R v Watson [2007] NZCA 56 (8 March 2007)

Last Updated: 8 February 2014

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT 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

CA420/06 [2007] NZCA 56

THE QUEEN

v

NICHOLAS ROBERT WOOLCOTT WATSON

Hearing: 21 February 2007

Court: O’Regan, Chisholm and Rodney Hansen JJ Counsel: W D McKean and D M Grindle for Appellant

M D Downs for Crown

Judgment: 8 March 2007 at 12 noon

_{JUDGMENT OF THE COURT}

1. The application for leave to appeal against an order of the District Court dated 8 November 2006 under s 344A of the Crimes Act 1961 is granted.

B The appeal is dismissed.

100. An order that this judgment and the reasons therefor not be published in news media or on the internet or any publicly accessible database until

_{completion of the trial. This order does not prevent, however,}

R V NICHOLAS ROBERT WOOLCOTT WATSON CA CA420/06 8 March 2007

publication of this judgment and the reasons therefor in a law report or law digest.

REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

[1] The appellant faces eight counts of arson in the Whangarei District Court. The charges arise out of a series of fires which damaged native bush in the Whangarei area. After being apprehended by the police near the scene of the last such fire, the appellant made damaging admissions in the course of interviews with the police, including a video interview.

[2] The appellant claims that the interviews took place in breach of his rights under the New Zealand Bill of Rights Act 1990 (NZBORA). The Crown applied under s 344A of the Crimes Act 1961 for a ruling that the interviews were admissible in evidence. In a judgment given on 8 November 2006, Judge KB de Ridder found there had been no breach. The appellant applies for leave to appeal against the Judge’s ruling.

Further background

[3] The appellant is 19 years old. He was adopted at birth. From a young age he exhibited learning difficulties and behavioural problems and he was diagnosed as suffering from Attention Deficit Hyperactivity Disorder. Clinicians who had assessed and treated him suspected he may be the victim of foetal alcohol syndrome. His intellectual functioning is well below average, although above the level at which he would be diagnosed as suffering from an intellectual disability.

[4] The police apprehended the appellant at about 7.00 p.m. on 16 February 2006 in an area of Whangarei where a fire had been lit. They were directed to him by a woman who had made a 111 call after the fire started and said she had seen the appellant at the scene a short time before.

[5] Constable Terrence Erceg spoke to the appellant. He asked him for his personal details which he gave readily. He then asked him general questions about his movements that afternoon. He formed the view that the appellant had lied to him about his movements. At this point the constable said he cautioned the appellant and advised him of his rights under s 23(1)(b) of the NZBORA. Constable Erceg said he obtained confirmation from the appellant that he understood his rights. He then asked him why he lied about his movements and soon afterwards asked him directly whether he had lit the fire. The appellant nodded and answered, “yes”. At this point Constable Erceg arrested the appellant and again advised him of his rights. Again the appellant confirmed that he understood his rights.

[6] After arresting the appellant, Constable Erceg asked him further questions at the roadside and while he was being taken by police car back to the Whangarei Police Station. The accused told him of other fires he had lit. The constable made notes which he invited the accused to read and sign. He did so, endorsing the officer’s notebook with “I have read this and it is true and correct” and then signing it.

[7] Constable Erceg said in evidence that while dealing with the appellant he did not detect any apparent inability to understand or follow questions or advice. He said the appellant appeared nervous but his behaviour and demeanour gave the officer no cause to think he had special needs.

[8] Constable Erceg then reported to Detective Shane Mawston. He told him of his discussions with the appellant and the admissions he had made. Constable Erceg introduced the accused to Detective Mawston who cautioned him and advised him of his rights. Detective Mawston said in evidence that he followed his usual practice of giving the caution in lay terms. For example, he told him that the right to refrain from making any statement meant that he did not have to make a statement unless he

was happy to do so. He asked the appellant to confirm that he understood what he had been told.

[9] The appellant agreed to show Detective Mawston where he had earlier lit fires. They visited two sites. At both, the appellant explained how he had gone to the scene and lit the fire. As night had fallen, they then returned to the police station where Detective Mawston offered the accused the opportunity to undergo a video interview. The appellant agreed to. The interview commenced at about 8.40 p.m. and concluded at approximately 9.30 p.m. At the beginning of the interview the accused’s rights were again explained to him.

