Bishop v R [2016] NZHC 2548 (6 October 2016)

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BETWEEN	BARCLAY BISHOP Appellant
AND	THE QUEEN Respondent

Hearing: Court:	5 September 2016 Cull J Judge D McGregor Judge J Billington QC
Appearances:	M Bott and S J Taylor for appellants Major M Harding and Capital G Davies for respondent
_Judgment:	_{6 October 2016}

C The reduction in rank of Lance Corporal Mapson is reversed. D We direct a judgment and finding of acquittal to be entered.

Introduction..................................................................................................................................................[1] Background ..................................................................................................................................................[4] Mapson’s in-cell statement......................................................................................................................... [11] Authority for compulsory testing ...............................................................................................................[13] The charges ................................................................................................................................................[22] What needed to be proved? ...................................................................................................................[22] Appellate review ........................................................................................................................................[29] Grounds of appeal ......................................................................................................................................[30] The admissibility of the in-cell statement ..................................................................................................[35] Were the post-incident drug test results of the other soldiers admissible against the appellants? ..............[54] The legal framework for compulsory drug testing of members of the Armed Forces ...........................[58] Post-incident/accident testing................................................................................................................[68] Compliance with Enactments................................................................................................................[79] Section 30 Evidence Act analysis..........................................................................................................[84] Judge’s direction to the Court Martial ........................................................................................................[88] The direction on drink-spiking ..............................................................................................................[89] Private Brame’s pleas of guilty and conviction of supply ................................................................... [106]

No direction on reliability ................................................................................................................... [109] Decision ................................................................................................................................................... [116] Procedural Irregularities ......................................................................................................................[122] The result ................................................................................................................................................. [126]

[1] Private (Pte) Barclay Bishop and Lance Corporal (L/Cpl) Joshua Mapson (the appellants) were each charged of doing an act likely to prejudice service discipline contrary to s 73(1)(a) of the Armed Forces Discipline Act 1971, in that they knowingly consumed NBOMe, a psychoactive substance. These charges followed the arrest of the two appellants and six other soldiers by the New Zealand Police in Palmerston North, when they were demonstrating odd, irrational and strange behaviour.

[2] The appellants were both convicted in the Court Martial and were sentenced to 14 days’ detention and fined the equivalent of seven days’ pay. For Pte Bishop this was $685.00 and for L/Cpl Mapson this was $840.00. L/Cpl Mapson was reduced to the rank of Private.

[3] The appellants appeal against their convictions for conduct prejudicial to service discipline and their sentence.

[4] In the afternoon of 24 October 2015, the appellants attended a barbeque at a private address in Palmerston North to belatedly celebrate Pte Bishop’s birthday. During the course of the afternoon and into the evening considerable alcohol was consumed by a number of soldiers including the two appellants as well as some civilians who were attending the function.

[5] There was evidence of discussions amongst some of those present about going into town and buying ecstasy and one of the soldiers said he knew someone who could supply it.

[6] Later in the evening, a group of soldiers went into Palmerston North by taxi and taxi van respectively to a bar. The appellants were part of this group.

[7] In the early hours of the morning of 25 October, one of the soldiers received a text from a civilian, whom he met outside the bar and bought what he thought was ecstasy. He came back to the bar and rejoined the group.

[8] At some time after midnight, eight of the soldiers started to behave in an odd and irrational manner. Some appeared to be incoherent and hallucinating and others behaved in a self-destructive manner, causing themselves severe injury. As a result of a phone call from one of the soldiers’ partners, the police arrived and the eight soldiers were taken to the police station and placed in the cells. By coincidence, the military police also arrived on the scene, as Corporal (Cpl) Skipper was conducting a mobile patrol in Palmerston North that night and they too went to the police station.

[9] The appellants arrived at the Palmerston North police cells at 2.06 am and at

2.16 am Dr Ash Dahya arrived at the police cells to assess the soldiers. Cpl Skipper took video clips of the appellants’ behaviour in the police cells. The appellant Mapson was initially unresponsive when he arrived and the appellant Bishop appeared scared and nervous but became extremely aggressive and non-compliant before being put into a police cell. He appeared to be hallucinating, and was violently pushing himself into the walls.

[10] For the first four hours in custody, the soldiers, including the appellants could not physically engage in conversation. Staff Sergeant (S/Sgt) Packer and Cpl Skipper were wearing hi-vis vests, which distinguished them as military police. S/Sgt Packer arrived at Palmerston North police cells with two soldiers to assist at

[11] At the police station, S/Sgt Packer requested the Regimental Sergeant Major (RSM) to speak to the Commanding Officer (CO) to get authority for urinalysis testing. The reason for the request was to ascertain what substance had been taken and he wished to confirm that. At 3.10 am, Cpl Skipper entered the police cell, where the appellant Mapson was held. After entering the police cell, Cpl Skipper sat down beside the appellant Mapson and asked him questions.

[12] Having received no response to the initial questions, Cpl Skipper asked him what he had taken and was told that “it was in a capsule and that he put some white powder up his nose” (the in-cell statement). Following that answer, appellant Mapson became jittery, irritable and started to foam slightly at the mouth. He then became seriously assaultive and attacked Cpl Skipper. The appellant Mapson was restrained by Cpl Skipper and the civilian police. There was no response from the appellant Bishop.

[13] From 5.48 am, the soldiers were transferred on a staggered basis to be medically assessed at Palmerston North hospital. The appellants were transferred at

7.45 am. The appellants were returned to Linton camp later that morning, with the appellants being committed to close arrest at 11.00 am and midday respectively. By

12.30 pm, all soldiers had been released from hospital and placed in the custody of their unit.

[14] Following his initial discussions with the RSM, S/Sgt Packer sought confirmation that there was authority to conduct urinalysis testing of the eight

soldiers. The RSM confirmed that the CO (Lieutenant Colonel Neal) had given the authority to collect the samples for urinalysis.

