R v Rogers CA291/05 [2005] NZCA 497; [2006] 2 NZLR 156; (2005) 22 CRNZ 425 (27 October 2005)

Last Updated: 15 January 2018

For a Court ready (fee required) version please follow this link

R v ROGERS

Court of Appeal (CA291/05) 10, 14 October; 27 October 2005

Robertson, Baragwanath, Heath JJ

Evidence — Admissibility — Admissibility of video reconstruction implicating applicant — Counsel not told about reconstruction — Implied agreement that applicant would not be questioned in the absence of counsel — Police lulled defence into a false sense of security — No effective waiver by applicant — Applicant needed to be plainly informed and given time to reflect upon it — Substantial breach of proper police standards — Evidence excluded — Crimes Act

1961, s 344A; New Zealand Bill of Rights Act 1990, ss 23(1)(b), 23(4), 24(c).

In 1994 the body of a woman named Ms Sheffield was discovered in a shallow grave on the property of Mr Lloyd. Mr Lloyd stood trial and was convicted of her manslaughter. He served a sentence of imprisonment. Mr Rogers, a nephew of Mr Lloyd, was arrested on an unrelated charge. He admitted to, and was charged with, the murder on 30 June 2004. In August 2004 the Court of Appeal quashed Mr Lloyd’s conviction(see R v Lloyd 25/8/04, CA72/02).

While remanded in custody, Mr Rogers had been taken by the police to his uncle’s property, where he participated in a video reconstruction of the killing of Ms Sheffield. The videotape included a detailed account by Mr Rogers of how Ms Sheffield was alleged to have died. Police had been asked by Mr Corry, the applicant’s counsel, not to communicate with the applicant without first notifying counsel. They omitted to do this.

Held, (1) in relation to Mr Corry’s request to refrain from questioning the applicant without counsel’s presence, the police behaved in a way that lulled the defence into a false sense of security. There had been an implied, but clear, understanding between the police and Mr Corry which the Court saw must be honoured. There was no effective waiver by the applicant. He had made and signed assertions of agreement, but at no stage before the trip did the police inform him of their motive. The applicant’s motive had been a personal one of returning to his family environment. For waiver to have occurred he must at the very least have been plainly informed of what was proposed, and have been given adequate opportunity to reflect upon the options and their significance. The applicant never received a clear message analysing facts and options that would have placed him in a position to waive his rights. Short of that, the evidence must be excluded. The way in which the evidence was obtained entailed such a substantial breach of proper standards that it would have been unprincipled to use Shaheed for justification. (paras 67-70,

73)

Clarkson v R [1986] INSC 23; [1986] 1 SCR 383; (1986) 50 CR (3d) 289; (1986) 26 DLR (4th) 493 (SCC)

Korponay v Canada (1982) 26 CR (3d) 343 (SCC)

R v Barnard [1837] EngR 546; (1837) 7 C&P 784

R v Bartle [1994] 3 SCR 173; (1994) 33 CR (4th) 1; (1994) 118 DLR (4th) 83 (SCC)

R v Horseferry Rd Magistrates’ Court, ex p Bennett (No 1) [1993] UKHL 10; [1994] 1 AC 42; [1993]

[1993] UKHL 10; 3 WLR 90; [1993] 3 All ER 138

R v Ormsby 8/4/05, CA493/04

R v Pinkerton 23/3/93, CA342/92

R v Shaheed [2002] 2 NZLR 377; (2002) 19 CRNZ 165; (2002) 6 HRNZ 561 (CA) R v Taylor [1993] 1 NZLR 647; (1992) 9 CRNZ 481; (1992) 3 NZBORR 191 (CA) Walters v Morgan (1861) 3 de GF & J 718 referred to

Cases referred to

Carrell v Carrell [1975] 2 NZLR 441

Chu Piu-wing v A-G [1984] HKLR 411 (HK CA)

Korponay v Canada (1982) 26 CR (3d) 343 (SCC)

Police v Kohler [1993] 3 NZLR 129; (1993) 10 CRNZ 118; (1993) 1 HRNZ 303 (CA)

R v Barlow (1995) 14 CRNZ 9; (1995) 2 HRNZ 635 (CA)

R v Barnard [1837] EngR 546; (1837) 7 C&P 784

R v Bartle [1994] 3 SCR 173; (1994) 33 CR (4th) 1; (1994) 118 DLR (4th) 83 (SCC)

Clarkson v R [1986] INSC 23; [1986] 1 SCR 383; (1986) 50 CR (3d) 289; (1986) 26 DLR (4th) 493 (SCC)

R v Croydon Justices, ex p Dean [1993] QB 769; [1993] 3 WLR 198; [1993]

3 All ER 129

R v Horseferry Rd Magistrates’ Court, ex p Bennett (No 1) [1993] UKHL 10; [1994] 1 AC 42; [1993]

[1993] UKHL 10; 3 WLR 90; [1993] 3 All ER 138

R v Moresi (No 2) (1996) 14 CRNZ 322

R v Ormsby 8/4/05, CA493/04

R v Pinkerton 23/3/93, CA342/92

R v Potter (1888) 6 NZLR 92 (CA)

R v Shaheed [2002] 2 NZLR 377; (2002) 19 CRNZ 165; (2002) 6 HRNZ 561 (CA) R v Taylor [1993] 1 NZLR 647; (1992) 9 CRNZ 481; (1992) 3 NZBORR 191 (CA) R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649; (1993) 1 HRNZ 230 (CA)

S v Ebrahim [1991] ZASCA 3; 1991 (2) SA 553 (SA CA)

Walters v Morgan (1861) 3 de GF & J 718

Application

Application for leave to appeal against pretrial admissibility ruling.

