R v Rehu [2015] NZHC 303 (27 February 2015)

Last Updated: 31 December 2018

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2014-087-0603 [2015] NZHC 303

THE QUEEN

v

STEVEN MAIHANA REHU

Hearing:	3 February 2015 (final submissions received 23 February 2015)
Counsel:	G C Hollister-Jones for Crown R Plunket for defendant
Judgment:	27 February 2015

JUDGMENT OF KATZ J

This judgment was delivered by me on 27 February 2015 at 12:00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Ronayne Hollister-Jones Lellman, Crown Solicitor, Tauranga Counsel: R Plunket, Barrister, Whakatane

R v REHU [2015] NZHC 303 [27 February 2015]

Introduction

[1] Steven Rehu has been charged with raping a seven or eight year old girl sometime between July 2006 and July 2007, when he was 15 or 16 years old. He is now 23. Mr Rehu is also charged with indecently assaulting two other girls approximately one week after the first incident. One complainant was aged five or six at the time of the alleged offending and the other was aged about seven.

[2] When interviewed by a police detective on 27 March 2014, Mr Rehu denied, in a second DVD interview, raping any of the complainants, but admitted conduct that would constitute indecent assault in relation to each complainant.

[3] The Crown applies for Mr Rehu’s second DVD interview to be ruled admissible for the purposes of his upcoming trial. Mr Rehu opposes that course and says that the statement should be ruled inadmissible.

[4] The key issue I must determine is whether Mr Rehu’s statement was improperly obtained in terms of s 30(2) of the Evidence Act 2006 (“Act”), because he was not given the opportunity to exercise his right to consult and instruct a lawyer without delay, as provided for by s 23(1)(b) of the New Zealand Bill of Rights Act 1990 (NZBORA). If so, would the exclusion of his statement be proportionate to the degree of impropriety?

[5] In the alternative, counsel for Mr Rehu submitted that his statement should be excluded on the basis that it was made in circumstances that give rise to concerns regarding its reliability, in terms of s 28(2) of the Act.

[6] Determination of these issues largely turns on my factual findings as to what happened during the “missing hour” between an initial police DVD interview (which concluded when Mr Rehu asked to see a lawyer) and a subsequent DVD interview (in which Mr Rehu waived his right to a lawyer and confessed to at least part of the alleged offending).

Background

The alleged offending

[7] There are three complainants, who I will refer to as “A”, “B” and “C”. The alleged offending occurred on a rural property. B lived with her parents in a house on the site. Her grandparents lived in another building on site. There was also a caravan parked on the property that Mr Rehu was staying in at the time of the alleged events.

[8] In the first alleged incident, A was visiting the property sometime in 2006 or 2007 when she was aged 7 or 8 years. Mr Rehu allegedly led her into his caravan, lifted her onto the bed and told her to lie down. Mr Rehu then allegedly removed her pants and underwear and sexually assaulted her. On the Crown case this involved penile penetration, hence the charge of rape.

[9] One week later Mr Rehu is alleged to have approached B (aged seven) and C (aged five or six) and asked them to come into the caravan to play a game. There are a number of inconsistencies in the complainant’s evidential statements, but the Crown case appears to essentially be that Mr Rehu put B on the bed, stripped her to her underwear, and having removed his own clothing lay down on top of her. He then proceeded to simulate sexual intercourse by rubbing himself against her. B then left the caravan and went home. C witnessed what happened but thought it was a game. After B left, Mr Rehu allegedly placed C on the bed, took off her clothes and proceeded to simulate sex in a similar manner, for five minutes or so.

[10] On 23 January 2014 the complainants gave evidence about the offending to the police. Mr Rehu was interviewed by police two months later. In his interview, Mr Rehu strenuously denied having raped any of the three complainants. He did admit, however, that he had “humped” them, by rubbing himself against them, simulating sexual intercourse.

Mr Rehu’s cognitive abilities

[11] The other aspect of the factual background that is particularly relevant in this case relates to Mr Rehu’s cognitive abilities.
[12] Prior to approaching Mr Rehu to request him to attend a police interview, the investigating officer, Detective Jon McKenzie, had heard that there may be some issues regarding Mr Rehu’s mental abilities or state of mind. He was concerned that Mr Rehu may be mentally disabled or disadvantaged to such an extent that he would need a support person with him at any interview. Detective McKenzie therefore made inquiries of Mr Rehu’s family and the probation service to explore this issue further. As a result of those inquiries, Detective McKenzie was satisfied that Mr Rehu’s mental health issues or cognitive deficits were not such that he would require a support person at any police interview.

[13] After Mr Rehu was charged, the defence obtained a report from a clinical psychologist, Dr Nick Lascelles, regarding Mr Rehu’s cognitive skills. Dr Lascelles also gave evidence before me and was cross-examined by the Crown.

