R v Ji CA333/03 [2003] NZCA 415; [2004] 1 NZLR 59; (2003) 20 CRNZ 479 (8 September 2003)

Last Updated: 11 February 2019

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA333/03

THE QUEEN

v

_{KAI JI}

Hearing: 8 September 2003

Coram: Keith J McGrath J Anderson J

Appearances: L P Iosefa and B N Ayrey for the Appellant

C J Lange for the Crown

Judgment: 8 September 2003

Reasons: 29 September 2003

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the appeal

[1] This application pursuant to s379A(1)(aa) of the Crimes Act 1961 for leave to appeal against a decision of the High Court at Christchurch declining to hold inadmissible an alleged confessional statement by a young man indicted for murder came before this Court under urgency, the hearing of it preceding the trial by less than 24 hours. Because of such exigency this Court gave judgment immediately,

_{granting leave to appeal, holding the bulk of the alleged confessional statement}

R V KAI JI CA CA333/03 [8 September 2003]

inadmissible and stating that the reasons for judgment would follow. These are the reasons.

Circumstances of the appeal

[2] The appellant is a Chinese national who was born in 1980. He entered New Zealand at the end of 2001 to study the English language at a college in Christchurch. He and a young Chinese woman also studying at the college, Zhi Ping You, formed a relationship which was interrupted by the appellant’s return to China for about one month in August 2002. When he returned to New Zealand he found that Ms You had formed another relationship, having apparently become exasperated with the appellant’s gambling habits and lack of commitment to his studies. This caused the appellant much distress.

[3] At about 7 p.m. on 23 September 2002 the appellant went to the flat which Ms You shared with other students and persuaded her to return with him to his residence in order to uplift her laptop computer. After retrieving the computer the appellant drove himself and Ms You in her car to Summit Road on the Port Hills above Christchurch.

[4] At about 9 p.m. a motorist travelling on the Summit Road found Ms You’s handbag in the middle of the carriageway and a shoe belonging to Ms You was found on the verge of the roadway in the vicinity.

[5] At about 11 p.m. motorists driving on the Summit Road found the appellant wandering in a dishevelled state and somewhat incoherent condition. He said there had been an accident and the car he was driving had gone off the road. The car was found 110 metres down the hillside off Summit Road and police, fire and ambulance services were called to the area. They found Ms You’s body in a paddock some

24 metres from the roadway. The appellant told ambulance staff that he had “run the girl over”.

[6] The appellant was taken to Christchurch Hospital where, at about 2.30 a.m. He was seen by an emergency registrar who noted a complaint of pain to the

forehead and right wrist. The appellant had a burst type laceration to the forehead which, after examination disclosing no underlying skull fracture, was excised and sutured.

[7] According to a Mandarin speaking house surgeon of Chinese ethnicity, who was called upon to translate communications between the appellant and medical personnel, the appellant kept asking for someone to look for “the girl he hit”. A detective who was present asked the appellant whether the girl was inside the car or outside the car before the accident, and he advised that there was only himself in the car, that he did not switch on the car lights and did not see the girl in his way. The house surgeon informed the appellant, somewhat surprisingly, that as he was in New Zealand and it was only a car accident “it was unlikely that he would be sentenced to death”. The appellant made inquiries about euthanasia and asked the house surgeon to arrange for an injection to make him sleep so that he would not wake up. The appellant seemed very concerned about the girl and said that he was afraid she might die and that he would be sentenced to death as well.

[8] Ironically, to say the least, the fact that Ms You had been found dead was not disclosed to the appellant.

[9] At about 9 p.m. on 24 September 2002, Detective D J Bettridge spoke to the appellant in the observation area of the emergency department at Christchurch Hospital. The appellant said to Detective Bettridge “girl with golden hair, I ran into her”. The detective then cautioned the appellant and informed him of his rights in these terms:

I advised [him] he was not obliged to say anything and that anything he did say could be given in evidence and that he had the right to consult or instruct a solicitor without delay and in private.

[10] The detective said he then asked the appellant “Do you understand your rights” and the appellant replied “Yes”. The detective then returned with the appellant to Christchurch Central Police Station where, at 9.30 a.m., they both waited in an interview room for an interpreter. At 9.56 a.m. the detective asked the appellant to identify his residential address to the police and he and the appellant then went to a flat in Hagley Avenue. They returned to the Police Station where, at

10.35 a.m., a Mr J Ren arrived to carry out the duties of a Mandarin-English interpreter.