M J Corry and N A Cervin for applicant

S B W Grieve QC, C Morris and K Abbot for Crown

The judgment of the Court was delivered by

BARAGWANATH J (reserved):

Introduction

[1] The applicant seeks leave to appeal against the pretrial ruling given by

Cooper J on 2 August 2005 in which he upheld under s 344A of the Crimes Act

1961 the admissibility of post-arrest evidence at the applicant’s trial for murder which is due to commence on 31 October 2005.

[2] The issues are:

(a) Was there an enforceable arrangement that the police would not communicate with the applicant without notifying his counsel?

(b) If so, did he waive his rights under such arrangement?

(c) If there was an enforceable arrangement that was not waived is admission of the evidence nevertheless justified on the balancing test mandated by R v Shaheed [2002] 2 NZLR 377; (2002) 19 CRNZ 165 (CA)?

Background

[3] Ms Katherine Sheffield died at Mangonui in September 1994 as a result of knife wounds. The applicant’s uncle, Mr Lloyd, was charged with her murder and convicted of manslaughter. But having served a substantial part of his sentence Mr Lloyd succeeded in having his conviction set aside by order of this Court on

25 August 2004.

[4] The applicant had been interviewed on 29 September 1994 in the course of the original investigation and was re-interviewed on 30 November 2001 and on

18 December 2001. The police then considered that there was insufficient evidence to charge him with Ms Sheffield’s murder. As a result of further information received the applicant was interviewed again on 15 March 2004. He admitted that he and not his uncle was responsible for killing Ms Sheffield. He told the police that after killing her he had used clothing to wipe up the blood and had thrown it down a long drop. A search revealed the clothing and the presence of blood upon it.

[5] On 19 June 2004 the applicant was in the Auckland Central Remand Prison on an unrelated charge. Detective Sgt Scott visited him, cautioned him and gave him a Bill of Rights warning that he did not have to make a statement and had the right to instruct and consult a lawyer. The Detective Sergeant asked him to read the job sheets of interview at the Whangarei Police Station on 15 March 2004. The applicant said he did not agree with some of the material job sheets and said “You’ve got nothing on me.”

[6] On Wednesday 30 June 2004 Detective Sgt Scott returned to the prison with Detective Inspector Taare and Detective Sgt Taylor. The applicant was brought to a cubicle where Detective Sgt Scott told him that he did not have to say anything, to which he replied that he did not intend to do so in the absence of his lawyer. Detective Sgt Scott asked him to listen then formally charged him with the murder. He asked the applicant if he had anything to say in answer to the charge, gave him a formal caution and advised him of his rights to instruct a lawyer and to refrain from making any statement. In a short dialogue the applicant said he had nothing to say and the officers left.

[7] On the following day Thursday 1 July 2004 the applicant was due to appear in the Auckland District Court on the murder charge. At about 9.20 am Detective Sgt Scott spoke to the applicant in the Court cells. He stated that the

applicant appeared calm and said that he wished to discuss with the Detective Sergeant a deal whereby he would make a statement about killing Ms Sheffield and also about importing methamphetamine if the police agreed to withdraw a charge made against a friend of his. The Detective Sergeant responded that he would not talk about “this type of situation” unless the applicant’s solicitor were present. The applicant said he understood and went out of the cells to speak to his lawyer. The applicant then returned and said that he wished to speak to the Detective Sergeant that afternoon. They arranged an appointment for about 3 pm by which time he would have seen his solicitor.

[8] Not long afterwards Detective Inspector Taare was seated in the front row of a courtroom with members of the deceased’s family. Mr Corry approached the Detective Inspector and said that he was acting for the applicant. The Detective Inspector said that Mr Corry:

requested that I do not have any communication with his client without him first being notified — or words to that effect.

[9] It has long been accepted that counsel can make arrangements with third parties as part of his or her ostensible authority, even in the absence of express instructions: generally, see Carrell v Carrell [1975] 2 NZLR 441 at pp 444-445 (per Cooke J) and Halsbury’s Laws of England (4th ed) (2005 reissue), vol 3(1) at p 664, the current equivalent of the passage from an earlier edition cited by Cooke J in Carrell.

[10] The Detective-Inspector’s evidence-in-chief includes the following passage

(we have edited the transcript):

did you personally return [the applicant] from the court to the prison . . . No we did not. And the reason we did not return him was that during the conversation that DS Scott was telling me about [—] his conversation with Mr Rogers in the court cells that morning [—] I advised DS Scott about Mr Corry’s direction to me in relation to his client.

In any event did you and DS Scott go up to the Auckland Central Remand Prison that afternoon . . . Yes we did.

Why . . . It was my understanding that we were going to the prison to see Mr Rogers in relation to this so called drug deal that he wanted to discuss with DS Scott. It was also my understanding that Mr Corry’s direction to me in court that morning related to the murder charge that Mr Rogers was appearing on as at that time he gave me that direction I had no knowledge about the so called drug deal that Mr Rogers wanted to do.

When you went up to the prison did you go into the room with DS Scott and speak to

Mr Rogers. . . Yes I did.

. . . . .

Did you meet up with Mr Corry when you were leaving the prison, he was on his way in and you were on your way out. . . That is correct

. . . . .

Tell us did you stop and speak to Mr Corry when you bumped into him . . . We did stop but I didn’t speak to Mr Corry DS Scott assured Mr Corry that no discussion had taken place with Mr Rogers in relation to the murder charge or any other matter.

