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Court of Appeal of New Zealand |
Last Updated: 30 July 2017
NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA381/06
CA382/06
THE QUEEN
v
CRAIG WILSON ROSS
Hearing: 22 November 2006
Court: Arnold, Baragwanath and Ronald Young JJ Counsel: A Markham for Crown
B Crowley for Respondent
Judgment: 13 December 2006 at 11 am
JUDGMENT OF THE COURT
30 November 2005 were inadmissible is allowed. The Crown application pursuant to s 344A with respect to the text messages of 30 November
2005 is granted.
end of the interview is allowed in part. The
video interview is
R V ROSS CA CA381/06 13 December 2006
inadmissible from the beginning of p 38 tape 1 of the video interview
transcript until the end of the interview.
C Not to be published in news media or on Internet or other
publicly accessible database until final disposition of trial.
Publication in
Law Report or Law Digest permitted.
REASONS OF THE COURT
(Given by Ronald Young J)
[1] This appeal and cross-appeal relate to the admissibility of an
exchange of text messages between the accused (the respondent)
and the
complainant and a video interview by the police of the accused.
[2] Judge Mackintosh excluded as evidence, on grounds of
unfairness, the exchange of text messages. The Crown appeals
against this
ruling. The Judge excluded part of a video interview with the police. The
respondent submits all of the video interview
should have been excluded and
appeals that ruling.
Background
[3] The accused has been committed for trial on charges of rape, two
charges of threatening to kill and assault with a weapon.
The Crown alleges
that, following relationship difficulties, the complainant told the accused she
wished to end the relationship.
The accused refused to accept the relationship
was at an end. He became threatening towards the complainant and accused her
of
having a sexual relationship with a friend.
[4] The Crown alleges that on 22 November 2005 the accused arrived at the complainant’s flat with a concealed multi tool. He proposed marriage to her. She rejected the offer. He assaulted her, threatened her with the multi tool, threatened to
kill her and then raped her. The following day the accused sent the
complainant a series of text messages from his cellphone to her
cellphone.
That evening the complainant went to the police and made a complaint about the
accused’s conduct on the previous
night. The following day the accused
phoned the complainant and after the complainant refused to go to dinner with
him he again
threatened to kill her. The police were called. Over the next few
days the accused sent the complainant further texts. The complainant
again went
to the Police Station to ask what to do about the text messages from the
accused. With police guidance the complainant
responded to the accused’s
texts. The police formulated text messages for the complainant, which the
complainant converted
to her text style and sent to the accused. An exchange of
text messages between the complainant and the accused followed.
Objection to admissibility of text messages
[5] The accused gave notice to the Crown he objected to the
admissibility of the text exchanges between him and the complainant
on 30
November 2005 when the complainant was at the Police Station. The matter came
before Judge Mackintosh by way of a s 344A application
made by the Crown. After
summarising the Crown and defence submissions the Judge considered the relevant
authorities and then said:
At the relevant time the Police already had a full statement from the complainant as to the nature of the allegations and clearly what they were attempting to do was to obtain admissions in relation to crucial aspects of the rape allegation particularly his use of a tool and/or bottle. The complainant chose not to answer the original text messages but waited until she sought the advice of the Police as what to do. The Police encouraged her to resume communication with him and directed her how to communicate with him by writing down the message and she then translated it into a text message. She then initiated the text messaging exchange that obtained the admissions that I have referred to. She was schooled by the Police on what to say. This in my view was clearly Police questioning under the guise of texts from the complainant. It is unlikely the implied admissions would have arisen had the accused known the Police were sending the text messages, given his denials of using those items in his video statement. I am satisfied in this case it would be unfair to admit them into evidence. Therefore they are inadmissible.
Crown submissions
[6] The Crown says that what must first be kept in mind is that the accused was not “arrested, detained or charged with an offence” when the text messages were exchanged. The Crown says, therefore, the authorities mentioned by the Judge including, R v Hartley CA6/02 9 May 2002 and R v Barlow (1995) 14 CRNZ 9, which turned on subversion of rights given by the New Zealand Bill of Rights Act
1990, were not helpful. The Crown submitted the evidence could only be
excluded on the grounds of unfairness (see R v Ahamat CA143/00 19 June
2000 and R v Maretapu CA31/04 5 April 2004).
