HIRIAKI V R CA26/2013 [2013] NZCA 419 .

B (CA46/2014) v R CA46/2014 [2014] NZCA 85 [21 March 2014]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 140 OF THE CRIMINAL JUSTICE ACT 1985.ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OFCOMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICEACT 1985.IN THE COURT OF APPEAL OF NEW ZEALANDCA46/2014[2014] NZCA 85BETWEEN B (CA46/2014)AppellantAND THE QUEENRespondentHearing: 5 March 2014Court: Randerson, Venning and Cooper JJCounsel: S J Zindel for AppellantG R Kayes for RespondentJudgment: 21 March 2014 at 3:00pmJUDGMENT OF THE COURTA Leave to appeal is granted but the appeal is dismissed.B Order prohibiting publication of the name, address, occupation or identifying particulars of the appellant pursuant to s 140 of the Criminal Justice Act 1985.C Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Venning J)Introduction[1] Mr B faces trial in the District Court at Nelson. He is charged with one count of sexual violation by rape and two counts of allowing a child to do an indecent act on him. The complainant in each case is his daughter who was four years old at the time. Mr B seeks leave to appeal from a decision of Judge Zohrab which ruled an inculpatory statement admissible against Mr B.1[2] The alleged offending occurred between April and December 2011 while Mr B, who was 35 years old, was in the bath with two of his children, the complainant and her older brother. The children were removed from Mr B and his partner in December 2011. In a video statement, the son (who was six at the time ofthe offending) disclosed that the complainant had touched Mr B's penis while theywere both in the bath. The complainant did not disclose any offending in her video statement but, when Mr B was interviewed by Detective Nally he admitted not only the offending disclosed by his son but also confessed to an incident which involved the complainant sitting on his penis, and said that his penis had penetrated her vagina. That admission supports the more serious offence of sexual violation by rape.[3] The defendant suffers from an intellectual disability. The statement he gave to the detective was challenged on the grounds that it was unreliable or that it was improperly obtained because it was unfair.21 R v B DC Nelson CRI-2013-042-1139, 19 December 2013.2 Evidence Act 2006, ss 28 and 30.The critical admissions[4] During the course of the interview Mr B admitted to the following:Q. Okay so can yah tell me about bath time with [the complainant]?A. Yeah actually she ... she used to play around and touch my diddle and...Q. How many times?A. About twice.He then went on to describe that the complainant touched his penis and stroked itAnd later:Q. Yeah ... okay um ... has any part ... other part of [her] bodytouched your erect penis in the bath?A. Yeah her ... her privatesQ. OkayA. ... because she was sitting on meMr B later went on to describe the top of his penis being in the complainant's vaginaand drew a diagram to show the extent of penetration.The District Court judgment[5] Judge Zohrab was satisfied the circumstances in which the statement was made were not likely to have adversely affected its reliability3 and that, taking into account all the circumstances and evidence, there was no unfairness in how the statement was obtained.4 It was properly admissible.Appellant's submissions[6] Mr Zindel accepted the Judge's factual findings that Detective Nally hadacted in good faith in dealing with Mr B and in the course of interviewing him. He3 At [52].4 At [118].also accepted the finding that the detective was unaware of Mr B's intellectualdisability.[7] However, Mr Zindel submitted that the circumstances in which the statement was made were likely to have adversely affected its reliability because:(a) Mr B's intellectual disability was relevant whether or not it was apparent to Detective Nally.(b) The casual approach or bonhomie of Detective Nally had a sharp edge. There were a number of leading questions.(c) Mr B said he had been told he was not going to be charged (Mr Zindel accepted that may reflect that Mr B mixed up the concepts of not being under arrest with not being charged).(d) Detective Nally used technical language throughout the interview.[8] Alternatively Mr Zindel submitted that the evidence was improperly obtained as it was unfair because:(a) Mr B would not have appreciated the caution administered to him.(b) The detective referred to the two of them having a "chat" when thatwas not what occurred.(c) Detective Nally continued to question Mr B after he had indicated he wanted to go home.(d) Aspects of the interview amounted to cross-examination.[9] Mr Zindel submitted that, if the Court concluded the evidence had been obtained unfairly, it should be excluded given the importance of the right breached.Crown's position[10] Mr Kayes conceded that the evidence of Mr B's intellectual disability raised an evidential foundation both as to the reliability of the statement and also whether it had been obtained unfairly. He also accepted that the onus was on the Crown to satisfy the Court, on the balance of probabilities, that the circumstances in which the statement was made were not likely to have adversely affected its reliability and, on the issue of unfairness, that the evidence was not improperly obtained.