[14] Dr Lascelles administered a range of psychometric tests to Mr Rehu in August 2014, and at the hearing gave the following evidence about those tests:

(a) On the Wechsler Adult Intelligence Scale – Fourth Version (WAIS-IV) Mr Rehu was found to have a “processing speed” lower than approximately 90 per cent of his peers. His IQ was assessed at 80, which was lower than approximately 91 per cent of his peers. Dr Lascelles’ conclusion was that the results indicated that Mr Rehu, while not intellectually disabled, has some significant limitations in terms of his cognitive abilities. Further, Mr Rehu’s limited cognitive abilities impinged directly on his ability to manage the challenging situation of a request to participate in a police interview and make considered decisions in his best interests.

(b) Mr Rehu scored high on interrogative suggestibility. His results from the Gudjonsson Suggestibility Scale (GSC) indicated that he is a highly suggestible person. In particular, his result on the GSC Shift scale (the degree to which the subject changes answers in response to pressure from the interviewer) was very high, exceeded by only 2 per cent of the normative sample. Accordingly he is “particularly vulnerable to
agreeing with propositions put to him by someone in authority”. In addition, Mr Rehu was assessed as having a tendency to avoid conflict and confrontation. He is significantly more vulnerable than the average person to be dissuaded from seeking legal advice.

(c) Mr Rehu’s results on the Gudjonsson Compliance Scale (GCS) were in the 98^th percentile, indicating that Mr Rehu is a highly compliant person. Mr Rehu’s aunt was also asked to complete this test based on her knowledge of Mr Rehu. This resulted in a score in the 99^th percentile.

[15] Dr Lascelles concluded that:

I found Mr Rehu to be a person with an intellectual ability in the low-average range, who would not meet criteria for a diagnosis of intellectual disability. However, psychometric testing, his self-report and the report of others converged in identifying him as someone who is particularly vulnerable to agreeing with propositions put to him by someone in authority. Mr Rehu is more likely than the average person to accept a statement as being true if put to him by someone in authority, or to agree despite knowing it to be untrue in order to avoid conflict. In my opinion, he is significantly more vulnerable than the average person to be dissuaded from seeking legal advice.

[16] Dr Lascelles undertook additional testing to determine whether Mr Rehu had attempted, in effect, to distort the test results in his favour. Dr Lascelles found that Mr Rehu’s impairments, as revealed through the psychometric tests administered, are unlikely to be the result of exaggeration or malingering.

The first DVD interview – 11:25 am to 11:33 am

[17] I now turn to consider the critical events of 27 March 2014 in further detail.

[18] At 10:45 am, Detective McKenzie visited Mr Rehu at his home address. Detective McKenzie told Mr Rehu that he wished to talk to him about sexual abuse complaints that had been made by the three complainants. Mr Rehu agreed to go to the police station with Detective McKenzie.

[19] Mr Rehu’s understanding was that, after he arrived at the police station, he was not free to leave voluntarily. Detective McKenzie’s evidence was that that issue was
never expressly talked about one way or the other, although Mr Rehu was told that it was likely that he would be charged that day and that at the end of the process he would be bailed and taken back home. I accept Mr Rehu’s evidence that he did not believe that he was able to leave the police station voluntarily.

[20] When Mr Rehu arrived at the police station he asked to have a cigarette outside, which Detective McKenzie agreed to. While Mr Rehu “had a smoke” the officer explained, in broad terms, the allegations against him. He advised Mr Rehu of his rights and invited him to undergo a video interview. Mr Rehu agreed to do so.

[21] The first interview commenced at 11:25 am and was eight minutes long. Detective McKenzie briefly summarised what had occurred prior to the interview, including that outside the police station he had explained that he wanted to talk to Mr Rehu about three rape complaints, made by A, B and C, in relation to an incident in a caravan on a property where Mr Rehu used to stay when he was about 15 or 16. The officer then went through Mr Rehu’s rights, culminating in the following exchange:

0. Okay, alright. So are, are you comfortable that you understand these rights?

SR Yeah.

0. Alright. Are you happy to keep talking to me about this matter, these matters as we are here now?

SR No.

JM Okay so do you not want to talk about it now? SR (Shakes head no).

0. Okay so when we talked earlier you said you did want to talk about it so you don’t want to talk about it now? I’m just trying to be clear cos.

SR Nah.

JM You don’t have to, I’m just asking you for clarity. SR Hmm no.

JM Okay well...

SR I’ll have a lawyer.

JM Alright so what we’ll do is we’ll finish the um tape now. So we’ve come round to 11:33 and you’ve requested to speak to a lawyer so we’ll just stop the interview here and we’ll allow you to do that okay?

[emphasis added]

What happened during the “missing hour” until the second interview commenced at 12:37 pm?

[22] Mr Rehu’s second interview, in which he made various admissions, commenced at 12:37 pm. What occurred in the intervening hour (11:33 am to 12:37 pm) is not recorded on DVD and is a matter of dispute between Mr Rehu and Detective McKenzie, who both gave evidence before me.

The areas of agreement

[23] There are some fairly significant areas of agreement as to what happened during the missing hour. In particular, there is little or no dispute that:

(a) After the DVD recorder was switched off, Mr Rehu said to Detective McKenzie something along the lines of that he did want to talk, but was scared. In particular, he was scared of going to prison.

