R v Kata CA428/05 [2006] NZCA 378 (23 February 2006)

Last Updated: 23 January 2014

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST

_PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA428/05

THE QUEEN

v

_{TANIELA KATA}

Hearing: 9 February 2006

Court: Glazebrook, Chambers and O’Regan JJ Counsel: F P Hogan for Appellant

E M Thomas for Crown

Judgment: 23 February 2006

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted. B The appeal is dismissed.

C Order prohibiting publication of the judgment and any part of the

_{proceedings (including the result) in news media or on Internet or other}

R V TANIELA KATA CA CA428/05 23 February 2006

publicly accessible database until final disposition of trial. Publication in

Law Report or Law Digest permitted.

REASONS

(Given by O’Regan J)

Introduction

[1] The appellant, who suffers from leukaemia, is charged with attempted murder and causing grievous bodily harm with intent to cause grievous bodily harm. His trial is due to begin on 6 March 2006 in the High Court at Auckland. On

1 November 2005, Asher J issued a judgment (R v Kata HC AK CRI 2004-92-

13265) ruling that inculpatory videotaped statements made to the police by Mr Kata on 20 November 2004 were admissible at the trial, subject to some editing. The appellant now seeks leave to appeal against that pre-trial ruling.

Facts

[2] The charges against Mr Kata arise from an incident which occurred on the night of 18 November 2004. It is alleged that Mr Kata and two associates hatched a plan to kill the victim earlier in the night, and then acted on that plan in the early hours of 19 November 2004. They persuaded the victim to accompany them to an area under a motorway bridge where they attacked the victim. The victim was placed in a choker hold by an associate of Mr Kata, then thrown to the ground and kicked and punched, after which rocks were thrown at him on the ground. One of Mr Kata’s associates is then said to have cut the victim’s throat from ear to ear.

[3] A detective involved in the investigation of the attack on the victim, Detective Constable Honan and another police officer visited Mr Kata’s home on the

morning of 20 November 2004. The Judge found that Detective Constable Honan cautioned Mr Kata and gave him a Bill of Rights warning. He then told Mr Kata what his rights were in more accessible language than the formal warning. Mr Kata told the detective he did not wish to speak to a lawyer and said that he had understood the caution and Bill of Rights warning. He then accompanied the detective to the police station. The Judge accepted that the detective had advised Mr Kata he had no obligation to go to the police station and was not under arrest. Mr Kata then undertook a videotaped interview with Detective Constable Honan, the transcript of which is over 80 pages long. Later that day another videotaped interview took place in which Mr Kata accompanied the police to the scene of the attack on the victim and answered questions, and then accompanied the same officers to the site at which he said the knife used in the attack was disposed of, and answered further questions.

The High Court judgment

[4] As Mr Kata’s counsel had indicated there would be a challenge to the admissibility of the videotaped interviews with Mr Kata, the Crown applied under s 344A of the Crimes Act 1961 for a ruling that the videotaped interviews were admissible evidence at trial. Asher J heard evidence from Detective Constable Honan, another police officer, Senior Constable Ng Wun and a mental health nurse, Mr Seaton, called by the Crown. He also heard evidence from Mr Kata and from a neuropsychologist called by the defence, Dr Fernando. In addition, he had before him a report by a paediatric oncologist responsible for the treatment of Mr Kata for leukaemia.

[5] Having considered this evidence, the Judge concluded that Mr Kata understood at the time of his interview with the police that he did not have to make a statement, that the statement could be used against him, that he was entitled to contact a lawyer immediately and use a lawyer, and that he understood that a lawyer was a person with legal skills or court skills who could help him. He was satisfied that there was no pressure put on Mr Kata to make a statement, that the contents of his rights were brought home to him and he understood them, and that there was

nothing to put Detective Honan on inquiry as to Mr Kata’s ability to understand what the detective had said to him.

