R v Slaimankhel [2014] NZHC 3056 (2 December 2014)

Last Updated: 2 November 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-006353 [2014] NZHC 3056

THE QUEEN

v

KHALID NASA SLAIMANKHEL Respondent

Hearing:	30 October 2014
Counsel:	C Paterson for Crown M W Ryan for Respondent
Judgment:	2 December 2014

JUDGMENT OF KATZ (Section 344A application)

This judgment was delivered by me on 2 December 2014 at 3:30 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Meredith Connell, Crown Solicitor, Auckland

_{Counsel: M Ryan, Vulcan Chambers, Auckland}

R v SLAIMANKHEL [2014] NZHC 3056 [2 December 2014]

Introduction

[1] Khalid Slaimankhel is jointly charged, together with two other defendants, with one count of kidnapping and one count of perverting the course of justice.

[2] At Mr Slaimankhel’s first trial the jury was discharged after they failed to reach verdicts on those charges. Mr Slaimankhel’s re-trial is scheduled to take place in mid-2015. In advance of his re-trial the Crown has applied for an order under s 344A of the Crimes Act 1961 that the evidence of Detective Kristjana Parkes be admissible at trial. Mr Slaimankhel opposes that application.

[3] At Mr Slaimankhel’s first trial, Detective Parkes gave evidence of an interview she conducted with Mr Slaimankhel at Mt Eden prison on 18 March 2013. The admissibility of that evidence was not challenged at the time. Mr Slaimankhel now, however, challenges its admissibility on two key grounds:

(a) that Detective Parkes breached his right under s 23(4) of the New Zealand Bill of Rights Act 1990 (“NZBORA”) to refrain from making a statement; and

(b) that the statement was obtained unfairly in terms of s 30(6) of the Evidence Act 2006, because Detective Parkes breached the Practice Note on Police Questioning.¹

[4] I will consider each issue in turn, after briefly outlining the relevant facts.

Factual background

[5] The police case against Mr Slaimankhel is that he arranged for an acquaintance of his, Junior Paea, to kidnap Marven Yacoub and arrange for him to make a statement in support of Mr Slaimankhel’s defence on drugs charges he was then facing. In particular, it is alleged that Mr Yacoub arranged a meeting with Jay Law (one of the other defendants) at Burger King in Mangere on 11 February

_{2013. A “big Tongan guy” showed up at the meeting and allegedly detained and then}

¹ Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.

abducted Mr Yacoub from Burger King and brought him to the offices of Mr Slaimankhel’s then lawyer. Under the watchful eye of Mr Slaimankhel and the “big Tongan guy” Mr Yacoub then made a statement in support of Mr Slaimankhel. The lawyer, apparently, did not realise anything was amiss.

[6] Mr Yacoub’s evidence will be that he did not know the “big Tongan guy”, and had never met him before the meeting at Burger King. The Crown says that the man was Mr Paea, Mr Slaimankhel’s other co-defendant. The Crown says that Mr Slaimankhel arranged for Mr Paea to kidnap Mr Yacoub for the purposes of ensuring that he made a statement supportive of Mr Slaimankhel’s defence on the drugs charges he was then facing.

[7] Based on Detective Parkes’ notebook, her evidence at the first trial, and the evidence she gave before me at the hearing of the s 344A application, the circumstances that gave rise to the contested evidence appear to be broadly as follows.

[8] About a month after the alleged kidnapping, on the morning of 18 March

2013, Detective Parkes went to Mt Eden prison to interview Mr Slaimankhel in relation to the kidnapping allegations. At the time he was in custody on remand on the drugs charges. At 10.25 am Detective Parkes introduced herself and told Mr Slaimankhel that she was there to speak to him about the kidnapping of Marven Yacoub on 11 February 2013. Detective Parkes said in evidence before me that his attitude and demeanour was aggressive and confrontational. At 10.27 am she read Mr Slaimankhel his rights, in accordance with the Practice Note on Police Questioning. Mr Slaimankhel confirmed that he understood them.

[9] Mr Slaimankhel then allegedly told Detective Parkes that he did not know anything about a kidnapping. He said that:

Marven turned up at the office that day with one of his mates to do the statement, because when I got out I went to see Marven and told him to come and do the statement because of that stuff he gave me.