[11] A lengthy interview then took place, without videotaping and conducted through the interpreter who made no record in Mandarin of the questions he relayed or the answers he received and communicated to Mr Bettridge. A Constable McKenzie was present during the interview. The fact of Ms You’s death was not disclosed to the appellant until approximately 3 p.m., that is four and a half hours after the interview began. When he learned of his girlfriend’s death the appellant became convulsed with distress, grasping the legs of the police officers and exclaiming piteously words which Detective Bettridge has recorded in his notes in the following terms: “Oh no, unbelievable, unbelievable. Ask for the doctor to let me die. Ask doctor to give medicine to die peacefully. I beg of you to let me die. I don’t wish to say anything else.” The detective’s notes then record the following questions and answers:

Q Do you wish to continue with this statement. A I want to destroy all this. I lied before.

Q Kai Ji I need to get your version of events.

A Yes. I intended to kill her. I wanted to use the beer bottle.

[12] At this point Detective Sergeant D Harvey was brought into the interview room and Mr Bettridge’s notes recommence as follows:

Q You know you have the right to consult a lawyer? A I want die. I killed her on purpose.

[13] The record of the interview then discloses an interrogation uninterrupted apart from a break for the appellant to visit the lavatory until shortly after 10 p.m. when Mr Iosefa arrived to provide legal advice under the Police Detention Legal Assistance Scheme administered by the Legal Services Agency pursuant to the Legal Services Act 2000. He had attended in lieu of Ms Ayrey who was contacted shortly after 8.40 p.m. as the result of the following exchange between Detective Bettridge and the appellant.

Q Are you happy talking to us. A Yes.

Q Do you want a lawyer. A No.

Q You can obtain a lawyer. A I can’t afford one.

Q You can get one on legal aid

A I don’t have a phone.

Q I can give you a list of lawyers to contact. A Yes I want a lawyer

[14] Pending the lawyer’s arrival, the notes taken by Detective Bettridge were read back, in translation, to the appellant who made some corrections. Mr Iosefa arrived at the Police Station at the tail end of the reading back.

[15] In the course of the interview until the dramatic turn of events at about 3 p.m. the appellant spoke about the nature of his relationship with Ms You and how there had been an argument on the road up in the hills resulting in Ms You getting out of the car, slamming the door and disappearing. The appellant said he started the car and tried to catch her; that he did not have any lights on and it was windy and dusty; that he could not see her and the car hit her and that he had accidentally driven off the road. The course of the interview after Detective Sergeant Harvey entered the room was of a significantly more incriminating nature.

Grounds of objection and High Court ruling on admissibility

[16] The admission of the evidence of the appellant’s statement was challenged on a number of grounds which may be conveniently reduced to three recognisable categories. First, that the evidence should be excluded on a discretionary basis for unfairness relating to the way in which the interview producing the statement was conducted. Second, that the interview was conducted and the statement obtained in breach of the appellant’s rights under s23 of the New Zealand Bill of Rights Act and

in particular the right assured by s23(1)(b) of a person arrested or detained under any enactment to consult and instruct a lawyer without delay and to be informed of that right. Third, that the interview proceeded from the time the appellant indicated, at about 3 p.m., that he did not wish to say any more, both in breach of the appellant’s rights assured by s23(4) of NZBORA to refrain from making any statement and to be informed of that right and in breach of the Judges’ Rules and in particular the letter and spirit of rules 2 and 3 which provide as follows:

2 Whenever a police officer has made up his mind to charge a person he should first caution such person before asking him any questions or any further questions, as the case may be.

3 Persons in custody should not be questioned without the usual caution first being administered.

[17] As to unfairness, it was submitted on behalf of the appellant in the High Court and on the appeal that the circumstances and manner of the interview warranted a discretionary rejection of the statement. The circumstances included the appellant’s manifest difficulty with the English language, his physical and mental state at the time of the interview, the length of the interview, the failure to record the interview on videotape and the failure of the interpreter to maintain a record of the questions and answers in Mandarin. It was also submitted that it was unfair to the appellant to deliberately withhold from him information about the death of Ms You. Further, contributing to the overall unfairness were the breaches of NZBORA and the Judges’ Rules.

[18] As to those breaches the Crown acknowledged, both in the High Court and before us, that there was a breach of the Judges’ Rules in failing to administer a full caution to the appellant before the interview recommenced after the entry of Detective Sergeant Harvey. No concession was made in respect of the NZBORA right to remain silent and whether such a breach occurred will be examined later in this judgment. A breach of NZBORA s23(1)(b) was said to have occurred because the appellant was not aware until near the end of the interview that he would be entitled to consult and instruct a lawyer without charge pursuant to the Police Detention Legal Assistance Scheme (PDLA). The factual basis for that submission was the exchange between the appellant and Detective Bettridge immediately preceding the appellant’s decision to seek a lawyer at 8.40 p.m.

