R v Peta CA289/06 [2006] NZCA 474 (31 October 2006)

Last Updated: 3 February 2014

NOTE: ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN THE NEWS MEDIA OR ON THE INTERNET OR IN ANY OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF THE TRIAL. PUBLICATION OF THE REASONS FOR JUDGMENT IN A LAW REPORT OR LAW

_{DIGEST IS PERMITTED, HOWEVER}

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA289/06

THE QUEEN

v

JACOB RANGAITI PETA

Hearing: 18 October 2006

Court: Arnold, Randerson and Ronald Young JJ Counsel: B J Horsley for Crown

G P Mason for Respondent

Judgment: 31 October 2006 at 4 pm

_{JUDGMENT OF THE COURT}

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

C Order prohibiting publication of the reasons for judgment in the news media or on the internet or in any other publicly accessible database until final disposition of the trial. Publication of the reasons for

_{judgment in a law report or law digest is permitted, however.}

R V PETA CA CA289/06 31 October 2006

REASONS OF THE COURT

_{(Given by Arnold J)}

Introduction

[1] The respondent is charged with burglary, aggravated robbery, injuring with intent and wounding with intent. Judge Dawson has ruled under s 344A of the Crimes Act 1961 that much of an interview between the respondent and the police is inadmissible. The Solicitor-General seeks leave to appeal against that ruling pursuant to s 379A of the Crimes Act.

Background

[2] The charges arise out of two incidents in the nature of home invasions on consecutive days. Not long after the incidents occurred the respondent was arrested and taken into custody on an unrelated matter. This was at 3.32 pm. Shortly after, a detective investigating the two incidents, Detective Milligan, learned that the respondent was in custody. At 5.45 pm that same day the detective commenced an interview with the respondent. He advised the respondent that he wished to speak to him about “an incident at 3 Drayton Place, Palmerston North, on

15 September 2005”. The respondent indicated that he knew the address as he had once lived there.

[3] The detective then cautioned the respondent and asked if he understood. The respondent replied “yes.” Next the detective advised the respondent that he had the right to consult and instruct a lawyer without delay, and asked whether he understood that. The respondent replied “Yep, but I don’t know what for yet.”

[4] The detective told the respondent that the police had received a complaint from two people, whom he named, that the respondent and another person had gone

to their house, assaulted them and taken their car. The detective said that he wanted to interview the respondent, and would like to do so on video. The respondent replied “I don’t even want to do this.” Asked whether he wanted to go on video he replied “No.”

[5] The detective then provided the respondent with more details of what had been alleged against him and asked the respondent what he could tell him about it. The respondent replied that he had “nothing to say about the whole thing.”

[6] Following that the detective asked the respondent if he knew one of the complainants. The respondent said that he did. The detective asked him some questions about their relationship, which the respondent answered. The detective then asked the respondent whether he knew the other complainant. The respondent said that he did not. The detective showed him some photographs of this complainant, which showed the injuries that he had received from the assault. He asked the respondent again whether he knew this complainant. The respondent said, “No, I don’t. I’ve really got nothing more to say about this. Who was I meant to be with?” There was a further short interchange, after which the respondent said “I don’t want to get you pissed off, Boss, but I’ve really got nothing more to say about this. I’m fucking shit scared of this place. I got nothing to say. I’ve got nothing against you guys. I’ve just had a kid, just want to go home”.

[7] At that point the detective acknowledged that the respondent had refused to answer any further questions and asked the respondent to read and initial his notebook, which he did.

[8] The respondent then, according to the detective’s notes, became tearful. He engaged the detective in a brief conversation about the complainant whom he acknowledged knowing. Following that the detective told the respondent that he was arresting him for aggravated robbery. The respondent began to cry and acknowledged in an answer to a question from the detective that he had been involved in the incident. He asked the detective to “get my missus and my kid down” and said that he would tell the detective about the incident “if they can sit

through my interview.” The respondent telephoned his partner at 6.30 pm and at

6.49 pm she, the child and the respondent’s mother arrived at the police station.

[9] The detective then interviewed the respondent in their presence. The respondent made various statements acknowledging his participation in the incidents. At around 7 pm the interview concluded and the respondent read the additional material in the detective’s notebook and initialled it.