[10] In the course of the interview the appellant admitted to having lit six fires and making two unsuccessful attempts. He provided detailed information about each fire. Before each was discussed, Detective Mawston repeated his rights under the NZBORA. On these occasions the warning was given in a formal manner, simply repeating the words of s 23(1)(b) of the NZBORA and advising the appellant of his right not to make a statement and that anything he said would be recorded. On each occasion the appellant confirmed his understanding of his rights.

[11] In evidence Detective Mawston said that, in the course of interviewing the appellant, he did not detect any intellectual disability. He said he repeated his rights to him, not because he thought the appellant suffered from any kind of intellectual disability, but because he was talking about multiple distinct offences, each of them serious.

Other evidence

[12] At the hearing the Judge also heard from the appellant himself, a clinical psychologist, Dr Joseph Sakdalan, the appellant’s mother and an aunt, and four witnesses who had spoken to the accused on various occasions. The appellant confirmed that Constable Erceg had given him his rights, although he could not remember what they were. He said he did not ask for a lawyer because he did not know whether he had a lawyer or not. He accepted in cross-examination that when

he started to talk to Constable Erceg he knew that he did not have to speak to him if he did not want to.

[13] The appellant said he asked both Constable Erceg and Detective Mawston at least three times for his parents to be called as they would be worried about where he was. Both denied that he made the request.

[14] The accused told the Court that he had obtained an NCEA Level One qualification before leaving school, that he had obtained a driver licence which required passing a written test and that he operated his own bank account. He said he kept a scrap book with articles on disasters which he cut out from the newspaper. He accepted that his understanding of what other people said at times was better than his own oral expression.

[15] Dr Sakdalan specialises in the areas of forensic disabilities, adult mental health, forensic psychology, neuro-psychology (particularly in relation to brain injuries) and cognitive disorders secondary to mental illness and dementia. Dr Sakdalan had reviewed the appellant’s medical history. He referred to an assessment in 1995 which concluded that he presented with multi-disabilities including learning problems, sleeping difficulties, perseveration and poor judgment of the consequences of his actions. His brain dysfunction was thought to be probably due to genetic and birth complications. Dr Sakdalan noted that a report prepared under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act

2003 had, however, concluded that the appellant was fit to stand trial.

[16] On the basis of three recognised tests, Dr Sakdalan concluded that the appellant’s cognitive ability is well within the borderline range of intellectual disability. His overall thinking and reasoning abilities exceed those of only some

5% of adults of his age. His IQ is 75. The level at which a person is regarded as suffering from an intellectual disability is 70 or less. Dr Sakdalan said that, as a very crude estimate, the appellant had a mental age of “say 12 to 14 years old”. He said the appellant would have significant difficulties processing complex information. He would find the process more time-consuming and a greater drain on his mental energies compared to other adults of his age. He concluded that the appellant’s

ability to process information efficiently is significantly impaired. “He would struggle with fully comprehending complex information provided to him, [therefore] he needs to be provided with simple and step-by-step explanations and to make sure that he comprehends the information by asking to repeat what was said.”

[17] Dr Sakdalan said the appellant exhibited an unusually high level of suggestibility which would make him vulnerable in situations where he was being interrogated by a person whom he perceives as in authority. He also said the appellant tended to be acquiescent, indicating a tendency to respond affirmatively to leading questions. He concluded the appellant’s overall cognitive ability to be within the borderline range of intellectual functioning; that he exhibits an unusually high level of suggestibility, has poor coping skills and has relied on his parents for support; and his cognitive deficits would be likely to impair his ability to fully comprehend his rights.

[18] The appellant’s mother said she had been contacted by the police at about

10.30 p.m. on 16 February and she and her husband went to the police station. She said they asked the appellant if he had spoken to a lawyer and asked him why he had not asked for one.

[19] An aunt of the accused with long experience in teaching special needs children said the appellant often discussed problems with her. In her experience he did not understand a lot of what is said in some situations and she would take him through issues step-by-step.

[20] Judge de Ridder overruled the objections of the Crown in admitting the evidence of four witnesses who had observed the appellant on recent occasions. The first was a police constable who had seen him near the scene of one of the fires a month before his arrest. The appellant approached him and asked if he could go closer to the fire. He was told he could not. The officer recorded in his notebook that the appellant appeared “very excited, looked IHCish”. He said IHC was his abbreviation for intellectually handicapped. In a job sheet prepared later, he observed that the appellant “came across as a little bit simple”. The officer said the appellant did not appear to have any difficulty comprehending what he was being

told and he responded appropriately. He was also able to communicate clearly. The officer said he simply thought the appellant came across as quite young and “just simple”.