[6] The Judge also found that Mr Kata had a reasonable comprehension of formal English, but that in any event his rights had been explained to him by the detective in an informal way. He found there was no coercion, that Mr Kata was not intimidated by the environment, and not afraid. He therefore determined that the videotapes of the interviews were admissible as evidence at the trial, though he excluded as evidence certain parts of one interview in which the exchanges were in the nature of cross-examination or hectoring.

Issue on appeal

[7] The challenge to the High Court judgment was confined to one aspect only, namely whether the Judge was correct in finding that Mr Kata understood that a lawyer was a person with legal skills or court skills who could help him. Counsel for Mr Kata, Mr Hogan, said that it was not open to the Judge on the evidence which was before him to conclude that the Crown had proved that Mr Kata had that understanding.

Submissions and evaluation

[8] There was no dispute that the onus was on the Crown in the circumstances of this case to prove that Mr Kata knew what a lawyer was, and thus understood the assistance which a lawyer could have given him. Without such understanding his waiver would not be valid. Mr Hogan said that the evidence which Mr Kata gave in the High Court hearing was to the effect that he did not know what a lawyer was at the relevant time, that this evidence was unchallenged, and that therefore the Judge could not find that the Crown had proved he had the necessary understanding. In support of that submission he pointed out that, although Detective Honan explained the Bill of Rights warning in plain language, there was no evidence that he had explained to Mr Kata in plain language what a lawyer was and what assistance a lawyer could provide.

[9] Mr Kata’s evidence was that he did not know what a lawyer was at the relevant time. He said he thought that lawyer meant liar, and that liar meant lawyer. The Judge disbelieved this evidence. The Judge drew support for his conclusion that Mr Kata understood in a general way what a lawyer was from a number of factors including the evidence of Senior Constable Ng Wun, a police officer of Samoan/Chinese origin who had had regular contact with Mr Kata over a two year period during which Mr Kata had been a police informant.

[10] Senior Constable Ng Wun was described by Mr Kata as being “like a father, like a brother” to him. The constable’s view was that apart from his health difficulties, Mr Kata was “an ordinary average kid, streetwise” who had a reasonable grasp of English, was not childlike, was street smart, had a good understanding of right and wrong and was able to look after himself.

[11] The Judge said that his own assessment of Mr Kata coincided with that of the constable. The Judge noted that Mr Kata’s English was not particularly good in any formal sense, and involved the use of a local patois. But the Judge also considered that Mr Kata understood some words of complexity and, although sometimes incoherent, was able to tell the story of what happened with a keen sense of control of the narrative, and in a sequential and logical way. The Judge thought that Mr Kata had “showed a keen sense in the witness box of the need to downplay his understanding of words” and found that there was “an element of the malingerer” in some of his remarks. The Judge observed that Mr Kata’s claim that his “memory comes and goes” was self serving and not convincing.

[12] The evidence of Detective Honan was that he had, in accordance with his practice when dealing with young people, repeated the Bill of Rights caution in a manner that would be understood. He said:

In relation to the Bill of Rights I would say words to the effect you can speak to a lawyer, he or she may not come to the station, it would be on the telephone, I won’t be in the room so I can’t hear what you’re saying to the lawyer and you don’t have to tell me about anything that I have come to speak to you about. I can’t make you say anything.

[13] Detective Honan said that this is what he had done in Mr Kata’s case. Mr Kata accepted in his evidence that the detective had done so. The detective said Mr Kata told him he did not wish to speak to a lawyer and that he had understood the short caution and Bill of Rights warning. The detective’s evidence was that he was experienced in dealing with people of Polynesian descent. He said that he had never had any concerns about Mr Kata’s ability to understand what was being said to him and that Mr Kata appeared to respond appropriately to all requests and commands. He said that in his communications with Mr Kata he had used language designed to ensure that Mr Kata knew exactly what was happening.

