R v N CA271/04 [2004] NZCA 395 (4 August 2004)

Last Updated: 21 October 2018

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA271/04

THE QUEEN

v

N

Hearing: 29 July 2004

Coram: William Young J John Hansen J Doogue J

Appearances: M E Goodwin for Appellant
B H Dickey for Crown Judgment: 4 August 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1] This is an application for leave to appeal against a pre-trial ruling given by Judge McGuire in the District Court at Rotorua. The Judge found in favour of the Crown on an application under s 344A of the Crimes Act 1961 as to the admissibility of a video interview of the appellant.

R V N CA CA271/04 [4 August 2004]

Background facts

[2] The appellant faces two charges of sexual violation. The complainant is his stepdaughter. It is common ground that on the night of 22 January 2004 the complainant stayed with the appellant at his house. It is clear that the complainant was seriously intoxicated; this to the point that she vomited. When she woke up she formed the view that something of a sexual nature had happened to her overnight. Her suspicions soon hardened into the conclusion that the appellant had had sexual intercourse with her. As a result she complained to the police.

[3] There then followed two streams of activity.

[4] Detective Chris Thomas dealt with the complainant. He took her to a medical centre at which she was examined. He also picked up some of her clothing from her house which he took to the medical centre. Around lunchtime he was given an interim report from the Doctor as to the medical examination. She told him that she had found what she believed to be semen staining on the inside of the victim’s jeans and that she had observed some tenderness on the victim’s vagina. Armed with this information, he returned to the police station, arriving shortly after 2.30pm.

[5] In the meantime, Detective Steven Dunn had been dealing with the appellant. Having been briefed about the initial allegations made by the complainant, Detective Dunn phoned the appellant at his place of work and requested him to come to the police station. The appellant agreed to do so in his lunch break. The telephone call was at 11.19am.

[6] The appellant arrived at the police station at 12.17pm. At the front counter he met Detective Dunn who took him out of the public area into the secure area within the police station. The appellant was given the usual advice under s 23 of the New Zealand Bill of Rights Act 1990 and the opportunity to telephone a lawyer. He was able to make contact with a solicitor who was acting for him on a conveyancing transaction although not a lawyer who specialised in criminal law. He nonetheless agreed to a video interview which commenced at 12.47pm and lasted for some 35 minutes. At the commencement of this interview he was again both cautioned
and given s 23 advice. In the course of this interview the appellant acknowledged that there had been some physical contact between him and the complainant but was non-committal whether he had had sexual intercourse with her.

[7] At the conclusion of this interview the appellant chose to watch a replay of the video of the interview. He was also asked for and agreed to provide blood for DNA analysis. This process took some time. The nurse who took the samples eventually handed them over to Detective Dunn at 2.34pm. The blood had been collected downstairs in the police station and the appellant was then taken back upstairs to the room in which he had been previously interviewed. He and Detective Dunn sat down in that room while the Detective completed paperwork associated with the taking of the DNA samples.

[8] While this process was going on, Detective Thomas arrived back at the police station. He told Detective Dunn that the doctor who was examining the complainant found what she believed to be seminal staining on the complainant’s jeans.

[9] Detective Thomas and Detective Dunn then spoke briefly to the appellant. He was told what had emerged from the medical examination of the complainant. He then immediately volunteered to the detectives that things must have gone further than he had thought and that he must have had sex with the complainant. He was then asked if he would agree to be interviewed again on video and he agreed. This conversation took place at 2.38pm.

[10] The second video interview started at 2.52pm. It commenced with a further caution and further advice under the New Zealand Bill of Rights Act. This interview lasted some 10 minutes. In the course of it the appellant made some admissions which will be relevant to whether he could reasonably have considered that the complainant had consented to sexual intercourse with him.

Admissibility challenge

[11] The appellant challenges the admissibility of the second interview. His contention is that he was in de facto custody and that he had therefore been subject to arbitrary detention in breach of s 22 of the New Zealand Bill of Rights Act 1990.

[12] This admissibility issue resulted in the Crown seeking a ruling under s 344(a) of the Crimes Act as to the admissibility of the second interview. This application was heard by Judge McGuire in the District Court on 2 July 2004 and resulted in an oral ruling later that day in which he upheld the admissibility of the second video.

The ruling of the Judge

[13] As just indicated, the Judge found in favour of the Crown on the admissibility issue.

[14] The reasons for the Judge’s conclusion appear in the following paragraphs of his ruling:

[20] The circumstances I find to have been operating here are these. The investigation, so far as the accused is concerned, started in an extremely low key and prosaic way. This was not a case of the Police arriving at the man’s work and inviting him back to the Police Station with all the overlay that that conjures up. This was a phone call to a person at his place of work, and it was responded to with alacrity. I am satisfied beyond all doubt that Mr N ’s quick response was to get his recollection, his version of events of the previous evening on the record to clear things up.