[21] Another police officer gave evidence of having been approached by the appellant late in 2005 when he was out walking with his wife. In a job sheet recorded later, he said the appellant “seemed a very simple type person and was trying to make conversation with us which we did not return”.

[22] The final two witnesses were the woman who directed the police to the appellant on the day he was arrested and her companion. She said the appellant engaged them in conversation about tracks in the area. She had the impression that he was bright enough but did speak slowly. She thought he had a slight speech impediment and a disability of sorts but he was knowledgeable of the surroundings and where he was going. After returning home, she noticed smoke in the garden, recalled her discussion with the appellant and contacted the police to report on her conversation with him. She later pointed him out to Constable Erceg. Her companion said their conversation with the appellant seemed relatively normal. He said, however, there was “something unusual about the way he spoke. He did seem a little hyped”.

Decision appealed from

[23] After referring to s 23(1)(b) NZBORA, the Judge quoted from the leading authorities as to the way in which the right to obtain legal advice should be communicated to a detainee, including R v Mallinson [1993] 1 NZLR 528 (CA) and Attorney-General v Udompun [2005] 3 NZLR 204 (CA). It is convenient to set out the paragraphs he quoted from these judgments.

[24] In Mallinson the Court said at 530-531:

To be “informed” of the right to a lawyer is to be made aware of it. The purpose is to provide a fair opportunity for the person arrested to consider and decide whether or not to exercise the right. The obligation on the arrester or other officer concerned is to communicate clearly to the person arrested that he or she has that right. No particular formula is required so

long as the content of the right is brought home to the person arrested. To use the language of s 23(1)(b) may save argument later. In the end whether or not the obligation was satisfied must turn on what was said and what is to be implied from what was said in the particular context and circumstances. Even though no particular words are used the context may make it clear that the right to a lawyer is immediately exercisable; and so, in relation to any subsequent use of answers to police questioning, that the right is exercisable before any questioning begins.

...

Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused’s answers at face value. If following advice as to the right to a lawyer the accused responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights. But more than a bare statement of the s 23(1)(b) right and a bare acknowledgement of understanding is likely to be requires where, for example, the person arrested is intoxicated or under drugs or appears to have a mental or physical disability which could interfere with his or her comprehension of the rights.

[25] In Udompun the Court said at [119]:

Moving now to s 23(1)(b), the test set out by this Court in Mallinson requires effective communication to a detainee so that the detainee (subjectively) understands that he or she has a right to consult a lawyer without delay. It is, however, made clear that, where a person at the relevant time acknowledged an understanding of the right, there has to be an evidential basis (other than mere assertion of not understanding) put forward for an argument that a detainee did not in fact understand the right. If there is such an evidential basis, it is then for the Crown to prove understanding. To provide an evidential basis a detainee must point either to there not having been an objectively effective communication of the right, or to some special circumstance or characteristic (whether known to the police or not) that could have hindered understanding.

[26] The Judge accepted Constable Erceg’s evidence that he advised the appellant of his rights on two occasions within a short space of time and the appellant indicated he understood his rights. He said that in terms of Mallinson and Udompun that indication should be accepted at face value. The issue was then whether the appellant exhibited special characteristics that could have hindered his understanding of his rights such that his answers should not be taken at face value.

[27] The Judge accepted that Constable Erceg had no reason to suspect that the appellant suffered from a disability. He did not find his evidence in this respect inconsistent with the observations of the woman who had seen the appellant shortly

before his arrest. He noted that Constable Erceg had much more extended contact with the appellant than the four witnesses who had spoken to him on previous occasions. He found there was nothing to suggest that Constable Erceg closed his mind to any obvious signs that the appellant was labouring under a disability.

[28] The Judge accepted Detective Mawston’s evidence that at no stage did the appellant give him cause to think he did not understand his rights. He noted that in the course of the video interview, Detective Mawston had explained in plain language that he could refrain from making a statement. The Judge found that the detective was entitled to rely upon the appellant’s statement that he understood. The Judge said that, like Constable Erceg, Detective Mawston dealt with the appellant in a far more formal, lengthy and detailed way than others who had given evidence of his demeanour. He was aware of recommended practices and procedures for dealing with persons who present with a disability. The Judge accepted his evidence that he saw no reason to implement them.