High Court decision

[19] The High Court Judge held that there was no unfairness to the appellant in respect of his obvious difficulties with the English language because at the outset of the statement he was given his initial Bill of Rights caution in his own language, Mandarin. Even earlier, when the appellant informed Detective Bettridge “girl with golden hair, I ran into her” the appellant was cautioned and when asked whether he understood his rights he replied affirmatively. As to the absence of videotaping, the Judge held that the submission in that respect must be viewed in the context of the accused not contending that what has been recorded in the statement attributed to him is inaccurate in substance or in translation. Nor is there any suggestion of the Police applying improper pressure during the taking of the statement apart from the actual length of the statement itself and the nature of a few questions. The Judge noted that the statement was read to the appellant, in English, then interpreted into Mandarin and that some corrections were made. Accordingly, although videotaping an interview is the best practice, in the particular case no unfairness had been demonstrated.

[20] Concerning the failure of the interpreter to record questions and answers in Mandarin, the Judge held again that the best practice when a statement is taken in a foreign language is that a record of the questions and answers in the foreign language be made, together with a record of the translation. That did not occur in the present case because of an apparent misunderstanding between the interpreter and Detective Bettridge. But once again the criticism fell to be examined in a context where the appellant did not assert error.

[21] Concerning the appellant’s physical and mental state, the Judge noted evidence that the appellant had slept in the ambulance en route to the hospital and had been kept there until 8.30 the following morning. The Judge found that there were breaks throughout the interview although not all had been recorded, contrary to best practice. The appellant had been provided with food, toilet breaks and cigarettes. A report prepared for the Court pursuant to s121 of the Criminal Justice Act 1985 concluded that the appellant did not suffer from any psychiatric disturbances. On the occasion when the appellant became emotional he was given

adequate time to compose himself. In short, considered overall, there was no evidential foundation to establish unfairness by reason of mental or physical condition.

[22] As to the criticisms of the length of the interview, the Judge held there was no evidential basis for a finding of oppression and considered that the period would necessarily be longer because of the need to translate questions and answers.

[23] To the extent that a criticism of the manner of Police questioning might amount to a submission of cross-examination in breach of the Judges’ Rules, His Honour found that looked at overall it was impossible to say that the interview fell into the category of being oppressive, overbearing or unfair.

[24] The Judge dealt with the arguments concerning breach of the New Zealand Bill of Rights Act. He held that in relation to the caution at the beginning of the statement it was administered to a Mandarin interpreter, the appellant replied that he understood his right to consult with and instruct a lawyer without delay and in private and in terms of R v Mallinson [1992] NZCA 163; [1993] 1 NZLR 528, the Police were entitled to take the appellant’s answer at face value. The duty to facilitate the right was not triggered, there being no indication of a desire to consult a lawyer. The Judge held that it was not incumbent on the Police, unless there is some evidence or circumstances to alert them, to inquire whether an accused can afford a lawyer and to advise of the legal assistance scheme. In the present case there was nothing to alert them to any such need. In short, in the Judge’s view, there was no failure to understand the initial caution and advising of rights.

[25] As to the inadequacy, acknowledged by the Crown, of the caution administered upon Detective Sergeant Harvey’s entry to the interview room, the Judge held that later in the interview the appellant was told “You know you have the right to consult with and instruct a lawyer in private” and he had replied “I don’t need it”. In the Judge’s view this “met the necessary requirements”. He also dismissed the complaint on behalf of the appellant about the failure to advise of the death of Ms You because the Police had not acted deceitfully.

[26] The Judge held that if, however, there were a breach of rights in connection with the failure to disclose Ms You’s death and/or in respect of the failure to give a full caution immediately after such disclosure, the statement should nevertheless be held admissible in consequence of a balancing test as mandated by R v Shaheed [2002] 2 NZLR 377. The failure to give a full caution, although a serious breach, was brought about by gross carelessness rather than deliberate action. The failure to advise was also not the product of deceit. Exclusion of the statement would not be a proportionate response to the breach in the specific circumstances of the case and of particular significance in this respect was that having been properly cautioned at a certain point the appellant was content to make incalpatory statements before doing an about turn. The Judge held:

Taking that into account, along with the important nature of this evidence to the prosecution in a case this serious, I consider the evidence should be admitted. The combined factors outweigh even the serious breach so that exclusion would be a disproportionate response.

