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R v Kurariki (2002) 22 FRNZ 319 (CA)

Case summary provided by BROOKERS

Name: R v Kurariki
Reported: (2002) 22 FRNZ 319
File number: CA216/02
Date: 24 July 2002
Court: Court of Appeal
Location: Wellington
Judge: McGrath, Robertson, Gendall JJ
Charge: Murder
CYPFA: s2; s208; s215; s221; s222; s224
Key Title: Evidence; Admissibility of statements; Nominated Person; Reasonable Compliance; Explanation of Rights; Rights

BROOKERS Summary:

Children and young persons - Evidence - Admissibility - Appeal - Appellant allegedly part of group which attacked and robbed pizza delivery man, fatally wounding him - Appellant was 12 years old at time of attack - Father of appellant suggested that appellant may have alibi - Father was potential witness - Suitable people to be nominated person during interview - Independent person brought in to be nominated person - Appellant gave evidence at police station and at scene of attack - Whether the statements by the appellant, in which he implicated himself in the alleged offending, were made in circumstances in which there was reasonable compliance with the protective regime of the Children, Young Persons, and Their Families Act 1989 - Whether failure by police to afford the appellant his right to have a nominated person of his choice was a breach of his rights - Children, Young Persons, and Their Families Act 1989, ss 2, 208, 215, 221, 222, 224; Children, Young Persons, and Their Families Amendment Act 1994, s 32.

The appellant was one of six accused of the murder of Michael Choy, a driver who delivered pizzas and other takeaway food, on 12 September 2001. The Crown alleged that the appellant was part of a group who lured Mr Choy at night to a chosen location by a telephone order for home delivery, planning that one would assault the driver with a weapon and others would rob him of the food and cash. The appellant was alleged to have engaged Mr Choy in conversation while another member of the group approached him from behind and struck him on the side of the head with a baseball bat to incapacitate him. The remaining members grabbed the food and drink and a money belt. Mr Choy died in hospital the following day. The appellant was 12 years and 4 months old at the time of the attack.

On 15 September 2001, Constable Marshall and another officer were looking for the appellant and located him skateboarding in a residential street. Constable Marshall advised him that they needed to talk to him and his father so the appellant took them to his father’s house. At the house, the two officers explained to the appellant and his father that they were investigating the death of Mr Choy and believed that the appellant was present at the attack. The father suggested that the appellant had an alibi as he was home all night. The officers explained that they wanted to speak with the appellant and as he was only 12 years old someone had to be with him. The appellant and his father agreed to come to the police station. While driving them to the station, Constable Marshall told the appellant, in the presence of his father, that he did not have to make a statement, that he could stop making a statement at any time, that what he said could be used as evidence in a Court case, and that he was entitled to consult and instruct a lawyer and any [(2002) 22 FRNZ 319, 320]nominated person in private. Upon inquiry the appellant and his father said they understood those rights.

In the interview room at the station, Constable Marshall explained the content of a police form which outlined the rights of children when questioned by the police, and another form designed for the person nominated to support the child during the interview. This was signed by both Constable Marshall and the father. Constable Marshall discussed the suggested alibi with the father and then with Detective Sergeant Procter who advised the father that due to his potential role as a witness he should not continue as the person nominated to be present during the interview with the appellant. While discussing possible suitable replacements, the father said that he did not know where the appellant’s mother was and that he had an adult daughter who lived with him. The Detective Sergeant decided, and the father agreed, that it would be better to find an independent. Ms Atherton, who had received the necessary training, was brought in. The father said he was happy to have Ms Atherton to do the job and the appellant agreed to have her sit in on his interview. Ms Atherton explained the full rights referred to in the form designed for the nominated person, and explained that the police would make a telephone and list of lawyers available and that the appellant could speak to a lawyer in private without cost. The appellant said that he did not need a lawyer.

In the presence of Ms Atherton, Constable Marshall asked the appellant a series of questions. The appellant admitted being with the group responsible for the attack on Mr Choy at various times of the night in question but denied being with the group when the attack took place. He agreed to continuance of the interview on video. At the commencement of the video interview, Constable Marshall repeated the rights explained in the police car. The appellant said that he understood those rights and that he was content to continue. Towards the end of the interview, the appellant admitted that he had been with the group when the attack occurred. He said that he and one other member of the group were the ones who met Mr Choy as the customers, allowing others hiding nearby to attack him.