[7] The Crown said, when the Judge focused on the unlikelihood that the
implied admissions (contained within the text messages
from him) would have been
made by the accused if he had known of police involvement, she applied the wrong
test. The Crown submit
that deception alone is not a ground for excluding the
text messages on grounds of unfairness.
[8] The Crown submits the following factors illustrate there was no
unfairness here:
(i) The accused was willing to talk about the events.
(ii) The text messages sent by the complainant at the Police Station
were not a form of cross-examination of the accused but
contained open ended
questions.
(iii) The police direction of the replies was unobjectionable in light
of the need to keep the questioning within proper bounds.
(iv) There was no coercion or imbalance of power between the complainant and accused and thus no evidential foundation for the accused’s submission that the accused would “say anything to please her”.
(v) The text messaging was inherently less confrontational than
in-person conversations.
(vi) The complainant did not say she would not go to the police or show
the texts to the police.
(vii) There is no evidence of deliberately delaying a response
to the accused’s text messages to enable the exchange
to occur with
police supervision.
[9] The Crown stressed before the evidence was found to be
inadmissible because of unfairness it had to be shown that
the police conduct
was outrageous. The Crown submitted the police conduct in this case was less
open to challenge than in cases such
as Barlow and Hartley and
similar to Ahamat.
Accused’s submissions
[10] The accused supported the Judge’s decision and reasoning. He
submitted that this was a case of police questioning
under the guise of text
messages from the complainant. Counsel said, given that the police dictated
the complainant’s responses,
it was proper for the Judge to consider
whether the accused would have responded if he had known it was the police who
were in fact
texting him. Counsel claimed that the accused’s emotional
attachment to the complainant was used by the police to instigate
a reply to the
complainant’s text messages. He points out that the exchange on 30
November took place eight days after the
alleged rape. The last text from the
accused before 30 November, on 29 November, was essentially an acceptance by him
that their
relationship was at an end. Counsel submits, therefore, that the
complainant’s text on 30 November from the Police Station
was effectively
a police instigated exchange.
[11] In summary, the accused submits:
(i) The accused was, at the least, a suspect in a serious investigation as
at
30 November.
(ii) His right to be cautioned as to his right to silence was subverted
by the police instigated text message exchange, which
was essentially
questioning by the police.
(iii) The accused was tricked and emotionally coerced into making
admissions of doubtful reliability.
Discussion
[12] A review of some recent authorities will identify features
of each case relevant to unfairness. In Barlow the accused was charged
with the murder of two businessmen whom it was alleged he had shot.
“B” had been a trusted friend
of Barlow and talked to him about
police suspicions. Eventually “B” came to suspect that Barlow had
committed the murders.
After Barlow’s arrest “B” volunteered
to talk to him about firearms including the pistol allegedly used in the
murder.
The police accepted the offer and arranged to tape-record the conversations.
They told “B” he was not to try
and obtain any admissions to the
murder. The police recorded a number of telephone conversations between the two
men and some in-person
discussions. At one stage there was a discussion
between the two men at a hotel room when “B” was said to have
assumed
the role of a “priest at confession”.
[13] All the recordings, save the discussions at the hotel room, were
admitted by the Court. The conversations all occurred
after arrest
and charge, and the New Zealand Bill of Rights Act therefore applied. Cooke
P identified the test in R v Broyles (1991) 68 CCC (3d) 308 (SCC) as
helpful in New Zealand. In Broyles the accused was in custody in
contrast with Barlow who had been arrested but was on bail. The passage,
cited with approval, was:
In every case where the right to silence is raised, the threshold question will be: was the person who allegedly subverted the right to silence an agent of the state? In answering this question one should remember that the purpose of the right to silence is to limit the use of the coercive power of the state to force an individual to incriminate himself or herself; it is not to prevent individuals from incriminating themselves per se. Accordingly, if the person to whom the impugned remarks is made is not an agent of the state, there will be no violation of the right to silence.
In some cases, it will be clear that the person to whom the statements were
made was an agent of the state. For example, if the statements
were made to a
police officer or to a prison official, whether in uniform or in plain clothes,
there could be no question that the
statements were made to an agent of the
state. In other cases, it will be less clear. Where the statements are made to
an informer,
as in the case at bar, it may be arguable whether or not the
coercive power of the state was brought to bear on the suspect in obtaining
the
statement from him or her.