[29] The Judge referred to the evidence of Dr Sakdalan and the observations of those who had perceived the appellant as suffering from an intellectual disability. He noted that, although the appellant’s intellectual functions were at the low end of the spectrum, he did not suffer from a mental illness. He went on to consider whether the appellant’s intellectual functioning might have precluded him from understanding his rights. He noted Dr Sakdalan’s evidence that the appellant’s ability to process complex information efficiently is significantly impaired. The Judge said, however, that the appellant was not required by the police to process complex information. He was simply advised that he could speak to a lawyer at any stage if he wanted to and he did not have to make a statement unless he was happy to do so. These, said the Judge, are not complex matters.

[30] The Judge also expressed satisfaction that there was nothing to indicate that the information provided by the appellant about the fires came as a result of his suggestibility. He freely volunteered information in response to open questions. The Judge said he had watched the interview and noted that the appellant had expressed himself clearly and logically. He clearly followed the sequence of fires, distinguishing between each separate event. He recalled the fires in a logical and

sensible fashion. The Judge said he could discern nothing to indicate confusion or muddlement. The Judge also said that he could detect nothing in the way the appellant answered questions or in his general demeanour that should have alerted Detective Mawston to proceed in accordance with recommended practices and procedures for dealing with people with intellectual impairment or difficulties. He disagreed with Dr Sakdalan’s opinion that the appellant’s problems would likely impair his ability to understand his rights.

Submissions

[31] In support of the appeal, Mr McKean argued that the Judge did not take the approach required by the authorities in determining whether the appellant had had a fair opportunity to exercise his rights. In particular, he said:

a) The Judge wrongly relied on the total number of times the police advised the appellant of his rights. That approach is misplaced when admissions are made as the advice is repeated.

b) The Judge was wrong to have made a finding that the advice given to the appellant was not a complex issue without receiving the opinion of the psychologist and in concluding that there was nothing in the medical evidence to suggest that the appellant was not capable of understanding his rights. Mr McKean was also critical of the Judge determining this issue without making a finding on the disputed evidence of whether the appellant asked to speak to his parents.

c) The Judge was wrong to treat the fact that the appellant was not mentally unwell as significant.

d) The Judge incorrectly rejected expert opinion that the appellant had a high level of suggestibility by relying on answers given in the course of the video interview to questions about the offending. It was submitted that the critical issue was not whether his suggestibility

affected his answers in this area but whether it affected his responses on the issue of whether he understood his rights.

e) The Judge was wrong to disallow evidence from the psychologist on the conclusions which could be drawn from the answers given by the appellant in the course of the video interview. The question of whether the appellant’s bare acknowledgements should be interpreted as conveying understanding is, it was submitted, outside the normal run of human experience and should not have been left to the intuitive views of the Judge. Such evidence was received in R v Samuelu (2005) 21 CRNZ 902 (HC) where experts from both sides commented on the content of the video interview under challenge.

f) The Judge was wrong to rely on acknowledgements given by the appellant in cross-examination that he had understood his rights. The appellant gave contradictory evidence which suggested a level of confusion and uncertainty and supported a finding that he lacked a clear understanding of his rights. Further, said Mr McKean, the Judge should have taken into account the appellant’s level of suggestibility and disability in considering his acknowledgements that he understood his rights both in the video interview and in cross- examination.

[32] Mr McKean submitted that the evidence showed that in order to satisfactorily communicate to the appellant his rights under NZBORA, the police should have given him simple step-by-step explanations, asked him to repeat what had been said to him and ensured that a parental figure was present to support him.

[33] In response, Mr Downs pointed out that unless it is apparent to a police officer that a suspect may not understand his or her rights, or if that fact ought to have been apparent to a reasonable police officer, there is no duty on the police to go further to ensure that a suspect’s rights are brought home. He pointed out that the Judge rejected the argument that the police ought to have been on notice and also found that the appellant in fact understood the advice given to him.