[11] Mr Kayes supported Judge Zohrab's decision and submitted that the evidencewas both reliable and had not been obtained improperly.Was the evidence reliable?[12] The relevant provisions of s 28 of the Evidence Act 2006 provide:(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if—(a) the defendant [or, if applicable, a co-defendant] against whom the statement is offered raises, on the basis of an evidential foundation, the issue of the reliability of the statement and informs the Judge and the prosecution of the grounds for raising the issue;(2) The Judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put:(d) the nature of any threat, promise, or representation made to the defendant or any other person.[13] Mr B clearly has a pertinent mental condition or characteristic. He is"mildly" intellectually disabled as that term is used by medical professionals. He has an IQ of between 55–63. He operates at or below 99.7 per cent of similar aged peers. The Court had reports from a psychologist Cristina Fon and psychiatrist Dr Tom Levien as to Mr B's fitness to stand trial, as well as a report from Maggie Dewar, a clinical psychologist who had been instructed by the defence. All concluded that Mr B suffered from an intellectual disability (mild). Ms Fon and Dr Levien were of the opinion that Mr B was fit to stand trial. In addition to her report, Ms Dewar gave evidence at the pre-trial hearing.[14] In her report Ms Dewar said the interview had moved from open-ended questioning to closed questioning. She noted the detective had exhorted Mr B to tell the truth. She referred to literature that such tactics can be oppressive as presumptive of guilt. She considered that the way the detective conducted the interview may have affected the reliability of the statement.[15] The issue is whether Mr B's intellectual disability affected the reliability of his admissions. In relation to that, the nature of the questions and the circumstances in which they were put are also relevant considerations.5[16] We do not consider the detective's relaxed approach to the interview supports the argument the statement was unreliable. As the Judge said, the detective treated Mr B courteously. While the detective was relaxed Mr B knew he was at the police station to talk to the detective about inappropriate behaviour involving the children.[17] We do not consider the way the detective conducted the interview led to unreliable responses from Mr B. As the Judge observed, the critical admissions Mr B made were in response to entirely open questions and without any prompting by the detective. The defendant volunteered the principal admission at an early stage5 Evidence Act 2006, s 28(4)(c).of the interview in response to an open question and just after describing the complainant stroking his penis.[18] Mr Zindel also suggested Mr B was confused as to the sequence of eventsand suggested this showed that Mr B's confession could be unreliable. At one stageof the interview, after describing an incident of the complainant touching his penis, Mr B said he got out of the bath. But then later he said it was after she had been sitting on top of his penis that he got out of the bath. However, Detective Nally then clarified the sequence of events with Mr B:Q. Okay ... so when she's been on top of your penis, did that happen before or after she was stroking your penis?A. That was before.Later in the interview Mr B confirmed again that first the complainant's vaginatouched the top of his penis and then it was after he had lifted her off his penis that she had stroked his penis. It is not so much that Mr B was confused about the sequence of events, rather the disclosures were out of sequence.[19] While we note Mr Zindel's submission that Mr B was confused about theconcepts of not being arrested and not being charged, we consider any confusion Mr B may have had about that is more relevant to unfairness rather than reliability. Mr B knew he was at the police station to talk about inappropriate behaviour.[20] Nor do we consider the detective used language that was too technical for Mr B to understand. As the Judge observed there are a number of passages which indicate the accused understood the nature of the reasonably sophisticated concepts he was asked about.[21] For example, when asked if there were any occasions that he had "puthimself in with either [of] the kids that could be construed as inappropriate", Mr B related taking the children to his brother's house. He considered this inappropriatebecause he believed that his brother had interfered with children. Next, as the Judge noted, Mr B gave a reasonably detailed explanation of how he dealt with the stresses of being a father, including what he did when he got angry.