[10] Detective Parkes requested Mr Slaimankhel to do a DVD interview, which he declined. He asked “if he was going to be charged with this?” Detective Parkes said she wanted to speak to him first and ask him some questions. Mr Slaimankhel then asked again if he was going to be charged and Detective Parkes said he was. She then started writing out a handwritten statement based on Mr Slaimankhel’s initial comments to her. She attempted to question him further. Mr Slaimankhel said that he wanted to hear the police evidence first. Detective Parkes repeated that she needed to hear what he had to say first. Mr Slaimankhel then stated:

When I got out I went to Marven’s house, Marven and me were good friends. He owed $400 so I went there for that. Marven said that he got arrested, and I told him he needed to do a statement around what he had given to me. I told him the address to go to but he turned up with a big Tongan guy. I didn’t know this guy, he was Marven’s mate. He gave a statement, it was me, Marven and the big Tongan guy all in there when the statement was taken.

[11] Mr Slaimankhel then asked again if he could hear the police evidence. Detective Parkes said she could not tell him yet as she wanted to ask him a few more questions. Mr Slaimankhel then said that he was not willing to make a statement. Detective Parkes understood his position to be that he did not want to do either a DVD interview or a formal written statement.

[12] Detective Parkes told Mr Slaimankhel that she had further questions to ask him and that she would then let him know what the police had been told. Mr Slaimankhel then answered a number of further questions about the meeting at his lawyer’s office, without raising any further objections. Eventually, however, Mr Slaimankhel refused to say anything further unless he was given the police evidence.

[13] Detective Parkes then started putting the police case to Mr Slaimankhel, first by advising him that the police had text message data between Mr Yacoub and Mr Law organising a meeting at Burger King Mangere on 11 February 2013. Mr Slaimankhel responded “what’s that got to do with me” and then refused to speak further, saying that Detective Parkes was going to take him through a “whole heap of questions and trick him”. He then got up, walked to the door of the interview room

and pushed the button to be let out. Detective Parkes informed him that he was going to be charged with kidnapping and perverting the course of justice.

[14] The most critical aspect of the interview, from the Crown’s perspective, is Mr Slaimankhel’s statement that he did not know Mr Paea, who was Mr Yacoub’s “mate”. That statement was made prior to Mr Slaimankhel saying he did not want to make a statement. Mr Slaimankhel’s claim not to know Mr Paea is allegedly contradicted by extensive text message communications between Mr Slaimankhel and Mr Paea in the days prior to the kidnapping. Further, it was apparently accepted by Mr Slaimankhel at his first trial that he knows Mr Paea, contrary to what he said to Detective Parkes.

Was the challenged evidence obtained in breach of s 23(4) of NZBORA?

Right to silence: legal principles

[15] Section 23(4) of NZBORA gives a person detained or arrested under any enactment “for any offence or suspected offence” the right to refrain from making any statement, and the further right to be informed of that right.

[16] In R v Ormsby the Court of Appeal considered the issue of police continuing to ask a person questions after he had indicated that he had not wish to make a statement.² In giving the decision of the Court of Appeal, William Young J discussed a number of cases in which admissions made in circumstances that were broadly similar to those in the Ormsby case were found to be admissible.³ His Honour noted that there were some inconsistencies in the case law, and concluded that:⁴

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

² _{R v Ormsby CA493/04, 8 April 2005.}

³ _{At [12]}

⁴ At [14].

[17] His Honour further observed that:⁵

...the most obvious interpretation of what happened in the police station is that the appellant waived his right of silence in relation to the questions which he chose to answer.

[18] In R v Wallace, the Court of Appeal further considered the issue, stating that:⁶

[68] Further, as the law presently stands, there is no general prohibition on continued, questioning after the detainee asserts the right to silence. That proposition might seem remarkable to some. However, the question to be determined is whether there has been an inappropriate undermining of the accused’s right to silence, or unfairness in what transpired in the course of the subsequent continued questioning or, as in this case, informal conversation (R v Ormsby).

[69] Difficult cases then arise out of an accused, of his or her own volition, talking to a police officer or blurting out something in the course of subsequent activities (as not infrequently happens). A court then has the very real difficulty of assessing whether what is (as here) blurted out is admissible. The fairness of what occurs has necessarily to be determined by factors such as the manner in which the exchange came about, the language which was actually used, the youth of the person concerned, any emotional instability on the part of an accused, the lapse of time which has occurred between the cautioned interview and the subsequent informal exchange, whether there is a shift in police questioning or observations (the cautioned interview may have related to lesser offences, the latter remarks may relate to more serious matters) or indeed a shift from an informal conversation to more systematic questioning (or vice versa), and like factors. A failure to re- advise may be relevant. We do not intend this list of factors to be an exhaustive one.

