R v Bunt [2012] NZHC 776 (24 April 2012)

Last Updated: 13 January 2013

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2011-019-003439 [2012] NZHC 776

THE QUEEN

v

_{JOHN TOKOROA BUNT}

Hearing: 24 April 2012

Counsel: PP Crayton and R Annandale for the Crown

K Burroughs and A Jones for the accused

Judgment: 24 April 2012

JUDGMENT OF ASHER J (Section 344A application)

Solicitors/Counsel:

Crown Solicitor, DX GP 20023, Hamilton. Email: [e-mail]

_{K Burroughs, PO Box 19307, Hamilton. Email: [e-mail]}

R V JOHN TOKOROA BUNT HC HAM CRI-2011-019-003439 [24 April 2012]

Introduction

[1] John Tokoroa Bunt is charged with the murder of Wiremu Tamanui Awa. The Crown case is that on the night of 19 April 2011 Mr Bunt pursued Mr Awa who he observed walking by. There was a fight in which, by punching and stomping, Mr Bunt rendered Mr Awa unconscious or semi-unconscious. He then went and got a knife, returned to the semi-unconscious Mr Awa and cut his throat, causing his death. Mr Bunt then concealed Mr Awa’s body.

[2] The trial is due to begin today. The jury has been empanelled. However, the start of the Crown case has been postponed until tomorrow to deal with this s 344A application. Last week Mr Burroughs, counsel for Mr Bunt, gave notice to the Crown challenging the admissibility of the detailed three hour statement provided by Mr Bunt to the Police. On short notice the Crown filed a s 344A application and today, the first day of the trial, I have heard evidence and submissions in relation to the application which I must now determine.

[3] It is unfortunate that the notice to the Crown of the challenge to the statement was given so late. However, I am not critical of Mr Burroughs for that. He is the third counsel to be briefed and I am satisfied that he has pursued his obligations as diligently as possible in the relatively short time he has had to pursue his client’s interests.

The issues that arise

[4] There are broadly three grounds of opposition raised to the admissibility of the statement.

[5] The first issue is whether there was duress or oppression in the obtaining of the statement. Ms Jones, who presented the argument for the accused on this application, submitted that the evidence should be excluded under s 29(2) of the Evidence Act 2006.

[6] The second issue is whether the statement of the accused was prima facie unreliable. Ms Jones submitted that it was and should be excluded under s 28 of the Evidence Act.

[7] The third issue is whether there was unfairness and a breach of the New Zealand Bill of Rights Act 1990 in the obtaining of the statement. Ms Jones submits that there was and the evidence should be excluded under s 30 of the Evidence Act.

[8] The Crown in its submission, having identified these issues, submits that the evidence was not obtained by duress or oppression, is not unreliable and that there was no unfairness nor breach of the New Zealand Bill of Rights Act.

[9] The Crown called four Police officers who gave evidence about the circumstances of their approach to Mr Bunt, the transport of Mr Bunt to the Police Station and the giving of his statement. They were effectively responding to the evidence of Mr Bunt which was originally given informally and then by affidavit. Mr Bunt also gave evidence and was cross-examined.

[10] The Police interview was recorded. I have played it through out of court, and parts of it were played in court and put to Mr Bunt. It lasted over three hours, although there were two breaks – one of 20 minutes and one of a quarter of an hour. The transcript is 78 pages long. It appears to be a detailed account of what happened. In it, Mr Bunt first summarises what happened and then goes over aspects of events in considerable detail.

[11] In summary what he says is that there was some longstanding ill-feeling between him and the deceased Mr Awa. On the night of 19 April 2011 he and a friend, Norman Rawiri, had seen Mr Awa walking by. They had approached Mr Awa. Mr Bunt had challenged Mr Awa and something of a fight ensued between Mr Awa and Mr Bunt. Mr Bunt knocked Mr Awa down to the ground and punched him while he was on the ground. He then stomped on Mr Awa, rendering him unconscious or semi-unconscious. Following this, Mr Bunt found himself alone and went back to Mr Rawiri’s house. When he was there he noticed a knife on the bench. He picked up the knife and went back to where he had left Mr Awa on the

ground. Mr Awa was on his knees in a semi-unconscious state. Mr Bunt then held Mr Awa by the head and, using the knife, cut his throat. He then went back to Mr Rawiri’s house and washed and put the knife back. In due course he met up with Mr Rawiri again and returned to Mr Awa. He then, without assistance from Mr Rawiri, dragged Mr Awa’s body some distance and hid it in the scrub.