[15] Prior to the urinalysis process commencing, the eight soldiers were collected in one room and were given a briefing by Cpl Skipper from a written “urinalysis test brief”, which was read out to them, explaining the collection process, the reason that they were present and the procedure which was to be conducted. In this briefing, the soldiers were told that they had been ordered here by their unit commander to provide a urine sample for the purpose of drug testing and among other things, that they could elect to have an independent sample taken for testing at their own expense. Between 1.00 pm and 2.00 pm, urinalysis samples were collected from the appellants. Cpl Skipper conducted the process for collection of samples and was certified by NZQA to do so. The initial screening results of all eight soldiers were negative. The urinalysis samples were then to be sent to the ESR laboratory (ESR) for further testing.

[16] S/Sgt Packer was not present when the initial screening results began to emerge, but towards the end of the testing when he came “back in the room and Cpl Skipper was sealing up the samples to be sent away” he assisted him by helping with the “paper work”.

[17] Part of the “paper work”, of relevance and at issue in this appeal, is the ESR chain of custody form, which specifies the reason for testing, the purpose for testing, the name of the person tested, the initial screening results and the collector certification, which was required to be signed by the NZQA certified collector. The chain of custody space on the form is to be completed by the laboratory. The relevant forms for each of the appellants was completed by S/Sgt Packer, who certified that the reason for testing was “post-incident testing”, that the specimen sample was provided to him by the donor, and was collected in accordance with the relevant standard. S/Sgt Packer also ticked the box that he was NZQA certified.

[18] On 27 October 2015, the CO signed the urinalysis booking form, confirming he had given verbal authority for the testing on 25 October 2015. The appellants

were interviewed under caution by Cpl Skipper on 28 and 29 October 2015 respectively.

[19] On 2 November 2015, the military police investigation was completed, with recommendations that charges be laid against the soldiers, including the appellants. Summary trials for both appellants were convened on 10 November 2015. These were adjourned to allow the appellants time to consider their elections for trial by Court Martial.

[20] On 15 November 2015, the results from the urine drug tests from ESR were provided to the appellants. The ESR results for the other six soldiers were also provided and they were produced in evidence at the Court Martial hearing to show that collectively 251-NBOMe, pvp and 25C-NBOMe had been detected, with some samples showing one type and others showing two or three of the substances. The appellants’ ESR results were not produced in evidence against them at the Court Martial, for reasons we explain below at [27].

2015 and they confirmed their election for trial by the Court Martial. Charges were laid by the Director of Military Prosecutions on 19 February 2016 and the Court Martial was held on 10 May 2016. The appellants were convicted and sentenced as set out above.

[22] The appellants were charged with having committed the offence of doing an act likely to prejudice service discipline contrary to s 73(1)(a) of the Armed Forces Discipline Act in that they (respectively) at Palmerston North on or around

Every person subject to this Act commits an offence, and is liable to imprisonment for a term not exceeding two years, who –

[24] To be guilty of the above charge, the prosecution was required to prove beyond reasonable doubt that:

(1) the appellants at the relevant time were members of the Armed Forces and subject to the Armed Forces Discipline Act;

(4) the consumption of NBOMe is an act that is likely to prejudice service discipline.

Skipper, with the appropriate caution. They could not remember any events of 25-26

October. The prosecution included in its evidence at the Court Martial the in-cell statement of the appellant Mapson, which was challenged by Mr Bott, Counsel for appellant Mapson. Following a pre-trial hearing, in which the defence challenged the admissibility of the in-cell statement, because there was no caution given and because it was unreliable, the Judge ruled that his statement was admissible.

[26] The second critical aspect of the evidence is that there was no direct evidence that the appellants took any psychoactive substance and the results of their urine tests were not before the Court. The prosecution case proceeded on the basis of circumstantial evidence of the results of the other six soldiers tests and the factual events of that evening.

[27] The reason that there was no direct evidence of the results of the appellants’ urine tests is that they were obtained on the basis of a work related post-incident drug test and those results cannot be used as evidence to prove a charge against the person providing the sample, except on the specific advice of the Director of

Defence Legal Services. No formal approval of the Director was sought. However, the test results of the six other soldiers were produced to show that the other six soldiers had taken NBOMe and alpha-pvp and all eight soldiers acted in an irrational incoherent violent manner, including the appellants.

[28] The in-cell statement from the appellant Mapson, the admissibility of the other six soldiers’ ESR test results, and aspects of the Judge’s summing-up are the critical issues forming the basis of the grounds of appeal, discussed below.

[29] Under s 9A Court Martial Appeals Act 1953, this Court must allow an appeal against conviction in the following circumstances:

(i) the finding of the Court Martial should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

(ii) the finding of the Court Martial involves a wrong decision on a question of law; or

(2) However, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred even though it considers that the point raised in the appeal might be decided in favour of the appellant.

(1) The Judge erred in the pre-trial hearing of 9 May 2016, by finding that the evidence of drug testing of other soldiers and their results were not improperly obtained and were admissible against the accused.

[31] A challenge was also raised to the Judge’s pre-trial ruling of 9 May 2016, where the remand to the Court Martial was held not to be wrong in law and in fact. As that ground was not argued before us we treat it as having been abandoned.

[32] At the appeal hearing, the appeal grounds were refined further and the following were the issues for determination by this Court.

(2) in ruling that the post-incident test results of the six other soldiers were admissible as evidence against the appellants?

(ii) Pte Brame’s pleas of guilty and conviction of supply. (iii) No direction on reliability.

[34] Each of the issues for determination on this appeal are examined under the relevant headings below.

[35] The facts surrounding the in-cell statement are described above.¹When Cpl Skipper entered the police cell, where the appellant Mapson was held, he was wearing hi-vis clothing, which identifies him as a member of the Military Police.

[36] When Cpl Skipper asked the appellant what he had taken that night, he did not caution the appellant Mapson and nor did he give him the opportunity of seeking legal advice. Cpl Skipper did not take a written note of what was said.

[37] The appellant Mapson was detained in police custody at the time of his questioning. The New Zealand Bill of Rights Act 1990 (NZBORA) requires that a caution is given to a person in detention before they answer any questions, likely to be given in evidence. Section 23 of the NZBORA provides:

(a) shall be informed at the time of the arrest or detention of the reason for it; and

(b) shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

(c) shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

(2) Everyone who is arrested for an offence has the right to be charged promptly or to be released.