[70] Plainly police officers have to be aware that further exchanges after a cautioned interview are a “high risk” area, and that their actions will likely be closely scrutinised if something of relevance is said. Distinct prudence is required on the officers’ part and a need to re-caution might arise in some cases.

(footnotes omitted)

[19] In summary, continued questioning of a detainee after he or she has indicated they do not wish to make a statement is not absolutely prohibited. Rather, a court must consider whether, in all the relevant circumstances, a detainee’s right to silence has been inappropriately undermined by the police conduct of the interview. Courts will closely scrutinise whether continued questioning, following an indication that a

_{detainee does not wish to make a statement, has undermined their right to silence.}

⁵ _{At [20].}

⁶ R v Wallace [2007] NZCA 265.

This requires a court to consider the entirety of the relevant contextual circumstances. Such circumstances may include one or more of the factors identified by the Court of Appeal in Wallace (as set out above). Those factors are not exhaustive, however, and a range of other factors have been recognised as being potentially relevant. This includes the persistence of the police questioning, the means and clarity with which the silence was asserted, the time of day/night, any traumatic circumstances behind the arrest or detention (or the incident leading to the arrest) and any other factors that may have broken down a detainee’s resolve to

remain silent.⁷

Did Detective Parkes’ questioning undermine Mr Slaimankhel’s right to refrain from making a statement?

[20] It is not contested that, at the outset of the interview, Detective Parkes advised Mr Slaimankhel of his right not to make a statement, in accordance with the Practice Note on Police Questioning.

[21] Mr Ryan submitted, however, that the continued questioning by Detective Parkes, after Mr Slaimankhel said he would not make a statement, undermined his right to silence. Detective Parkes’ statements to Mr Slaimankhel that she would only let him know what evidence the police had once he had given his version of events was said to further undermine his right to silence.

[22] In my view, however, Mr Slaimankhel’s right to refrain from making a statement was not undermined or overborne by the Detective Parkes’ conduct of the interview.

[23] After Detective Parkes gave the caution to Mr Slaimankhel, he immediately began to volunteer his knowledge of the alleged kidnapping. Only some time later did Mr Slaimankhel say that he did not wish to make a statement. Prior to then Mr Slaimankhel did not indicate that he did not wish to make a statement, although he did say that he did not wish to undertake a DVD interview. Further questions

_{were put to Mr Slaimankhel following his indication that he did not wish to make a}

⁷ Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary

(LexisNexis, Wellington, 2005) at 702, citing R v Kai Ji [2004] 1 NZLR 59 (CA).

statement, which he freely answered, before finally refusing to answer any further questions and terminating the interview.

[24] First, much of the interview preceded Mr Slaimankhel saying that he did not wish to make a statement. Immediately after the caution was given to him, Mr Slaimankhel denied the offending and began discussing the details of the events at his lawyer’s offices. This was evidence that Mr Slaimankhel was apparently quite willing to give. Further, Mr Slaimankhel demonstrated a clear understanding that he could control the manner of the interview and how it was recorded. He refused to agree to a DVD interview or, subsequently, provide a written statement.

[25] Mr Slaimankhel made the comment that is apparently of most significance to the Crown case – that he did not know Mr Paea – before he asserted his right to refrain from making a statement. There can therefore be no basis for ruling that initial portion of the interview inadmissible on the ground that Mr Slaimankhel’s right to silence was undermined.

[26] As for the portion of the interview that followed Mr Slaimankhel’s comment that he did not wish to make a statement, the overall context of the interview does not indicate that his right to silence was inappropriately undermined. First, there is no evidence of duress or oppression or any overbearing conduct by the police. The evidence shows that Detective Parkes did not persist with any specific questions that Mr Slaimankhel refused to answer. Further, Mr Slaimankhel was not unfamiliar with police interviewing procedures. (I note that at the time he was in custody on remand on other charges.)

[27] Mr Slaimankhel was clearly aware that he did not have to answer police questions, but seemingly made a conscious decision to do so, for his own reasons. Those reasons likely included his wish to put his side of the story and, further, to find out exactly what evidence the police had against him.