[21] Now as to the assertion or the proposition that once behind the public area, that, if you like, sets the scene for de facto detention, I reject as a proposition. It must follow that if that were so, that all persons, whether reporting crimes, whether being interviewed as possible witnesses, who are interviewed in the working area of the Police Station are de facto detained. I reject that, as I say, as a proposition, and in terms of mechanics, it would be reasonably plain if a person was curious, that they would quickly realise that they could leave by pressing the button to open the door.

[22] What, in my view, determines whether or not there was detention here is the combination of all the circumstances, including the background; what was done along the way; what the accused thought and did along the

way; the way in which the whole afternoon was conducted by the Police; the references to it being a very co-operative transaction with the accused and so on. I bear in mind that from go to woe, there were two video interviews, one video interview played back, blood samples taken, and the amount of time that the accused was delayed, was just under three hours.

[23] As to failure of the Police to say to him that he was free to leave at any time, I consider that, in the context of this particular afternoon, given that fact that the accused arrived there under his own steam, as I have indicated, and due to the fact that he was anxious to get his views on the record, and added to that the efforts that the Police made to find him a lawyer, added to that not only the Bill of Rights advice that was given on two occasions, but also the acknowledgement, indeed the interruption, by the accused towards the beginning of the second interview, that he was happy to be interviewed again. Therefore, I find that the accused at no stage throughout that afternoon, through and including the second interview when he said he was under pressure, did he have a reasonably held belief induced by Police conduct that he was not free to leave.

[24] Accordingly therefore, I find that he was not detained that day at the Taupo Police Station. As Mr Goodwin has rightly submitted, that had there been an arbitrary detention, and if there had been in fact a detention for questioning purposes, it plainly would have been arbitrary, and then the case would call for the application of Shaheed. For the sake of completeness, if I am wrong on the issue of detention, then I would find that the evidence is nevertheless admissible under the Shaheed principles, notwithstanding the fact, as Mr Goodwin submits, that there was inevitably going to be DNA evidence. This is not clear, in the sense of the DNA at that stage being proved, at the time that the second interview occurred.

[25] So then, and now, even though I infer that the DNA evidence has identified the accused, the evidence of his admission of having sex and the other admissions he makes are plainly probative and important evidence. The charge is a serious one, and when one looks at the way in which the afternoon unfolded, as I say even if I am wrong on the issue of whether or not there was a detention, I can detect no flagrant, reckless breaches of the accused’s right. In fact, if anything, the contrary. The investigation proceeded in a most prosaic fashion. It was good humoured. There was no rancour, and I can readily understand the Police finally wishing to have that later confessional evidence on video, since the earlier evidence was reduced to video as well. One can imagine if it were not so, and, as I have said, it is plainly important evidence that might lay the Police open to criticisms either of sloppy Police work or indeed possibly fabricating what I have determined is very important evidence. I mention this to simply underline the fact that the Police would equally have been criticised in another way for not going ahead with the second interview.

Arguments for the appellant

[15] In this Court Mr Goodwin for the appellant relied on arguments broadly similar to those placed before the Judge.
[16] He contended that once the blood sample had been taken, the appellant should have been released. So his position, as articulated before us, was that the appellant was detained from the point at which the taking of the blood sample was complete, ie at around 2.34pm. Mr Goodwin argued that, from then on, the appellant had a reasonably held belief, induced by police action, that he was not free to leave the police station. Once the appellant arrived at the police station he was escorted from the public area into a secure area. After the first video interview (including the replaying of the video) the appellant was taken to a medical room in the vicinity of the cell block for the taking of the DNA samples. Mr Goodwin maintained that there was no reason for Detective Dunn to take him to the upstairs interview room after that process had been completed other than to put him in the position in which he could then again be interviewed. He noted that the appellant was not, at any stage, advised by the police that he was free to leave. He complained that no caution or Bill of Rights advice was provided to him prior to the commencement of the second videotaped interview (ie no caution or Bill of Rights advice additional to what had already been provided on two previous occasions that afternoon).

[17] Mr Goodwin argued that in the terms of the balancing act required by
R v Shaheed [2002] 2 NZLR 377, the evidence should be excluded.

Crown submissions

[18] As it turned out, we did not call upon the Crown to respond to the appellant’s arguments.

Discussion

[19] Whether there is a detention in the context of police interviews of suspects is to be determined on the objective/subjective test proposed by Blanchard J in R v M [1995] 1 NZLR 242 at 245 and adopted by this Court in Everett v Attorney-General [2002] 1 NZLR 82 at para [7] and in R v Koops (2002) 19 CRNZ 309 at para [14]. On this basis, the appellant was arbitrarily detained if he believed reasonably, as a result of police action, that he was not free to leave.
[20] As will be apparent, we have some reservations about where this line of argument leads in cases, such as the present, where all appropriate cautions and Bill of Rights advice have been provided. It is appropriate that we record those reservations at this point in the judgment.

