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R v S (1997) 15 CRNZ 214; (1997) 16 FRNZ 102 (CA)

Case summary provided by BROOKERS

Name: R v S
Reported: (1997) 15 CRNZ 214
File number: CA220/97
Date: 4 September 1997
Court: Court of Appeal
Location: Wellington
Judge: Eichelbaum CJ, Gault, Henry, Thomas, Keith JJ
Charge: Murder
CYPFA: s221; s222
Key Title: Reports – Cultural; Admissibility of statements; Nominated persons; Rights

BROOKERS Summary:

Youth justice - Right to consult lawyer - Decision not to consult lawyer - Whether compliance with s 221(2)(b) Children, Young Persons, and Their Families Act 1989 - Unfairness - Cultural factors - Children, Young Persons, and Their Families Act 1989,ss 221(2)(b) 222(4); Crimes Act 1962,s 344A New Zealand Bill of Rights Act 1990.

The applicant, S, a 15-year-old Samoan, was one of three young persons jointly charged with murder. He applied for leave to appeal a pretrial order determining that a police videotape of his evidence was admissible at trial. He claimed that for cultural reasons he had deferred to his mother, who was present at the interview, in deciding not to consult a lawyer. S's mother had told him that the most important thing was to tell the truth, and that a lawyer was not necessary. At the conclusion of the interview, S was arrested and charged, and elected to consult a lawyer. The order was challenged on two grounds: first, that s 221(2)(b) Children, Young Persons, and Their Families Act 1989 operated to make the evidence inadmissible, and secondly, that S's mother had unduly and unfairly dissuaded S from his initial wish to see a lawyer.

Held, dismissing the application for leave to appeal:

(1) The appropriate standard of proof to establish the admissibility of a statement under s 221(2), as established by analogous cases under the Bill of Rights, is the balance of probabilities, having regard to the gravity of the particular issue. There is no good reason to elevate the test under the Children, Young Persons, and Their Families Act 1989 to "beyond reasonable doubt", and to add a second exception to the ordinary rule governing incidental trial issues. (p 219, line 14)

R v Fitzgerald unreported, Thorp J, 30 October 1990, HC Auckland T183/90 not followed

Police v Kohler [1993] 3 NZLR 129; (1993) 10 CRNZ 118; 1 HRNZ 303 (CA)

R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649; 1 HRNZ 230 (CA) applied

(2) S had effectively made a decision not to consult a lawyer, which was translated into an express acknowledgement that he did not want a lawyer. In the absence of true coercion or compulsion, it was difficult to see how a decision, even if taken on persuasive advice, ceased to be a decision or to represent that person's "wish". Where a person expressly elects not to consult a lawyer, it will generally require an extreme case to hold that the statutory provision has nevertheless been breached. (p 220, line 2)[(1997) 15 CRNZ 214,215]

(3) When enacting s 222(4), the Legislature did not envisage a comprehensive judicial inquiry into the nature and quality of support given in any particular case. Obvious difficulties arise if such an inquiry is conducted. Cultural issues may surface, and the age, knowledge, and understanding of the young person will vary, as may individual or family concepts of the appropriate course of action. Given the Children, Young Persons, and Their Families Act 1989 emphasis on the family, it was not for the Court to gainsay S's mother's advice. (p 220, line 35)

Obiter, there may well be instances where the requisite support has not been made available in a real sense, and that has led to a situation where a child or young person has been left in an unacceptable or unfair state of vulnerability. (p 220, line 44)

DPP v Blake [1989] 1 WLR 432; (1989) 89 Cr App R 179 referred to

Statutes and regulations referred to

Children, Young Persons, and Their Families Act 1989,ss 221(2)(b) 222(4)
Crimes Act 1962,s 344A
New Zealand Bill of Rights Act 1990

Cases referred to

DPP v Blake [1989] 1 WLR 432; (1989) 89 Cr App R 179
Police v Edge [1993] 2 NZLR 7; (1992) 9 FRNZ 659 (CA)
Police v Kohler [1993] 3 NZLR 129; (1993) 10 CRNZ 118; 1 HRNZ 303 (CA)
R v Fitzgerald unreported, Thorp J, 30 October 1990, HC Auckland T183/90
R v Te Kira [1993] 3 NZLR 257; (1993) 9 CRNZ 649; 1 HRNZ 230 (CA)

Application

This was an application under s 344A Crimes Act 1962 to appeal against a pretrial order admitting video evidence.