In determining whether or not the informer is a state agent, it is
appropriate to focus on the effect of the relationship between
the informer
and the authorities on the particular exchange or contact with the accused. A
relationship between the informer and
the state is relevant for the purposes of
s 7 only if it affects the circumstances surrounding the making of the impugned
statement.
A relationship between the informer and the authorities which
develops after the statement is made, or which in no way affects the
exchange
between the informer and the accused, will not make the informer a state agent
for the purposes of the exchange in question.
Only if the relationship between
the informer and the state is such that the exchange between the informer and
the accused is materially
different from what it would have been had there been
no such relationship should the informer be considered a state agent for the
purposes of the exchange. I would, accordingly, adopt the following simple test:
would the exchange between the accused and the informer
have taken place, in the
form and manner in which it did take place, but for the intervention of the
state or its agents?"
[14] In Ahamat the accused faced indecent assault and kidnapping
charges. After the alleged events giving rise to the charges, the complainant
told
a friend (who was a police officer) what had happened without identifying
her assailant. The next day she made a complaint to the
police. Earlier the
accused had telephoned her and left a message saying he would call later. While
she was at the Police Station
the accused phoned her again although the
complainant did not answer. A check of her home messages revealed the accused
had also
left a message there. At the request of the police the complainant
phoned the accused and the conversation was recorded. This Court
said at
[11]:
The discretion to exclude evidence on fairness grounds involves fairness not just to the accused but also to the Crown. It is not to be called in aid simply because the circumstances approach, but fall outside, those engaged by the Bill of Rights Act. There must be unfairness in the manner in which the evidence is obtained (bearing in mind that even illegally obtained evidence is not automatically excluded) or unfairness likely to arise from the giving of the evidence at the trial. In rare cases evidence might be excluded on this ground as a sanction against police misconduct – see R v Coombs [1985] 1
NZLR 318, R v Dally [1990] NZHC 145; [1990] 2 NZLR 184 and R v Fahey CA94/00 and CA135/00, judgment 11 May 2000. To exclude probative evidence on fairness grounds is warranted only when that is consistent with the interests of justice or when that is necessary to assure the fundamental right of an accused to a fair trial.
[15] And in summary the Court said at [21]:
We see this case as one similar to Barlow and M (CA64/96) v R,
CA64/96, judgment 22 April 1996. Here the police took advantage of the
opportunity presented by the inevitability of telephone
discussion during which
there would be mention of events on the day before. Evidence of
that conversation could be
given by the complainant. The tape recording of it
was with her consent and was not unlawful. It represented an accurate record
of what was said. The applicant spoke freely and spontaneously, although
challenged by the complainant. He was not tricked or
coerced into statements of
doubtful reliability. Like the Judge, we are not persuaded that the
circumstances in which it was obtained
or will be given before the jury call for
exclusion of the evidence on fairness grounds.
[16] In R v Hartley CA6/02 9 May 2002, after the accused’s
arrest, his partner, Ms Jager, agreed to co-operate with the police. She asked
to see
the accused. The police would only allow her to do this if she would
record the conversation with Mr Hartley. She agreed.
Nothing inculpatory
was said but the accused asked Ms Jager to visit him in prison. She agreed
to do so. She wore a “wire”
so that the conversation could be
recorded. A police officer took her to and from prison. The Court concluded
that while “[t]he
police assisted in creating an opportunity for Mr
Hartley to make disclosures ... neither they nor Ms Jager can fairly be said to
have elicited information”.
[17] This Court considered that the facts in Hartley were similar
to the Canadian case of R v Liew (1999) 137 CCC (3d) 353 and said at
[22]:
The Supreme Court of Canada found that no Charter breach of the right to
silence occurred where admissions were made to an
undercover police
officer during a conversation with the accused in a police interview room in
circumstances where the accused,
who was under arrest, believed that the
undercover officer was a co-offender. It was held that the conduct of the
officer was not
the functional equivalent of an interrogation. The judgment of
the majority delivered by Major J said (at p367):
It is of no consequence that the police officer was engaged in a subterfuge,
permitted himself to be misidentified, or lied, so long
as the responses by the
accused were not actively elicited or the result of interrogation.
