R v ME [2018] NZHC 2340 (6 September 2018)

Last Updated: 12 September 2019

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2017-219-000209 [2018] NZHC 2340

THE QUEEN

v

ME

Hearing:	30 August 2018
Counsel:	P J Morgan QC for Crown R Laybourn for Respondent
Judgment:	6 September 2018

PRE-TRIAL RULING OF WHATA J

This judgment was delivered by me on 6 September 2018 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ...............................

Solicitors: Almao Douch, Hamilton

R v ME [2018] NZHC 2340 [6 September 2018]

[1] ME faces one charge of murder in relation to a stabbing on 28 July 2017. I have before me two applications, namely:

(a) An application, pursuant to s 101 of the Criminal Procedure Act 2011 (CPA), to exclude a statement made by ME to Constable Stark, in which she said she stabbed the murder victim; and

(b) A s 147 application to discharge ME on the grounds there is insufficient evidence for the matter to go to a jury.

Background

[2] The following narrative is largely borrowed from the Crown’s submissions. It is supported by evidential statements.

[3] On the evening of Friday, 28 July 2017, SM, aged 15, ME, aged 13 and DC, aged 12, were breaking into cars. At about 11.30 pm, they broke into a red Nissan Primera, the property of Norman Kingi, the deceased, and his partner, Vicky-Lee Reihana. They were returning to their home at the time and could see that the car had been broken into and that there were persons inside. They ran towards their car and, the Crown says, SM and ME jumped out and then ran away. DC did not escape and Ms Reihana grabbed her as she was exiting the car and detained her. SM and ME, seeing what was happening to DC, returned to help her escape. SM had a knife and ME, a screwdriver.

[4] There was then an exchange of words, including, “Fuck you. Let her go, let her go” and “Come on I can take you on”. Mr Kingi told them, “Shut your fuckin’ mouth, we’re not letting her go, we’re ringing the police”. According to Ms Reihana, the response was, “You’re not ringing the police. Fuck you. I’ll do you”, to which Mr Kingi responded, “Yeah, I’ll do you too”.

[5] Ms Reihana saw the taller of SM and ME punch the deceased. It is likely to have been SM. She had a knife in her hand and this blow was fatal, piercing the deceased’s chest and entering his heart. SM, ME and DC then made their escape.
[6] Later that evening, all three of them were met by on-duty police officers. At that time, the police officers were unaware of the involvement in the death of the deceased. At the police station, shortly after 3.00 am, a police officer noticed blood on SM’s clothing and the girls were questioned. ME was told by a police officer that there had been a situation that night which had ended with a man being stabbed and killed. She was asked whether she was happy to speak with a police officer about her movements that night and she responded that she was. ME claimed that she had been at a friend’s address all night and that DC and SM had been with her at the same address.

[7] A police officer told ME that the police would like to take a formal statement and she was advised of her rights under the New Zealand Bill of Rights Act. Her aunty was identified as a suitable adult to accompany ME at the interview. The interview was to be conducted by Constable Stark. He explained ME’s rights and completed a “Youth Justice Checklist – Steps for Investigation”. ME and her aunty were given the opportunity to speak in private. While preparations were being made for a recorded interview, ME made the statements which are now objected to by the defence. The following week, on 2 August 2017, ME attended the Hamilton Police Station accompanied by her father and counsel and took part in an electronically recorded interview.

29 July 2017 statement

[8] The statements made by ME to Constable Stark are recorded in his notebook. Salient passages record:

While setting up for interview, [ME] states:

• I don’t want to make a statement.

• We popped a car.

• I stabbed the guy.

• The knife is here.
• The lady said they were going to test the blood on the knife to see if it was the guy’s blood.

→ Statement blurted out in the presence of myself and [ME’s aunty].

• [ME] confirms she does not want to make any statement.

[9] The notebook entry also records:

While reading notebook to [ME and her aunty], [ME] states:

“There’s something else I should mention – the knife was in [SM’s] ... pack thing, and when we went up to those ladies to change our clothes – use our clothes for evidence, they found the knife with her but I was the one who stabbed him – the fulla who died.”

[10] [ME] confirmed again that she did not wish to make a statement.

[11] There is then a further entry:

While explaining process [ME] states:

“All three of us held the knife after I stabbed him – we were looking at it.”

2 August 2017 Statement

[12] ME made a full statement to the police several days later, on 2 August 2017. In it, she gave a detailed account of what had happened on 28 July, which put SM as the person who had inflicted the fatal stab wound.

[13] She explained that the victim and his partner arrived back as her and SM were walking away from the car. The victim’s partner had detained DC. At that point, ME had “told [SM] we’ve gotta go back. I’m not leaving [DC] behind.” ME and SM went back to rescue DC, ME armed with a screwdriver (referred to by her as a “dally”).

