R v McClelland [2017] NZDC 19710 (12 September 2017)

Last Updated: 27 February 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT TAURANGA

CRI-2016-070-004446 [2017] NZDC 19710

THE QUEEN

v

_{CONNOR DARREN MCCLELLAND}

Hearing:	1 September 2017
Appearances:	Mr Batts for the Crown Mr N Burke for the Defendant
Judgment:	12 September 2017

_{PRETRIAL RULING OF JUDGE INGRAM}

[1] Mr McClelland faces a charge of injuring with intent to injure on the 2nd of October 2016. He is alleged to have chased the victim as he was fleeing from a violent confrontation outside a party, and then tripped him so he fell to the ground. It is alleged that Mr McClelland kicked and punched the victim as he lay on the ground, as another man also assaulted him. The defendant has denied the allegations, and elected trial by jury.

[2] Objection has been taken to admissibility of an interview conducted by [the Detective] on the 21st of November 2016. The interview was recorded on a DVD, and a full transcript was provided for the purposes of argument. The significant portions of the interview were played during the course of the hearing, with approximately the last half of the interview being subject to objection.

[3] The substance of the objection is that the interviewer failed to comply with the obligations created by the New Zealand Bill of Rights Act 1990, and the requirements of Clauses 3 and 4 of the Chief Justice’s Practice Note on Police Questioning. It was submitted that [the Detective’s] questioning amounted to cross examination, that selective revelation of evidence in [the Detective’s] possession during the course of the interview was unfair, and it is further submitted that [the Detective] completely failed to administer the necessary caution and Bill of Rights advice at the point in the interview where the defendant was arrested.

[4] The Crown contests those submissions, submitting that [the Detective] was scrupulously fair to the defendant, giving him a fulsome and detailed caution and Bill of Rights advice at the commencement of the interview, giving the defendant a number of opportunities to tell his side of the story, and giving the defendant a full and fair opportunity to respond to the evidential material in [the Detective’s] possession.

[5] The defendant was 18 years of age at the time of the interview. His interview commenced shortly before 9am, and it is clear from the interview that the defendant is alert, with his mental faculties completely unimpaired.

[6] [The Detective] commenced by identifying the event that was to be the subject of the interview, and the defendant confirmed that he knew the incident that [the Detective] was to speak to him about. [The Detective] then gave a detailed and comprehensive explanation of the defendant’s rights under the New Zealand Bill of Rights Act 1990, and a detailed caution. He took care to question the defendant about his understanding of several aspects of his rights, and he made full and accurate explanation in relation to each and every aspect of the defendant’s rights that the defendant raised with him. The care taken by [the Detective]and the lengths to which he went to ensure the defendant fully understood his rights would be hard to overstate, and I would unhesitatingly say that I have never come across a more careful, thorough and explicit recitation of a suspect’s rights. I am completely satisfied that the defendant knew and understood his rights when [the Detective] finished his explanation of those rights some five minutes into the interview.

[7] [The Detective] then turned to outline the incident which was being investigated. The defendant had not at that stage been charged, although it was clear that he was a suspect. [The Detective] asked the defendant to tell him everything that he could in relation to the assault which was the subject of the charge. He allowed the defendant to give his explanation, prompting him with open questions without challenging any of the defendant’s assertions until the defendant had finished making his explanation, which was that he was not involved in the assault.

[8] At 9:15:52, about 18 minutes into the interview [the Detective] addressed the issue of the defendant’s involvement in the following way:

[The Detective] Did you do anything in that assault?

CM Nah.

[The Detective] You didn’t do anything at all?

CM Nah.

[The Detective] Are you sure?

CM Yeah.

[The Detective] Do you want to tell me the truth or do you want me to pull out some documentation?

CM You can pull out something.

[The Detective] And then you might tell me the truth?

CM Yeah, you can pull out something.

[The Detective] Okay, I’ve given you every opportunity to tell me the truth. Yeah?

[The Detective] I’m going to give you the opportunity again before I go over this, is there anything else that you want to add about what you might have done that night?

CM No.

[The Detective] Right, are you sure?

CM Yeah ...

[9] [The Detective] then proceeded to take the defendant through a series of text messages and pictures which the police had obtained, and he commenced by identifying some of the people involved in the incident by reference to pictures which he had on the file. After establishing identities, at 9:18 the following exchange occurred.