[12] This is just a broad summary. There is a great deal of detail in the statement. In the course of the statement Mr Bunt is emotional. He expresses his distress at what has happened and his regret.

[13] The basis of this application is his testimony now that the statements he made about deliberately picking up the knife, returning to Mr Awa, and cutting his throat were not true. He says in his affidavit and confirmed in his evidence today that on

9 May 2011 when the Police approached him he was drunk. He had been drinking, he says, since he had the fight with Mr Awa. He says that when the Police arrived, he had a bottle and a can of alcoholic drink in his hands and that he took those into the Police car with him. He asserts that the Police told him to drink up his drink before they got to the Police Station and that he finished the drinks and put the bottles on the floor of the Police car. He asserts that he had been binge drinking for weeks. He claims that the Police said to him that if he said what they wanted him to say, he was not going to get into trouble. Mr Bunt claims he said “okay” to this.

[14] Mr Bunt claims that he was told by the policeman who interviewed him that his girlfriend (who is the daughter of Mr Awa) had been arrested. He said that the fight was just between him and Mr Awa and that his girlfriend had never murdered anyone. In his affidavit he asserted that he told the police officer:

21.1 I met Wiremu in the alleyway and that I went up to Wiremu and asked Wiremu for a smoke. Wiremu grabbed my face and slammed it into the fence and we started fighting. Norman was there but he walked off.

21.2 After Norman walked off Wiremu pulled a knife out of his pants.

Wiremu said he was going to kill me. Wiremu has pulled a knife on me before. Wiremu then came at me with the knife out in front of

him.

21.3 I grabbed Wiremu’s arm and hand with the knife in it to stop Wiremu

from stabbing me. Wiremu and I struggled over the knife. Wiremu

was pulling back trying to get the knife free from me. We both fell over I landed on top of Wiremu. That’s when he got cut.

[15] He then states in his affidavit that the policeman at that point cut him off. He left the room for five minutes and came back. He claims that the policeman then said to him:

Okay Bunt if you want to keep your girlfriend out of this and not being charged with murder and keep your child from going into CYF’s [Child Youth and Family’s] care then this is what I want you to say when we make a video recording – that you went back to your friend Norman’s house, got a knife out of his house on the bench, and went back, cut Wiremu’s throat and went back to Norman’s house and washed the knife at the outside tap and put the knife back in the drawer.

[16] Mr Bunt then in his affidavit says that the Police told him that they would bring his baby child into the situation if they needed to, and that he had the choice of his girlfriend being charged with murder and his baby going into CYF’s care permanently or saying what they wanted. He states that all this happened in the Police Station prior to the formal video statement beginning. He says he was not told that he could get a lawyer at any point. Once the formal video statement began and was being recorded Mr Bunt accepts that the policeman told him that he could get a lawyer. However, he says he did not know that it would be free and he did not have any money. He further says that he was scared as to what would happen to his girlfriend and baby. So he says, “I lied my arse off in the video statement”.

[17] The Police officers who dealt with the issue deny observing any sign of Mr Bunt being drunk, and also deny allowing him to drink in the police car. The only Police officer who was significantly challenged in cross-examination was Constable Samuel Hutcheson. In his evidence, he records going to Mr Bunt’s residence. He met him at approximately 9.25am. He says that he immediately advised him of his rights under the New Zealand Bill of Rights Act 1990 and the Evidence Act 2006, working from the printed card in the front of his notebook which set out the appropriate warnings. He stated that at that point, right at the beginning, he gave the full warning including advice that the Police had a list of lawyers that Mr Bunt could speak to “for free”. He stated that he asked Mr Bunt if he understood his rights, to which Mr Bunt replied “yes”.