In cross-examination (87) the Detective Inspector was asked:

I ask you and put it to you that that request means no communication at all it doesn’t it mean some communication, but not other communication, it means no communication doesn’t it . . .

He replied “No I don’t agree with that.” Asked “What is it you don’t understand about the words ‘any communication’?” he answered:

I take your direction to me that morning to believe that it related to the murder charge that Mr Rogers was appearing on . . . It only related to the murder charge.

He later said (89):

the fact that Mr Rogers was talking about taking the rap for someone else in exchange for information about the death of [the deceased] I put to one side, I had no interest and I directed DS Scott accordingly. We were not to speak to Mr Rogers about the murder in any fashion. Our sole purpose of going to the prison was to obtain information in relation to that drug charge so that when you rang DS Scott we would have been in a position to advance that matter further.

[11] Detective Sgt Scott said:

Inspector Taare explained to me that the accused’s solicitor has spoken to him and had asked that he be advised before the police spoke to the accused.

Then I think did you and Inspector Taare form any view about whether Mr Corry’s request related to the murder charge Mr Rogers was facing or the drug matter or both? . . . I had a discussion with Inspector Taare about the accused’s solicitor’s request and we believed that that request related to the matter that was before the Court and not the unrelated drug matter.

Asked in cross-examination (44):

But later that morning Inspector Taare informed you that counsel had requested that the accused not be spoken to by police without being first advised, that is the case isn’t it . . .

he replied:

Yes later that morning I had an opportunity to speak with Inspector Taare by himself. I explained to him what had occurred when I went to see the accused and it was at that stage that he advised me of the request by yourself not to approach the accused unless first notified. We had a talk about that request and we believed that that request . . . related to the

. . . murder charge.

[12] Cooper J dealt in some detail with the evidence given before him. His material findings are set out below, with our emphasis added:

[28] Apparently, after the respondent had appeared in Court that morning, Mr Scott received a telephone call from one of the escort staff asking whether Mr Rogers should be returned to the prison or whether Mr Scott wished to speak to him again. Mr Scott advised that he should be returned to the prison. He said that an arrangement had been made to talk to him at 3 o’clock after he had had ample time to talk to his lawyer and that was the reason for not speaking to him again at the Court after his appearance. It was Mr Taare’s evidence that he had been advised that it was the respondent who had again asked to speak to Mr Scott (and indeed Mr Taare) for a second time in the District Court cells. However,

Mr Scott did not give evidence to that effect and Mr Taare did not explain who had advised him that the request had come from the respondent.

[29] Mr Taare also referred to an ‘understanding’ that he had that the respondent had asked Mr Scott and Mr Taare to physically return him to the Auckland Central Remand Prison from the Court. However, they had not done that. Mr Taare said that the reason they had not done so was that during the conversation in which Mr Scott had been telling him about his conversation with Mr Rogers in the cells that morning, he had advised Mr Scott about Mr Corry’s direction to him in relation to not talking to the respondent without Mr Corry first being notified.

[30] That evidence is difficult to square with the fact that as had been arranged, both Mr Scott and Mr Taare travelled to the Auckland Remand Prison that afternoon for the purpose of again meeting with Mr Rogers

. . . . .

[31] Cross-examined by Mr Corry, Mr Taare maintained that they were not going to see the respondent to discuss the murder charge with him. Rather, the purpose had been to make inquiries about the drug deal that Mr Rogers had wanted to do. He explained that as he understood it from Mr Scott, the respondent wanted to admit to a charge that had been made against a friend of his in relation to the importation of methamphetamine. In order to advance that particular matter any further it was necessary for them to talk to the respondent, and obtain details from him so that he and Mr Scott were in the position to make inquiries in respect of the drug charge.

[32] Pressed on why advice about the meeting had not been given in advance to Mr Corry, Mr Taare maintained his view that he considered that Mr Corry’s direction not to have any communication with the respondent without prior notice to Mr Corry had related only to the murder charge. That was how he had ‘taken’ Mr Corry’s instruction.

[33] I have some difficulty in accepting Mr Taare’s evidence on this point. Certainly, on the evidence, Mr Corry’s instruction had not been qualified in any way. Further, it seems to me that there would have been no point in the police officers ascertaining further information about the drug matter unless it was for the purpose of furthering their inquiry into the murder charge that had been brought against the respondent. Both Mr Taare and Mr Scott were police officers based in Wellington and their dealings with the respondent were only in relation to the murder charge. In my view, albeit that it was at the request of the accused, the circumstances were such that the visit to the Remand Prison that occurred that afternoon should not have been made without Mr Corry being told about it.

[34] However, both Mr Scott and Mr Taare gave evidence to the effect that when they arrived at the prison and embarked upon a discussion with the respondent that afternoon, it became apparent that the respondent had not spoken to his solicitor since the discussion with Mr Scott prior to appearing in the Court that morning. In the circumstances, the conversation was quickly terminated. Nothing was discussed about the murder charge and Messrs Scott and Taare decided to leave. Before doing so, Mr Scott gave his business card to the respondent and indicated that he would try to contact his lawyer. The respondent said that before they left that he would like to see them again the next day at 9.30 am because by then he would have had an opportunity to speak to his solicitor. An arrangement was then made for a further meeting at 9.30 on the following day. Messrs Scott and Taare left, and as they were leaving they ran into Mr Corry. They then explained to him that nothing had been discussed with the respondent because he had not been able to see Mr Corry.

