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The Queen v Z, [2007] NZCA 401, 10 September 2007, Court of Appeal, Wellington, Robertson, Wild, Fogarty JJ

Name: The Queen v Z
Reported
File number: [2007] NZCA 401, CA 318/07
Court: Court of Appeal
Location:
Date: 10 September 2007
Judge: Robertson, Wild, Fogarty JJ
Charge: Assault
CYPFA: s215(1)(f) , s208, s224
Key title: Admissibility evidence

Case Summary:
Successful appeal by the Crown against part of a HC pre-trial ruling regarding the admissibility of both a video statement of the respondent to the police and a reconstruction interview with the police. The HC Judge held that the video statement and the interview were inadmissible as the Crown had not shown that ‘Z comprehended the real substance of the likely allegations against him at the point of either the initial interview or the reenactment’.

Facts
Z (14) with a group of young males attacked and assaulted the victim. The victim was knocked to the ground and kicked while unconscious. It was alleged Z kicked the victim’s head with a ‘soccer style kick’. The victim died four days later.
The police went to Z’s house to speak to Z. Z was advised of his rights and told that he could have a lawyer present and was asked if he understood what this was. He chose to have his father accompany him as a nominated person.
Once at the police station Z had his rights explained to him and the interview proceeded in a procedurally correct manner. Z was interviewed at the police station over several hours. Initially Z denied having kicked the victim, but eventually admitted it and was arrested and given his rights. The father left the police station.
His rights were again explained following the return of Z’s father. Z made further incriminatory comments.
At no time was a lawyer present.

Legislation
Statutory provisions considered: s23 of the Bill of Rights Act 1990, s208 of the CYPFA 1989, s215 of the CYPFA 1989 and s224.

HC Decision
Whether Z had a true appreciation of the consequences of giving up his right to legal advice?
Noting the treatment of another suspect in this case, where that adult was informed that the victim might die and that the adult should be aware of the how serious the situation was, the HC Judge concluded:

“… in the case of a 14 year old the Crown must surmount two hurdles… first that the accused would appreciate the likelihood of death…the second is that his contribution to the attack could find him facing a murder charge…that conclusion would require some understanding of causation and perhaps of the law of parties. In the absence of a clear warning from the officer I am not satisfied that such a state of mind can be attributed to a 14 year old ”.

CA
Regarding the issue of whether Z had a true appreciation of the consequences of giving up his right to legal advice, the standard test was described by the CA in R v Robinson CA16/97 12 May 1997:

“…an allegedly voluntary waiver of an accused’s right to counsel must be properly informed: that is, an accused must be possessed of sufficient information to enable him or her to make an informed decision as to whether to speak to a lawyer…it follows that a suspect must know the real substance of the allegations against him or her at the point of the interview…”

The Crown submitted that an interchange between Z and his father in the absence of the police in the video interview had material significance. Z and his father referred to the possibility that the victim might die and that Z might be sent to prison for murder.
The defence submitted it was not established that Z or his father understood that Z was being interviewed as a murder suspect, if the victim was to die, as he was not aware of the extent of his son’s involvement.

Decision: Granting the appeal
The CA could not accept that it could be concluded that Z did not know the real substance and seriousness of the allegations against him. Z knew the victim might die and said so during the video interview. Z knew the victim’s condition was a result of the beating by Z and the co-accused.
The proper inference was that Z knew he was being questioned as a party to a potential homicide.
It would have been better if the police officer had been completely forthright in informing Z of the seriousness of the situation, but the question is whether Z knew enough to make an informed decision.
The CA held that Z had the requisite knowledge.
In terms of the CYPFA there was proper compliance with the statutory code.
Order that the interview and evidence of the reconstruction are admissible at trial.