[The Detective] Right okay before I go any further, do you want to tell me any truth or do you want me to carry on going and then I’ll show you. Do you want, I’m giving you every opportunity before I show you evidence ...

CM Yeah

[The Detective] To tell me anything you did that night to any of these victims?

CM Nah.

[The Detective] Are you sure?

CM Yeah.

[The Detective] Okay.

[The Detective] I’m saying I’m giving you every opportunity now.

CM Yeah it’s okay, yeah.

[10] [The Detective] then proceeds to go through a number of text messages with the defendant, identifying authorship, and discussing the content of the messages. None of his questions were in the nature of cross examination at this point, as he simply sought information from the defendant in relation to various text messages as to what the content of the messages meant, and the identity of the person sending the messages. At 9:25 the following exchange occurred in relation to a text which the defendant had admitted had been sent by him. It referred to the defendant being directly involved in the events of the night:

[The Detective] Right do you want to change anything you said so far?

CM Oh yeah.

[The Detective] Right go on then. You tell me. I gave you every opportunity to tell the truth before I showed you that. Why didn’t you?

CM Nah, that, I didn’t do anything. Cos I was

[The Detective] What did you do?

CM Joking

[The Detective] He wasn’t joking, tell me the truth and tell me the truth now.

CM I just chased him down the road.

[The Detective] And what did you do?

[The Detective] What did you do?

CM I didn’t touch him.

[The Detective] Okay, I’ll read the rest of this. “Didn’t me and you chase that other cunt up the road Adlam. From you Macca ...”

CM Mmmm

[The Detective] “No that was ah me and Tups cuz ha ha ha, smacked him up down the end”.

CM Mmmm, no I was trying to act cool.

[The Detective] Well acting cool just got you arrested ...

CM Yeah.

[The Detective] ... for injuring with intent to injure. At 9:26. So do you want to tell me the truth now?

CM Yeah.

[The Detective] Go on then.

CM Well I just did.

[The Detective] What did you do?

CM I just tripped him up.

[The Detective] And then what?

CM And then Tupai just started smacking him.

CM And then he just ran off. And I went home, got a taxi. [The Detective] You’ve hit him as well haven’t you?

CM Huh?

[The Detective] You’ve hit him as well, you don’t just trip him up.

CM Nuh.

[The Detective] I’m giving you every opportunity here to tell me the truth before I start pulling out other things.

CM Well I can’t remember.

[The Detective] You can remember.

CM I can’t remember much.

[The Detective] Cos you just told me.

CM I can’t remember how many times I hit him.

[The Detective] Right it doesn’t matter how many times you hit him.

CM Yeah.

[The Detective] You hit him, correct?

CM Yeah.

[The Detective] Right so why didn’t you tell me that, the truth, at the beginning?

[11] Obviously, the defendant was arrested by [the Detective] in mid interview. Equally obviously, he was not given a caution or Bill of Rights advice at that point. A major issue is whether the evidence obtained following the arrest is admissible, in the absence of a contemporaneous recitation of the caution and Bill of Rights advice.

[12] [The Detective] then proceeded to take the defendant through the sequence of events, asking unexceptional questions about the defendant’s involvement in chasing, tripping and assaulting the victim. The defendant claimed to have been seriously drunk at the time, registering 8 on a scale of 1 to 10. At about 9:32 [the Detective] asked this question about the victim and the defendant’s sobriety and said:

[The Detective] But you ran after him and he ran as fast as he could.

He’s about 6 foot. He’s a fit lad ...

CM Mmmm.

[The Detective] From what I’ve been told and he hasn’t told me this himself, but what I’ve been told he’s represented New Zealand in sports so he’s well fit so he ran fast as he could. You’re telling me you’re a level 8, if 10 is completely drunk and being helped by your mates to walk, you can’t talk and possibly going to be taken to hospital ...

CM Mmmm.

[The Detective] Yet you caught him up and tripped him.

CM [Nodded]

[The Detective] Couldn’t have been that drunk could you?

CM I must have been running pretty fast.

[13] The starting point in relation to this challenge to admissibility is s 30 of the

Evidence Act. It provides as follows:

30 Improperly obtained evidence

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—

(a) the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue

of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.

(2) The Judge must—

(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the

impropriety by means of a balancing process that gives appropriate

weight to the impropriety and takes proper account of the need for an effective and credible system of justice.