[35] Mr Scott returned to the prison the following morning (Friday 2 July) and spoke to the respondent again. He was joined by Mr Taare after about half an hour. Prior to the arrival of the latter, Mr Scott said that the respondent informed him that he had not spoken to his lawyer yet, that he needed to do a few more things and to talk to a couple of people. Mr Scott said that he had passed on concerns that had been expressed by his Aunt, Mrs Lloyd and his Uncle Migo, about how he was, and that the respondent had asked if Mr Scott could get a message to Mrs Lloyd asking her to contact him. Mr Scott agreed that he would. The respondent apparently indicated that he did not wish to talk to him about the drug matter at that stage and that Mr Scott had said that he would wait until his lawyer

contacted the police or if that had not occurred by the following day then Mr Scott would call Mr Corry or make contact with the respondent again himself. The respondent had agreed to this process. Inspector Taare then arrived, Mr Scott appraised him of what the respondent had said and the two then left.

[13] The evidence of Detective Sgt Scott was:

Did you make any agreement about when you’d next either meet or do something about the drugs matter . . . I advised Noel we’d wait until his lawyer had contacted us or if they hadn’t by Wednesday that I would call them or Noel himself. He agreed with this.

Shortly after this Inspector Taare came into the interview room and I appraised him of what Noel had said. And what we’d been talking about. We then left the prison.

[14] At that meeting the applicant asked Detective Sgt Scott to get a message to his aunt, Mrs Lloyd, asking her to contact him. Thereafter the police had no contact with the applicant except indirectly in conversation relayed from Mrs Lloyd. In accordance with her request Detective Inspector Taare rang Mrs Lloyd and the applicant’s uncle, leaving messages that the applicant wanted his uncle to get in contact with him and to visit him at the prison.

[15] Also on 2 July Mr Corry wrote to Detective Inspector Taare care of the Wellington Central Police Station post office box. It was received by the Detective Inspector at some stage between 3 and 8 July. The letter was in the following terms:

Dear Inspector Taare

As you know the Public Defence Service is instructed to act for Mr Rogers.

I was a little surprised to see you and Detective Sergeant Scott visiting Mr Rogers at the Auckland Remand Prison on the afternoon of the 1st July particularly as I had spoken to you in the morning requesting that you make no further contact with him.

Once a person is charged and appears in Court for the first time and is given the opportunity of guidance from a lawyer there is a new professional relationship and I expect that any approach to my client against my request would in fairness require notice to me.

I therefore repeat the request that my client not be approached without notice to me and an opportunity to be present.

I formally record also Mr Scott’s advi[c]e to myself and my colleague Mr Wiles that in any event no discussion took place at the prison because Mr Rogers advised you that he was not prepared to speak to you further without first talking to his lawyers.

[16] In our view the letter of 2 July is not really of relevance. There is no evidence that the police officers acted specifically in reliance on the letter. Rather, their conduct was based on the discussion between Mr Corry and Detective Inspector Taare on 1 July 2004.

[17] On Sunday 4 July the applicant contacted Mrs Lloyd. He confessed to her that he had killed the deceased. He told her that he wanted the police to take him to Northland in order to assist them with their inquiries. The process was initiated by the voluntary actions of the applicant.

[18] Detective Inspector Taare gave evidence that Mrs Lloyd had rung him on his cellphone on the evening of Sunday 4 July. She told him of a telephone conversation that she had had with the applicant in which he had confessed to killing the deceased. The applicant had told her that he wanted to see his aunt and uncle and wanted to go home to the marae. The Detective Inspector deposed that Mrs Lloyd said she had been told by the applicant that he had asked for Detective

Inspector Taare and Detective Sgt Scott to accompany him on the visit to

Northland.

[19] The Detective Inspector said he told Mrs Lloyd about Mr Corry’s “instruction” to him in respect of contact with the applicant but had also said to her that it was a good thing that he wanted to do so. He said that Mrs Lloyd had asked whether he could facilitate a visit by her and her brother Eric to see the applicant in person. The Detective Inspector said that on Wednesday 7 July he had rung her back to advise that the visit had been arranged for Thursday 8 July at about 1.30 in the afternoon.

[20] The following day Detective Inspector Taare, Detective Sgt Scott and Detective Sgt Taylor took Mrs Lloyd to the prison. Before meeting with the applicant they asked her if she would wear a listening device to record the conversation she was about to have with the applicant. She declined to do so, saying that she did not need to as the applicant had been “straight up” with her during the telephone conversation that had led to the meeting.

[21] Following the meeting Mrs Lloyd told Detective Inspector Taare that the applicant had again asked to be taken home and to be accompanied by the Detective Inspector and by Detective Sgt Scott. He had also apparently said that he wished to assist the police in the investigation of the deceased’s death. The Detective Inspector said that he reminded Mrs Lloyd about Mr Corry’s “instruction” to the police and he said to her that if the applicant was to be taken out of prison permission would need to be obtained from the National Crime Manager and a statutory removal notice from the Department of Corrections would be required. For that to happen the applicant would first need to consent to being taken from the prison and a document was prepared for him to sign.

[22] Mrs Lloyd deposed that following the meeting she had discussed with the Detective Inspector arrangements for the applicant to travel to Northland. He said he told her that she would have to make contact with Mr Corry. She said that she had asked whether there was any way they could go about getting the applicant up north if that was what he wanted to do. The Detective Inspector responded that the only way that could be arranged was for the applicant to sign a written consent form. She said she asked the Detective Inspector if he would arrange for such a form to be provided to her.