[18] In Maretapu the accused, who was a distant relative of the complainant, was alleged to have sexually violated the young complainant. The complainant and her mother made a complaint to the police about the accused’s conduct. While the complainant was at the Police Station the detective asked her to ring the accused.
She agreed. The police instructed her to say she was ringing from a pay
phone and was thinking of going to the police and “to
ask why the accused
had done what he had done to her”. The complainant followed the
instructions and the conversation was
recorded by the police. The Court, in
detailing the findings of the trial Court said [9]:
In the present case, Neazor J concluded that the recording of the arranged
conversation could not be regarded as unfair. It was
reasonable for the
detective to attempt to find some support for the complainant’s evidence.
Once this course was adopted,
it was proper for the complainant, as a young
girl, to be advised what to say and how to far to go. The question framed for X
to
ask was open, and did not put on the record specific allegations; it was
clear from the outset of the conversation that the call
was in the context of X
going to the police, and Mr Maretapu had no expectation that what he said would
not be recounted at trial.
There was no question of oppression, given the age
difference between the accused and X. The untruths told to Mr Maretapu were
peripheral, given that some tenable answer as to where the complainant was, was
necessary.
[19] On appeal, an allegation that the evidence was unfairly
obtained was abandoned.
[20] In both Barlow and Hartley the conversations were
after arrest. In both cases the police directed but did not control the
recorded conversations. In both cases
the accused could have had an expectation
of confidentiality. Barlow spoke to a close friend, and Hartley with his
partner.
[21] Maretapu and Ahamat were both pre-arrest cases. In
Maretapu the contact was instigated by the complainant and the police.
The police instructed the complainant on the subject matter of the
conversations
with the accused and to lie to the accused. In Ahamat the
complainant’s call was in response to a call from the accused. The police
asked her to discuss what had happened the previous
day when the alleged assault
occurred. All cases involved deception in that they appeared to the accused to
be spontaneous conversations
with either the complainant or a trusted
friend.
[22] The first consideration is whether the evidence was unfairly obtained by improper elicitation from the accused. The starting point is that Mr Ross was neither arrested nor detained at the time of the exchange of texts. Nor could it be said that
the police delayed charging the accused to obtain admissions from the exchange of text messages. The chronology of events illustrates this point. The accused had gone to the Police Station and complained of the rape and assault late on
23 November. On 25, 27 and 28 and 29 November the complainant received further text messages from the accused. She did not reply. On 30 November she went to the Police Station to discuss with the police what to do about the text messages from the accused. It was then the police suggested to the complainant that she should respond to the text messages from the accused. The complainant’s decision to go the police to discuss the texts and the decision that day to reply were not part of any pre-arranged plan. It was a spontaneous response to an opportunity created by the accused. Finally a search warrant for the accused’s house was not executed until
8 December. He was arrested and charged on 8 December after the video
interview with the police.
[23] We do not consider that the complainant in this case was effectively
an agent of the state. The coercive power of the state
was not brought to bear
on the accused to obtain his response to the text messages.
[24] We consider the following factors are of particular
importance:
(i) there was no attempt by the complainant to cross-examine
the accused, the questions and responses were open-ended;
(ii) in a text exchange perhaps more than an “in-person”
discussion there is opportunity to reflect before replying;
(iii) the accused could not possibly have thought the
“conversation” was private, this was an exchange of text messages
where a written record of what was said could readily be kept;
(iv) the accused knew the complainant wished to end the relationship and so could not have had any expectation of privacy arising from their relationship;
(v) the accused instigated the text messaging and tried to involve the
complainant in an exchange;
(vi) the accused did not hesitate to respond to the complainant when she
sent him a text message and he thanked her for responding
to his text
message;
(vii) his replies could, in fact, be seen as guarded in that they contain
few if any specific admissions;
(viii) the only deception was the failure to tell the accused the police
were involved in and observing the text exchange.
[25] We do not consider there was any significant power imbalance in this
case. Ordinarily the power imbalance in such a situation
favours an accused. In
this case the accused, who was 6’4” tall and heavily built,
dominated the complainant physically.