Arguments on appeal

[27] The arguments for the appellant, before this Court, were essentially those presented to the High Court. The Crown’s arguments in both jurisdictions are generally reflected in the High Court Judge’s reasons which the Crown supported before us. Emphasis was placed by the Crown on the lack of any adequate evidential basis for many of the submissions advanced for the appellant.

Discussion

[28] There were many departures from best Police practice which cause us concern. A videotaped record of an interview is the best means of examining interviews for accuracy and fairness. Where the interview is lengthy, involves the use of interpreters or questioning in a language with which the interviewee is unfamiliar, where the record of interview would otherwise be a police officer’s written notes reflecting his or her subjective appreciation of questions and answers, and where there may be relevant incidents of the interview in terms of conduct or appearance, the absence of a videotaped record creates a serious danger of

inaccuracy or other injustice. Although in the present case counsel for the appellant could not point to any specific inaccuracy, that concession is more or less compelled by the circumstances of an extremely long interview conducted in a foreign language through an interpreter where no record of the foreign language interrogation has been made and there is nothing to suggest that the appellant himself was provided with any means of noting questions and answers. Although some account must be taken of the absence of a specific challenge, the appellant’s taking advantage of the opportunity to correct certain aspects of the record, and the Judge’s finding of no unfairness, other grounds of challenge to the statement must fall to be considered in the context of a substandard interview and the records of it.

[29] Also of concern to us is what seems to have been merely perfunctory advice at the outset of the interview as to the appellant’s right to consult and instruct a lawyer. He was told he had such right but not asked if he wished to exercise it. It was plain that the appellant was a relatively young person of fairly recent entry into New Zealand and with limited English. Nor was there anything to suggest that money would be an irrelevancy to the appellant in connection with obtaining a lawyer. The Police Detention Legal Aid Scheme was established by s12 of the Legal Services Amendment Act 1994, which came into force on 1 February 1995. It is administered by the Legal Services Agency and given practical effect by the conscientiousness and commitment of lawyers prepared to be on call to help people effectively exercise the right which they are assured by s23(1)(b) of NZBORA. It is a right which warrants far more than lip service. More than ten years ago, in R v Brydges 1990 CanLII 123 (SCC); [1990] 1 SCR 190, the Supreme Court of Canada held that where an accused expresses a concern that the right to counsel depends upon the ability to afford a lawyer, it is incumbent on the Police to inform that person of the existence and availability of legal aid and duty counsel. Upon arriving at the Police Station for interview Brydges asked if there was legal aid and the police officer indicated that he was unfamiliar with it. Brydges replied “Won’t be able to afford anyone hey? That’s the main thing.” The Supreme Court held that Brydges’ rights under s10(b) of the Canadian Charter, (the terms of which are almost identical to s23(1)(b) of NZBORA) had been breached. As the judgment delivered by Lamer J observed:

The warning of a right to counsel would be hollow if not couched in terms that would convey to the indigent – the person most often subjected to

interrogation – the knowledge that he too has a right to have counsel present. As with the warnings of the right to remain silent and of the general right to counsel, only by effective and express explanation to the indigent of this right can there be assurance that he was truly in a position to exercise it.

[30] A similar situation arose in the case of Johnson v Police AP33/97 Rotorua High Court, 2 July 1997. Mr Johnson appealed against a summary conviction for driving a motor vehicle with excess blood alcohol. At the time of the alleged offence he was aged 21 years. He failed a breath screening test and accompanied a police officer to Rotorua Police Station where he undertook and failed an evidential breath test, following which he was advised of his right to a blood test. At the roadside he had been advised of his rights under s23(1)(b) of NZBORA and was informed of such right once more before electing to give a blood sample. The Police used a standard form of advice which, as far as it went, was admirable but made no mention of the free legal service for detained people which the appellant could, had he known of it, exercised by telephone. The appellant’s uncontradicted evidence was that he inquired about how much a lawyer would cost and when the constable replied he did not know but that they charged by a quarter hourly rate which varied, the appellant had replied “Well there’s no doubt that I can’t afford it.” He had given evidence at trial that he wanted to contact a lawyer; that he thought he could not afford to get one down to the Police Station; that he had no money on him at the time; and that he had never been inside a Police Station before. He said that he mentioned twice to the constable that he could not afford a lawyer, once before the evidential breath test was conducted and once before electing to undergo a blood test. He gave evidence about his financial circumstances which indicated that the cost of a lawyer would be significant consideration for him.