[14] She explains what happened next:

And then the man tried to run it up to me then I whacked him in the head with the dally a couple of times and then that’s when I tried to run away from him but towards [DC] so she could run away too and then he tried to run up to [SM] and I, I, I didn’t really see what they were doing ‘cause I was too busy telling [DC] to run...

[15] Once the three had left the scene, ME says:

We was just walking... [SM] was just like “I stabbed him” and I say what then she pulled out the knife and showed me...

there was blood on it.

[16] When asked why she had earlier told police it was her who had stabbed the victim, she explained:

Because [SM] was like crying and stuff because she was, I dunno she was scared and that, she just didn’t wanta get locked up and stuff so I’s like well fuck I don’t like my life so we’ll say that I done it.

Psychological reports

[17] Three psychological reports have been filed. Dr Peter Dean and Mr Nick Lascelles provide reports on behalf of ME. Professor Graham Mellsop provides a report on behalf of the Crown. Dr Dean observes that ME appears to present with features consistent with conduct disorder. He says this is essentially a description of anti-social behaviours in childhood and adolescence, otherwise consistent with juvenile delinquency. He is unable to obtain a drug and alcohol history at the time of assessment and says that ME did not present with features of psychosis, mood disorder or anxiety. He says it is possible she has features of ADHD, although he was unable to assess this at her interview.

[18] He also says that ME did not present with a psychiatric condition or cognitive disorder, which would be recognised by the Courts as being a mental impairment. He says, however, that her age and relative immaturity, does impact on her ability to understand and process the proceedings against her. He noted that cognitive testing placed her in the normal range of intellectual functioning. He says ME has utilised poor coping mechanisms to manage traumatic events in her life and were repetitively demonstrated in her blasé attitude during the assessment with him. He says that although ME has gained physical maturity, this has not been matched by emotional and cognitive maturity. Her physical appearance is therefore deceptive and her emotional maturity at the time he assessed her was considerably lower than her chronological age.
[19] Mr Lascelles provided detailed information as to ME’s background circumstances. ME is of Tainui descent. Her mother took her own life when ME was seven years old and was reported to have been a heavy abuser of alcohol. ME witnessed her mother self-harming as she grew up and she witnessed her father being violent to some partners subsequent to her mother’s death. ME began moving between whanau members from about the age of eleven due to behavioural issues in her father’s care. ME also disclosed experiencing sexual abuse allegedly perpetrated by an aunt’s partner. She went on to recant these allegations but the issue has caused significant conflict within the family. The allegations of sexual abuse were disclosed again. They were detailed and specific.

[20] Mr Lascelles also reports on ME’s developmental, educational, substance abuse and mental health history. It is noted ME was quick to reach developmental milestones. There are reports of fighting while at intermediate school but her report from primary school was positive and her behaviour is generally recorded as positive while attending education in residence. ME reported beginning to consume alcohol at twelve and cannabis aged seven. She otherwise denied using other substances. ME was subject to a psychiatric assessment in August 2017 and while no acute mental health concerns were identified, she was described as having “an immature grasp on her emotional experience”.

[21] Psychometric testing did not indicate the presence of a mental disorder. However, Mr Lascelles says ME’s profile indicated some anti-social features consistent with a history of anti-social behaviour, recklessness and impulsivity, which may indicate the presence of conduct disorder. Her intelligence was identified, in short, as average when compared to other children of her age. Her weaknesses with verbal comprehension were identified, while her visual/spatial performance was stronger than some cognitive abilities. Other indicators show that at the time of her arrest, her autonomy was moderate, her cognitive capacities were low and her emotional maturity was low.

[22] Mr Lascelles did not reach any firm conclusions about ME’s intellectual ability overall and did not identify the presence of a serious mental health condition at the time of her interview. In terms of her emotional maturity, Mr Lascelles observes
that her upbringing appears to have interfered with the development of her emotional maturity, particularly her ability to understand her own emotional state, or respond flexibly to negative emotional states. He says that ME’s focus on avoiding display or contemplation of distress means that she has had to form specific coping strategies. He notes:

I believe that [ME] was demonstrating this coping strategy during the days and weeks following her arrest. She appeared (from observation of video interview, her self- report and reports of others) to be taking little cognisance of the gravity of her situation, and was able to laugh in the face of what should have been a frightening experience for a 13-year-old child.

[23] In terms of the “confession”, Mr Lascelles evaluated ME’s suggestibility. He did not identify evidence to suggest ME had been influenced by police or others to make a confession. He says that ME offered a clear explanation for initially claiming to have stabbed the victim but later retracting this. He also says he does not believe ME had any realistic appreciation of the consequences of making an admission and was reacting impulsively to her own emotional state.