[23] Later that afternoon the form was produced and Mrs Lloyd returned to the prison on Friday 9 July with the form. She showed it to the applicant, obtained his confirmation that he still wanted to travel north, explained to him that he would have to sign the consent form if that is what he wanted to do and, she said, he signed the form without hesitation. There is no evidence that the applicant was told, either by police officers or his aunt, of the scope and nature of the activities the police planned for the visit to the Far North, notwithstanding that a “reconstruction” of events was being planned by the police.

[24] The form read:

I give full consent to being released into police custody to assist with inquiries into the death of Katherine Sheffield.

I understand that I will be in police custody for a period of three days from Monday

12 July 2004 until Wednesday 14 July 2004 and that I will be required to travel to the

Kaitaia Police Station.

I understand that whilst in police custody I can withdraw my consent to be with the police at any time, and that I will be returned to the Auckland Central Remand Prison.

[25] It was signed by the applicant, witnessed by Mrs Lloyd, dated 9 July 2004 and timed at 9.40 am. Mrs Lloyd said that after the applicant had signed the form she remained with him for another three-quarters of an hour. During that time she asked him whether he would like to see his counsel about the matter first. The applicant replied “Oh no aunty it is all right, this is what I want to do.” She said that he seemed happy and had been in a good mood. Mrs Lloyd agreed in cross-examination that the discussion was highly emotional and said that the notion of going up north was a request from the applicant. She said that he wanted to clear things up directly with regard to his guilt. Her interpretation was that he was wanted to clear the mist for the family.

[26] Mrs Lloyd took the signed consent form with her from the prison and at the request of Detective Inspector Taare faxed it to Police Headquarters in Wellington.

[27] On Monday 12 July 2004 Mrs Lloyd tried unsuccessfully to contact Mr Corry by telephone. Shortly after 2 pm Detective Inspector Taare and Detective Sgt Scott went to the Central Remand Prison accompanied by a police photographer who it was intended would film the applicant in the course of his visit to the scene where the deceased had died. The purpose of the visit was to ascertain whether the applicant still wanted to go north, to inform him of his rights and to take him from the prison if he confirmed that he still wanted to go.

[28] Detective Sgt Scott said that the applicant confirmed at the outset that he was still prepared to travel to Northland and that the applicant was advised of his rights including the right to consult and instruct a lawyer in private and without delay. The applicant was asked whether he consented to going to the Far North and said he would. He wrote in the Detective Sergeant’s notebook “I Noel Rogers consent to going to the Far North with DS Scott and Inspector Taare.” Detective Sgt Scott said that he asked the applicant whether he wanted his lawyer present and that the applicant said he did not. Detective Sgt Scott then said “You realise you do not need your lawyer present” to which the applicant said “Yes” and wrote “I really realise I do not need my lawyer present” and initialled the entry. Detective Sgt Scott next asked him whether he wished his lawyer to be notified. The applicant said that he did not and wrote in Detective Sgt Scott’s notebook “I have declined to have my lawyer notified.” So three separate acknowledgements were written by the applicant in Detective Sgt Scott’s notebook. In each case, as well as writing the words of his own handwriting, the applicant added his signature alongside the note.

[29] The Judge found that the applicant’s decision to travel to the north with the police without prior consultation with Mr Corry and without requiring Mr Corry to be present was a decision consciously and voluntarily made by the applicant.

[30] The officers placed the applicant in the back of a car in handcuffs and drove to the Auckland Airport. On the way Detective Inspector Taare received a call from Mr Corry. Mr Corry asked whether the Detective Inspector had the applicant in his custody and wished to talk to him. The Detective Inspector said that he handed his cellphone to the applicant and told him that Mr Corry was on the phone and wanted to talk to him. The applicant held his hands out in front and pushed the phone away saying “Not at this time.” The Detective Inspector put the phone back to his ear but by that time it had been disconnected. Mr Corry had not rung back.

[31] Following their flight the party continued the trip north by car stopping at Mangonui where they encountered Mrs Lloyd. Arriving at the Kaitaia Police Station at about 7 pm the applicant was given Detective Sgt Scott’s notes covering the day’s events. He endorsed them “I have read these notes they are true and correct” and “I have no complaints with the way I have been dealt with.” He signed that endorsement. It was witnessed by Detective Sgt Scott.

[32] The following morning Tuesday 13 July the applicant was again cautioned and advised of his rights which he acknowledged by signing the Detective Sergeant’s notebook. He again wrote that he did not wish to have his lawyer present and signed an acknowledgement in those terms. The officers then explained the process to be followed at the scene. Detective Sgt Scott and the applicant were to wear microphones and the police photographer would be videoing events. The applicant was then again advised of his rights and given a caution that was captured on video. There followed a full reconstruction of the events at Mangonui including a detailed account of the manner in which the applicant had killed Ms Sheffield.

The defence challenge to admissibility

[33] Mr Corry applied for an order excluding all statements by the applicant after he was charged on 1 July 2004 including the videotape of the reconstruction.

The judgment of Cooper J

[34] In the High Court the first ground relied on by Mr Corry to exclude the post-arrest statements was what he called the “right of lawyer information and access and the right to refrain from making a statement”. He cited R v Ormsby

8/4/05, CA493/04 which refers to the difficulty of reconciling earlier decisions of this Court.

[35] Cooper J held that it is essentially a question of fact and degree whether there has been conduct following advice that the accused wishes to maintain his right to silence, which has had the effect of inappropriately undermining that right. Relying on his finding that the process of contacting Mrs Lloyd and inviting the police to take him to Northland and assist in helping them with their inquiries had been initiated by the applicant’s voluntary acts, the Judge held that the first ground failed.

