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

R v Z 22 June 2007, High Court, Auckland, CRI-2006-204-0487, Justice Baragwanath

Name: R v Z
Unreported
File number: CRI-2006-204-0487
Court: High Court
Location: Auckland
Date: 22 June 2007
Judge: Justice Baragwanath
Charge: murder
CYPFA: s215(1)(f)
Key title: rights, explanation of rights
Case Summary:
Z gave video, and reconstruction interviews to Police, in the presence of his father, 2 days after an assault by three people on a victim who then died of injuries 2 days later. During these interviews, Z admitted involvement in the assault. Z was 14 yrs old at the time of the offending. Z’s mother also gave an interview to Police two weeks later, in which she said that Z admitted his involvement in the assault. Z referred to this admission to his mother in his interviews with Police.

Police applied for all three interviews to be admitted. Z opposed applications on the grounds that he was not told how to obtain legal advice by Police, and he did not appreciate the consequences of giving up the right to instruct a lawyer, because the Police did not inform him that the victim was likely to die from his injuries. Z consequently also opposed the admission of his mother’s interview as ‘poison fruit’.

Court recounted facts, including: that the Police informed Z on a number of occasions that he had a right to be accompanied in the interviews by a nominated person (Z chose his father), that he had the right to speak with a lawyer, that he had the right not to answer Police questions. Z admitted kicking the deceased in a video interview at the Police station, and later during a video interview at the scene of the assault.

Defence cited R v Alo CA155/06 3 May 2007 where the Court of Appeal held that the BORA s23(1)(b) right to be informed of the right to instruct a lawyer does not extend to advice about the means of doing that, or that a lawyer can be available at no cost. Defence submitted that this did not apply to young persons, and that young persons arrested or detained also needed to have a true appreciation of the consequences of giving up the right to instruct a lawyer.

Court discussed CYPFA ss208, 215, 224, and Alo, and concluded obiter that a young person must be informed of the means of getting practical access to legal advice so that the decision to waive it is truly autonomous. Despite this, Justice Baragwanath avoided basing his final decision on this point and commented that it would be better decided in the Court of Appeal.

Court discussed R v Shaheed [2002] 2 NZLR 377 in relation to the mothers interview, and held that her interview was too far removed from her son’s for it to be fruit of a poisonous tree.

Court finally looked at whether Z had a true appreciation of the consequences of giving up his right to consult a lawyer, given the seriousness of the offence. Baragwanath J referred to R v Warhaft HC AK CRI-2006-057-1581 7 June 2007, which discussed a number of authorities, and formulated a test for a 14 yr old facing a potential murder charge in the absence of a clear explanation by an arresting authority.

Decision:
Z’s 2 video interviews with Police are inadmissable because there was not enough evidence to hold that Z truly appreciated the consequences of waiving the right to consult a lawyer.

Z’s mother’s interview was admissable.