However, he was emotionally vulnerable
given what seems to be his preoccupation with the complainant and his desire
that they be
together. In this sense the power imbalance was lessened. Of
more significance is the fact that the complainant (and the police)
did not
try to prey upon the accused’s emotional vulnerability to instigate a
response to the complainant’s text
messages beyond the invitation to
respond inherent in sending a message. We see no reason to be concerned about
the reliability
of the admissions made by the accused given there was no
emotional coercion used to obtain his responses.
[26] We accept the police did control the complainant’s responses. However, we consider there was nothing in the content of the complainant’s texts that was unfair to the accused. It was the accused who introduced the idea that he had been “scaring” the complainant. The complainant responded to that “admission” and the conversation then proceeded naturally, discussing primarily why the accused acted as he did. The complainant did not expressly allege the accused had raped her. When the complainant stopped sending texts the accused continued to send her text messages asking if he could “make things up” to the complainant. This again
illustrates the accused was keen to participate in the exchange of text
messages and he felt no sense of coercion or inappropriate
pressure to
respond.
[27] The other ground upon which the admissibility of the text exchanges
might warrant review arises from the Court’s obligation
to ensure a proper
standard of police conduct is maintained. In Ahamat this Court
described the exclusion of evidence as a sanction against police misconduct as
available but rare. In this case, apart
from the deception inherent in the text
exchange, the accused also complains that the police’s close direction
of the
complainant’s communication with the accused went beyond
acceptable police conduct. We consider best practice for the
police in such a
situation is to agree with the complainant what topics can appropriately be
discussed, what should be avoided, and
then leave the conversation to develop
naturally. If there is close control of the discussion by the police, this may
lead the
Court to the conclusion that this was effectively an exchange between
the police and the accused. This might be especially so if
the police have
instigated the exchange and the complainant’s responses are in the nature
of objectionable cross-examination.
[28] However, the other side of police control of the content of the
exchange is the need to avoid the problem which occurred
in Barlow.
There, “B”, decided to question Barlow outside of the topics
agreed with the police. The Courts ruled this portion
of the discussion
inadmissible. Appropriate police control over the content of any conversation
may therefore avoid objectionable
questioning of an accused.
[29] We do not consider this is one of those rare cases where the Courts
need to intervene to ensure proper police conduct.
[30] We are conscious that the Judge exercised her discretion in ruling the evidence inadmissible. However, we consider the Judge failed to appreciate the significance of the fact that the accused had not been arrested or charged with any crime at the time of the conversation. The Judge’s observation that the admissions were unlikely to have been made if the accused had known “the police were sending the text messages” is no doubt true of every such case. That deception, however, would not by itself ordinarily mean the evidence is to be rejected.
[31] We are satisfied for the reasons given that the Judge was wrong to
exclude the evidence. We are satisfied the evidence should
have been admitted.
We allow the appeal and grant the s 344A application by the Crown.
Video interview
[32] At 7.27 p.m., Detective Barnard began interviewing Mr Ross. At the
commencement of the interview he said to Mr Ross:
CB The, yeah obviously we just wanna have a bit of a chat to you about
um Adele because she’s um made a complaint just
about a number of, I just
there’s been some ongoing dramas by the sounds of it that you guys have
been having. So, just wanna,
obviously have a bit of a yeah, get a bit of a low
down, bit of, find out from you what you know what the story is really I guess.
Um, now I’ll just gotta go through a couple of formalities for the
(points at screen), cos, because we’re
just videotaping this so people
I guess watching it know. Ah, th, this interview’s taking place at the
Wellington Central
Police Station ah on, on level two, today’s date, if
you just look up on there (points to screen), it’s got the 8th
of December ah 2005.
And within a few questions he said:
CB ...it’s just you and me at the moment. Now um just as I said
to you before, the um, the interview that we are having
today is just in
relation to the ongoing um I guess situation with you and Adele um now
you’re not under arrest, at this, at
this stage.
[33] The Constable cautioned the accused and told him he was free to go.
The conversation in the first tape is primarily about
the accused and the
complainant’s relationship including the accused’s jealousy and
his threats to another man
he believed was involved with the complainant.
Approximately two-thirds of the way through the first tape the police officer
says
to the accused:
CB She’s told us a few things about which has happened um I guess
over the, over the course of the last few months, which
I just wanna perhaps go
through with you and just um, and get your, I guess your point of view on it, on
what it is, the.