[31] After examining R v Tunui (1992) 8 CRNZ 294, R v Barber (1993) 10 CRNZ

301, R v Mallinson [1992] NZCA 163; [1993] 1 NZLR 528 and R v Grayson and Taylor [1997] 1 NZLR

399, the High Court concluded:

In my judgment the appellant was not accorded his right to consult and instruct a lawyer, and he was in fact deflected from availing himself freely of that right by dint of erroneous advice as to cost in circumstances where the free scheme should have been brought to his notice. The result of his being deprived of the guaranteed right is that the evidence of the evidential breach test and the evidence of the analysis of the blood sample should have been excluded, with the result that an acquittal was inevitable.

[32] The appeal was therefore allowed and the conviction quashed.

[33] In R v Schriek [1997] 2 NZLR 139 an appellant, Ms McKay, who was described as “an inexperienced 17 year old” had been detained and questioned in connection with charges of kidnapping and murder. At the commencement of an interview by a detective she was informed of her rights pursuant to s23(1)(b) and asked whether she understood what that meant. The following dialogue occurred:

McKay Yep

Detective Okay. Do you wish to have a lawyer present? McKay Don’t have a lawyer

Detective Okay, are you happy to talk to us? McKay Yep

Detective Okay. If at any stage you change your mind you just let us know.

McKay Okay.

[34] This Court held, at p158, that the evidence of the interview should be excluded:

To our mind, the answer "Don't have a lawyer" indicated at least an ambiguity as to whether the appellant understood the nature of the right of which she was being informed. Certainly in the case of an inexperienced 17- year-old the answer may have indicated a belief that what was meant was that if she had a lawyer she was entitled to have that person present; and it may not have occurred to her that she might obtain, without cost, the temporary services of a lawyer not previously known to her specifically to advise her about the present situation. If so, the opportunity to obtain such advice simply went by default. The subsequent discussion did not clear up that point, and if the appellant remained under a misapprehension the offer that she could change her mind at any time would have been meaningless. ‡

Focusing therefore on point no 6 of the Mallinson judgment as much as no 7 we are not satisfied that the nature of the right to consult and instruct a solicitor before questioning began was brought home to the arrested person; the Crown has not discharged the burden in that respect.

Issues like the present raise questions of balancing the need to make the Bill of Rights Act work in an effective way against the risk of hindering law enforcement officers unduly in an increasingly difficult task. Concern that our decision might add further to their burdens is lessened however by the knowledge, obtained from the depositions evidence, that in similar circumstances police officers normally would have made a suspect aware of

the existence of the legal aid scheme, and offered the suspect the list of lawyers.

[35] The authorities which we have examined above support the proposition that where there is an operative free legal assistance scheme for the benefit of detained persons and such a person gives an indication that the right to consult and instruct a lawyer is not being exercised because of financial constraints, the courts will find a breach of s23(1)(b) if the Police do not explain that the legal advice can be obtained at no cost to the detained person, pursuant to the scheme. But this Court has not yet held that the Police should volunteer the information about a free service at the time they advise the existence of the right.

[36] It may be strongly urged that the law should now recognise that concerns about the means, financial and organisational, of getting access to legal advice will often, it might be thought usually, deter a detained person from asking for access to a lawyer. Lamer J’s observations noted in para [29] of this judgment are an apt acknowledgement of a reality which the Crown has recognised in providing legal assistance pursuant to the Legal Services Act 2000. The purpose of that Act is declared in s3 in these terms:

3 Purpose of Act

The purpose of this Act is to promote access to justice by—

(a) providing a legal aid scheme that assists people who have insufficient means to pay for legal services to nonetheless have access to them; and

(b) providing other schemes of legal assistance; and

(c) supporting community legal services by funding community law centres, education, and research.

[37] The object of the PDLA Scheme itself, and its application, are declared in ss50 and 51:

50 Object of PDLA scheme

The object of the PDLA scheme is to ensure that there is available a sufficient number of lawyers to provide legal advice, or legal assistance, or both, to any person—

(a) to whom the scheme applies; and

(b) who wishes to consult or instruct a lawyer about any matter relating to the person's questioning or detention.