(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:

(c) the nature and quality of the improperly obtained evidence:

(d) the seriousness of the offence with which the defendant is charged:

(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f) whether there are alternative remedies to exclusion of the evidence that

can adequately provide redress to the defendant:

(g) whether the impropriety was necessary to avoid apprehended physical danger to the Police or others:

(h) whether there was any urgency in obtaining the improperly obtained evidence. (4) The Judge must exclude any improperly obtained evidence if, in accordance

with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.

(5) For the purposes of this section, evidence is improperly obtained if it is obtained— (a) in consequence of a breach of any enactment or rule of law by a person

to whom section 3 of the New Zealand Bill of Rights Act 1990 applies;

or

_{(b) in consequence of a statement made by a defendant that is or would be}

inadmissible if it were offered in evidence by the prosecution; or

(c) unfairly.

(6) Without limiting subsection (5)(c), in deciding whether a statement obtained by

a member of the Police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on

that subject issued by the Chief Justice.

[14] The first defence complaint is that [the Detective’s] conduct of the interview and questioning amounts to cross examination. Under s 30(6) in order assess whether a statement has been obtained unfairly, I am required to take into account the Chief Justice’s Practice Note. Clauses 3 and 4 of the Practice Note read as follows:

3. Questions of a person in custody or in respect of whom there is sufficient evidence to lay a charge must not amount to cross-examination.

4. Whenever a person is questioned about statements made by others or about other evidence, the substance of the statements or the nature of the evidence must be fairly explained.

[15] Mr Burke pointed to [the Detective’s] repeated requests to the defendant to tell the truth as amounting to cross examination. Allied with that point, was a complaint that [the Detective’s] technique of withholding evidential material from the defendant when seeking his initial explanation of what had occurred was also unfair.

[16] The Crown responded by submitting that there was nothing unfair about any aspect of [the Detective’s] questioning. It was submitted that [the Detective] was clearly at pains to give the defendant an opportunity to consider the answers he had given, which were clearly false, and there can be no principled objection to an interviewing police officer pointing out to a suspect that he wants to obtain the truth, and he holds material on his file which he can cover with the suspect.

[17] The policy considerations behind Clauses 3 and 4 of the Chief Justice’s Practice Notes are well known and obvious. They have recently been re-examined in R v Chetty [2016] NZSC 68. The requirement to caution an arrested suspect and

provide appropriate Bill of Rights advice is intended to ensure that the suspect is fully informed at the time of arrest, and to ensure as far as possible that police do not abuse their powers by unfairly allowing arrested defendants to make incriminating statements without being aware of their right to silence and their right to have access to counsel. Analysis of the form of questioning requires classification of the individual interview on a spectrum; persistent questioning can be permissible, while aggressive, overbearing or oppressive questioning is not permissible. The whole matrix in which the interview is conducted falls for consideration.

[18] The policy underlying the Chief Justice’s Practice Note (and its predecessors), has always been that the Courts look to observance of the spirit of the rules, rather than analysing the strictness of the adherence to the letter of the applicable rule; R v Hennessey [2009] NZCA 363. There have been a number of cases where the Courts have viewed with disfavour the efforts of police officers to obtain incriminating admissions while meeting the obligation to give such advice in practice, but not in spirit.

[19] The first question is whether or not [the Detective] was cross examining the defendant. Having read and re-read the transcript, and viewed the video of the interview, I am firmly of the view that [the Detective’s] questions, in their context, did not amount to objectionable cross examination. [the Detective] made it clear to the defendant that he had the opportunity to tell [the Detective] what his involvement was, and it is clear that [the Detective] knew all along that the defendant’s initial account was entirely false. In my view, there can be no principled objection to a Detective asking a suspect several times whether he wishes to tell the interviewer the truth.

[20] Each time questions of that nature were asked, the defendant declined the opportunity to tell the truth. He made no admissions in consequence of those questions, maintaining a lie until confronted with a text message sent by him clearly identifying his own involvement in the assault on the victim.

[21] The written questions and answers quoted from the transcript above do not give the full flavour of the exchanges between [the Detective] and the defendant. The pace of the interview was somewhat leisurely, and the Detective did not seek to rush the

defendant into answering his questions. This is not a case where [the Detective] has in any respect misled, misinformed or otherwise misdirected the defendant about any factual or legal aspect of the material that he had in his possession, or the police case. Being met with a blank denial of involvement, he has not sought to whittle down the ambit of the defendant’s version of events. What he has done, is trap the defendant in a series of lies, using a straightforward process of inviting the defendant to tell the truth, then confronting him with the texts to establish the lies. In doing so, I am satisfied from having viewed the DVD that he did so calmly, quietly and without any attempt to overbear the defendant’s will in any way. He held his cards close to his chest, and played them very adroitly, confronting the defendant with enough evidence to extract a series of acknowledgements to establish that the defendant had lied to him.