[36] Before Cooper J the defence advanced further grounds that the statements were not voluntary and that there was unfairness, misrepresentation and alleged unreliability, which were not pursued before us. The Judge granted the Crown’s application without need to consider balancing in terms of R v Shaheed.

Submissions on appeal

[37] The focus of the appeal was what Mr Corry described as:

the express understanding between police and counsel as to the requirement for due notice and the arrangement that there would be no contact or communication by the police without affording an opportunity for counsel to be present.

[38] He submitted that the Judge erred in failing to find breach of the applicant’s rights under ss 23(1)(b), 23(4) and 24(c) of the New Zealand Bill of Rights Act

1990; that the Judge erred in finding valid waiver of the applicant’s agreed right of

access to counsel; and that he ought to have excluded evidence unfairly obtained by the police in that there was:

(a) failure to inform the applicant that they had not contacted his counsel;

(b) failure to inform the applicant of the understanding reached between police and counsel;

(c) failure to inform counsel of their further contact with the applicant;

(d) use of the aunt as an intermediary in securing the applicant’s release into police custody without notice.

[39] The sections of the New Zealand Bill of Rights Act relied on are:

23. Rights of persons arrested or detained

(1) Everyone who is arrested or who is detained under any enactment

. . . . .

(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

. . . . .

(4) Everyone who is

(a) Arrested; or

(b) Detained under any enactment—

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

. . . . .

24. Rights of persons charged

Everyone who is charged with an offence—

. . . . .

(c) Shall have the right to consult and instruct a lawyer;

[40] The Crown acknowledged that if there had been a categorical undertaking by the police to the defence not to interview the applicant further without first consulting counsel there would be breach of the principles discussed in the authorities collected in R v Moresi (No 2) (1996) 14 CRNZ 322. Mr Grieve QC accepted that it is possible within the law as it stands to have an arrangement between the police and counsel that because of the client’s instructions there will be no further questioning without first advising counsel. But he submitted that no such arrangement had been proved; that if it had existed there had been no breach; and that, in any event, the police conduct fell well short of such infringement of the principles as will lead to exclusion of the evidence.

[41] Alternatively Mr Grieve submitted that the applicant had waived his rights to silence and to instruct and consult a lawyer.

[42] Mr Grieve submitted, and Mr Corry denied, that in any event a Shaheed

balancing process required admission of the evidence.

Analysis of competing submissions

(a) The legal tests

[43] When breach of the New Zealand Bill of Rights Act is alleged an onus rests on the Crown to exclude it. The standard of proof is that of the balance of probabilities having regard to the gravity of the particular issue: R v Te Kira [1993]

3 NZLR 257; (1993) 9 CRNZ 649 (CA), at pp 262, 275; pp 655, 670, Police v

Kohler [1993] 3 NZLR 129; (1993) 10 CRNZ 118 (CA), at p 133; p 123. If breach is not excluded the principles in Shaheed fall to be considered.

[44] The tension between the competing public interests of the ability of the police to investigate and prove offending and those of a prisoner has long been an area of uncertainty. In R v Potter (1888) 6 NZLR 92 (CA), at p 96 Prendergast CJ delivering the judgment of this Court stated “it is the duty of a constable when arresting a person not to ask questions” and yet that Court admitted evidence obtained by such questioning.

[45] In its recent review of the authorities in R v Ormsby (para 34 above) this Court listed eight recent judgments of this Court which it described as “not entirely consistent”. It held that, at least until more general guidance is given as to the circumstances in which the police may continue to question a suspect who has been advised by his lawyer to exercise the right of silence, there is no absolute prohibition on police questioning of a subject who has received legal advice that the police know is that he or she should remain silent (at para 21).

[46] Although in some jurisdictions a bright line is drawn between police attempts to extract admissions from suspects as opposed to those in custody after arrest and charge, current New Zealand authority requires a fact specific analysis: R v Barlow (1995) 14 CRNZ 9; (1995) 2 HRNZ 635 (CA).

[47] We apply the law as recently reiterated in Ormsby which cited with approval R v Pinkerton 23/3/93, CA342/92. In Ormsby, this Court found it significant that:

(a) The appellant had been given the opportunity to see a solicitor and exercise that opportunity;

(b) He knew that he did not have to answer police questions;

(c) There was no evidence of any arrangement or understanding between the police and the solicitor that there would no further questioning . . . (in that case there was no evidence of request by the solicitors that there should not be further questioning);

(d) There was nothing else in the circumstances to suggest overbearing or coercive police interviewing tactics.

[48] In R v Pinkerton McKay J speaking for a five Judge Bench said:

There was no evidence to suggest any arrangement or understanding between the lawyer and the Detective to the effect that questioning would cease. There was no affidavit from the lawyer. If there was any basis for doing so, this is a matter which can be explored by voir dire at the trial. [P 10]

[49] For the purposes of this case the critical rights conferred by the New Zealand Bill of Rights Act were the right to consult and instruct a lawyer and the right to refrain from making any statement: see s 239(1)(b), (4), and s 24(c). Those are continuing rights (see R v Barlow (1995) 14 CRNZ 9; (1995)

2 HRNZ 635 (CA), at p 22; p 649. The question in this case is whether, notwithstanding the repetition of those rights by police officers to the applicant at various stages, the failure by the officers to comply with an arrangement made between them and the applicant’s counsel to inform counsel before further questioning of the applicant undermined those rights.

[50] The authorities cited in R v Moresi (No 2) deal with analogous situations. They are consistent with the decision of the full Bench of this Court in Pinkerton. In Moresi it was emphasised that the Courts should not allow police officers to breach the undertakings they give to persons who are being questioned.