(b) Detective McKenzie did not give Mr Rehu a list of lawyers or otherwise facilitate his prompt access to a lawyer. (Detective McKenzie said he started to look for a list of lawyers in a cabinet but stopped when Mr Rehu made the comment about being scared. Mr Rehu said he did not see Detective McKenzie make any attempts to find a list of lawyers for him).

(c) Detective McKenzie, in effect, then set about trying to address Mr Rehu’s fears. This discussion started in the interview room, and was continued outside when Mr Rehu went out for a cigarette. In particular, Detective McKenzie told Mr Rehu that although the charges he faced were serious and “did result in imprisonment” the criminal process would likely start in the Youth Court and a court would take into account his youth at the time of the offending. Second, if Mr Rehu
took responsibility for what he had done, this would be a positive demonstration of remorse, which would also result in a reduced sentence. Third, Detective McKenzie told Mr Rehu that the victims’ families desired way of dealing with things was through a restorative justice process.

[24] Following this discussion Mr Rehu allegedly made some admissions, while still outside, regarding what had happened. He also told Detective McKenzie about his difficult family background and upbringing. Detective McKenzie told him that those factors were also “very valid in determining the relevant outcomes for him”. Mr Rehu trusted the detective and what he said to him. He said he was now willing to give a DVD interview.

[25] Detective McKenzie asked Mr Rehu, before the second interview started, whether he still wanted to talk to a lawyer, but Mr Rehu said “No, I’ll talk”. The detective said it was important that Mr Rehu phone a lawyer, given he had asked to do so in at the end of the first interview, but Mr Rehu repeated that no, he would talk. Detective McKenzie told Mr Rehu that in light of his earlier request for a lawyer he would need to confirm on video that he no longer wanted a lawyer. Mr Rehu agreed to do so.

[26] The second interview commenced at 12:38pm, following 10 minutes or so of attempts to get the video started. The detective began by reiterating Mr Rehu’s rights, including his right to speak to a lawyer. The detective put it to Mr Rehu that Mr Rehu had said, after the first interview, that he wanted to talk but was scared about what was going to happen. For example, he was scared that he might go to prison for a long time. Mr Rehu confirmed that he had said that.

[27] Detective McKenzie then put to Mr Rehu certain statements he had made while outside regarding the allegations made by the complainants, which Mr Rehu confirmed. This was followed by the detective asking Mr Rehu to confirm (which he did) that he had told him that, as he was 15 or 16 at the time, things would be dealt with initially in the Youth Court.
[28] Detective McKenzie then put it to Mr Rehu that he had told him before the second interview that he really needed to help him have a conversation with a lawyer, given that Mr Rehu had said he wanted to speak to one. Mr Rehu had said, however, that he didn’t want to do it. He just wanted to tell his story. Mr Rehu confirmed that there were several exchanges along these lines. The detective then asked Mr Rehu, on camera, if he would like to talk to a lawyer. He said he did not.

[29] Mr Rehu was then asked to confirm that this was a “fair summary of things that have happened while you and I have been talking in this room” which he did. It is not clear whether the reference to “while you and I have been talking in this room” is significant. If the summary was intended to cover (albeit briefly) everything of significance that was discussed during the missing hour (including when Mr Rehu and the detective were outside) it clearly did not do so. For example (even putting the disputed evidence to one side) it does not refer to two of the three issues the detective confirmed, in evidence, that he had discussed with Mr Rehu during the missing hour, as set out at [23](c) above.

[30] Mr Rehu’s evidence was that, in addition to the three key matters that Detective McKenzie acknowledged discussing with him, the detective had said a number of other fairly significant things to him during the missing hour. In particular, Mr Rehu said that Detective McKenzie:

(a) told him that if he gave an interview he would be given police bail and be able to go home that day;

(b) told him that he could be facing a very lengthy term of imprisonment (15 years or longer) if he did not tell the truth;

(c) told him that if he cooperated and spoke to the police then the charges would be reduced from three charges of rape to one charge of rape and two charges of indecent assault; and

(d) said a prayer over him immediately prior to the second interview, encouraging him to be honest.
[31] I will address each of these issues in turn. I note at the outset, however, that where determination of a factual issue is finely balanced I will err in favour of Mr Rehu. The reasons for this are several. First, the NZBORA rights at issue in this case are extremely important ones, deserving of a high degree of protection by the Courts. Second, Mr Rehu was a vulnerable interview subject, given his limited cognitive ability, suggestibility and compliance. There was a significant power imbalance between him and the interviewing officer, who was a Criminal Investigation Branch (CIB) detective with over 20 years policing experience. Third, the interviewing officer elected not to facilitate Mr Rehu’s immediate access to a lawyer, but instead engaged in a fairly lengthy dialogue with Mr Rehu, off camera. This occurred after Mr Rehu had confirmed, four times, that he did not want to talk, and asked to see a lawyer. This was reasonably high risk behaviour in terms of the potential to undermine Mr Rehu’s NZBORA rights.

[32] Given the absence of any detailed contemporaneous notes of what was discussed, or a video record, it is appropriate to err in Mr Rehu’s favour regarding what occurred during the missing hour, unless Mr Rehu’s account is clearly not credible or reliable.