(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

[38] It appears that not only is s 23 of the NZBORA breached, but the failure to caution and to offer legal advice also offends against the Chief Justice’s Practice Note in relation to interviewing suspects at a police station and taking statements.²

Considerations such as fatigue, lack of sleep, emotional constrain, or the consumption of alcohol cannot be efficacious to deprive a confession of its quality of voluntariness, except, perhaps if, as any of these may have been bought about or aggravated by some act or omission of other persons to that end that a confession should be made.

[39] All military personnel are subject to the orders contained in the Defence Manual of Armed Forces Law (DM 69).³In Chapter 3 entitled “Preliminary inquiries into suspected offences”, an investigator who is a member of the armed forces carrying out a preliminary inquiry must comply with the DM 69 provisions on “Interviewing Suspects”. Specifically, the relevant provisions state that “these orders are based on the Chief Justice’s Practice Note – Police questioning (s 30(6) of the Evidence Act 2006)”. Clause 3.1.2 provides as follows:

An investigator may question any person in connection with a preliminary inquiry, including any suspect. Any person questioned by an investigator is to be informed at the beginning of the interview of the reason of the interview. The investigator must not suggest that it is compulsory for the person questioned to answer.

[40] Clauses 3.1.3 and 3.1.4 require an investigator, who has collected enough evidence to be satisfied that an allegation is well founded and has made up his or her mind to recommend that the suspect be charged or has placed the suspect under close arrest, the investigator is to caution the suspect before asking him or her any questions or any further questions as the case may be. The wording provided is the

²_{Practice Note – Police Questioning (s 30(6) of the
Evidence Act 2006) [2007] 3 NZLR 297.}

You have the right to refrain from making any statement and to remain silent. Do you understand this?

[41] In addition the investigator must advise the suspect that he or she has a right to consult and instruct a lawyer without delay and in private before deciding to answer questions. The suspect must be asked whether he or she understands this advice and whether he wishes to exercise the right.

[42] The admissibility of improperly obtained evidence is governed by s 30 of the Evidence Act 2006. The Judge must first find on the balance of probabilities that the evidence was improperly obtained and secondly, whether the exclusion of the evidence is proportionate to the impropriety.

[43] In deciding whether a statement has been obtained unfairly for the purposes of s 30(5)(c), the Judge must take into account guidelines set out in practice notes.⁵

A breach of the Chief Justice’s Practice Note on police questioning will usually mean that the evidence was improperly obtained. It is relevant to have regard to the recent authorities on the admissibility of statements, which have been made without a caution and/or the offer of legal advice.

[44] In R v Kumar, the Supreme Court considered whether undercover police officers were required to give a caution to Mr Kumar while talking to him in a police cell.⁶The statements obtained were found to be in breach of Mr Kumar’s right to refrain from making a statement as affirmed by s 23(4) of the NZBORA. The statements were excluded under s 30. Elias CJ in a separate but concurring judgment noted that the right to be cautioned has long been part of the Judges’ Rules. A police officer may not obtain a statement from someone who is arrested or detained under any enactment unless the accused is first advised that he is not obliged to speak.

[45] In R v Collins, the Court of Appeal considered the admissibility of a videotaped interview with the defendant after he had asked to speak to a lawyer.⁷A caution was given, but the interview continued, despite the defendant telling police

_{he wished to speak to a lawyer. The Court of Appeal overruled the High
Court’s}

ruling that the defendant had freely waived his right to legal advice. In allowing the appeal against that finding, the Court said:⁸

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 to alert the interviewee of the constitutional right to silence, recognised both at common law and under ss 23(4) and 25(d) of the New Zealand Bill of Rights Act...

[46] The Court of Appeal went on to conclude that the public interest favoured exclusion, in terms of s 30(2)(b) of the Evidence Act.

[47] In R v Rehu, Mr Rehu was charged with sexual assault and gave two videotaped interviews with the police.⁹In the first interview, he was told his rights and then decided that he did not want to discuss matters with the police but would prefer to speak to a lawyer. After an hour, a second interview was taped during which Mr Rehu made various admissions. In the intervening time, Mr Rehu was not given a list of lawyers and the police tried to address Mr Rehu’s fears, advising him

that admitting his offending would be a positive factor in sentencing. Mr Rehu had lower than average intelligence and cognitive abilities. Katz J found that the statements were improperly obtained and that it would be proportionate to exclude the evidence. In doing so, the Judge noted that the right to instruct a lawyer is a fundamental right and any erosion of a person’s ability to exercise that right is very serious.

[48] In R v Grant, Wylie J found that there was a failure to adequately caution the defendant when being interviewed.¹⁰During the police interview, Ms Grant was told that they would be discussing her arrest for possession of methamphetamine, and was cautioned in relation to that offending. However, the police were also investigating Ms Grant for the more serious offences of supplying methamphetamine, which she admitted to in the interview. Wylie J found that Ms Grant was not properly informed about the reasons for the interview and she did not

realise she was also a suspect in the more serious drug-related offending. Ms Grant’s

_{decision not to speak to a lawyer was therefore not valid. Wylie J
noted that the}

breaches of NZBORA are to be taken seriously, and the failure to inform a defendant

“undermines one of the fundamental underpinnings of the criminal justice system”.¹¹

[49] Similarly, we find that there was a clear failure on the part of Cpl Skipper to caution the appellant Mapson. This was in breach of s 23 NZBORA, the Chief Justice’s Practice Note and the Armed Forces DM 69. Cpl Skipper was a member of the Military Police, who questioned the appellant Mapson, while he was detained in a police cell and was bound to answer his superior. The Cpl gave no caution or legal assistance advice and gave evidence of the statement he obtained from the appellant Mapson at the trial.