[21] Of considerable importance to the admissibility of admissions made to the police in the pre-New Zealand Bill of Rights Act environment was r 3 of the Judges’ Rules. This provides:

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

The rule has a commentary which we need not set out but which appears in Adams on Criminal Law, at para 2.4.03. In R v Convery [1967] NZCA 37; [1968] NZLR 426 at 435 North P held that the question whether or not a suspect was in custody depended on whether there had been:

[C]onduct on the part of the police which caused the suspected person on reasonable grounds to think that he was in custody.

In that case McCarthy J took the same approach as North P, see 442. It will be noted that r 3 of the Judges Rules does not purport to preclude questioning of persons in custody providing that “the usual caution” had first been administered.

[22] The thinking that underlay the approach in Convery has been influential in the Bill of Rights context in relation to ss 22 and 23, see for instance R v Goodwin [1993] 2 NZLR 153 at 162–163 per Cooke P. Indeed the Convery approach is very similar to that taken in relation to those sections by Blanchard J in R v M.

[23] In the present case, the appellant received a caution and Bill of Rights advice satisfying the requirements of both r 3 of the Judges’ Rules and s 23 of the New Zealand Bill of Rights Act on three occasions; first when he arrived at the police station, secondly at the start of the first video interview and thirdly at the commencement of the second video interview. Had he been formally arrested when he first arrived at the police station (not that that would have been appropriate on the evidence then available to Detective Dunn) it would have been in order for the police to have interviewed him providing he was first cautioned and advised under s 23 of
the New Zealand Bill of Rights Act. The same is true of the position which would have obtained if the appellant had been arrested when Detective Thomas arrived back at the police station. In that context, it seems difficult to see why a belief on the appellant’s part that he was not free to go (assuming he had one) should be treated as resulting in an arbitrary detention rendering inadmissible the second video interview when all the rights the appellant was entitled to on arrest had been afforded to him.

[24] The fundamental merits of the position of the defendant in R v M which warranted exclusion of his admissions was that the defendant had not understood his rights; this being associated with his cultural background and his lack of knowledge of the English language. These objections would have been equally cogent if the defendant in that case had been arrested (as he could have been on the evidence then available to the police officers) and his detention thus rendered lawful.

[25] In Koops, which involved a situation similar to the present and where a finding of de facto custody was made, the police had not given the appellant the usual caution or advice of her entitlements under s 23 of the New Zealand Bill of Rights Act. This was of decisive significance in that case, as the following passage from the judgment indicates:

[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 s 22 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 (s 23(1)(b)) and of her right to be informed of her right to refrain from making any statement (s 23(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, s 23 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. ...
Those remarks make it perfectly clear that the admissions in Koops would not have been excluded had advice been given under the New Zealand Bill of Rights Act and an appropriate caution provided. In the present case both a caution and New Zealand Bill of Rights Act advice were provided, indeed, on three occasions.

[26] In Goodwin the inculpatory statements made by the appellant were eventually excluded see R v Goodwin (2) [1993] 2 NZLR 390. Again there had been no caution and no advice under s 23 of the New Zealand Bill of Rights Act.

[27] The upshot of all of this is that we are of the view that where police officers are interviewing suspects but provide at the appropriate time a caution under the Judges’ Rules and advice under s 23 of the New Zealand Bill of Rights Act, there is little or no scope for arguments of the sort advanced by Mr Goodwin.

[28] In any event, the argument of the appellant is devoid of merit.

[29] It is perfectly clear that an assessment by a suspect, accurate or otherwise, that the evidence against him is such that arrest is likely or inevitable does not mean that the suspect is therefore in police custody when being interviewed. On this point, reference can be made to the judgment of Fisher J in R v Adams [1993] NZHC 390; (1993) 10 CRNZ 687. The security set-up in the police station is common-place. Accordingly it is not credible to suggest that the use of a secure section of a police station for interview purposes means that a suspect being interviewed is in custody. The relevant events unfolded over a relatively short time frame with approximately two and a half hours between the appellant’s arrival at the police station and the commencement of the second video interview. That period of time was largely occupied by the preliminaries to the first interview, the first interview itself, the replay of that interview and the taking of the DNA samples. Formalities associated with the DNA samples were still being completed when Detective Thomas became involved in the interactions with the appellant. We make it clear that we do not regard it as necessary for police officers who are interviewing a suspect to say, explicitly, that the suspect is free to go unless there has been something in their conduct which could reasonably lead the suspect to believe that he or she is not free to go.
[30] In this case the Judge made a clear finding of fact against the appellant when he concluded that the appellant did not have “a reasonably held belief induced by police conduct that he was not free to leave”.

[31] That finding of fact by the Judge was practically inevitable on the evidence. Despite the valiant efforts of Mr Goodwin, nothing he said came close to persuading us that the Judge was wrong. For this reason, and, as well, what was said by this Court in para [18] of the Koops judgment, we are satisfied that the second video interview was rightly held to be admissible.

Disposition

[32] We grant leave to appeal but we dismiss the appeal.

Solicitors:

Jackson Reeves & Friis, Tauranga for Appellant Crown Solicitor, Tauranga