[33] I also note that one consequence of Mr Rehu’s cognitive deficits is that he appears to have considerable difficulty in lying convincingly. Where he was less than forthcoming, or tried to give self serving evidence, this was fairly readily apparent. Further, he was unable to credibly and consistently maintain such evidence in the face of skilled cross-examination from Mr Hollister-Jones. On the other hand, Mr Rehu’s cognitive limitations also potentially increased the risk of confusion or misunderstanding on his part. I have kept in mind that on some issues his recollection may well have been genuine, but mistaken.

Did Detective McKenzie tell Mr Rehu that, if he gave an interview, he would be given police bail and be able to go home that day?

[34] The first factual dispute is whether Detective McKenzie told Mr Rehu that, if he gave an interview, he would be given police bail and be able to go home that day.
[35] The detective’s evidence was that he told Mr Rehu that he was likely going to be charged that day, but that at the end of the process he would be bailed and taken back home. From Detective McKenzie’s perspective, Mr Rehu would be going home whether he gave an interview or not. Either way he would be charged and bailed. However, that was never said explicitly.

[36] In my view, given the challenges he faces in processing complex information, Mr Rehu likely misunderstood what the detective said to him. What he understood, and what the detective actually said, were probably two slightly different things. Mr Rehu genuinely believed that he would only be bailed if he co-operated and gave a police interview. He did not understand that he would be charged and granted police bail in either event. He genuinely (but wrongly) believed that the police could hold him until he spoke to them, and only then would he be granted bail.

[37] I accordingly find that Detective McKenzie did not tell Mr Rehu that he would only be given bail and be able to go home that day if he gave an interview.

Did the officer tell Mr Rehu that he could be facing a very lengthy term of imprisonment, possibly 15 or 20 years, if he didn’t tell the truth?

[38] The second issue is whether Detective McKenzie told Mr Rehu that he could be going to prison for 15 (or possibly 20) years if he did not tell the truth.

[39] In his evidence in chief Mr Rehu stated that Detective McKenzie had told him he would be going to prison for 15 years if he did not tell the truth. In addition, he accepted, under cross-examination, the proposition that “if someone goes down for rape they go down for quite a while”. He then made the additional comment that “he was saying 20 years... Jon [Detective McKenzie] was saying 20 years”.

[40] Detective McKenzie denied ever telling Mr Rehu that he could be facing 15 years imprisonment. On the contrary, he said that his personal view at the time was that a likely end sentence was probably around the four year mark.

[41] In my view, Mr Rehu’s spontaneous reference to 20 years imprisonment, while under the pressure of cross-examination, is likely a reference to a figure that did
initially come from Detective McKenzie, possibly in the context of telling Mr Rehu what the maximum penalty for rape was. I note that the detective’s evidence was that he was “well aware” (presumably unlike Mr Rehu) that the maximum penalty for rape was 20 years imprisonment.

[42] I also find Mr Rehu’s evidence that Detective McKenzie mentioned a possible term of imprisonment of 15 years to be credible and reliable. The statement obviously made an impact on Mr Rehu, who was fearful of imprisonment. Indeed, three charges of rape (which Mr Rehu was advised at the outset he could be facing) each involving a victim who was aged between five and seven at the time, would likely attract a very lengthy starting point, before mitigating factors such as youth, remorse and so on were factored in. The alleged statement was accordingly not entirely inconsistent with a “worst case scenario,” at least in terms of starting point.

[43] I have some reservations as to whether the statement that Mr Rehu may be facing a prison term of up to 15 years would have been expressly linked to the qualifier “unless you tell me the truth”. I do accept, however, that that is what Mr Rehu inferred from the overall tenor of the discussions. Those discussions included the advice he received as to the discounts that would be available to him if he “took responsibility” for what had occurred, as well as the suggestion that if he did not give a statement he could well face three charges of rape (discussed further below).

[44] In my view, whatever precise words were used, Mr Rehu was clearly left with the impression from the overall tenor of his conversation with Detective McKenzie that he would face a very lengthy sentence of imprisonment if he did not “take responsibility” and make a full statement, but a significantly reduced sentence if he did.

Did the officer tell Mr Rehu that if he cooperated and spoke to the police then the charges would be reduced?

[45] The third factual issue I must determine is whether Detective McKenzie told Mr Rehu that if he cooperated and spoke to the police then the charges would be reduced from three charges of rape to one charge of rape and two charges of indecent assault.
[46] Detective McKenzie denied making such a statement. He said in evidence-in- chief that his own view at the time was that “the issue of three rapes was very much alive”. Further, he could not have offered to lay only one charge of rape and two of indecent assault as such matters needed to go through his supervisor. He could not simply “wheel and deal” some rape charges away. Under cross-examination, however, the detective said that, based on the complainants’ evidential interviews, his belief at the time of the interview was that the complainants’ evidence would only support one count of rape and two counts of indecent assault. Accordingly, if Mr Rehu had not made a statement, that is what he would likely have been charged with.

[47] Mr Rehu’s recollection on this issue was clear. Having watched Mr Rehu give evidence I have real doubts as to whether he would be able to concoct such a “story” and credibly maintain his position on this issue if he did not genuinely believe it. He maintained his position under cross-examination. Further, if Mr Rehu was lying on this issue, it was a fairly sophisticated lie.