[50] Mr Bott submits that Mapson’s statement or “confession” was not voluntary, because Mapson was incoherent, foaming at the mouth and had periods of coming in and out of consciousness. Mr Bott relied on R v Szeto where the Court of Appeal cited the passage from the judgment R v Naniseni on voluntary confessions to submit that it was both unfair and unfairly prejudicial to permit the statement.¹²

[51] Sections 27, 28 and 30 of the Evidence Act 2006 replaced the common law voluntariness rule and its limited exception in s 20 of the Evidence Act 1908.¹³The enacted sections were “not intended to abandon values protected by the voluntariness rule but rather to protect those values more effectively by simplifying and clarifying the rules”.¹⁴As enacted, ss 28 and 30 of the Evidence Act 2006 have codified the basis for excluding unreliable or improperly obtained evidence. Of significance is s 28(4) of the Evidence Act 2006, which provides the matters the Judge must take into account, when excluding a statement under s 28(2), where relevant. This includes s 4(a) “any pertinent physical, mental or psychological condition of the

¹²_{R v Szeto CA240/98, 30 September 1998; R v
Naniseni [1971] NZLR 269 (CA).}

¹³Law Commission Evidence: Volume 2 – Evidence Code and Commentary (NZLC R55, 1999) at

79. Section 27 in the Evidence Bill was called the “reliability rule”, which was incorporated into

[52] For reasons which we canvass under the Judge’s direction, we are doubtful that the statement was reliable. On an examination of the surrounding circumstances, including the fact that Cpl Skipper was a member of the Military Police and questioned the appellant Mapson in his unwell state, we are of the view that, at the very least, a direction should have been given to the military members about the reliability of the appellant’s statement.

[53] We have reached the finding that Mapson’s in-cell statement was improperly obtained evidence in breach of s 30(5)(a) of the Evidence Act and should have been excluded under s 30(4). We consider there was a serious intrusion on the appellant’s right to be cautioned and his opportunity to seek legal advice, as Cpl Skipper failed to meet either of these requirements. We have balanced the impropriety with the factors under s 30(3) and the need for an effective and credible justice system and have determined that the statement’s exclusion is proportionate to the impropriety, considering the importance of the right breached, the seriousness of the intrusion on the right, and the statutory and regulatory requirements on the Military to caution members while detained. We therefore consider Mapson’s in-cell statement was inadmissible in these circumstances.

Were the post-incident drug test results of the other soldiers admissible against the appellants?

[54] Before the Court Martial trial commenced, the appellants raised a pre-trial objection to the prosecution adducing evidence of the results of the testing of the samples provided by the other six soldiers involved. The prosecution did not intend to call evidence of the drug test results for the appellants, because it accepted that the accused were compelled to supply the samples and that consequently evidence of the results of the drug testing of those samples fell foul of the protection against self- incrimination. However, the prosecution sought to adduce the six drug test results of the other soldiers, because the protection against self-incrimination related to people other than the accused and none of the six soldiers were appearing on charges before the Court Martial.

[55] The appellants objected to the evidence being given on the grounds that the evidence was improperly obtained and/or that it would be unfair to admit it given the

failure to comply with the correct urinalysis procedures and the fact the tests were of third parties.

[56] In a pre-trial ruling, the Judge considered the definition of “improperly obtained evidence” in s 30(5) of the Evidence Act and held that the samples of the six soldiers were provided in response to a lawful order and there was no justification to extend to the accused any remedy for breach of the rights of someone other than themselves. The Judge ruled that because there was no proper basis to exclude the evidence of drug test results of the soldiers other than the accused, the evidence was admissible. In relation to the defence objection that the Military Police failed to comply with correct urinalysis procedures under Defence Force Order 3, the Judge ruled that they were of minor evidential importance, in that they related to incorrectly completed paperwork, either on the urinalysis booking form or on the Chain of Custody form. Because there was no suggestion that the integrity of the taking of samples was compromised in any way or that the testing process was unfair, the Judge found that nothing warranted the evidence being excluded on the grounds of unfairness.

[57] On appeal before us, the appellants challenge the pre-trial ruling of the Judge and the admissibility of the drug test results of third parties. We deal with these issues under the following headings:

The legal framework for compulsory drug testing of members of the Armed Forces

of the armed forces are both physically and mentally fit in order to meet the standards of individual readiness.¹⁵DFO’s are issued pursuant to an express power contained in s 27 of the Defence Act 1990. Section 27(1) provides:

In performing the functions and duties and exercising the powers of the Chief of Defence Force, the Chief of Defence Force may from time to time, for the purposes of this Act, issue and promulgate Defence Force Orders, not inconsistent with this Act, the Armed Forces Discipline Act 1971, or any other enactment.

[59] The legal status and binding nature of the DFO’s are relevant in this appeal, when we consider the nature of their breach. Included in DFO 3 pt 12 are the drug testing provisions.

[60] There are a number of provisions within DFO 3 pt 12 which are relevant to our consideration. Section 12.7.59 specifies that the purpose of drug testing is to detect those members of the Armed Forces who are using or have recently used drugs, either controlled drugs or party pills/herbal drugs, all of which are not permitted for use by members of the Armed Forces while on duty. Section 12.7.61 stipulates that a positive drug test result for party pills/herbal drugs can only be used to take administrative discharge action if the drug test ordered was a “reasonable cause” or a “post-incident/accident test”.

[61] Two of the provisions reinforce strict compliance in drug testing procedures. Section 12.7.62 states:

The methods and standards relating to the collection, transportation, chain of custody and testing of urine specimens for drugs must comply with the Australian/New Zealand Standard.¹⁶

[62] Section 12.7.67 specifies strict compliance and the Chain of Command to authorise the testing.

Drug testing is to be ordered by the CO/OC and is to be conducted in accordance with the NZDF Urine Collection Procedures. These procedures are to be strictly complied with to ensure that the collection process is accurate and fair to the member of the Armed Forces being tested. [Emphasis added]

[63] The five types of compulsory drug tests which can be ordered by a CO/OC¹⁷

and which members of the Armed Forces must undertake when so ordered are: (1) pre-deployment testing

[64] Each of the five types of testing has the grounds and purposes specified for each of the tests. The provisions relating to post-incident/accident testing are at issue in this appeal. The relevant provisions are:

12.7.87 A CO/OC may order drug testing of any member of the Armed Forces involved in a work related incident or accident, provided there is a reason to suspect that drug use may have been a contributing factor.

Results from a post incident/accident drug test may be used as evidence in any subsequent Court of Inquiry assembled to investigate the incident or accident.