[51] In R v Horseferry Road Magistrates’ Court, ex p Bennett (No 1) [1994]

[1993] UKHL 10; 1 AC 42; [1993] 3 WLR 90, Lord Griffiths, delivering the principal speech, adopted observations from three other cases of relevance: namely,

(a) S v Ebrahim [1991] ZASCA 3; 1991 (2) SA 553 in which a South African Court of Appeal reiterated the need for the state to be bound by obligations imposed upon it when dealing with fundamental human rights.

(b) Chu Piu-wing v A-G [1984] HKLR 411, at pp 417-418 in which the Hong Kong Court of Appeal held that there was “a clear public interest . . . in holding officials of the state to promises made by them in full understanding of what is entailed by the bargain.”

(c) R v Croydon Justices, ex p Dean [1993] QB 769; [1993] 3 WLR 198 (Divisional Court) in which a committal of an accused on a charge was quashed on the ground that he had been assured that he would not be prosecuted for any offence connected with their murder investigation. It was held that the police conduct in seeking to prosecute in breach of that promise constituted an abuse of process.

[52] We have recorded (at para 12) Cooper J’s conclusion that:

albeit that it was at the request of the accused, the circumstances were such that the visit to the Remand Prison had occurred [on 1 July] should not have been made without Mr Corry being told about it. [Para 33]

The Judge appears not to have accepted the Detective Inspector’s evidence that he had “taken” Mr Corry’s instruction to relate only to the murder charge for the reasons given in his para 33. He did accept the officer’s evidence that when it became apparent that the applicant had not spoken to his solicitor the conversation was quickly terminated, nothing being discussed about the murder charge. The applicant said he would like to see the police again the following day at

9.30 am by which time he would have had an opportunity to speak to his solicitor. As the officers left they encountered Mr Corry and explained to him that nothing had been discussed with the applicant because he had not been able to see Mr Corry.

[53] The Judge found that the initiative for the applicant to be taken home and that he be accompanied by Detective Inspector Taare and Detective Sgt Scott was from the applicant via Mrs Lloyd. The Judge concluded that she might well have influenced the applicant in their discussions on 8 and 9 July.

(b) Was there an arrangement?

[54] The first crucial issue is whether the Crown can show it is more probable than not that no such assurance or representation was given by conduct.

[55] The evidence-in-chief of Detective Inspector Taare and Detective Sgt Scott did not exclude any such assurance. We have reflected on the fact that Mr Corry’s letter contained no mention of it. Moreover the defence did not focus on the point of implied assurance in cross-examination let alone lead evidence on the point. Nor does Cooper J’s discussion at para 33 take the distinction. The fact that

Detective Sgt Scott and Mrs Lloyd had both been told that the police were acting on the request from Mr Corry does not of itself establish that an assurance was given rather than that the police had decided to give effect to the request without communicating such undertaking to the defence.

[56] We nonetheless find inevitable the inference that the police by their conduct gave an implicit assurance that was later breached. That appears to have been the unexpressed premise of the conclusion of the Judge who, having heard and seen the witnesses, was satisfied that the visit to the remand prison on the afternoon of

1 July should not have been made without first telling Mr Corry. Our conclusion is based on police conduct giving rise to an implicit assurance.

[57] It is important first that the Detective Inspector did not reject Mr Corry’s request, but gave instructions consistent with such acceptance. Secondly, later that day when he saw Mr Corry at the prison he reassured him that he had acted in accordance with Mr Corry’s request. Taken together this conduct constituted both implicit acceptance of the request and communication of that acceptance. As in other areas of the law acceptance of obligations can result from implication from demeanour or other conduct (for the tort of deceit and the criminal law of fraud (see Walters v Morgan (1861) 3 de GF & J 718 and R v Barnard (1837)

[1837] EngR 546; 7 C&P 784).

[58] Although Cooper J found that the applicant initiated the process of interaction between police officers and himself (at para 104) and that the applicant “consciously and voluntarily” spoke to the police and participated in the reconstruction without requiring Mr Corry to be present (at para 106), those findings were based on inferences drawn by the Judge. We are in as good a position to draw inferences as was Cooper J.

[59] The characterisation of the nature of the “arrangement” we have found to exist must be determined by reference to the discussion of 1 July 2004. In our view, the only inference that can be drawn from the proved facts is that Detective Inspector Taare, by his own conduct and the conduct of his subordinates as a result of his instructions, accepted the need to contact Mr Corry before questioning the applicant further and at the prison acknowledged to Mr Corry that he had accepted the request. There was nothing in the intervening conduct of the aunt that changed the nature of that obligation. In fact, the request that the aunt wear a listening device proposed that she act rather as the police’s tool than as an objective intermediary.

[60] In the absence of a waiver by the applicant of the need for Mr Corry to be informed before further questioning, an obligation arose that prevented the police from seeking further admissions from the applicant without first complying with that arrangement: see generally Horseferry Rd Magistrates’ Court and the cases referred to therein.

(c) Was there waiver?

[61] The Crown submitted that Mr Corry as counsel was simply the agent of the applicant who was at liberty at all stages to assume responsibility for decisions as to how he should deal with the police and that he simply exercised that authority, thereby agreeing to countermand Mr Corry’s request. Whether that is so is the second crucial issue.