[18] Constable Hutcheson says that Mr Bunt agreed to go to the Police Station with the officers. He states that Mr Bunt did not have any alcohol with him of any kind and he did not see Mr Bunt consume any alcohol from the time of his arrival at the address.

[19] Constable Hutcheson states that going back in the car he asked Mr Bunt, “what have you got to tell me?” Mr Bunt replied, “Nah me and Norm just had a fight in the alleyway”. Constable Hutcheson deposes that he said to Mr Bunt, “Okay I’d like to talk about that on DVD”, and Mr Bunt replied “Yeah”. Constable Hutcheson says that they arrived at the Police Station at 9.35 am. In the interview room where the DVD interview was to take place, Constable Hutcheson says Mr Bunt volunteered, “Boss I did it, I’ll tell you everything”. Constable Hutcheson’s evidence is that there was no conversation following that comment. He left the interview room and spoke to the supervisors advising them that he was about to commence the DVD interview. He then says that he obtained the equipment needed for the interview, put it in place and at 9.53am, commenced the DVD interview with Mr Bunt. He deposed that he did not tell Mr Bunt at any time that his girlfriend had been arrested for murder. He says at no stage prior to the interview commencing did Mr Bunt explain to him the details of the fight and the circumstances of it. He says at no time during his dealings with Mr Bunt did he inform Mr Bunt that the Police would keep his girlfriend out of it and prevent his child going into CYF’s care if he confessed. He denies informing Mr Bunt of what to say once the DVD interview commenced.

[20] Constable Hutcheson recorded that during his dealings with the accused throughout this time, his demeanour was ashamed and sometimes tearful and he showed no outward sign that he was intoxicated, on alcohol or any other substance. So there is a stark conflict in the accounts of what happened.

[21] Given the pressures of time I consider it best to address the factual issues first. In particular, I must address whether there is an evidential foundation for Mr Bunt’s explanation of how and why he gave the evidence in the interview.

The claim that Mr Bunt was drunk

[22] Mr Bunt says he was drunk. The Police officers that gave evidence on this point deny it. There is the recorded video interview, which, over a continuous period of well over three hours, records Mr Bunt’s every movement and word. It provides a window showing the exact state he was in on that day.

[23] The first thing I observe is that in terms of his demeanour, words and actions, Mr Bunt does not appear at all inebriated. Indeed, he appears entirely sober. Particular factors I refer to in summary are:

(a) His speech is throughout coherent. He does not slur his words.

(b) His statement is coherent throughout. His sentences are properly constructed. He understands questions and responds to them, often with considerable detail.

(c) He is asked to point out on aerial maps where he went and where events occurred. He does so in detail, marking the maps. He is consistent and clear as he does this.

(d) At times he firmly disagrees with a proposition put forward by the officer. For instance, the wrong address is initially put to him and he corrects the officer. He also is at pains to correct the officer when he might be showing some misapprehension as to how he held Mr Awa as he cut his throat.

(e) He shows considerable physical dexterity throughout the interview.

At one stage he is asked to demonstrate how he “stomped” Mr Awa. He quickly gets up from the table, stands on one leg and shows a stomping motion. The display was entirely inconsistent with a person who was at all under the influence of alcohol or drugs. So too were his actions when, to show the officer how he held the knife, he reached forward and pulled the pen from his hand and then held the

pen in the way he demonstrates he held the knife. He then deftly returned the pen to the officer’s hand.

(f) Perhaps of most importance is the fact that his evidence is extremely detailed and involves him going back over events a number of times and recounting them at different times and from slightly different perspectives. At all times he is consistent in this.

[24] I also bear in mind that this interview commenced at approximately quarter to

10 in the morning. This is not the sort of time when it is likely that a person who is not an alcoholic would be drunk. Further, it would also be quite extraordinary for Police officers to allow a person suspected of murder to get into a Police car holding two drinks, at least one of which was a bottle. As Mr Crayton put it in cross- examination, that bottle could well be used as a weapon. It would not have made sense for the Police to have allowed that to happen.

[25] I do not believe Mr Bunt’s evidence that he had been drinking or was drunk when the Police arrived, and that he had two drinks with him in the Police car. I consider that evidence to be false.

