in the nature of an adjunct to the written interview, in that it covered the same ground but in a physical as opposed to verbal sense. The level of cooperation displayed by Mr Neho at Latimer Square confirms, to my mind, that he had changed his mind and was a willing participant. In these circumstances I do not consider there was any breach of the accused’s s23(4) right.

[8] Mr Glover sought support for his argument in the use by Detective Sweeney in his evidence of the word “eventually”:

I explained to him that we would like to perform that procedure [a video reconstruction in Latimer Square], he didn’t pose any objection to it, in fact he eventually agreed.

[9] That use of “eventually”, says Mr Glover, indicates clearly that the appellant did not initially agree. It is undoubtedly the case that to begin with he did not agree to a video interview. But by 6pm his position had moved on. He was now willing to participate in the video reconstruction. We agree with the Judge that the appellant’s rights were not diminished or diluted by the course followed by the police. The Judge captured the situation most aptly when he said “matters evolved”. There was no circumvention of Mr Neho’s initial indication that he would not participate in a video interview.
[10] This was not a case in which the police made a series of attempts to get a suspect to participate in interview processes against a consistently maintained refusal. Mr Neho indicated a change of mind about the course of the interviewing he would accept in two critical ways. The first was when, after making the “no comment” statement at 3.48pm after talking to his lawyer, he indicated his willingness at 4.45pm to clarify his written statement by answering a further six questions (several of them very open ended, the first being “what would you like to clear up Abe?”). The second was in his plainly stated understanding of his rights to silence and to instruct a lawyer recorded at the outset of the video interview which, like the Judge, we have viewed. The factual situation is sharply different from that in R v Kau CA179/02, 22 August 2002. In that case the Court declined to find that the suspect had waived his rights, although the statement in the first sentence of para [23] of that judgment taken out of context appears to be wider than was necessary for the decision and should be read with what follows. By contrast, to repeat, we can find no basis for disagreeing with the Judge’s finding that Mr Neho’s rights were not eroded. There was no breach of the Bill of Rights. This ground of appeal fails.
[11] We accordingly do not need to consider whether in terms of R v Shaheed [2002] 2 NZLR 377 the evidence might have been admitted notwithstanding a breach of the Bill of Rights.

An inadmissible reconstruction?

[12] Mr Glover headed this part of the argument Reconstruction evidence generally inadmissible. Certainly some support can be found for that proposition but it is important, while recognising the value of the labels, not to be limited by them. Eichelbaum CJ makes both points with admirable clarity in Stratford v Ministry of Transport (1991) 7 CRNZ 501, 507, when holding evidence of a particular form of reconstruction to be inadmissible:

Re-enactments of the events involved in the commission of an offence may variously be categorised as experiments, demonstrations and reconstructions: see R v Baker [1989] NZHC 751; [1989] 3 NZLR 635, 638. The former two, as that case demonstrates, may constitute admissible evidence. Reconstruction have been admitted where they include voluntary participation by the appellant amounting to admissions or confessions, as in Li Shu-ling v R [1989] AC 271 (PC) and Collins v R [1980] FCA 72; (1980) 31 ALR 257. I am unaware of any authority for their admission in the form of a reconstruction by an expert witness as a means of persuading the Court to a particular conclusion on the disputed facts of a motor accident. The objection in my view is the same as that which in R v Quinn [1962] 2 QB 245, 257 led to the exclusion of a film containing a re-enactment of a strip tease show, purporting to demonstrate the performance in progress at the time of a police raid:

"The film was in essence a reconstruction of the alleged crime and, quite apart from the interval of three months, we think that evidence of this type is inadmissible.

It is, of course, true that demonstrations are frequently given by witnesses in the witness box to show what was done at the material time. For example, the way in which a blow was struck is often demonstrated, but such demonstrations usually take place in the witness box, take place in the presence of the jury, and are intended to illustrate one act. In our view, such demonstrations are altogether different in character from a reconstruction of an entire scene, a reconstruction which has been brought into existence in private for the purpose of constituting evidence at a trial. It is obvious that to allow such a reconstruction would be introducing a method of proof which would be most unsatisfactory for the reason that it would be almost impossible to analyse motion by motion those slight differences which may in the totality result in a scene of quite a different character from that performed on the night in question. . . . In our judgment, this objection goes not only to weight, as was argued, but to admissibility: it is not the best evidence." (p257)

Such evidence is also open to the objection that it tends to answer the very question or questions for the Court's decision.