[62] The rights conferred by the Bill of Rights to instruct a lawyer and to silence are fundamental. They are recognised as such by the Bill of Rights itself. Against that background the question is whether the applicant waived those rights in an informed and unequivocal manner: see R v Taylor [1993] 1 NZLR 647; (1992) 9 CRNZ 481 (CA), at p 653; p 488 where this Court held that in order for the applicant to effect a waiver of his right to counsel the applicant had to do so with “free and voluntary assent”; see also Korponay v Canada (1982) 26 CR (3d)

343 (SCC), Clarkson v R (1986) 50 CR (3d) 289 (SCC), at pp 301-302, and R v

Bartle [1994] 3 SCR 173; (1994) 33 CR (4th) 1 (SCC).

[63] We accept that the applicant had authority to take over the decision-making. We note that Halsbury’s Laws of England (2005 reissue), vol 3(1), at para 665 states that counsel’s implied authority is subject to the client “expressly limiting it”. Whether there was a valid waiver must be considered in the context of the situation in which the applicant found himself following his remand in custody on the murder charge.

[64] The applicant was free at any time to reject legal advice or to operate without the benefit of it. But the evidence in this case is that he demanded counsel initially and that his instructions, as communicated by Mr Corry to the police, were that he did not wish to be approached further without notice to his counsel and the opportunity for Mr Corry to be present. The police understood and accepted that position.

[65] At no stage was the applicant’s attention drawn to the arrangement with Mr Corry before further questioning took place. At no time was he asked specifically whether he wished to change those instructions to his lawyer or to waive the need for compliance. He was not given the opportunity to seek advice from counsel on those issues. Any Bill of Rights warnings that were given once questioning took place were limited to the context of further discussions with the police.

[66] The applicant being in custody on a murder charge was in a position of distinct vulnerability. In order for him to waive both the right to legal advice, which he had claimed and the arrangement that he would not be approached by the police which his counsel had secured, he was entitled to know what he was relinquishing. The absence of full information from which he could make an informed waiver, after reflecting on the request and its significance, leads us to conclude that the Crown has not discharged the onus of establishing that an informed waiver was given freely. In that respect we respectfully differ from Cooper J’s conclusions.

(d) Summary of conclusions on “arrangement” and “waiver”

[67] The police by not rejecting Mr Corry’s request to refrain from questioning the applicant without counsel’s presence and by assuring Mr Corry that no discussion had taken place in relation to the murder charge, must be taken to have accepted the request. There was an implied but nevertheless clear arrangement or understanding between the police and the applicant’s counsel which this Court must cause to be honoured.

[68] Each of us is of the clear opinion that the police conduct lulled the defence into a false sense of security and that there was breach of the principles applied in Moresi. That fact accentuated the imbalance inherent in the relative positions of the applicant and of the police.

[69] We are equally satisfied that there was no effective waiver of the applicant’s right to performance of the agreed arrangement. At no stage before the trip north began did the police inform the applicant of their reason for it. The applicant’s motivation was the personal one, probably contributed to by his aunt’s visit, of returning to his family environment. For waiver to occur in such circumstances the prisoner must at the very least be plainly informed of what is proposed and be given adequate opportunity to reflect upon the options and their significance. In this case the applicant never received the clear message analysing the facts and the options that might be said to have placed him in a position to waive his rights:

(a) We have undertaken to your counsel that we would not communicate with you without informing him.

(b) You have expressed interest in going north. We would like to do so.

(c) But our reason for that is to perform a reconstruction which we will video and show before the jury who are to try you.

(d) We are bound by our undertaking to your counsel unless you deliberately release us from it.

(e) Take time to think about that and whether you wish to consult your counsel.

[70] Short of that, and what actually occurred came nowhere near it, there was a breach of the applicant’s rights to silence and counsel, and the evidence must be excluded unless the Crown can rely on the principles of Shaheed.

Shaheed analysis

[71] That requires looking at the full context. The applicant was in custody charged with murder in the context of a difficult and traumatic family background. The police knew that what they proposed was so serious that they had to get approval from Head Office of Corrections for the applicant to be handed over to them and yet they were either unwilling or unable over the period of a week to find the public defender who had an established office in the city. They secured the agreement of the applicant to put himself totally in their hands for 3 days although they had not told him what they had in mind and how they intended to use the time. He had previously exercised his right to consult Mr Corry as his lawyer; he was in receipt of current instructions and had received the implied assurance to which we have referred.

[72] In the absence of informed waiver the failure of the police officers to advise Mr Corry of what was happening fundamentally breached the applicant’s right to counsel which he had exercised earlier. The police’s failure to tell Mr Corry precisely what was happening when he made the telephone call to the police cellphone when they were in the car on the way to the airport, even though they had agreed not to speak to the applicant about the murder without advising Mr Corry, must be viewed seriously.

[73] The power imbalance between a person in custody and experienced police officers led Parliament to make its policy decision as to the right to counsel. While the law recognises that a suspect may waive rights, an assertion to that effect must be clearly proved. We are satisfied that evidence obtained in the present circumstances entails such a substantial breach of proper standards that it would be unprincipled to use Shaheed to justify the admission of the evidence. That is so

even though the evidence, while not the sole evidence in support of the charge, was described by Mr Grieve as important.

Result

[74] Both the application for leave to appeal and the appeal are allowed.

[75] We order that the evidence of police interviews of the applicant and his involvement in reconstructions following Mr Corry’s advice to the police on 1 July

2004 of his instructions that the police should not have any communication with the applicant without counsel being notified is not to be led at the applicant’s trial.

Leave to appeal granted; appeal allowed; police interviews and reconstructions obtained from applicant without notice to his counsel can not be led at his trial

Reported by Claire Browning