12.7.89 The post incident/accident drug test result cannot be used as evidence to prove a charge against the member of the Armed Forces under the Armed Forces Discipline Act, except on the specific advice of the Director of Defence Legal Services.

[65] It should also be noted that reasonable cause testing can be ordered, where a CO/OC has reasonable grounds to suspect that a member of the Armed Forces is under the influence of drugs, and the member may be ordered to undergo a drug

[66] Given that DFO 3 s 12.7.62 provides that the NZDF must “comply with the Australian/New Zealand standard for specimen collection”, it is relevant to have regard to the qualifications required for a Collector. This is found in AS/NZS 4308: 2008 at 1.3.14:

A person who has successfully completed a course of instruction for specimen collection and on-site screening (if applicable), handling, storage and despatch of specimens and who has received a statement of obtainment in accordance with the Australian quality training framework or New Zealand Qualification Authority.

[67] Each of these provisions, as set out above, have relevance to this appeal, given that members of the Armed Forces must comply with Defence Force Orders, which are mandatory legal enactments and are binding on Defence Force members.

[68] On the evidence available to the military police personnel on 25 October, there was ample evidence available to S/Sgt Packer to confirm with the CO that there were reasonable grounds to request a urine sample from the soldiers, given their behaviour in Palmerston North on that night. The evidence is that the CO gave verbal authority to conduct urinalysis testing of the eight soldiers, but no evidence was given as to the type of testing being specified at the time of the phone call between S/Sgt Packer and the CO.

[69] Cpl Skipper having conducted the process for collection of samples from the eight soldiers was sealing the samples to be sent to ESR, when S/Sgt Packer came into the room to assist Cpl Skipper by helping with the “paperwork”.

[70] As we have described above, on the ESR Chain of Custody form, S/Sgt Packer ticked the reason for testing was “post-incident testing” and he certified that the specimen sample was provided to him by the donor and was collected in accordance with AS/NZS 4308: 2008.¹⁹He also ticked the box that he was NZQA

certified. He filled in the eight Chain of Custody forms for each of the eight soldiers, including the appellants.

[71] However, the threshold for requiring a compulsory drug test for a work related post-incident test had not been met. The appellants were not involved in a work related incident or accident and the basis upon which they were compulsorily ordered to provide a urine specimen was under DFO 3 s 12.7.87.

[72] The prosecution against the appellants proceeded on the basis that S/Sgt Packer assumed he was acting under the provision in DFO 3 that entitled post- incident/accident drug testing to be undertaken. All of the Chain of Proof forms, the Bookings Forms signed off by CO Neal and the prosecution proceeded on the basis that the drug testing was done as a result of a post-incident/accident. Under DFO 3 s 12.7.89, the post-incident drug test results cannot be used as evidence to prove a charge against the member providing the sample, except on the specific advice of the Director of Defence Legal Services. No such advice was obtained. This was confirmed during the Court Martial hearing by the prosecuting officer.

[73] These circumstances raise the issue of the lawfulness of the evidence. Given that it was not a post-incident or accident in which the appellants were involved, there was no authority to take the samples under the post-incident testing orders.²⁰If there was no authority to take the samples under the post-incident testing order, there was no lawful basis upon which the ESR tests could be adduced in evidence.

[74] The DFO 3 makes it clear that when a post-incident sample is taken, the result of the analysis cannot be used as evidence to prove a charge against the member of the Armed Forces under the Armed Forces Discipline Act. The prosecution advised the Court Martial that the reason the donor’s evidence cannot be used to prove a charge is that it offends against the rule of self-incrimination. In other words, a member must give a sample when ordered but on a post-incident testing basis, it cannot be used against him in a prosecution.

[75] However, the rule against self-incrimination is not the reason that post- incident testing cannot be used against the donor. DFO 3 s 12.7.87 specifies that post-incident testing results can be used in a subsequent Court of Inquiry assembled to investigate the incident or accident. A Court of Inquiry is created under pt 11 of the Armed Forces Discipline Act and no such Court of Inquiry was convened to investigate these circumstances. It was therefore contrary to the DFO 3 that the post- incident tests were adduced in evidence to the Court Martial, which is not a Court of Inquiry, but is established under s 8 of the Court Martial Act 2007.

[76] Major Harding for the prosecution submitted that the specific type of compulsory test being authorised is not determinative of the lawfulness of that test. While accepting that CO Neal did not have the authority to collect “post-incident” urinalysis samples, he did have a lawful authority to order compulsory urinalysis testing under DFO 3. He urged the Court to have regard to s 7(1) of the Evidence Act 2006, which provides that all relevant evidence is admissible unless it is excluded and that the evidence has probative value, even in the face of procedural error.

[77] We are unable to accept this submission. The prosecution proceeded on the basis of post-incident testing and it was accepted by the prosecution that the appellants test results could not be used against them at trial. On the basis that the post-incident testing results can only be used as evidence in a subsequent Court of Inquiry lawfully, we do not accept that it is lawful for the post-incident tests of third parties to be used to prove a charge against the appellants at a Court Martial.

[78] The evidence of the test results of the six other soldiers was in our view inadmissible against the appellants, because the tests were not admissible in a Court Martial. Further, it defies logic and fairness to the appellants, to exclude their tests that may self-incriminate them, but allow third party tests, acquired for another purpose, to incriminate them and prove charges against them. But that is not the end of the matter. The non-compliance with DFO 3 is also of concern.

[79] DFO 3 is a binding order, which is highly prescriptive and must be complied with. S/Sgt Packer completed the eight chain of custody forms contrary to the provisions within DFO 3 pt 12, namely ss 12.762 and 12.767, which require compliance with the Australian/New Zealand standard and strict compliance with the NZDF urine collection procedures.²¹

(1) Purporting to be the person who is qualified under NZQA as a collector, when he was not. This was contrary DFO 3 ss 12.7.67 and

(2) Certifying as the collector, that he witnessed the donors signature, that the specimen identified on the form was provided to him by the donor and that the urine specimen was being collected in accordance with AS/NZS 4308: 2008. This did not accord with his actions at the time.

