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R v Irwin (1991) 9 FRNZ 487 (HC)

Case summary provided by BROOKERS

Name: R v Irwin
Reported: (1991) 8 FRNZ 487
File number: T32/91
Date: 2 December 1991
Court: High Court
Location: Hamilton
Judge: Fisher J
Charge:
CYPFA: s2; s208; s215; s221; s222; s224
Key Title: Admissibility of statements; Evidence; Rights; Reasonable Compliance
Brooker’s summary:

Children and young persons - Evidence - Admissibility - Offence of being a party to murder - Voir dire - Accused young person not informed of rights before police interview - Statement inadmissible - Children, Young Persons, and Their Families Act 1989, ss 2, 208(h), 215, 221(2), 222, 224.

The accused, aged 15, was charged with being a party to a murder. The Crown's case was that the accused and another youth, Rogers, formed a common purpose to carry out an aggravated robbery involving firearms, and that the accused knew that the murder of the deceased was a probable consequence of carrying out that plan. The evidence was that as soon as the shots were fired, the accused left Rogers who drove off in the deceased's car. The accused was apprehended shortly afterwards near the murder scene.

The following sequence of events occurred:

7.30 pm An officer was called to the scene to supervise the accused. It was not disclosed whether the officer was told the accused's name and address. The officer discussed the situation with the accused.

8.00 pm The officer heard the accused say to a bystander that when caught, he, the accused, had been on his way to a police station to turn himself in.

8.10 pm The officer advised the accused that he was taking the accused back to the police station. The accused was not given any option in the matter or advised of his rights.

8.20 pm At the police station, the officer interviewed the accused. He began with the conventional caution given to an adult. He did not refer to the possibility of consultation with a lawyer or with another adult nor that such persons might be present during the interview. The accused made two critical concessions in the interview.

8.40 pm The first phase of the interview ended. The officer discussed (from memory) with the accused his rights under the Children, Young Persons, and Their Families Act 1989. With the consent of the accused, it was arranged for a social worker to be present for the next phase of the interview.

9.30 pm The interview resumed in the presence of the social worker. The officer had the accused confirm that he had previously been "advised on his rights". During the interview, the accused repeated his statements and provided more incriminating details. The interview was recorded in writing and signed by the accused.

1.30 am The accused was formally arrested.

In a voir dire during the accused's murder trial, the defence objected to the admission of the statement made by the accused to the officer in the interview.[(1991) 8 FRNZ 487, 488]

Held, ruling the statement inadmissible:

(1) As the accused was not arrested until the interview had been completed, all six paragraphs (the required explanations) under s 215(1) applied. Only two (ie the conventional adult caution provisions contained in s 215(1)(c) and (e)) had been given by the end of the initial interview in the police station. Hence there was an irrevocable non-compliance with the explanation provisions before requiring the accused to accompany and before questioning the accused. There was no proper compliance with the explanation provisions even after the initial interview. Furthermore, there was no compliance with the consultation and presence provisions even after the arrival of the social worker.

(2) In deciding whether there has been reasonable compliance, a starting point is the principle in s 208(h) that during a criminal investigation the vulnerability of young persons calls for their special protection. That objective is to be attained in substance rather than in form and this is reflected in s 224. It is not the letter of the rules which matters but whether, in substance, the youth understood that he did not have to accompany the officer, that he could consult with a lawyer and an independent adult before giving a statement, that he could have them present, and that he could stop the interview and leave at any time until arrested. It must be the cumulative effect of those requirements that matters, without preoccupation with any particular provision.

(3) The officer cannot rely on the accused's ostensible intention to go to a police station in any event as an answer to the failure to advise him of his right to decline to accompany. The officer should have some reservations about the truth of the accused's remark but in any case, it cannot be equated with an understanding of legal rights by the accused.

(4) The Crown's submission that the portion of the statement made after the social worker's arrival should be admitted is unacceptable. Once there has been substantial non-compliance, it will usually be difficult or impossible to prevent it from prejudicing any subsequent interview. In some cases, preliminary deficiencies might be curable if the full statutory explanation is then given, followed by a full discussion between the accused and his or her lawyer, and the interview is voluntarily continued with the lawyer and/or properly nominated adult present. This is not such a case. At no stage were the proper explanations ever given, nor was there ever any meaningful opportunity for consultation. These were all matters of substance, not of form.

(5) The breaches in this case are individually significant and cumulatively overwhelming. It is not a case of reasonable compliance. Unless the Act is to be ignored altogether, the statement must be excluded.

Obiter, "it [is] surprising and regrettable that over a year after the Act came into force, and after the publicity given to decisions such as R v Fitzgerald, the officer concerned should have fallen so far short of the requirements of the Act, in so many respects, in a matter which was so patently serious."