The Judge’s ruling

[10] The Judge’s ruling is contained in two paragraphs. We reproduce them in full.

[20] From reading the transcript of the interview with Detective Milligan it is quite apparent that [the respondent] did not want to do the interview with the Detective but nor did he wish to offend him by insisting on not continuing with the interview. [The respondent] is also 22 years of age, it is quite apparent that he was emotional during at least parts of the interview and he had been at the Police Station being interviewed on this and other matters since 3.32 pm on that day. [The respondent] was advised as to his rights prior to him knowing what alleged offences he was being questioned about. Upon him asking he was provided with an explanation of why he was being questioned by the Detective but no effort was made to give [the respondent] the opportunity of responding to the cautions he had previously been given. [The respondent] is a young man, was upset and emotional, probably tired, reluctant to speak to the Police, but also appeared too scared to adopt an adamant position and refuse to answer the questions put to him.

[21] I therefore rule that [the respondent’s] interview with the Police from immediately after the time when he was advised of his rights should be ruled inadmissible both for a breach of his rights under s 23(1)(b) and s

23(4) and also upon the general grounds of unfairness.

Discussion

[11] We make two preliminary points.

[12] First, the exclusion of evidence involves, of course, the exercise of discretion. Such an exercise will not lightly be interfered with on appeal. In the present case, however, the Judge has given little indication of the reasons for his conclusions, so

that it is difficult for this Court to be sure about the basis on which he exercised his discretion.

[13] Second, the respondent’s challenge to the admissibility of the interview was based on the evidence given at the respondent’s depositions hearing. Detective Milligan did not give oral evidence. His brief of evidence was part of the prosecution case but the detective was not called for cross-examination. Further, the respondent did not give evidence about the interview. As a consequence, the only account of what occurred at the police station is that of the detective and it is unchallenged. In these circumstances this Court is in as good a position as the Judge was to reach a view about admissibility.

[14] Section 23 of the New Zealand Bill of Rights Act 1990 (NZBORA) provides:

23 Rights of person 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;

....

(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.

[15] The Judge found that the respondent’s right to counsel was breached. He did not, however, explain why he reached that conclusion. There is nothing in the material before the Court to indicate that the respondent did not understand that he had the right to counsel. When the detective advised him of his right to counsel and asked him whether he understood, the respondent replied affirmatively. The obvious inference, at least in the absence of circumstances calling for care and further inquiry, is that the respondent did understand the position: R v Mallison [1993] 1

NZLR 528 at 531 (CA).

[16] At [20] of his judgment the Judge said that the respondent was advised of his rights before he knew what alleged offences he was being questioned about and that he was not given an opportunity to respond to the cautions after he had received an explanation of why he was being questioned. Presumably, this was one of the reasons that the Judge found that the respondent’s rights had been breached. But the detective’s unchallenged evidence was that he advised the respondent that he wished to speak to him “about an incident at 3 Drayton Place, Palmerston North, on

15 September 2005” before he gave him the caution and advised him of his right to counsel. After the caution and the advice, at the respondent’s request, the detective provided further detail of the allegations against the respondent. After that the respondent said that he did not wish to give an interview. There is nothing in this sequence to indicate that the respondent’s rights were breached.

[17] For the respondent Mr Mason argued that the arrival of the respondent’s family after the break in the interview changed the dynamics of the interview, to the extent that the detective was required to advise the respondent of his rights again. While Mr Mason cited no authority for this proposition he may have had in mind cases such as R v Tawhiti [1993] 3 NZLR 594 (HC), R v Schriek [1997] 2 NZLR 139 at 152 (CA) and R v J CA 487/99 2 December 1999 at [13], in which it was said that a shift in the focus of an interview might require the recautioning of a suspect. In the present case, however, there was no shift in the focus of the interview. There was simply a break of 19 minutes to allow the respondent to contact his family and his family time to go to the police station. The interview then resumed on the same topic.

[18] At an early stage the respondent indicated that he did not wish to be interviewed. The detective was obviously reluctant to accept that, and attempted to engage the respondent by continuing to question him. However, when the respondent later reiterated that he did not wish to discuss the matter further the detective accepted that, and asked the respondent to read over, and sign, his notes. The respondent continued to engage the detective in discussion however, and the detective continued to participate by asking questions.