[81] S/Sgt Packer gave evidence at trial, that he did not take the samples from the eight soldiers and that he was not present during the collection process. He told the Court Martial that he was present at the end, to assist Cpl Skipper to complete the paperwork. He was asked by both defence counsel and subsequently by the Military Member, whether he witnessed the donors’ signatures. He conceded to defence counsel that he did not witness the signatures, but when questioned by the Military Member, Major Thorsen, he said the opposite. He then said “I did witness the signature, I did put those questions to the eight soldiers, and I did tick the box. I did witness them sign it and I did sign, but, as I said before, I don’t have that certificate to do the collection.” On this aspect of S/Sgt Packer’s evidence, the evidence was plainly contradictory and inconsistent.

[82] The prosecution submits that the evidential shortcomings in the collection of the samples were of “minor importance” and did not compromise the integrity of the

samples. Any “technical non-compliance” by S/Sgt Packer was “technical non-

[83] We are unable to accept that submission. Defence Force Orders are binding orders on members of the Armed Forces. Failure to comply with Defence Force Orders results in disciplinary action for those who do not obey. These orders are highly prescriptive to ensure that charges brought against members of the Armed Forces and drug testing generally is done to approved standards, which must be complied with strictly, under the Defence Force Orders. The non-compliance with DFO 3 breaches those enactments.

[84] Section 30 of the Evidence Act governs the admissibility of improperly obtained evidence in a criminal proceeding. Under s 30(5), evidence is improperly obtained if it is obtained in consequence of a breach of any enactment or rule of law by a person to whom s 3 of NZBORA applies. Section 3 of NZBORA applies to members of the Armed Forces and instances of non-compliance as set out above are breaches of the enactments of law under Defence Force Orders.

[85] We are of the view that the compulsory drug testing process as defined in DFO 3 is mandatory. Thus, authorised collectors of specimens under DFO 3 must comply strictly with the requirements, because the consequences of the tests obtained are significant and can result in convictions and dismissal. We have found that the evidence of the drug tests of the six soldiers, other than the appellants, were obtained unlawfully, namely outside the requirements of DFO 3; they were therefore invalid; and should not have been used to prove charges against the appellants.

[86] In reaching our finding that the evidence was improperly obtained in consequence of a breach of the enactments of law under Defence Force Orders, we have determined that its exclusion is proportionate to the impropriety, given the factors in s 30(3). We have weighed the seriousness of the offending and the nature of the impropriety, balanced against the need for an effective and credible system of justice. The breach of the mandatory requirements of the DFO 3 and the invalidity

of the six soldiers' drug tests and their use against the appellants justified the exclusion of the evidence.

[87] The appellants also raise a challenge under ss 24 and 25 NZBORA that there was no ability for an independent test, there was inequality of arms and there was inadequate time to prepare their defence. We do not have to decide this point given our findings above. However, we do address the inadequacies of the Urinalysis Test Brief advice sheet at the end of this judgment.

[88] There are three elements in the Judge’s direction to the Court Martial which are also challenged. These are addressed below.

[89] The appellants raised at trial, in defence of the third element of the charge that the appellants consumed the psychoactive substance intentionally, that their drinks on the night in question were spiked with NBOMe. The appellants and two other witnesses gave evidence before the Court Martial that they believed their drinks were spiked that evening, which explains their reactions to the substance.

[90] In the direction, the Judge reminded the Court Martial that before they could conclude drink-spiking was a reasonable possibility, they needed some facts and some foundation in the evidence, that it was reasonably possible that the drinks were spiked. The direction was as follows:

Now, if it is a possibility that you need to consider, that is the spiked-drink one, there needs to be some foundation in the evidence before you could conclude that it was a reasonable possibility, that it was reasonably possible that the drinks were spiked to a point where you were left with a reasonable doubt, and you can’t speculate or guess about that. You need some facts from which you may draw logical inferences. No-one has said the drinks were spiked, people have just raised that as a possibility.

[91] Mr Bott submits that there are three aspects to this part of the Judge’s direction that gave an unbalanced picture of the evidence and were unfair to the appellants. Those aspects were, that the Judge failed to put the evidence of

Drs Jessamine and Poulson fairly, and directed that the evidence showed no opportunity for drink-spiking on the night in question.

[92] The prosecution called two expert witnesses at the Court Martial, Dr Stuart Jessamine, the acting Director of Public Health at the Ministry of Health and ESR science leader Doctor Helen Poulson. The purpose of calling these expert witnesses was to provide evidence on the research on NBOMes, the nature and effect of these substances, and the manner in which they are ingested. Dr Jessamine acknowledged there was “very limited data” on NBOMes and there were no human studies examining the effects of the substance but there were unattributed reports of users on websites, which Dr Jessamine called “grey literature”. In cross- examination, Mr Bott attempted to put to Dr Jessamine further “grey” website reports, that supported the appellants contention that drink-spiking was a possibility that could not be ruled out. During the cross-examination, the Judge intervened stating:

... and I will direct the military members that this is not evidence that they can take into account because there is no basis for it. We do not know that this happened, there are questions about it. So, you’re free to ask it but I will give the direction to the military members.

[93] Dr Jessamine accepted that the sources that were put to him by the defence were “grey sites” which were similar to the examples he too had given. Dr Jessamine also conceded that “the literature does have isolated cases like [drink- spiking]”.

[94] The prosecution’s second witness, Dr Poulson was specifically asked whether it was possible to rule out the spiked-drink possibility in light of the communication from the ESR’s scientist undertaking the analysis of the samples. Dr Poulson agreed that drink-spiking could not be ruled out:

Q – And so it was your opinion in terms of the lab, that if a white powder is used, then it isn’t possible to rule out the spiked-drink scenario; is that correct?

[95] The Judge in her direction reminded the military members that Dr Jessamine gave evidence that he had never received a report of a hospital admission from a drink spiked with NBOMe and that he said that if NBOMe is swallowed, it takes much longer to enter the blood stream than if one snorts it or uses it sublingually. The Judge summarised the defence closing on this issue, by saying that the defence remind you of the evidence of Dr Jessamine that “NBOMe is a soluble solution, it can be mixed with alcohol and something else and swallowed and that only the smallest amount is needed to produce reaction.”