[48] Mr Rehu’s account is corroborated to some extent by what actually occurred. Mr Rehu was initially told, at the outset of his first interview, that he was being investigated for three rapes. Ultimately, however, he was only charged with one count of rape and two counts of indecent assault. As I have noted, that would have been the likely outcome even if Mr Rehu did not speak to the police. The detective knew, prior to interviewing Mr Rehu, that the evidence did not currently support three rape charges. Giving an indication that the charges may be reduced if Mr Rehu co-operated was not therefore a “concession” that would have been difficult to make, and certainly did not constitute “wheeling and dealing” away two rape charges

[49] Mr Rehu, or course, was oblivious to the fact that the complainant’s evidence was unlikely to support three rape charges and had no reason to believe that he would not be charged with three counts of rape. Therefore any indication, even quite a subtle one, that the charges may be “reduced” if he co-operated with the police was a meaningful incentive for him to proceed with an interview.

[50] On the balance of probabilities, I find that the officer did say something to Mr Rehu that left him with the understanding that if he cooperated and gave an
interview he would likely only be charged with only one count of rape and two charges of indecent assault, rather than three counts of rape.

Did Detective McKenzie say a prayer immediately prior to the second DVD interview?

[51] Finally, I must determine whether Detective McKenzie said a prayer along the lines alleged by Mr Rehu immediately prior to the second DVD interview. Mr Rehu’s evidence was that the detective prayed over him along the following lines:

Um, “You know Jesus died on the cross to save our sins. That he will take your salvation and hopefully make you be honest and open your heart”.

[52] Mr Rehu said that the detective prayed over him again when he dropped him off home after the interview, this time for a longer period and with his hands on Mr Rehu’s forehead.

[53] Detective McKenzie acknowledged that he was a religious man and that he believed that many of the people he deals with would benefit greatly from God being in their lives. He said, however, that he had only prayed with Mr Rehu when he dropped him off at his home address, after the completion of the interview and charging process:

I’ve, I guess established some wisdom over the years in an endeavour to keep that work, investigative environment separate and yet in the midst of that I’m open where I see brokenness to offer hope, support and so that’s why when I dropped Steven off at home I stopped in his driveway, talked to him about Jesus, offered prayer, he accepted that, put my hand – I asked, “Do you mind if I put my hand on you,” he accepted that.

[54] I have no doubt that Detective McKenzie tries to maintain appropriate boundaries between his personal religious beliefs and his investigatory work as a detective. On this occasion, however, those boundaries seem to have become somewhat blurred. I am satisfied, on the balance of probabilities, that Detective McKenzie did offer a short prayer immediately prior to the second interview.

[55] Detective McKenzie is clearly a deeply religious man. It was clear from his evidence that his Christian beliefs are an intrinsic part of who he is. He feels a commendable calling to help those who are less fortunate, whether due to deprived
family circumstances or otherwise. Prayer is clearly an ever present part of his life and, from his perspective, is nothing unusual or untoward. I would not expect a short prayer made almost a year ago to necessarily stand out in his memory.

[56] Mr Rehu, on the other hand, comes from a troubled background. I suspect that, for him, individuals offering personal prayer over others is a much more unusual event. Detective McKenzie’s behaviour in praying over Mr Rehu accordingly made a fairly strong and lasting impression on him.

[57] In my view both witnesses gave honest evidence, to the best of their recollection, on this issue. Mr Rehu’s memory is, however, likely to be more reliable and I therefore accept his version of events.

The right to instruct a lawyer without delay - legal principles

[58] The key right that is at issue in this case is the right to instruct a lawyer without delay, although counsel for Mr Rehu also submitted that Mr Rehu’s right to silence had been undermined. The two rights, in the particular circumstances of this case, are inextricably interlinked.

[59] The Court of Appeal recently reiterated, in Kumar v R, that the rights set out in NZBORA represent a clear and unequivocal codification of what our society considers are basic rights.¹ Its provisions were said to be neither complex nor complicated. Care is therefore necessary to avoid over-refinement or analysis of straightforward concepts. In that case the Court concluded that the police had breached Mr Kumar’s right to silence under s 23(4) of the NZBORA and improperly obtained his statement.²

[60] The R v Mallinson the Court of Appeal stated that:³

The temporal expression “without delay” is not synonymous with instantly or immediately ...... the test is whether the delay is reasonable in all the circumstances having regard to the purpose of the right. The relevant interests which s 23(1)(b) protects are the ascertaining of one’s legal rights and obligations and representation by an independent advisor. If the right is to be effective it must be exercisable before the legitimate interests of the person

¹ Kumar v R [2014] NZCA 489 at [44].

² At [84].

³ R v Mallinson [1992] NZCA 163; [1993] 1 NZLR 528 (CA) at 530-531.

who is arrested are jeopardised. That includes not prejudicing one’s legal position by words or conduct without the opportunity for legal advice.

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. ...