[24] Mr Lascelles concludes that ME is a girl of average overall intelligence, but presents with an uneven pattern of psycho-social maturity. She is markedly delayed in her emotional maturity. He says ME’s initial false statement to police and taking responsibility for stabbing the victim can be explained as an impulsive act, motivated by her mental state at the time and the lack of appreciation for the consequences of making that statement.

[25] Mr Lascelles makes the following conclusion as to ME’s criminal intent:

[ME’s] knowledge or otherwise of [SM’s] intentions is an evidential matter, but her ability to anticipate the death or serious injury of the victim is relevant to my points above. [ME’s] stage of cognitive maturity would limit her capacity to envisage all possible negative consequences and make it more likely that she would anticipate a positive outcome.

Professor Graham Mellsop

[26] Professor Mellsop offers no opinion on which of the two different descriptions given by ME is the truthful one. In his opinion, that is a matter for the Court. He does not think psychiatry can offer specific informed advice. He observes that ME is
accepted to be of normal intelligence and to have significant conduct and inter- personal problems. To the extent there is any validity to Dr Dean and Mr Lascelles’ views on ME’s maturity, it is his opinion that the Court should take those into account as it would for most persons of her age who face serious charges.

Dr Dean and Mr Lascelles reply

[27] Dr Dean and Mr Lascelles respond firmly to the apparent ambivalence expressed by Professor Mellsop. Dr Dean’s opines that her immaturity “was a significant factor in her presentation and impacted on her legal matters to a degree her competence was questionable; this would have applied to the time she gave any statements”. Mr Lascelles says his opinion highlights aspects of ME’s maturity, coping strategy and decision-making that are specific to her case and relevant to her conflicting statements and her decision-making process on the night of the victim’s death. He says it is also necessary to highlight ME’s young age and that she is manifestly different in her development from an older adolescent. He says that his conclusions do have specificity to the present case by virtue of ME’s unusually young age, as well as the nuances of her intellectual ability and psycho-social maturity.

Admissibility of the July statement

[28] The defence seeks to exclude the comments made by ME to Constable Stark, pursuant to s 28 of the Evidence Act 2006. That section states:

28 Exclusion of unreliable statements

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

(a) the defendant or, if applicable, a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of the reliability of the statement and informs the Judge and the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of the reliability of the statement and informs the prosecution of the grounds for raising the issue.
(2) The Judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.

(3) However, subsection (2) does not have effect to exclude a statement made by a defendant if the statement is offered only as evidence of the physical, mental, or psychological condition of the defendant at the time the statement was made or as evidence of whether the statement was made.

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):

(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):

(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put:

(d) the nature of any threat, promise, or representation made to the defendant or any other person.

[29] In summary, if the defence can successfully point to an evidential foundation that the evidence is not reliable, the burden shifts to the Crown to show that, on the balance of probabilities, the circumstances in which the statement was made are unlikely to have adversely affected reliability.

[30] It is now common ground that ME was lying when she said that she had stabbed the victim. However, I understand Mr Morgan QC to be submitting that the statements made are nevertheless sufficiently reliable insofar as they show:

(a) ME lied at least twice - the first time when she said she knew nothing about the alleged offending, and the second time, when she falsely confessed – which bears on the reliability and credibility of the exculpatory aspects of her account in the second statement;

(b) ME was part of a “joint enterprise” with SM – which can be inferred from the combination of ME’s evident appreciation of the seriousness
of the offending in the July statements and her explanation for the false confession, namely to cover up for her friend, in the second statement.

[31] Mr Morgan further submits this evidence is important because:

(a) The Crown must prove knowledge of wrongfulness per s 22 of the Crimes Act;

(b) It supports the inculpatory aspects of ME’s second account, including:

(i) ME claimed to have left the car before the deceased and Ms Reihana came upon them;

(ii) They returned to rescue DC and to do so would do “whatever it takes”;

(iii) ME spoke to DC, Ms Reihana and possibly the deceased; and

(iv) ME struck the deceased with a screwdriver.

[32] Mr Morgan then contends that the circumstances in which the statements were made are largely benign and that the mental health assessment fall well short of showing the type of impairment that might justify exclusion on reliability grounds.

Assessment

[33] The Supreme Court in Wichman identified the frame for the purposes of a s 28 analysis. The majority said:¹

[84] We see the s 28(2) inquiry as particular in character. It is addressed to the reliability of “the” statement in issue rather than “a” statement in the abstract. We consider the “circumstances in which the statement was made” encompass the nature and content of the statement and the extent to which those circumstances affected the defendant. We are also of the view that congruence (or the reverse) between what is asserted in the statement and the objective facts and the general plausibility (or otherwise) of the statement are relevant to

¹ R v Wichman [2015] NZSC 198, [2016] 1 NZLR 735 at [84].

the s 28(2) decision. This is consistent with at least the drift of the judgment of the majority in CT(SC88/2013) v R, which was concerned with unreliability for the purpose of s 122 but proceeded on the basis that the ability (or inability) to challenge the truthfulness of the evidence in question may be material to its reliability.