[22] Mr Burke’s objection to [the Detective] holding his cards close to his chest was advanced on the basis that in doing so [the Detective] had breached the obligation created by Clause 4 of the Chief Justice’s Practice Note, which specifies “Whenever a person is questioned about statements made by others or about other evidence, the substance of the statements or the nature of the evidence must be fairly explained.”

[23] In this case, as Mr Batts pointed out, after obtaining the defendant’s initial explanation that he was not involved, [the Detective] carefully showed the defendant the texts in question, one after another in sequence, confirming the identity of the respective authors of the texts, leading to the critical text in which the defendant identifies himself as having been involved in the assault. Certainly, the defendant has not been mislead as to the nature, content or context of the text messages. He has been given them in sequence, with the author identified. It is difficult to conceive of just how [the Detective] could have done any more to meet the obligation to fairly put the evidence he held to the defendant.

[24] The mischief aimed at by the rule is to prevent police officers misleading defendants about factual matters, witness statements, or scientific evidence. It has its most important application in respect of statements taken from others. Mr Burke’s complaint about [the Detective] making no reference to the texts, or their contents at any point in the interview prior to showing them to the Defendant, is in my view misconceived. The texts were shown, in sequence, and the author identified for each

one. The difficulty for the defendant is that he chose to lie, and the texts exposed his lies. It is difficult to see any fault on the part of [the Detective] in his methodical exposure of the evidential material to the defendant. Nor is it easy to see that his purpose was illegitimate, given that he patiently gave the defendant many opportunities to tell the truth, before confronting him with irrefutable evidence that he had repeatedly lied.

[25] In my view, there is simply nothing unfair about [the Detective’s] treatment of the material in his possession. He gave the defendant the fullest possible opportunity to explain his version of events, then drew to the defendant’s attention the fact that he had some material which they would need to go through, and invited the defendant to reflect on whether there was anything more that he could tell him about his own involvement, before commencing to expose the defendant’s lies by reference to the texts. I can see nothing unfair about that aspect of the interview.

[26] I turn to consider the omission of a caution and Bill of Rights advice immediately following arrest. As noted, this was the very first occasion that I am aware of in which a Detective has undertaken an arrest in the course of a DVD interview. The arrest took place not more than twenty-five minutes after the Bill of Rights and caution advice administered at the commencement of the interview. As already noted, in my view that advice was about as careful, complete and accurate as such advice could conceivably be. The advice was not merely recited, but the defendant was questioned on his understanding of that advice, and explanations given in relation to any aspect which the defendant may have misunderstood. I am accordingly satisfied that the defendant knew his rights, and understood them fully throughout the interview. And the interview in its entirety lasted just over forty minutes.

[27] In this case, I am firmly of the view that [the Detective] made an exceptionally good job of informing the defendant of his rights at the outset of the interview, and I do not consider that a further caution or Bill of Rights advice was required at the point of arrest, because the defendant clearly knew and fully understood everything contained in the Bill of Rights advice and caution he had been given less than half an hour beforehand.

[28] He admitted in the course of the interview, prior to his arrest, that he wrote the critical text claiming that he “smacked up” the complainant, and that admission seems to have triggered the arrest by [the Detective]. The defendant’s change of status from person of interest to arrested suspect is not significant, because his rights did not change, and he knew what his rights were, because his rights had been very fully and very recently explained to him. The mischief the rule is aimed at simply did not exist here, as the video interview as a whole makes clear.

[29] Standing back and looking at the interview as a whole, I consider that [the Detective] has been scrupulously fair to the defendant, and I have concluded that his efforts have obtained a completely reliable admission from the defendant. The time of the interview, its short duration, the defendants alertness, and the clarity of the defendant’s language, all show that the conditions for the interview were optimal. The form and manner of questions put were not leading or overbearing; rather the questioning was patient and focussed.

