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R v M [a young person] (1999) 18 FRNZ 194 (HC)

Case summary provided by BROOKERS

Name: R v M [a young person]
Reported: (1999) 18 FRNZ 194
File number: T990626
Date: 3 May 1999
Court: High Court
Location: Auckland
Judge: Nicholson J
Charge: Murder
CYPFA: s215; s221; s224
Key Title: Questioning by Police; Evidence; Rights; Admissibility of statements; Reasonable Compliance

BROOKERS Summary:

Youth justice - Evidence - Admissibility - Statement by young person to detective before video interview - Whether young person had been advised of his entitlement to have lawyer present during questioning - Whether young person had clearly indicated a wish to consult lawyer before questioning took place - Lack of reasonable compliance - Element of unfairness in nature of questioning - Children, Young Persons, and Their Families Act 1989, ss 208, 215(1)(f), 221(2)(b), 224.

The Crown applied under s 344A Crimes Act 1961 for a ruling on the admissibility of a statement by the accused, M, which was given to L, the detective who had interviewed him. L visited M's house in the early morning with a search warrant, in connection with the stabbing of W. He asked M's parents to wake M. He then explained M's rights to M and his parents, including telling them that M was "entitled to consult and instruct a lawyer without delay and in private" and to consult a nominated person. This advice was based on the police Youth Justice Checklist - pol 388. Both M and his parents indicated that they understood this right and were willing to go to the police station for an interview. When L then asked M if he wanted to contact a lawyer before being interviewed, M initially said, "yeah" but after speaking to his mother indicated that he would "be all right".

In the interview room L repeated his earlier advice and M indicated that he understood this. Both M and his mother agreed to talk without a lawyer being present. L then asked for the names of the people involved in the stabbing of W. M admitted his part in the stabbing, who else was involved, where the weapon had come from and what had been done with it. Later L started a video interview with M and M's mother. When L repeated his advice during the video interview, M said that he wanted to speak to a lawyer before continuing with the interview. The police then arranged for a lawyer. After M and his mother had consulted the lawyer, M's mother told L that she would take the lawyer's advice and that M would not say any more. M was later charged with W's murder.

M's counsel sought to have M's statements before the video interview declared inadmissible on the grounds that ss 215 and 221 Children, Young Persons, and Their Families Act 1989 were not complied with. In evidence, M said that he had initially said "yeah" when asked if he wanted a lawyer so he could get help. However, he later said that he would be all right because he thought that the lawyer would not have turned up at the time and he wanted a lawyer straight away.

Held, ruling that the statements were inadmissible:[(1999) 18 FRNZ 194, 195]

(1) It was clear and understandable that L had relied on the police Youth Justice Checklist - pol 388 in explaining M's rights to him. The checklist made no mention of entitlement to the presence of a lawyer while being questioned. Having regard to L's evidence it was likely that L did not explain to M before questioning him that M was entitled to make or give any statement in the presence of a lawyer. Accordingly s 215 of the Act was not complied with. (p 200, line 41)

(2) When M was informed of his right to consult a lawyer, he clearly advised L by his answer, "yeah", that he wished to do so. L should then have arranged for M to consult with a lawyer before questioning him further. There was no compliance with s 221(1)(b) of the Act. (p 201, line 15)

(3) The two instances of failure to comply with the Act were substantial and not technical in nature. The cumulative effect of non-compliance amounted to lack of reasonable compliance with the requirements of the Act. There was a strong element of unfairness in the form and content of the questioning which pressurised M into agreeing that he had stabbed W. (p 201, line 44)

R v Accused (CA311/91) (1991) 8 FRNZ 119; 7 CRNZ 539

R v Irwin [1992] 3 NZLR 119; (1991) 8 FRNZ 487; 8 CRNZ 39

R v S (CA220/97) (1997) 16 FRNZ 102; 15 CRNZ 214 followed

Observation, L may have been led into the trap of not advising M of his entitlement to have a lawyer present by the absence of any reference to presence in the police Youth Justice Checklist. It is recommended that the police consider amending the checklist to include reference to entitlement to have a lawyer present during questioning. (p 202, line 9)

Cases referred to

R v Accused (CA311/91) (1991) 8 FRNZ 119; 7 CRNZ 539
R v Irwin [1992] 3 NZLR 119; (1991) 8 FRNZ 487; 8 CRNZ 39
R v S (CA220/97) (1997) 16 FRNZ 102; 15 CRNZ 214

Application

This was an application under s 344A Crimes Act 1961 for a ruling on the admissibility of a statement made to the police by a young person.