Youth Court Decisions How to Use Full list of key titles CYPFA section Date

S v Police (14 March 2006) HC, Auckland, CRI-2004-404-515, Baragwanath and Heath JJ

Name: Police v S
Unreported:
File number: CRI 2004-404-515
Court: High Court
Location: Auckland
Date: 14 March 2006
Judge: Baragwanath and Heath JJ
Charge: Car Conversion; Burglaries, Aggravated Robbery (2)
CYPFA: s208; s215; s218; s219; s220; s221; s222; s223; s224
Key title: Admissibility of statement; Nominated Person; Reasonable Compliance; Questioning by Police

Summary: S (15) was visited at home by a Police officer in connection with unresolved car conversion and burglary offences; s215 warning given; officer asked S to accompany him on a drive to point out where the offences had been committed. Officer had no intention of charging S and communicated this to him but did not expressly limit this immunity to car conversion and burglary.

During the drive S said he had committed two aggravated robberies; officer warned S again but S said that although he understood the aggravated robberies were more serious he wanted to “clear them all up”. The officer told S to stop talking to him and that any information provided “from that point” might result in charges. A videotaped interview was held in accordance with s221 and S confessed to two aggravated robberies. A nominated person spoke in private with S for about 10 minutes prior to the interview and was present, but offered no advice, during the interview (s222).

Judge Harvey in Manukau Youth Court and Judge Callander at Auckland Youth Court heard the severed charges against S. Both Judges ruled the oral utterances were made spontaneously (s223) and admitted the evidence. S was convicted and transferred under s283(o) on both charges.

In ruling that the statement was spontaneous, Judge Harvey decided that the recorded statements were not induced by any promise from the police officer and did not run counter to s20 Evidence Act; S’s evidence that he gave a video interview because he believed that he would not be charged was not credible; there had been substantial compliance with s221.

Judge Callander held that the nominated person had supported S properly, that there was no issue of “reasonable compliance” under s224, that the “vulnerability of young persons” principle (s208) had not been breached, that there had been compliance with s221 and that the video statement was inadmissible.

Statutory scheme discussed, also Evidence Act 1908 s20, X v Police (2005) 22 CRNZ 58, 59-60 and R v Irwin (1991) 8 FRNZ 487, 491-493.

Issues:
1) Whether the utterance made in reliance on an assurance of immunity can properly be said to be “spontaneous”;
2) If not “spontaneous”, is the evidence gathered in the videotaped interview tainted and inadmissible;
3) Whether nominated person properly appointed;
4) Whether nominated person lawfully carried out their duties;
5) Whether the admissions should be ruled inadmissible because of unfair conduct on the part of the police;
6) Whether the convictions were against the weight of evidence.

1) Whether utterance “spontaneous”
R v W (J) (1996) 2 C.R. (5th) 233, judgment of Ontario Court of Appeal where Canadian provision similar to s223 considered, of assistance as little New Zealand authority on issue of whether an utterance made in reliance on an assurance of immunity is “spontaneous”. The Ontario Court of Appeal considered that: “any doubt as to whether the statement is spontaneous should be resolved in favour of the young person” considering an adolescent’s “immature power of judgement”. These were deliberate utterances made in response to officer’s original offer of immunity and not spontaneous.

2) If not “spontaneous”, is videotaped evidence tainted and inadmissible
Appellant argues that the non-spontaneous admissions of aggravated robbery were the effective cause of the officer continuing the interview; discussion of causation. Police argue that the warning preceding the videotaped interview superseded the initial causation. Cf. test in R v Te Kira [1993] 3 NZLR 257 and R v Shaheed [2002] 2 NZLR 377, there was a “real and substantial” connection between the non-spontaneous statement and the subsequent videotaped statement. The use of an inadmissible statement for the purpose of securing a subsequent statement is not consistent with the policy of the legislation. In videotaped interview the appellant was asked to elaborate on details of incidents mentioned prior to that interview.

Canadian test adopted (R v R (M.L) (2002) Carswell Ont. 2485 Pardu J; R v F (D) (20020 8 CR (6th) 156 (Manitoba Court of Appeal)); as non-spontaneous evidence was the effective cause of the officer’s questions at the police station and thus of S’s responses the evidence of both must be excluded. There being no other evidence to support either conviction, both must be set aside.

3) Whether nominated person properly appointed
Section 222(1)(d). Appellant argued as officer did not take him through list of available nominated persons, his statement that he did not want to nominate anyone for the interview was made in ignorance of his rights and was not a refusal or failure to nominate (as per s222(1)(a) & (c)). Young persons vulnerable and thus ordinary presumption of knowledge of law not applicable. Although section 222 does not expressly require enforcement officer to inform the young person of range of options, as there is no other way for knowledge of the rights to be imparted such obligation must be implicit (cf s222(4)).

Role of nominated person is (a) to ensure performance of officer’s duty to explain s215 rights in a way the young person understands and, (b) to give the young person the sense of security of having someone looking after their interests both prior to the decision to answer questions and during the questioning process and the making of any statement.

Officer ought to have explained simply to S the nature of the nominated person’s role and have taken him through the s221(1)(a) to (c) categories but there is no reason to believe the result might reasonably have been any different had this course been followed. Thus, there was reasonable compliance (s224).

4) Whether the nominated person fulfilled his statutory duties
Nominated person explained s215 rights to S; s222(4)(a) satisfied. Section 222(4)(b) satisfied as nominated person not required to intervene as a lawyer may have when inquiry turned to the aggravated robberies. Section 215 rights do not include the right for a young person to be told that the consequence of the statements being used in evidence may be that the prosecution is able as a result to establish its case. Nominated person did fulfil their statutory duties.

Consideration of (5) and (6) not necessary.

Decision: Statement inadmissible as the original admissions were not spontaneous and the subsequent questions were a direct consequence of that evidence.