[28] Mr Slaimankhel’s behaviour during the interview appears to have been fairly confident and assertive (or, as Detective Parkes put it, hostile and confrontational). When Mr Slaimankhel wished to bring the interview to a close, he had no hesitation in simply walking to the door of the interview room and pushing the button to be let out. Mr Slaimankhel was clearly aware that he could end the interview at any time. His conduct in immediately bringing the interview to a close when confronted with evidence that contradicted what he had told Detective Parkes (that he did not know Mr Paea) demonstrates the he was fully aware that he did not have to answer questions if he did not wish to do so. Rather, Mr Slaimankhel’s behaviour indicates that he waived his right to silence when electing to answer a few more questions after saying that he would not make a statement.

[29] Further, Mr Slaimankhel was aware that he was going to be charged. The potential risks of making a statement would likely have been all the more apparent to him in such circumstances.

[30] There was no lapse of time between the caution and the relevant statements, as has occurred in some of the cases where statements have been excluded. The caution was given at the commencement of the interview. Relatively little time passed between the caution and the comments that Mr Slaimankhel now wishes to exclude. The entire interview took less than 20 minutes.

[31] Nor were there repeated assertions by Mr Slaimankhel of a wish not to make a statement, such as occurred in R v Falala, where the defendant had unambiguously expressed his wish not to make a statement at least nine times during an interview, in the face of unfair and overbearing police questioning.⁸ This resulted in Asher J concluding that it was “not a case of knowing and informed waiver of the right, but of capitulation in the face of persistent questioning”.⁹ Such facts are far removed

_{from the present case.}

⁸ _{R v Falala [2013] NZHC 1737.}

⁹ At [14].

[32] Mr Ryan submitted that Mr Slaimankhel could only make a fully informed decision to waive his right not to make a statement if he was first advised of the seriousness, and the specific details, of the allegations that had been made against him.

[33] Detective Parkes, however, had made it clear from the outset of the interview that she was there to talk to him about the alleged kidnapping of Marven Yacoub on

11 February 2013. Further, it was immediately apparent from the questions put to him that the key allegation was that Mr Yacoub’s attendance at a meeting at Mr Slaimankhel’s solicitor’s offices (which was also attended by Mr Slaimankhel, who arrived separately) was under compulsion. Mr Slaimankhel was well aware of the nature of the police inquiry and, further, that he was going to be charged in relation to the alleged kidnapping of Mr Yacoub. I do not accept the submission that the police were required to, in effect, disclose all of the evidence they had against Mr Slaimankhel before he could make an informed decision as to whether or not to make a statement or not. Nor do I accept that there was anything improper or unconscionable in Detective Parkes’ refusal to provide Mr Slaimankhel with details of what other witnesses had said (or other evidence) until he had first answered her questions.

[34] For all of the reasons I have outlined, it is my view that Mr Slaimankhel’s right to refrain from making a statement was not inappropriately undermined or overborne by the conduct of the police interview.

Was the evidence obtained unfairly?

[35] Mr Slaimankhel further submitted that Detective Parkes’ evidence of her interview with him should be excluded either in the exercise of the Court’s common law discretion to exclude evidence on unfairness grounds¹⁰ or pursuant to 30(6) of

_{the Evidence Act 2006.}

¹⁰ The New Zealand Court of Appeal in Fan v R [2012] NZCA 114, [2012] 3NZLR 29 held at [31] that the common law discretion to exclude evidence from the general ground of unfairness had survived the Evidence Act.

[36] Unfairness was said to arise from the fact that clause 5 of the Chief Justice’s

Practice Note on Police Questioning was breached. Clause 5 states:

Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on audio tape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.

[37] The Court of Appeal has said of clause 5:¹¹

Departures from that practice are to be deplored. When the preferred video procedure cannot feasibly be complied with, there are equally obvious reasons for complying with the final three sentences. Failure to do so places a grave impediment in the way of due process, compelling judges of first instance to make factual findings as to the credibility of police officers and appellate courts to reflect on why, if the truth has been told, such simple precautions were not taken.

[38] Detective Parkes did not take a verbatim record of her interview with Mr Slaimankhel, as she acknowledged at the first trial and also in evidence before me. She effectively paraphrased his responses. Her evidence was that if Mr Slaimankhel had agreed to do a formal written statement she would have asked him to confirm that her notes were correct, but “he wasn’t exactly co-operative and he was more trying to control me than I was trying to control him”. There was no opportunity for Detective Parkes to invite Mr Slaimankhel to review her notes for accuracy given his demeanour and the peremptory way he ended the interview.