[96] The appellants submit that the direction was unfair in relation to Dr Jessamine’s evidence, because he conceded in cross-examination that the literature does have isolated cases involving spiked-drink examples, and he could not rule that out as a possibility.

[97] In addition, the Judge referred to the evidence of Dr Jessamine to support the Crown contention, that the timing of the soldiers coming to the police attention, tended to show they all used NBOMe in a similar way. The appellants contend there was no reference to Dr Jessamine’s evidence, that although he did not have experience of a hospital admission with someone who had a drink spiked with NBOMe, he accepted that for a small number of people, taking the substance orally may affect them in a similar way to snorting it or sublingually. Dr Jessamine had conceded in cross-examination that there is no literature on case studies, which would enable him to comment further on the timing of the substances’ maximum effect, depending on when it was ingested.

[98] The appellants contend that the Judge’s direction was unfair, in that the opinions of both prosecution experts could not rule out the possibility of drink- spiking. When dealing with Dr Poulson’s evidence, the Judge simply said this:

The defence remind you that the results of the ESR results from the six soldiers could not exclude the spiked-drink scenario.

[99] The appellants submit that the succinct summation of Dr Poulson’s evidence is in marked contrast with the way in which the Judge directed on the prosecution case.

[100] The third aspect was the Judge’s direction on the opportunity for drink- spiking to have occurred. The Judge directed that the Crown relied on the evidence of Ms Hickmott, who said that the drinks could not have been spiked because she was sitting at the table the whole time while they were in The Daily Bar. This led in turn to the Judge’s comment in her direction that “there needs to be some foundation in the evidence before you conclude that [drink-spiking] was a reasonable possibility ...”.

[101] Ms Hickmott accompanied the eight soldiers that night and her evidence was as follows:

Q - But it’s fair to say, isn’t it, that Mr Mapson probably went up a couple of

Q – So it could be equally tenable that Mr Mapson and Mr Bishop were in fact inside, which is why you didn’t see them outside?

Q – And do you know if anyone else bought Mr Mapson or Mr Bishop a drink that night?

Q – So, it’s fair to say, being fair, that you are not really in a position to

Q – And also whether Mr Mapson or Mr Bishop stayed at the table the whole time in the smokers’ area, or went backwards and forwards a couple of times from the smokers’ area to the bar itself?

[102] From the above passages of evidence, it appears the Judge did not adequately direct on Ms Hickmott’s evidence, as the concessions made by her in cross- examination were omitted from the Judge’s direction.

[103] The prosecution submits in reply that Dr Jessamine was candid about the paucity of data on the effects of NBOMe but the military members were entitled to rely on Dr Jessamine’s clinical conclusions and the Judge was entitled to direct as she did.

[104] We have taken the time to review the evidence and we are of the view that the direction did not fairly deal with the expert evidence on timing of maximum effects from the substance, nor on the possibility that drink-spiking may have occurred. The matter which also troubles us is that the defence was stopped in the course of cross- examination, with the Judge indicating that the military members would be directed that the material upon which Mr Bott was wishing to put to Dr Jessamine was “not evidence that they can take into account because there is no basis for it.”

[105] The Judge’s approach has overlooked the fact, quite candidly acknowledged by Dr Jessamine, that he too was relying on such material, which he called the “grey literature”. We consider the Judge was wrong to effectively curtail the defence cross-examination on this aspect, but not direct the military members to have caution about the reliability of the literature upon which Dr Jessamine presented to the Court Martial. We conclude therefore that the direction was unfair in the circumstances and may have led to a miscarriage of justice.

[106] Private (Pte) Brame was called to give evidence by the prosecution. He confirmed that he pleaded guilty to a charge of supplying a psychoactive substance, NBOMe to five other persons, including the appellants. Under cross-examination, Pte Brame confirmed his evidence in chief, that he had no memory of any of the events on the night in question in The Daily Bar, until he woke up in Palmerston North police cells the following morning. He could not remember any conversation with the appellants or seeing them in the bar that night.

[107] In the Judge’s direction on the third element to be proved, namely that the accused took NBOMe intentionally, the Judge refers to the Crown’s reliance on Pte Brame’s pleas of guilty to supplying the accused with the psychoactive substance:

[108] No reference is made to the evidence Pte Brame gave in cross-examination that he had no memory of seeking or speaking with the accused in the bar that night. We consider the Judge was wrong to refer to the Crown relying on Pte Brame’s pleas of guilty, when this was not balanced against the defence position that Pte Brame gave evidence he had no recollection of the evening.

[109] The Judge directed the military members to take into account the in-cell statement of the appellant Mapson three times, when dealing with each of the elements of the charge. They can be summarised as follows:

(1) The Judge directed that “the other matter relied on in respect of the consumption of drugs under element two of the charge is the answers that Lance Corporal Mapson was said to have given in the police cells, that he had put white powder from a capsule up his nose”.

(2) In relation to element three, that the accused took the substance intentionally, the Judge reminded the Court Martial that the Crown pointed to the evidence of Mapson, of his answer in the cells to Cpl Skipper and the Crown’s submission that that was clear evidence it was intentional. The Judge referred to “the evidence of Corporal Skipper reminding the accused Mapson” of what he said, some four hours later when they were in the hospital.

(3) In relation to element four, the Judge directed on the inferences to be drawn from the timing of the eight soldiers being picked up by the police and from the way the accused acted “that whatever the others

had taken was what the accused took.” The Judge then referred again to the evidence from one of the soldiers and from the appellant Mapson that “there were capsules with white powder”. This is a further reference to the in-cell statement from the appellant Mapson.

[110] The Judge referred twice to Mr Bott’s closing address on the issue of the in- cell statement. The first is where Mr Bott submitted that the appellant Mapson’s answer was unreliable and that Mr Bott said to put it to one side. The second is where the Judge refers to the defence, who said the appellant Mapson’s statement cannot be relied on because he was in no fit state to answer, he was still hallucinating at that time, he was not himself and he attacked Cpl Skipper. No judicial direction was given on reliability.

[111] The appellants submit that having ruled the in-cell statement as admissible evidence, the Judge should have given a direction to the Military Members about its unreliability, pursuant to s 122 of the Evidence Act.