Duress – the Police threat

[26] Mr Bunt arrived at the Huntly Police Station at 9.35am and the DVD interview commenced at 9.53am. These times were taken from Constable Hutcheson’s watch, and recorded in his notebook. It must be observed that the 18 minute interval between arrival and the start of the interview is a very limited time for the alleged threats and intimidation to have occurred, particularly given that the Constable was endeavouring to set up the interview physically. However, it is theoretically possible for the threats to have been made before the recording of the interview began.

[27] It is Mr Bunt’s evidence that, directly following the threat and the Constable

(presumably Constable Hutcheson) telling him what to say, the recording began.

[28] From the outset Mr Bunt does not have the appearance of a person giving evidence under duress having been threatened by the Police. Right from the beginning he appears to be relatively at ease in the presence of the interviewing Police officer, open and willing to answer his questions. He is at times thoughtful, and he makes his statements clearly and with care. At moments when it would be expected that a young man who had killed another and was trying to deal with his actions would become emotional, he was emotional. On a number of occasions he became tearful.

[29] At no stage did anything in his demeanour or actions indicate that he felt at all intimidated by the officer. To the contrary, he appeared to trust the officer and, as the interview continued, his rapport with the officer improved further. I will say a little more about the officer’s conduct later, but I record at this point that he at no stage asked Mr Bunt leading questions or did anything that could be possibly seen as threatening. In an open manner he allowed Mr Bunt to tell his story.

[30] There are a number of factors that are quite inconsistent with Mr Bunt’s assertions of the threats and that he was speaking under duress. Very shortly after the interview began he gave his account of what happened. As is generally the case in the first statement by someone about an event, it is a general statement. It covers the initial meeting, the fight, the stomping, the return to his friend’s house, the grabbing of the knife and the statement “I killed him”. However, as Mr Crayton put to Mr Bunt in cross-examination, this initial statement, which might be expected to follow exactly the instruction that Mr Bunt claimed he was given by Constable Hutcheson, does not in fact follow it and in some respects varies from it.

[31] In his evidence Mr Bunt said that he had been cut off when saying that he was having a fight with Mr Awa, and then told what to say. He does not say that he mentioned stomping Mr Awa and does not state that he was told by the Police to say he stomped Mr Awa. However, in the interview he says that he stomped Mr Awa’s face in his initial account of what happened. He then does not say that which he claims he was instructed to say in terms of returning to his friend Mr Rawiri’s house. He does not say that he got a knife from “the bench” and he does not say that he took

the knife back to Norman’s house, washed it on the outside tap and put it back in the drawer.

[32] Moreover, in this initial statement he appeared to me to be speaking with absolute sincerity and at times considerable emotion. It was difficult for him to say that he grabbed the knife and killed Mr Awa. He showed emotion when he did this. He showed in my view undoubted sincerity.

[33] There are indeed many marks of real sincerity throughout his statement. I do not consider the emotion that he showed at times to have been feigned. He said at times “honestly I’m telling you the truth” and “like I aint been bullshitting”. These comments were unsolicited and inconsistent with him in fact saying what he was told. He volunteered to draw a picture of the knife and did so in a convincing manner. He showed what appeared to be horror at his own actions as he described the detail of how he cut Mr Awa’s throat. Mr Bunt was deeply distressed as he showed the motion he used in cutting Mr Awa’s throat, in a way that was entirely inconsistent with him saying something he was told. Moreover, the detail he gave was not detail that, even according to his evidence, he said he was told to recount by the Police officer.

[34] At times he would recreate the noises that the dying Mr Awa made. Again, this was not consistent with what he said the Police had told him to say, but appeared to have the mark of an honest account of a horrifying event.

[35] Other factors already mentioned in relation to the claim of drunkenness also are quite inconsistent with Mr Bunt making a statement under duress and saying what he was told to say. He is consistent throughout and his evidence is most detailed.

[36] It is also significant that, in the lengthy periods when the video was running and he was sitting in the room without the presence of Police officers, Mr Bunt appeared to be relaxed (although obviously slightly distressed) and he made no effort to indicate that he was unhappy with the process.