[13] The other case emphasised by counsel was Li Shu-Ling v R [1989] AC 271 (PC) where, as Eichelbaum CJ says, the Privy Council held the evidence in issue to be admissible. In that case the accused, having been reminded of the caution, had willingly participated in a video recording of a re-enactment of his strangling of the deceased. A woman police officer played the part of the victim. The Privy Council, after setting out the facts, quoted from Quinn and continued (278):

This decision is readily understandable. The film the defence wished to introduce was self-serving evidence and bearing in mind the subject matter would obviously be suspect. There is a fine line between the risqué and the obscene and the temptation to move the performance from one side of the line to the other in the film would be great. If the three performers who made the film had described their act in out of court statements those statements would be hearsay and not admissible. A demonstration given on film is open to the same objection. If however the video recording of the accused’s re-enactment of his crime is admissible it is admissible as a confession and as such is an exception to the hearsay rule because provided it is voluntary it is inherently unlikely that the accused will confess to a crime he did not commit.

[14] The defendant had conceded that a video recording of his oral confession (which the re-enactment closely tracked) would have been admissible, as would a demonstration given in the course of that interview, for instance, of the method of strangulation.
[15] These cases point to a number of significant features. One is that the video recording of the re-enactment, reconstruction or demonstration is in some circumstances to be seen as essentially an interview. That is the present situation in which the video recording continues the earlier process of recording the statement already made in writing. The video recording included demonstrations, a second significant feature, particularly of the punch and kick which Mr Neho had already said in his statement he had inflicted on the deceased. Those demonstrations were of simple events, unlike the situation involved in Quinn, to refer to a third feature. They were probably not as difficult as those in Li Shu-Ling where a second person, playing the part of the deceased, was involved. The present video recording matches very well this passage from the Privy Council judgment (279):

The truth is that if an accused has himself voluntarily agreed to demonstrate how he committed a crime it is very much more difficult for him to escape from the visual record of his confession than it is to challenge an oral confession with the familiar suggestions that he was misunderstood or misrecorded or had words put into his mouth. Provided an accused is given a proper warning that he need not take part in the video recording and agrees to do so voluntarily the video film is in principle admissible in evidence as a confession and will in some cases prove to be most valuable evidence of guilt.

Accordingly, subject to an issue to be considered next, we can see no basis for holding the recording to be inadmissible.

[16] The possible qualification is to be related to the next paragraph of the Privy Council judgment (279-280):

To meet the suggestion that lack of acting skill may result in serious distortion of a fair demonstration by the accused the video recording should be shown to the accused as soon as practicable after it has been completed and he should be given the opportunity to make and have recorded any comments he wishes about the film. If the accused says the film does not show what he meant to demonstrate there will then be a contemporary record of his criticism which the judge and jury can take into account when assessing the value of the film as evidence of his confession.

[17] While in this case Detective Sweeney did say to Mr Neho that he would be able to view the video at the police station, he did not in fact give him that opportunity. That practice is plainly a desirable one and it is unfortunate the opportunity was not made available in this case. It would enable the suspect to make clarifications, corrections or additions to what he said or did – just as Mr Neho had made clarifications to his written statement in this case. (The other reason for checking a written statement – that it accurately records what in fact was said – does not of course apply to a video recording.)
[18] While that opportunity was not available at once, Mr Neho has in fact seen the recording, at the deposition hearing. He has not since, for instance in his evidence at the pretrial stage, said that the failure to allow him to see the recording immediately after he made it was to his prejudice. We do not see this omission as a reason for holding that the recording is inadmissible.
[19] We accordingly reject this ground of appeal.

Result

[20] While leave to appeal is granted, the appeal is dismissed.

Solicitors:
Crown Law Office, Wellington