[34] Over the next few minutes the detective and accused discuss allegations of violence towards the complainant. The appellant then said:
CR I mean if this is bottom line leading to an AVO or that yeah slap it
on me, you know I’m quite happy with that.
CB Sorry with a what sorry?
CR I said if this is leading to an AVO or something slap it on me
...
[35] An “AVO” order is an Australian term similar to a
protection order. The officer then suggested the accused
had a multi tool with
him on the night he saw the complainant. The accused denied this.
[36] Tape 2 begins with the constable putting allegations of
physical assault including the use of a multi tool by the
accused with respect
to the complainant. The accused denies any assault or the possession of a multi
tool. The questions continue
until the constable asks:
CB Yeah did you do anything to her that may have caused a small injury
to that knee?
CR No, not that I recall, unless like it happened when we were having
sex or.
CB Sorry what was that?
CR I said unless it happened when we were having sex, I don’t
know.
CB Aw sorry, so you didn’t fall asleep then, you, cos you sorry
said before that you went to bed and you fell, you cuddled
up and you fell
asleep, so did you have sex that night as well?
CR Yeah, yeah.
[37] The interview continues and the accused observes that the
complainant is
“good at sending out mixed messages”.
[38] Finally about a quarter through tape 2 at p 9 of the
transcript:
CB When she um, I mean, when she got undressed, she said that
you’ve told her to strip off, that ah, you’ve told
her to take all
her clothes off?
CR No. Been pretty much consensual but like most, you know, so, no.
Like I said maybe she was doing it because she was scared, maybe she was doing it because.
[39] In tape 3 the constable puts to the accused that the complainant did
not want to have sex and she did so because she was
scared. Eventually, almost
at the end of tape 3, the officer arrests the accused for sexual violation,
threatening to kill and assault.
[40] The Judge ruled the taped conversation inadmissible from the
beginning of p 9 tape 2 to the end of tape 3. The Judge concluded
that as far
as police conduct was concerned there was a:
“Deliberate strategy to bring the accused in for questioning as a
suspect to the rape allegation and not warn him about the
jeopardy he was in at
the commencement of the interview.”
[41] She said it was clear from the video interview the accused thought
he was speaking to the detective about an alleged assault
that could be dealt
with by way of a protection order. The Judge concluded that when the police
directly raised the question of
non-consensual sexual activity they should have
re-cautioned him, told him he was facing an allegation of sexual violation by
rape
and advised him of his right to silence. She said that the discussion at
this stage clearly changed from the dramas of the relationship
to allegations of
a crime. The Judge said the evidence was inadmissible as it had been unfairly
obtained. She identified a series
of factors which she considered to be
relevant in the exercise of that discretion. She said the discussion from p 9
on the transcript
of the second video to the end of tape 3 was inadmissible and
could not be led in evidence.
Discussion
[42] The Judge’s ruling was based on a failure by the interviewing
police officer to tell the accused he faced an allegation
of rape until the end
of the interview. There is no challenge to the Judge’s conclusion by
either the Crown or accused.
The narrow point is whether the Judge should have
ruled all or additional portions of the video interview inadmissible on the same
grounds.
[43] The accused submits that the Judge should have decided the whole of the video interview was inadmissible because significant portions of the interview before
p 9 tape 2 were also concerned with the alleged rape. Part of the Crown case
against the accused is that the accused used the threat
of the use of a multi
tool as a way of extracting the complainant’s consent to sex. Therefore,
the accused’s ownership,
possession and use of a multi tool was relevant
to the allegation of rape. The ownership of a multi tool was first mentioned
at
the top of p 38 tape 1 and thereafter on several occasions before p 9 tape
2.
[44] We consider the proper course, consistent with the Judge’s
decision, is to rule the video statement inadmissible from
the end of p 37 of
the transcript, tape 1. The video interview before p 37 concentrates on the
couple’s relationship, allegations
of assault and verbal abuse and the
accused’s jealousy. These discussions are relevant to other counts in the
indictment.
It was not suggested by counsel that the accused was similarly
misled in the interview with respect to these allegations of violent
conduct
towards the complainant.
[45] We therefore allow the appeal by the accused. The
evidence from the beginning of p 38 tape 1 of the transcript
of the videotape
is therefore ruled
inadmissible.
Solicitors:
Crown Law Office, Wellington
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