There are three elements of the protective right: the right to consult a lawyer; the right to instruct a lawyer; and the exercise of those rights without delay. In that regard it is important that anyone arrested be made aware that he or she can exercise the right to a lawyer without delay, that is as soon as reasonably possible in the circumstances. The requirement is not satisfied if the person arrested may reasonably be left with the impression that access to a lawyer is not available until after any questioning is finished.

[61] Similarly, in R v Harder the Court stated that: ⁴

Once an arrested person has indicated that he or she wishes to exercise his or her right of access to counsel, the police must not attempt to elicit information form that person until such time as that person has seen counsel. “Information” in this context includes not only testimonial evidence but also non-testimonial evidence of a character which requires the arrested person to do something which he or she might lawfully refuse to do The arrested person is entitled

to legal advice before he or she decides to co-operate.

[62] In R v Collins the Court stated:⁵

That modern Practice Note did not intend the caution to be a ritual incantation, to be uttered and then ignored. Rather it is an important procedure designed to alert the interviewee of the constitutional right to silence, recognized both at common law and under ss 23(4) and 25(d) of the New Zealand Bill of Rights Act, and of the supplementary right endorsed by s 23(1)(b) to consult and instruct a lawyer without delay.

Was Mr Rehu’s statement improperly obtained?

[63] In light of the various factual findings I have made, and the legal principles I have outlined, I must now determine whether Mr Rehu’s statement was improperly obtained in terms of s 30(2) of the Act.

[64] Counsel for Mr Rehu submitted that it was, because Mr Rehu was not given an opportunity to exercise his right to consult and instruct a lawyer without delay, as

⁴ R v Harder (2004) 21 CRNZ 255 (CA) at [18].

⁵ R v Collins [2009] NZCA 388 at [42]

provided for by s 23(1)(b) of NZBORA. Further, Mr Rehu was not permitted to exercise his right to refrain from making a statement in terms of s 23(4) of NZBORA.

[65] The Crown, on the other hand, submitted that Mr Rehu made a fully informed decision to waive his right to silence and to consult with a lawyer. That was a decision he was entitled to make.

Discussion

[66] I am satisfied, on the balance of probabilities, that Mr Rehu’s statement was improperly obtained, for the reasons I outline below.

[67] At the end of the first interview Mr Rehu clearly indicated to Detective McKenzie several times, that he did not want to talk to him and wished to speak to a lawyer. At this point the proper course was for the detective to provide Mr Rehu with access to a telephone and a list of lawyers he could speak to free of charge. The detective’s actions in embarking on a prolonged dialogue with Mr Rehu, for almost an hour, undermined his right to consult and instruct a lawyer without delay.

[68] Mr Rehu clearly asserted his right to consult and instruct a lawyer without delay at the conclusion of the first interview. Prior to that request he made it clear that he did not want to talk several times.

[69] After the camera had been turned off Mr Rehu said to the detective that he did want to talk, but that he was scared. In particular, he was scared of the possibility of going to prison. He may also have had more generally based fears.

[70] The person best placed to give Mr Rehu accurate and independent advice regarding his various options, in light of the fears he had expressed, was a lawyer. The detective, however, effectively assumed the role of a trusted advisor and mentor and sought to allay Mr Rehu’s fears. He won Mr Rehu’s trust in the process, resulting in Mr Rehu ultimately deciding that he no longer needed a lawyer. By his actions, the detective effectively usurped the role that should have been played by an independent legal adviser.
[71] Detective McKenzie came across both in his evidence in Court, and in the DVD interviews with Mr Rehu, as a person who is deeply caring and compassionate. Dr Lascelles described him (accurately) as “warm and engaging”. I have little doubt that he would have come across to a Mr Rehu as someone who cared about him and genuinely had his best interests at heart. The reality, however, is detective’s role was not to provide independent advice to Mr Rehu, but to investigate serious alleged offending, in respect of which Mr Rehu was the suspect.

[72] The “advice” that the detective provided to Mr Rehu was neither independent nor impartial. Mr Rehu was effectively presented with only one of the various options open to him, which was to “take responsibility” and make a full confession. The benefits of pursuing such a course were outlined in some detail. This information was not counter-balanced, however, with any explanation of Mr Rehu’s other options (including not making a statement) and the benefits associated with those options.

[73] Dr Lascelles touched on these issues in his evidence-in-chief, in the following exchange:

A. I think the key point that came up for me today in hearing the detective’s evidence was his account of what immediately followed Mr Rehu’s decision to request a lawyer, in that what I understand happened from his evidence was that Mr Rehu expressed his concern about being scared and at that point the detective then went into giving some advice about essentially what appeared to be the benefits or the positive outcomes of taking part at interview and making a, a full and frank disclosure.

Given the situation that Mr Rehu was in where he was, was alone, that he was facing serious charges and, as someone who is of lower intelligence, is quite vulnerable to suggestion and to in the moment compliance with authority figures, the impact of, of this talk would have been much more than it would have been on the average person. He appeared to see...the detective as someone to trust. Obviously the detective is someone who presents as warm and engaging, as we saw on...the video, and in these circumstances...I think Mr Rehu would have been inclined to trust the detective’s point of view and potentially then be dissuaded from seeking the legal advice that he had originally intended to request.