[30] The interviewing technique adopted is one that is often employed by trained interviewers, for good reason. I do not consider that there can be any principled objection to a Detective holding his cards close to his chest, and playing them in a sequence calculated to expose lies told by a defendant, where lies are told. His repeated invitation to the defendant to tell the truth must be seen in the matrix of the interview as a whole. It was entirely fair to a defendant who repeatedly chose to tell lies, despite the best efforts of [the Detective] to point out to him that there was a good deal of material available to put to the defendant if he maintained that he was not involved. I do not consider that any of these factors adversely affected the reliability of the defendant’s statement, indeed I am satisfied on the balance of probabilities that the reverse is true.

[31] I am satisfied, on the balance of probabilities, that the evidence obtained from the defendant’s interview was lawfully and properly obtained. In case I be wrong in those conclusions, I turn to consider the balancing exercise required by s 30. If [the Detective] has breached either of Clause 3 or Clause 4 of the Chief Justice’s Practice Note, the evidence would have been unfairly and/or improperly obtained in breach of those requirements.

[32] The first issue to consider is the importance of the right breached. Clearly the Bill of Rights advice and caution, and the right to not be cross-examined are very important. The seriousness of the intrusion is in my view minimal, because of the safeguards attaching to the earlier complete and very thorough explanation of the defendant’s rights by [the Detective]. As to whether such breach was deliberate or reckless, that issue is appropriately addressed by referring to my earlier assessment to the care with which [the Detective] went over the defendant’s right to silence, and his right to legal advice. I do not accept that there was any bad faith on the part of [the Detective], and no such submission was advanced by Mr Burke for the defendant. The evidence obtained is a video admission of an assault, and so is of the highest quality. The admission is reliable, because it simply confirms the content of a text sent by the defendant, which he acknowledged. The charge involves a maximum penalty of five years imprisonment, and it could conceivably have been laid at a higher level, on the evidence presently available. There were no other investigative techniques available to obtain this evidence than an interview. There was no urgency or necessity about the conduct of the interview on the day.

[33] In this case, I am satisfied that the claimed breach of Clause 3 which prohibits cross examination, if it exists at all, is purely technical. [The Detective] repeatedly asked the defendant to tell the truth before he drew to the defendant’s attention the fact that he had additional material, which he would go through with the defendant. His requests that the defendant tell the truth were an entirely reasonable approach to take in circumstances where the defendant was about to have his lies exposed. In putting the contradictory material before the defendant, he was scrupulously careful to ensure that the defendant was fully in possession of the content and authorship of each text before questioning him about it. Again, I am satisfied that any breach of Clause 3, in relation to any set of questions, or the interview as a whole, is entirely technical and not in breach of the spirit of the rule.

[34] Turning to Clause 4, as explained above, it is difficult to see how [the Detective] could have more fully complied with the obligation to fairly explain the content of the material upon which his questioning was based. Again, if there was a breach of this rule, it could not, in my view, be seen as anything other than purely technical. I can see nothing unfair about questioning a defendant about the content of

text messages by showing them to him and confirming their authorship and the meaning of the content of the messages. The fact that by doing so [the Detective] has trapped the defendant in the series of lies that he has told is a by-product of the defendant’s lies, and [the Detective’s] skilful use of the information at his disposal. In my view, if there be any breach of Clause 4, which I do not concede, it can only be in the most technical sense.

[35] Turning to a broader evaluation, I consider that [the Detective] here has been scrupulously fair to this defendant. At 18 years of age, the defendant is a young man who foolishly chose to match wits with an experienced Detective, after receiving a detailed and thorough explanation of his rights, and a caution. The defendant repeatedly lied, eventually being forced to admit both his own involvement in the assault, and the fact that he had lied.

[36] Acknowledging the charge as being of moderate seriousness, exclusion of the evidence would be a disproportionate remedy for what I consider to be at most a technical breach or breaches of minimal impropriety, without any unfairness to the defendant, bearing in mind the need for an effective and credible system of justice. Accordingly, if the evidence was unfairly or improperly obtained, which I do not accept, I would nevertheless admit it in evidence under s30 of the Evidence Act 2006.

[37] In case I be wrong in those conclusions, I turn to consider the possibility of excision of offending material. The failure to give the Bill of Rights advice and caution following arrest provides a natural point of differentiation, and if material is to be excised, all of the interview following the words of the arrest at the top of page 22 of the transcript, after the announcement of the time as 9.26 should be excised, although for the reasons given I do not consider that step to be justified in the circumstances.

[38] For those reasons, I consider that the full text of the defendant’s interview with [the Detective] is properly admissible in evidence, and the defence objection to it is dismissed.

T R Ingram

District Court Judge