[37] Mr Bunt’s claim that he was just saying what he was told is also inconsistent with the corroboration that exists for the story as he told it. In particular, two witnesses, Mr Rawiri and a Ms Waraki, who saw the initial fight, gave evidence that they saw stomping. This was neither a matter that Mr Bunt admitted in his affidavit nor a matter that he claims the Police had told him to say. Of even more significance is the evidence of his close friend, Henry Joseph. At depositions Mr Joseph gave evidence that Mr Bunt had told him that he had grabbed Mr Awa and cut his throat.

[38] I therefore without hesitation reject Mr Bunt’s evidence about the threat and duress. It is in my view false evidence. I believe Constable Hutcheson’s evidence. I thought that he conducted the Police interview in a careful and responsible fashion. I found his evidence before me today to be entirely convincing and I believe it was truthful.

The advice of rights

[39] Constable Hutcheson asserts that he gave the full advice required by the New Zealand Bill of Rights including advice as to the ability of Mr Bunt to obtain a free lawyer from a list of lawyers on two occasions. He gave this advice at the time of the initial contact when he went to Mr Bunt’s residence, and then about half an hour later at the outset of the Police interview. The giving of the advice is indeed recorded on the DVD.

[40] Mr Bunt does not appear to accept that the initial advice was given, but does accept that the recorded advice was given. He says that this was after the threat had been made. I do not believe his evidence on this point, largely for the reasons already given in relation to Mr Bunt’s other claims. I do record in addition that, in the DVD record of the advice being given, Mr Bunt appears to accept it and comprehend it. It is also relevant that at the end of the Police interview the following exchange occurs:

DH [Constable Hutcheson] Um before I do end, is there anything else you wish to say?

JB [Mr Bunt] Nuh. Said everything.

DH Okay and as far as your dealing with the Police today, are you happy with the way you’ve been dealt with, have you got any complaints about how you’ve been dealt with?

JB Nuh yeah nuh youse have been quite mellow, cool not pushy or anything.

DH Yeah. Yeah, so you’re happy with the way I’ve dealt with you today?

JB Yeah. Yeah.

DH I’ve been fair with you?

JB Yeah you’ve been pretty straight, straight forward.

DH Yeah.

JB Pretty alright, not not a bastard in other words. DH Yeah, but I yeah I’ve been fair with you?

JB Yeah.

DH Yeah and you’ve understood everything that’s been asked of you do

you? JB Yeah.

[41] This exchange was undoubtedly genuine. Mr Bunt gave a half laugh when he observed that the Constable had not been a bastard. He was showing at this time what almost appeared to be some relief at having told his story. I consider the exchange to have been entirely genuine and to demonstrate the fairness of the interview.

Conclusion on the facts

[42] I therefore do not accept the factual basis upon which this challenge to the statement has been put. I do not believe any of the evidence that Mr Bunt puts forward in support of this application. I believe the evidence of the Police officers.

[43] There were fair warnings given and fair advice of rights. Mr Bunt was not under the influence of alcohol at the time of the interview. Mr Bunt was not threatened or told what to say. I record that I consider that Constable Hutcheson gave an exemplary display of interview technique. He was calm and fair throughout. He did not lead.

The application

[44] I now look at the specific points raised in relation to the Evidence Act 2006. First, should this evidence be excluded under s 29 as a statement influenced by oppression?

[45] The defendant must raise an evidential foundation for the issue of whether the statement was influenced by oppression. For the reasons given there is no evidential foundation. I go further and record that I am satisfied beyond reasonable doubt that the statement was not influenced by oppression.

[46] I turn to s 28 and the exclusion of unreliable statements. I must exclude a statement unless satisfied on the balance of probabilities that the circumstances in which it was made were not likely to have adversely affected its reliability. I am so satisfied. The view I take as the Judge sitting on this voir dire is that the statement is reliable.

[47] Finally I turn to s 30. Was this improperly obtained evidence and in particular was it obtained unfairly? For the reasons given I am satisfied on the balance of probabilities that this evidence was obtained fairly and properly.

Result

[48] The application is successful. The evidence being the interview conducted with the accused John Tokoroa Bunt is admissible at his trial.

...................................

Asher J