Q. In your opinion, when that request for...a lawyer was made and that wasn’t immediately facilitated at that point...if Mr Rehu continued to engage with the detective would that essentially affect the rest of his decision-making in that process?

A. Yes, I, I believe it would. There’s some components required for suggestibility to be created, uncertainty, interpersonal trust and expectations.

The detective had created a situation where he appeared to be someone who could be trusted, who had Mr Rehu’s best interests at heart and was not acting necessarily in a manner which re-reflected the adversarial nature of the situation and the, the situation Mr Rehu was truly in... and given that there was, in Mr Rehu’s mind, great uncertainty about the outcome of this and he was, he was fearing imprisonment, I’m not clear whether he was fearing, in terms of not getting bail, but he was certainly very uncertain about what was going to happen, and some expectations were created for him that if he made this frank disclosure that this would result in a more positive outcome for him, that this – the confession was equated with the benefits of a guilty plea, which are not the same thing, and in that situation this illusion, I think, was created for Mr Rehu, unintentionally, but it was created.

[74] At the risk of over-simplification, Mr Rehu was left, following his discussion with Detective McKenzie, with the impression that there were two possible scenarios:

(a) He could decline to give an interview in which case he would likely be charged with three counts of rape and face a very lengthy prison term. Because he had not taken responsibility for his actions he would get no discount for remorse at sentencing.

(b) He could give an interview admitting what he had done, in which case he would likely face reduced charges and would also get a sentencing discount for remorse. Further, by making a full confession he would enable the restorative justice process to proceed which may also impact on sentencing. In addition, being honest and making a full confession would be the moral thing to do, in accordance with God’s wishes.

[75] These scenarios presuppose Mr Rehu either pleading guilty or being ultimately found guilty at trial. A lawyer may well have traversed these two scenarios with Mr Rehu. A lawyer, however, would also have addressed with him a third possibility – that of Mr Rehu being acquitted of the charges against him. He or she would likely have carefully considered the strength of the Crown case before deciding whether it was appropriate for Mr Rehu to make a statement. In the event of a weak Crown case, a lawyer may well have advised Mr Rehu that it was not in his best interests to make a statement. At the very least, a lawyer would have probably attended any interview that Mr Rehu agreed to give. Such a protection was likely to be particularly important for a person of limited intelligence, who is also highly compliant and suggestible.
[76] In my view, once Mr Rehu asked to see a lawyer, immediate attempts should have been made to facilitate his access to one. His statement that he was scared was not an invitation to the officer to defer contacting a lawyer while attempts were made to allay Mr Rehu’s fears. On the contrary, the fact that Mr Rehu was scared of the process he faced, and the possibility of going to prison, was a very sound reason for him to seek independent legal advice. Such advice would enable him to consider all his options and make a fully informed decision as to whether to participate in an interview process.

[77] The Crown submitted, in effect, that to the extent that there may have been any impropriety (which was denied) this would have been cured by the fact that Mr Rehu was advised several times, prior to embarking on the second DVD interview, to speak to a lawyer. He declined to follow that advice and said that he was happy to talk.

[78] Any waiver of the right to silence, or the right to instruct a lawyer, must be a fully informed decision, given the fundamental nature of those rights.⁶

[79] I am not satisfied that Mr Rehu’s decision to waive his right to a lawyer, after he had talked to Detective McKenzie for almost an hour, was a properly informed one. As Dr Lascelles succinctly summarised it, advising Mr Rehu to seek legal advice was by that stage essentially meaningless, as the merits of participating in an interview had been emphasised to the point where there no longer appeared to be any genuine value in taking legal advice.

[80] Given Mr Rehu’s lower intellectual functioning, he had difficulty processing significant amounts of information or assessing it critically. This made him particularly vulnerable. As Dr Lascelles observed:

...when you get someone [Detective McKenzie ] who is sympathetic, who appears well meaning, giving and experienced to give that advice, that’s just a situation I think someone like Mr Rehu would have great difficulty in seeing the wider picture.

[81] Mr Rehu was clearly focussed on the short term goal of going home after the interview. He could see no disadvantage in giving an interview following the “advice”

⁶ R v Rogers [2005] NZCA 497; [2006] 2 NZLR 156, (2005) 22 CRNZ 425 (CA) at [62].

received from Detective McKenzie, because he had been persuaded that giving an interview would be in his best long term interests. Detective McKenzie had provided Mr Rehu with extensive reassurance and advice as to the best way forward. Mr Rehu trusted that advice, as Detective McKenzie accepted. As a result Mr Rehu no longer felt the need for independent legal advice. From his perspective, the fears that he wanted to discuss with a lawyer had now been addressed. In these circumstances, Mr Rehu’s decision to waive his right to a lawyer was not, in my view, a fully informed one.

[82] The short prayer made by the detective over Mr Rehu prior to the commencement of the second interview is not a matter which, in isolation, would carry much weight. It is another factor, however, that supports my view that by the end of the “missing hour” there was a significant rapport between the detective and Mr Rehu that resulted in Mr Rehu placing a high degree of trust in the detective’s “advice.” In such circumstances any suggestion that being “honest” and “opening your heart” was the Christian and moral thing to do would potentially have impacted on Mr Rehu’s approach to the interview, given his cognitive challenges.