[19] It was not unlawful for the detective to continue to ask questions of the respondent despite his obvious reluctance to answer them. This Court considered the relevant authorities in R v Ormsby CA 493/04 8 April 2005. William Young J delivered the judgment of the Court. Having discussed two competing lines of authority William Young J said:

[14] The two lines of cases can perhaps be distinguished on the point whether the continuation of questioning involved an inappropriate undermining of the suspect’s rights under s 23(4). As well, in cases of this sort, much will turn on the factual evaluation of the Judge at first instance with this Court reluctant to interfere with findings of fact. But the fact remains that the various decisions to which we have referred are not entirely consistent.

....

[17] It would have been open for the New Zealand courts to have followed the approach taken in the United States and to have held that any questioning of a suspect who has expressed a wish to remain silent is necessarily a breach of that suspect’s right of silence and that any questioning of a suspect after the suspect has obtained legal advice, amounts, indirectly, to an infringement of his or her rights to counsel. The arguments as to this are helpfully discussed in Rishworth and others, The New Zealand Bill of Rights (2003) at 536-541 and 650-653. Rightly or wrongly, however, the New Zealand courts have not adopted such absolutist positions but rather have preferred an evaluative approach in determining, whether as a matter of substance, a suspect’s rights have been overridden.

....

[21] As is apparent from what we have said, there are difficulties reconciling the existing decisions of this Court. In due course, this Court (or perhaps the Supreme Court) may be required to give more general guidance as to the circumstances in which the police may continue to question a suspect who has been advised by his lawyer to exercise his or her right of silence. But, in the meantime the current authorities establish that there is no absolute prohibition on the police questioning a suspect who has received legal advice and has told the police that the burden of that advice is that he or she should remain silent. In the absence of such an absolute prohibition, we see no legitimate basis upon which the interview could be held to be inadmissible.

[20] The key issue, then, is whether as a matter of substance the respondent’s rights were overridden. The failure of the respondent to give evidence about what occurred at the police station and the fact that the detective was not cross-examined become significant here. As Richardson J said in R v Te Kira [1993] 3 NZLR 257 at

266 (CA), a person claiming that his rights under NZBORA have been breached must “provide an evidential foundation if that is necessary to invest the claim with an

air of reality”. Here there is simply no evidence that the respondent’s will was overborne or that his rights were overridden.

[21] In summarising the material aspects of the facts, the Judge highlighted the respondent’s age (22) and said that he was emotional during parts of the interview. He also highlighted the fact that the respondent had been at the police station since

3.32 that afternoon. It may be that the Judge considered that these features meant that the case was analogous to R v Mitchell CA 160/05 31 August 2005, an authority upon which Mr Mason relied before the Judge and before this Court.

[22] However, Mitchell involved a very different set of facts. In the present case, it is clear that despite his relative youth, the respondent had some familiarity with the criminal justice system. After the detective had provided the respondent with the details of the allegations against him and indicated that he wished to ask the respondent some questions about them, the respondent asked “What is it, Robbery or Aggravated Robbery?” This is not the question of a person confronting the system for the first time. It is true that the respondent was at the police station from 3.32 pm until 7 pm and seems to have become emotional at two points. However, he was not interviewed for all of that time (the interview at issue began at 5.45 pm and ended shortly after 7 pm, although there must have been some interaction with the police prior to that), he had a 19 minute break during the interview and his family were present for the significant part of it. There is no evidence of the type of police pressure or personal exhaustion that the suspect in Mitchell suffered during his interview. Here, then, the evidence does not indicate that the respondent’s will was overborne.

[23] Finally, we note that the respondent made no incriminating statements in the period before he initially read over and signed the detective’s notes. The respondent’s admissions were made in the course of the subsequent interview process, which he had initiated himself.

[24] Accordingly, on the material before us we do not consider that there was a breach of the respondent’s rights under s 23(1)(b) or s 23(4) of NZBORA. Nor do

we consider that any issues of fairness arise. As a result, we consider that the interview is admissible.

Decision

[25] We grant the Solicitor-General leave to appeal, and allow the appeal. We make an order prohibiting publication of the reasons for judgment in the news media or on the internet or in any other publicly accessible database until final disposition of the trial. Publication of the reasons for judgment in a law report or law digest is permitted, however.

Solicitors:

Crown Law Office, Wellington