Later that afternoon, the appellant agreed to take part in a videotaped reconstruction at the scene. Constable Marshall explained that he did not have to do it and that all the rights that he explained earlier still applied. The appellant agreed to continue. This was repeated again later that day and on the way to the scene. The appellant indicated that he was happy to continue, that he did not wish to speak to a lawyer, and did not wish to speak with Ms Atherton in private before the reconstruction started. That evening, the appellant was arrested for murder and related charges, which were read to him along with a formal caution. Nothing was said of the evidentiary consequence.

The High Court Judge found that there were breaches by the police of their duty to explain to the appellant his rights under the Children, Young Persons, and Their Families Act 1989 ("the Act") before he was questioned. The breaches identified were failures to advise, or fully advise, the rights given the appellant by s 215(1)(b) and (f). However, the overall finding was that the appellant understood the substance of those rights.

The Judge also found that the police failed to apply correctly the statutory process for the appellant to nominate a person who would support him and take reasonable steps to ensure he understood his rights. The police had not invited the appellant to nominate the replacement and had also failed to follow up the possibility that the appellant’s mother or adult sister might be available. The Judge recognised that the primary expectation under s 222 is that the nominated person [(2002) 22 FRNZ 319, 321]will be a parent, guardian, or member of the family and if the appellant had been consulted he might have been able to provide his mother’s address. The Judge found that the failures in relation to the nominated person process were in breach of the appellant’s rights under s 222(1), (3), and (4)(a) and s 215(1)(b). While the case was near the borderline, the Judge was of the view that there had been reasonable compliance with the Act and he ordered that the statements made by the appellant be admitted.

The appellant appealed this decision arguing that the breaches of rights identified by the High Court Judge, including the failure to afford the appellant his right to have a person of his choice following withdrawal of his father, were fundamental, describing the nominated person right as the "cornerstone of protection" and failure to give it effect was fatal to the argument of reasonable compliance. The Crown argued that the Judge was right to find those breaches were not significant, that they had no impact on the course of events, and that the failure to go back to the appellant to get a nomination of someone in place of his father was merely a technical breach of s 222 and not fatal to the admissibility of the appellant’s subsequent statements, because s 224 provided that reasonable compliance with the statutory requirements would suffice.

Held, allowing the appeal:

(1) The statutory prohibition on admission in evidence in any proceedings, of statements which do not meet the conditions set out in s 221(2) Children, Young Persons, and Their Families Act 1989 ("the Act"), is expressed by its opening words, that to be subject to the overriding stipulation that reasonable compliance under s 224 is sufficient. The language of s 224 is expressed very broadly so that reasonable compliance can cover situations in which s 221 has been neither strictly complied with, nor complied with at all. In deciding whether there has been reasonable compliance with s 221 requirements, the nature and extent of any failures by the police must be closely considered by the Court. The language of s 224 is not apt to categorise as reasonable compliance with the protective scheme situations where there has been no attempt to comply with steps intended by Parliament to be central in its operation. This approach reflects the scheme and language of the crucial provisions in Part IV of the Act. (p 329, paras 31, 32)

(2) It is a fundamental feature of the statutory scheme that a child or young person in the position of the appellant will have the opportunity to be supported by a parent, adult family member, or other chosen person. This right is lost only if the child refuses, or fails to nominate, such a person, thus waiving the right or, in the circumstances of inability of the police to locate, or unavailability of the nominated person, which s 222(2) sets out. Only where there is refusal or failure to nominate by the child or young person does the statute envisage the required support will be provided by a person nominated by the police under the default option provision. The Judge did not accept that the father’s agreement and the appellant’s own subsequent acquiescence to the appointment of Ms Atherton amounted to compliance with the requirements of the Act. In failing to allow the appellant to choose which family member or adult he wished to support him the police dispensed with a procedure that was central to the statutory scheme and this put the police outside of the scope of the broad coverage of reasonable compliance with s 221(2)(c), under s 224. (p 330, para 36; p 331, paras 37, 38)[(2002) 22 FRNZ 319, 322]

(3) The fundamental requirements of the statutory scheme in relation to explanations of the appellant’s rights were satisfied. The police advised the appellant that he had the right to consult a lawyer, he understood that advice and also had a basic knowledge of how a lawyer could help him. While in some respects there were failures by the police to comply strictly with s 221, other than in relation to the nominated person requirements, no major departures from the statutory scheme were involved. (p 330, para 35)

Cases referred to

R v Accused (CA311/91) (1991) 8 FRNZ 119; 7 CRNZ 539 (CA)
R v S (1997) 16 FRNZ 102; 15 CRNZ 214 (CA)

Appeal

This was appeal against the decision of the High Court granting an application by the Crown for an order that the statements made by the appellant to the police were admissible.