If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding—

[113] In reply, the prosecution relies on the Judge’s finding that the evidence was sufficiently reliable given the apparent lucidity of the appellant Mapson at the time of making his statement to Cpl Skipper. The prosecution submits that the military members were entitled to base their finding of fact, in part, on Cpl Skipper’s evidence and the fact that no direction was given with respect to Mapson’s statement was not relevant, as the circumstances of the making of the statement had already been made clear to the members of the Court.

[114] We are of the view that the Judge’s direction to the Military Members did not

fairly balance the evidence of Dr Jessamine, Dr Poulson and Pte Brame, in that the

direction failed to address their evidence in cross-examination. As a result, the defence case was not fairly put or directed upon.

[115] We find that, in admitting the appellant Mapson’s in-cell statement, the Judge should have given a direction under s 122 of the Evidence Act about the statement’s reliability. Although there is a discretion under s 122(1) to provide such a direction, we are doubtful that the statement was reliable, for reasons already stated.²²We do not think it was sufficient for the Judge to refer to the defence address, that the defence had concerns about its reliability. It needed a judicial direction and without

[116] We allow the appeals against conviction for both appellants. We have set out our reasons for reaching our decision under each of the issues for determination.

(1) The appellant Mapson’s in-cell statement was improperly obtained because of the failure to caution him, when he was detained in a police cell and questioned by a member of the Military Police. The failure to caution the appellant Mapson was in breach of s 23

NZBORA, the relevant Practice Note and DM 69. We consider the in-cell statement is inadmissible under s 30 of the Evidence Act.

(2) We doubt the in-cell statement was a voluntary admission, or reliable, under s 28 of the Evidence Act, as the appellant Mapson was in a compromised physical and mental state at the time of questioning.

(3) The post-incident drug test results of the six other soldiers were not admissible against the appellants, because they were improperly obtained in breach of multiple Defence Force Orders and the AS/NZS Standard, which are binding on the Armed Forces members. The drug

prosecution of charges against the appellants, were inadmissible against the appellants as proof of their taking NBOMe, under s 30(5) Evidence Act.

(4) The Judge’s direction to the military members did not fairly balance the evidence of Drs Jessamine and Poulson and Pte Brame, in that it failed to adequately address their evidence in cross-examination. As a result, the defence case was not fairly put or directed upon.

(5) In admitting the in-cell statement, the Judge should have given a direction under s 122 Evidence Act about its voluntariness and/or reliability, given the compromised state of the appellant Mapson at the time and the surrounding circumstances.

[118] In reaching our decision, we had regard to two cases, which we found of assistance. In R v Mann, the Court of Appeal held that medical examination evidence in a trial of possession for supply of cannabis resin, was wrongly admitted, when it was obtained in breach of clear statutory directions.²³For the Court, Hardie Boys J said:²⁴

This was purely and simply a case of a failure to comply with very clear statutory directions. Although in many respects the non-compliance was minor (in total it cannot be so lightly dismissed), in this one particular respect the non-compliance was in our opinion serious.

[119] We view the multiple breaches of DFO 3 in this case as serious. The appellants, as members of the Armed Forces, had to submit to orders for compulsory drug-testing. The procedures for the type of drug-testing are clearly mandated and serve different purposes. Because convictions on the basis of such tests have serious consequences on the members, strict compliance is essential.

[120] In the South Australian Supreme Court case of R v Baltensperger,²⁵evidence of a conversation between the Police and the appellant was admitted as evidence, in

be videotaped) and in the absence of a caution. The Court ruled that the evidence should not have been admitted, because the breach of s 74D rendered the evidence inadmissible and the failure to caution and provide a careful and explicit warning, together with the ambiguity in the statement, made it unfair to admit the evidence.²⁶

The wrongful admission of statements made in the course of the forensic procedure process and the misdirection as to intoxication were held to have the capacity to cause considerable prejudice. The other errors added to the risk that a miscarriage of justice occurred.

[121] In this case we have reached a similar view. The cumulative effects of the errors render the appellants’ convictions unsafe and give rise to the risk that a miscarriage of justice has occurred.

[122] There are procedural irregularities in these proceedings similar to those remarked upon by the Courts in S v R²⁷and McCartin v R.²⁸In this case, the documentation was completed contrary to the DFO, and certification was given by a person who knew he did not have the authority to do so. He had not taken the urine specimens, contrary to the certification that he signed and arguably, he had not witnessed the signatures of the donors. We note that he gave different answers to the same question, from the defence and the prosecution alike. We have addressed this above. If a person certifies as an NZQA-approved collector, when he is not and that he had undertaken tasks, which he had not, this is a serious matter.

[123] The other matter is the confusing and misleading information in the Urinalysis Test Brief. The Urinalysis Test Brief is a written document, which in this case, was read out to the eight soldiers, prior to the urinalysis test being undertaken. The brief is unclear, which can lead to confusion and challenge. First, the brief advises that once a urine screening test has been confirmed as negative, the member is advised to “move back through to the toilets and empty your urine. The rubbish

_{from your test kit is to be placed in the yellow bio-hazard bags.”
This advice}

indicates that if a screening test is negative, nothing further will be required in respect of the member’s sample. In this case, although the initial screening tests were negative, the samples were still collected and sent to ESR for further testing. The test brief should make this clear.

[124] Secondly, the members are advised that they can elect to have an independent sample taken and tested at their own expense. This advice is given at the time of providing a sample for an initial screening test. If the sample is to be sent to ESR and the results are positive, we consider that that is the time that an independent test result should also be advised.

[125] In this case, because the test brief had been read out to the soldiers, they were not given any further information that they were entitled to have an independent sample taken and tested, at their own expense. Without the advice at the time of receiving the ESR test results some weeks later, the opportunity to seek an independent test is lost, when the samples are destroyed, as the ESR advises on the test results. We believe there needs to be further advice provided on receipt of the ESR test results.

[128] The reduction in rank of Lance Corporal Mapson is reversed. [129] We direct a judgment and finding of acquittal to be entered.

High Court of New Zealand Decisions

Bishop v R [2016] NZHC 2548 (6 October 2016)