[34] The fact that a defendant lied does not per se detract from reliability. As the Court of Appeal found in Roper:²

We are also unpersuaded by the argument that the statement must be unreliable because Mr Roper apparently lied to the police (it is, of course, at the heart of the Crown case that he told at best, only part of the truth). The legislative intent behind s 28 is not to protect an accused from the proof of statements in which he or she has lied. The fact that an accused lies when questioned about their involvement in offending is evidence that can be taken into account as probative of guilt. Section 28 is rather designed to protect the accused from the admission of statements obtained in circumstances likely to have adversely affected the statement’s reliability.

[35] In the present case, however, it is not the fact of the lie per se that detracts from its reliability. It is the utter implausibility of the lie, a confession, that undermines the reliability of the statements. As Mr Morgan accepted in argument, there is no prospect of a jury finding that ME stabbed the victim:

(a) The Crown’s key eye-witness, Ms Reihana, observed SM stabbing the victim;

(b) The bloodstain evidence was found on SM’s clothes;

(c) The DNA evidence on the knife points only to SM; and

(d) There is no forensic evidence linking ME to the stabbing.

[36] There is then cogent evidence about ME’s emotional immaturity. She was 13 at the time of the July statement and Dr Dean and Mr Lascelles opine that her emotional maturity is young, even for a 13-year old. The statements were made about
10.30 am of the morning following the stabbing and there is evidence ME had been

² Roper v R [2012] NZCA 568 at [68].

up all night and drinking from time to time. There is then the false confession itself - it was manifestly irrational.

[37] In my view, this combination of factors precludes a finding that the circumstances in which the statements were made are not likely to have affected their reliability.

[38] The Crown nevertheless wishes to use these statements to show that ME was complicit in a joint enterprise, rather than, as she explained in her second statement, taking responsibility because she did not like her life anyway. But the statements are no more reliable for this purpose than they would be for a full confession.

[39] I would also exclude the statement on s 8 grounds.³ The probative value of the statements is inherently weak – they say nothing overt about a joint enterprise, and there is an equally plausible exculpatory inference that might be drawn from them – the one in fact given by ME. But the potential for unfair prejudice is high, reflected with respect by the reasoning deployed by the Crown for their admissibility, namely that they are an admission of complicity in a murder.⁴

[40] The July statements is inadmissible.

The s 147 application

[41] As Mr Laybourn submits in his succinct reply submissions, the s 147 application is based on the fact that:

(a) There is insufficient evidence that ME stabbed the deceased; and

(b) Because of her age and immaturity, as assessed by Dr Dean and Mr Lascelles, she could not have formed the criminal intent as a party as alleged by the Crown.

³ Evidence Act 2006, s 8.

⁴ Pora v R [2015] UKPC 9, [2016] 1 NZLR 277 at [56].

[42] He submits that our law recognises the unique position of children and youth in our justice system in a variety of ways. The literature is clear that children’s brains and minds work quite differently than adults and that great injustice can arise if they are held to adult standards. This is not a case, he says, that should be left to the jury.

Assessment

[43] There is a cogent basis for the application given, among other things:

(a) The evidence that ME was not directly involved in the stabbing;

(b) The absence of evidence of planning to engage in an activity that might lead to grievous bodily harm; and

(c) The apparent immaturity of ME.

[44] Nevertheless, I am satisfied that there is sufficient prosecution evidence, if accepted, to prove guilt. ME’s presence is not disputed. She admits involvement in the events leading up to, including, and following the offending. She admits that she was in possession of a weapon (the screwdriver) and that she knew SM had the knife when they returned to free DC. She says she was prepared to do whatever it took. She admits confronting and then hitting the deceased. All of this is reasonably capable of supporting an inference that ME and SM had turned their minds to using serious violence for a common purpose, namely to help DC escape.

[45] I have had regard to the evidence about maturity. I assume for present purposes that it is admissible evidence on the issue of intent. Even so, the evidence is not so compelling that the issue of ME’s intention should not be left with the jury. As Mr Morgan aptly points out, the opinion evidence is qualified by assumptions of fact that need to be proven. Moreover, the extent to which ME could foresee the consequences of her actions on the evening, is quintessentially a question for a jury, there being sufficient evidence that she was actively involved in the circumstances of Mr Kingi’s stabbing.
[46] In those circumstances, I decline to grant the s 147 application.