[39] A couple of hours later, when Detective Parkes got back to the Manukau Police station, she wrote out the full details of her interview with Mr Slaimankhel, in the form of an evidential statement. This was based on the (non-verbatim) notes she had made while in the police interview room with Mr Slaimankhel.

[40] The Crown accepted that Detective Parkes did not comply with the Practice Note “to the letter”, but submitted that the breaches were merely technical and properly explained by the Detective in her evidence. They largely came about as a result of the way the interaction between Mr Slaimankhel and Detective Parkes took place. The Crown submitted that the technical breaches of the Practice Note do not warrant a finding that the evidence was obtained unfairly.

[41] In my view no unfairness has arisen as a result of Detective Parkes’ failure to invite Mr Slaimankhel to review and sign the handwritten notes. I accept that there was no realistic opportunity for this to occur, given the abrupt manner in which Mr Slaimankhel left the interview room. Further, Detective Parkes’ failure (or inability) to take a verbatim record of the interview appears to have largely been due to the way in which the interaction between Detective Parkes and Mr Slaimankhel unfolded, rather than reflecting any dereliction of duty on the part of Detective Parkes.

[42] It is also of note that, despite extensive cross-examination of Detective Parkes at the first trial, no challenge was made to the accuracy of the account of the interview given in her evidential statement. The evidence given by Detective Parkes was broadly consistent with the evidence that Mr Slaimankhel subsequently gave at trial. In particular, he did not dispute that he had made the statements recorded by Detective Parkes. This is not therefore a case where a significant dispute has subsequently emerged as to the accuracy of the police interview notes. The substance of the statements made by Mr Slaimankhel were not challenged at trial.

The following observation of the Court of Appeal in Waipuka v R appears to be apt:¹²

[21] At the same time, however, it is well established that failure to comply with the Practice Note will not necessarily mean that the statement has been unfairly obtained. The substance of the statement may not be challenged.

(footnotes omitted)

[43] In this case the substance of Mr Slaimankhel’s statement, as recorded by

Detective Parkes, was not challenged at trial.

[44] Mr Slaimankhel further submitted that unfairness arose as a result of an alleged breach of clause 4 of the Practice Note, which requires that:

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.

[45] In my view, however, there was no breach of clause 4. Mr Slaimankhel was not questioned about statements made by others, or about other evidence, until fairly late in the interview. At that stage it was put to him that there was extensive text message communication between him and Mr Paea preceding the alleged kidnapping. Mr Slaimankhel responded by immediately terminating the interview.

[46] There is no suggestion that Detective Parkes misrepresented the relevant evidence. Rather, Mr Ryan submitted, Detective Parkes was required to put the police evidence to Mr Slaimankhel at the beginning of the interview. That is not, however, what clause 4 requires. Rather, at the stage when a person is questioned about statements made by others, or about other evidence, the substance of that evidence must be fairly put to him or her. There was no breach of clause 4 in this case.

[47] For the reasons outlined, I have not been persuaded that the relevant evidence was unfairly obtained.

The balancing exercise under s 30(2)

[48] Given my conclusion that the statement was not unfairly obtained it is not necessary to determine whether or not the exclusion of the evidence would be disproportionate to any impropriety, in terms of s 30(2) of the Evidence Act 2006.

[49] If it had been necessary to undertake that exercise, however, I would likely have concluded that exclusion of the evidence would be a disproportionate response. Any impropriety (if there was any, contrary to my view) would have been very much at the lower end of the spectrum. There was no element of recklessness, bad faith, or overbearing conduct on the part of the police. The evidence appears to be reliable and was broadly consistent with Mr Slaimankhel’s own evidence at trial. Further,

there is no evidence of any causative link between any unfair police conduct and

Mr Slaimankhel’s statements to Detective Parkes.

Result

[50] The evidence of Detective Kristjana Parkes, as set out in her evidential statement dated 18 March 2013, is admissible.

[51] To protect Mr Slaimankhel’s fair trial rights, I make an order prohibiting publication of this judgment and any part of the proceedings (including the result) in new media or on the internet or other publicly available database until final

_{disposition of trial. Publication in a law report or law digest is permitted.}

Katz J