[34] Mr Downs submitted that the Judge was right not to permit the expert to give evidence as to what the appellant should be understood to have been saying in his video interview. He said the question of whether or not the appellant’s suggestibility might have caused him to incorrectly acknowledge that he understood his rights was a matter for the Judge. He argued that Dr Sakdalan was no better qualified than any other person to say what the appellant was “really meaning” when he seemingly indicated that he understood his rights. The question of what a person should be understood to mean by his words was for the Judge to decide having regard to the totality of the evidence, including expert evidence as to the appellant’s IQ and comprehension skills.

Discussion

[35] There is (and can be) no challenge to the Judge’s finding that the arresting officer advised the appellant of his rights at the earliest opportunity and before any admissions were made. It is also accepted that advice was subsequently repeated by the arresting officer and again, on several occasions, by the detective who conducted the formal interview.

[36] The Judge found that on all occasions when the appellant’s rights were explained to him, he signified that he understood. The officers were entitled to accept those acknowledgements as conveying that the appellant in fact understood his rights, unless there were “circumstances calling for obvious care and further enquiry” (Mallinson at 531) which suggested that the appellant’s answers should not have been taken at face value.

[37] On the Judge’s findings there were no such circumstances. After considering the evidence of the witnesses who had encountered the appellant on earlier occasions, some of whom had observed oddities in his conduct and demeanour, the Judge decided that the two police officers, with the benefit of a much more extended period of communication with the appellant, had been entitled to conclude that the appellant understood what had been explained to him.

[38] The sole remaining issue, and necessarily the focus of the appeal, is whether, contrary to the police officer’s perception, the appellant did not in fact understand his rights. As stated in Mallinson at 531:

The crucial question is whether it was brought home to the arrested person that he or she had those rights. That is not the same question as whether the police were justified in assuming that he or she did understand them. To look at it simply from the perspective of the police officer would mean that the person arrested who did not in fact understand the position would not be able to make an informed choice with respect to the exercise or waiver of the guaranteed right.

The case for the appellant is that the way the Judge went about deciding this question was flawed and led him, wrongly, to the conclusion that the appellant in fact understood his rights at all relevant times.

[39] There is nothing in the point that the Judge was unduly influenced by the number of times the accused’s rights were explained to him. He gave separate consideration to the several occasions on which advice was given. The issues of substance raised by the appeal concern the Judge’s use of the expert evidence and his assessment of the viva voce evidence of the appellant and his video interview.

[40] In our view, the Judge did not place undue weight on the fact that the appellant was not suffering from a mental illness. He distinguished cases such as Samuelu where the detainee was suffering from a mental illness to the knowledge of the interviewing officers. He focused on Dr Sakdalan’s concerns about the appellant’s difficulties in processing complex information and his suggestibility.

[41] Mr McKean argued that the Judge should have received expert evidence on whether the advice given to the appellant was complex and would be difficult for him to process. In fact, Dr Sakdalan was permitted to give evidence on that issue. He said that the appellant’s cognitive deficits and “outside problems” would be likely to impair his ability to fully comprehend his rights. The Judge was, however, entitled to come to his own view on the question after considering all the evidence. His conclusion that the advice to the appellant that he could speak to a lawyer at any stage if he wanted to and that he did not have to make a statement unless he was happy to do so were not complex matters – is unimpeachable.

[42] We think the Judge was also entitled to reach his own view – and to differ from Dr Sakdalan – on whether the appellant’s suggestibility may have caused him to falsely acknowledge that he understood his rights. We see no reason why, for this purpose, the Judge should not have taken into account the way the appellant answered questions in his video interview about his offending. He gave full, detailed and logical responses to open questions. There was no hint of suggestibility when he spoke of the offending. This must be relevant to an assessment of whether his answers to other questions could be relied on.

[43] We accept that the Judge could have agreed to hearing comment from Dr Sakdalan on the content of the video interview. It may have provided some further foundation for the opinions he expressed on such issues as cognitive deficits and suggestibility. But it would not have permitted the psychologist to comment on the level of understanding shown by the appellant. That was quintessentially a question for the Judge to decide having regard to all of the evidence. The Judge did not err in exercising his discretion to exclude that evidence.

[44] We are satisfied that the Judge correctly directed himself to the critical issues identified in the authorities. His findings on those issues were made after a careful and comprehensive review of the evidence. In our view, that evidence supported his finding that the appellant’s rights had been properly communicated to him and understood by him.

Result

[45] Leave to appeal is granted and the appeal is dismissed. The disputed evidence is admissible.

Solicitors:

Webb Ross, Whangarei for Appellant

Crown Law Office, Wellington