[14] The Judge had before him evidence of Mr Seaton, a forensic nurse and Court liaison team leader for the Waitemata District Health Board responsible for conducting forensic mental health examinations of persons involved in the Court system. Mr Seaton said that his examination of Mr Kata on 23 May 2005 (i.e. about

13 months after the date of the video interview) resulted in normal findings: Mr Kata understood the functions of the Court and its participants and understood the concept and role of a lawyer well.

[15] Dr Fernando’s report on Mr Kata, which she adopted in her evidence, was to the effect that Mr Kata had verbal and non-verbal cognitive difficulties and impaired receptive and expressive language abilities in English. She said that these cognitive deficits were consistent with the recorded effects of some of the treatment he had received for his leukaemia. That treatment was described in a report to the Court from Dr Skeen, a specialist medical officer of Starship Children’s Hospital in Auckland. Dr Skeen reported that the impact of the treatment on Mr Kata was a mild progression in generalised cerebral atrophy, and that learning difficulties result when children receive certain types of radiation and chemotherapy which Mr Kata had undergone.

[16] Dr Fernando said that it was necessary that things be stated in very simple terms for Mr Kata to understand them. She said that he needed to be given time to respond because he took time to gather his thoughts and work out what to say. She expressed an opinion, based on her assessment of Mr Kata and her direct questioning of him, that he did not understand the caution and Bill of Rights advice given to him

prior to undergoing the videotaped interviews. She did not, however, express any view as to his comprehension of the simple English version of the Bill of Rights and caution which Detective Honan had given to him. She also expressed the view that Mr Kata would have no idea of how a lawyer could assist him. The Judge found this surprising, as Mr Kata had been referred to Dr Fernando by his lawyer, and was using lawyers when he saw her (some nine months after the date of the video interview). The Judge said it was clear he knew what lawyers were at that time.

[17] Ultimately the Judge, although recording his respect for Dr Fernando’s views, said that he did not agree with them. He said they were inconsistent with his own observations, with Constable Ng Wun’s experience, with the transcript of the video interview itself which he said showed that Mr Kata almost always understood the questions he was asked and with Mr Kata’s ability to spell proficiently, remember addresses with ease and express himself clearly and firmly, apart from the odd incoherent sentence and some long monologues which were hard to follow. It was also inconsistent with the observations of Mr Seaton though the Judge noted that Mr Seaton’s assessment was made some time after the date of the videotaped interview.

[18] Asher J concluded that Mr Kata did know in a general way what a lawyer was at the time of the videotaped interviews. The Judge reached that conclusion after having assessed all of the evidence referred to above, and having rejected Mr Kata’s evidence to the contrary. He took into account the extensive contact Mr Kata had had with the police through Senior Constable Ng Wun and with criminals through his contact with gang members and offenders whose criminal activities he reported to the police. He thought it likely that, as a police informant, Mr Kata would have come up against the concept of his lawyer in dealing with offenders. He noted Mr Kata knew about prisons, about going to jail for offending, and that he had watched TV police shows which would have included references to the legal process. We would add that he could also have taken into account the plain language explanation of the Bill of Rights caution which Detective Honan gave to Mr Kata (quoted at [12] above). At the very least, this would have indicated to Mr Kata that a lawyer was someone with whom he could consult in private before deciding whether or not to speak to the police.

[19] Despite Mr Hogan’s submissions to the contrary, we can see no basis for criticising the approach taken by Asher J, or the conclusion he reached. The credibility findings were based on his evaluation of witnesses he saw and heard, and, realistically, Mr Hogan did not really challenge them. The Judge was entitled to reach his own assessment notwithstanding the views of Dr Fernando, and rely instead on his own observations and assessment of the evidence before him, and the evidence from Mr Seaton and the police officers involved. The Judge was entitled to accept that evidence and reject Mr Kata’s evidence and that of Dr Fernando. Ultimately, the Judge undertook a principled and careful assessment of the evidence, and reached a conclusion which was clearly open to him on the evidence before him. We can see no basis for overturning his finding.

Result

[20] Accordingly, although we grant leave to appeal, we dismiss the appeal.

Solicitors:

Crown Law Office, Wellington