[83] For all of the reasons I have outlined I am satisfied, on the balance of probabilities, that Mr Rehu’s statement was improperly obtained. Further, the impropriety was not “cured” by Mr Rehu’s apparent waiver of his right to a lawyer following his discussion with Detective McKenzie, as his decision to do so was not a fully informed one.

Would the exclusion of Mr Rehu’s statement be proportionate to the impropriety?

[84] Having found that Mr Rehu’s statement was improperly obtained, I must now determine whether or not exclusion of the statement is proportionate to the impropriety, by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice, in terms of s 30(2)(b) of the Act. That subsection was considered in detail by the Supreme Court in Hamed v R.⁷ Tipping J observed in that case that:⁸

⁷ Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305.

⁸ At [229]-[230] (footnote omitted). See also Elias CJ at [58], Blanchard J at [187] and McGrath J

The concept of giving appropriate weight to the impropriety is not, as a concept, of any particular difficulty. There is, however, greater conceptual complexity in interpreting and applying the concept of the need for an effective and credible system of justice. This concept is apparently contrasted with giving appropriate weight to the impropriety by the words ‘but also’. It would, however, be a mistake to take the view that the need for an effective and credible system of justice is solely a counterpoint to the propriety involved in gaining the evidence. The reference to an effective and credible system of justice involves not only an immediate focus on the instant case but also a longer-term and wider focus on the administration of justice generally.

The admission of improperly obtained evidence must always, to a greater or lesser extent, tend to undermine the rule of law. By enacting s 30 Parliament has indicated that in appropriate cases improperly obtained evidence should be admitted, but the longer-term effect of doing so on an effective and credible system of justice must always be considered, as well as what may be seen as the desirability of having the immediate trial take place on the basis of all relevant and reliable evidence, despite its provenance. ...

[85] Section 30(3) sets out a non-exhaustive list of factors the Court may have regard to in undertaking the balancing exercise. Taking those factors into account, I am persuaded that exclusion of Mr Rehu’s statement is a proportionate response to the impropriety.

[86] First, as the Court of Appeal observed in R v Rogers, the right conferred by NZBORA to instruct a lawyer is a fundamental right. Any erosion or undermining of a person’s ability to effectively exercise that right must be viewed very seriously indeed. The intrusion on Mr Rehu’s right to a lawyer was a serious one.

[87] In terms of the nature of the impropriety, I do not believe that the detective acted in bad faith. He did, however, engage in a deliberate and sustained course of conduct, the effect of which was to very significantly undermine Mr Rehu’s right to legal advice. That effect may have been unintentional, but it had serious consequences for Mr Rehu. The detective did not facilitate access to a lawyer when Mr Rehu requested one, but rather took it upon himself to address Mr Rehu’s concerns, effectively usurping the role of a lawyer. As a result, following his conversation with the detective, Mr Rehu no longer saw the need for a lawyer.

[88] Mr Rehu was in a position of particular vulnerability. He is a man of limited intelligence who is highly suggestible and compliant with authority figures. The

at [258].

detective was aware that Mr Rehu trusted him and was also aware of at least some of Mr Rehu’s cognitive limitations (such as that he was slow to process information) although he was not aware of the full extent of them. The detective’s conduct, while not tainted by bad faith was, in my view, somewhat reckless in the circumstances.

[89] Further, it is relevant that the offence of rape is one of the most serious offences in our justice system, carrying a maximum penalty of 20 years imprisonment. Further, Mr Rehu was being investigated in relation to not one, but three, rapes. This elevates the seriousness significantly. The requirement to facilitate his access to independent legal advice, rather than undermine it, was particularly important in the circumstances.

[90] In terms of whether any “other investigatory techniques” may have been available, I note that there was no particular urgency to this interview. There was no pressing need why Mr Rehu should not have been able to access a lawyer, receive independent legal advice and then proceed from there. The offending being investigated was historic. Mr Rehu’s interview took place some months after the complaints had been made and the complainants’ interviewed.

[91] Finally, there is no “alternative remedy” to exclusion of the evidence that would provide redress to Mr Rehu for the breaches of his rights. The only remedy that is available to him is the exclusion of his witness statement.

[92] For all of these reasons, I am satisfied that exclusion of Mr Rehu’s second statement to the police is proportionate to the level of impropriety.

[93] In fairness to the Crown, Mr Hollister-Jones accepted that if I concluded that the second DVD statement had been obtained improperly, as a result of a failure to facilitate Mr Rehu’s right to a lawyer without delay, then it should be excluded from evidence.

The reliability issue

[94] Given my conclusion that Mr Rehu’s second video statement should be excluded on the grounds of impropriety, it is not necessary for me to consider Mr Rehu’s alternative arguments, namely that his statement should be excluded on the
grounds that it was made in circumstances that give cause for concern about its reliability, or that parts of his statement should be excluded due to unfair police questioning in some parts of the interview.

Result

[95] Mr Rehu’s second video statement is inadmissible at his trial.

[96] I make an order prohibiting publication of this judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.

Katz J