51 Who PDLA scheme applies to, and their rights

(1) The PDLA scheme applies to every unrepresented person who—

(a) is being questioned by the police, or who the police want to question, in relation to the commission or possible commission of an offence by that person, and who is advised by the police, before or in the course of questioning, that he or she may consult a lawyer; or

(b) is being detained by the police, with or without arrest, and is entitled, under section 23(1)(b) of the New Zealand Bill of Rights Act 1990, to consult and instruct a lawyer without delay.

(2) Every person to whom the PDLA scheme applies is entitled (subject to this Act and any regulations made under it) to the services of 1 lawyer during the period for which the person is being questioned or is detained.

[38] Given the existence of that scheme and its purpose and given that a true decision whether or not to exercise a right requires knowledge not just of its existence but of its practical availability, it may be thought that the only reason why one would not inform a detained person of the existence of the scheme is to reduce the prospect that it might be availed of. It is not as though any effort is required of the Police or other detainer to explain that advice can be obtained free of charge from a lawyer available under a government funded scheme and that access to such a lawyer will be given if the detained person wants that.

[39] R v Mallinson, decided over a decade ago, found

...there is no duty on the Police when informing persons arrested of their right to a lawyer to go on to give advice designed to facilitate the exercise of that right (p531 lines 43-46)

There is a question whether advice as to the existence and availability of legal assistance such as PDLA amounts merely to facilitation, or whether it is integral to the existence of what this Court referred to in Mallinson at p530 lines 52-54 as a:

...fair opportunity for the person arrested to consider and decide whether or not to exercise that right.

It seems to the majority of the Court that the latter view is more consonant with an appreciation of the realities of detention, and with the principle of access to justice acknowledged by the Legal Services Act 2000.

[40] But we did not consider it appropriate to examine, in the light of contemporary institutions, the application of the values discussed in Mallinson because the urgency under which this Court was obliged to deal with the appeal did not permit the development of arguments in the way the issue warranted. Nor was there an adequate evidential basis for finding a causal link between a possible breach of the right and the making by the appellant of his statement up to the point when, for the reasons given below, the statement became inadmissible. The fact that much later in the interview the appellant decided to avail himself of legal advice having been told of this free availability was insufficient, in the absence of any evidence from the appellant himself, to suggest an earlier causal connection.

[41] It is a different matter in relation to the breach of the Judges’ Rules and of s23(4) NZBORA which occurred immediately after the appellant was told of the death of his girlfriend. We do not have a visual record of his anguish but it can be imagined from Detective Bettridge’s evidence including his record of the interrogation. What is perfectly plain is that he did not wish to answer any more questions and said that he did not wish to. Detective Bettridge was not prepared to accept that. He asked “Do you wish to continue with this statement” and insisted “Kai Ji I need to get your version of events”. Far from respecting the appellant’s expressed wish not to say any more, Detective Bettridge pressed him, in his distressed state, to continue. Even apart from the inadequate caution which was given upon Detective Sergeant Harvey’s entry into the interview room the Detective’s insistence that the appellant provide more information was a serious breach of the right to silence. Even before the appellant said “Yes. I intended to kill her”, he had stated that he lied, this being a sufficient indication of apparent criminality to trigger the need for an adequate caution in terms of that given to him a full six hours previously.

[42] We mentioned earlier in this judgment the context in which this breach of the

Judges’ Rules and NZBORA occurred. The interview was long and ultimately

emotional and it involved a foreign national who required an interpreter. No record of the detainee’s native language was kept contrary to best practice and the interview was not videotaped, also contrary to best practice. The appellant had himself been involved in an accident which had resulted in a head injury and hospitalisation. To hold the interview admissible from the point of time the particular breaches occurred would devalue the rights breached in the same breath as substandard Police practices with their potential for serious injustice would be condoned.

[43] Therefore, in our opinion, all of the evidence of the interview from the time the breaches occurred, that is, all after the appellant’s statement that he did not wish to say anything else, ought be held inadmissible and we gave judgment to that effect accordingly.

[44] We mention, for completeness, that we saw nothing of legal relevance in the failure to disclose the fact of Ms You’s death notwithstanding that in some cases a failure by the Police to indicate the context in which inquiries are being made either generally or in respect of a detained person could amount to a serious breach of rights or significant unfairness. But in the particular case the appellant of course well knew that he was being questioned in connection with a motor car driven by him which had struck his girlfriend who, as far as he must have known, was at least injured and could not be found. This is not a case where an accused person has been induced by ignorance of context into some unguarded statement subsequently used against him.

[45] For the above reasons judgment was given in the nature we have indicated.

Solicitors:

Iosefa & Co, Christchurch for Appellant

Crown Solicitor, Christchurch for Crown