[22] Mr B also understood the difference between the two incidents he described of the complainant sitting on his penis. When asked whether any part of his penis had gone into the complainant's vagina on the second occasion he had said it had notbecause he had put a flannel over it. When asked about the level of discomfort that she was in when any part of his penis was in her vagina on the first occasion he said she did not move or wriggle to get off. Mr B was also able to draw a pictureindicating the depth of penetration of the complainant's vagina by his penis.[23] Despite Ms Dewar's opinion that Mr B may have been suggestible andcompliant, Mr B did not accept every proposition put to him, even when the detective was forceful. For example:Q. I put it to you that it's happened on more than two occasions and there's been activity in other parts of the house between you and [the complainant]?A. Em ... I can't ... I don't ... don't remember any of that.[24] There are other examples where Mr B did not agree with whatever Detective Nally put to him:Q. Okay ... um ... have you ever ejaculated whilst [the complainant's]been with you?A. NoAnd later:Q. Okay ... and did your ... any part of your penis go in [thecomplainant's] vagina on that occasion? [Discussing the secondoccasion].A. No ... no because it'sQ. OkayA. I put a flannel over it and I stood up like this (demonstrating).[25] We note that Ms Dewar properly conceded in cross-examination that there were portions of the interview where Mr B had not shown vulnerability or suggestibility.[26] It also has to be borne in mind that Mr B's admission as to the complainantplaying around and touching his penis was supported by his son's disclosure.[27] As noted, Ms Dewar criticised the detective for exhorting Mr B to tell thetruth. It may have been better practice for the police officer not to have done so but,like the Judge we do not see that the relatively limited exchange on that topic wouldhave affected the reliability of the statement.[28] Finally, counsel referred to the case of R v Simanu.6 The offender in that case had been forthcoming with the police because of his linguistic and cultural barriers. He believed his actions were lawful. This case is quite different. Mr B knew what occurred between him and the complainant was wrong. When asked if he had anyissues with the fact that part of his erect penis was in his daughter's vagina, Mr B replied: "It was wrong so I lifted her off".[29] For the above reasons we are satisfied the admissions made by Mr B were reliable.Was the interview unfair?[30] As noted, Mr Kayes accepted that Mr B's intellectual disability raised theissue of whether the evidence had been obtained unfairly. He also accepted the Judge had a discretion under the co-existing common law to exclude evidence which would cause unfairness if introduced at trial.7[31] The record discloses Detective Nally properly advised Mr B of his rights. He cautioned Mr B when he first spoke to him at his home and also later at the police station. He told Mr B he was not under arrest, but was a suspect. Mr B acknowledged those rights during the interview.[32] However, as the full Court confirmed in R v Mallinson:86 R v Simanu [2011] NZCA 326.7 Fan v R [2012] NZCA 114 at [31], [2012] 3 NZLR 29.8 R v Mallinson [1993] 1 NZLR 528 at 531. more than a bare statement of the s 23(1)(b) right and a bare acknowledgement of understanding is likely to be required where, forexample, the person arrested appears to have a mental disability which could interfere with his comprehension of the rights.The crucial question is whether it was brought home to the arrested person that he or she had those rights. That is not the same question as whether the police were justified in assuming that he or she did understand them. To look at it simply from the perspective of the police officer would mean that the person arrested who did not in fact understand the position would not be able to make an informed choice with respect to the exercise or waiver of the guaranteed right.[33] Ms Dewar noted that Detective Nally used the word "chat" at the outset ofthe interview and Mr B was surprised to find at the end that charges were being laid against him. In her opinion Mr B had confused not being arrested with not being charged. That may suggest Mr B did not appreciate the seriousness of his situation.[34] Mr Zindel also referred to the case of R v Te Huia.9 He noted that Mr B's IQwas lower than that of Mr Te Huia. In Te Huia Gendall J had an overarching concern that the manner in which the interview was conducted (with the subtle persuasiveskills of the detective) and the accused's own limited performance meant it was unfair. Gendall J considered there was ample room for confusion in the accused'smind as was apparent from his misunderstanding of the incidents involving multiple complainants.[35] However, importantly in the present case there is no direct evidence that, because of his intellectual disability, Mr B did not understand his rights when they were read to him (on two occasions) by Detective Nally. The high point of Ms Dewar's evidence about that was at the following passage of her cross-examination:Q. Yes, so what I'm – is it the case that you're simply saying, "Well, he has an intellectual disability, therefore he's vulnerable, so it may – it could be that he didn't understand his rights"?A. I'm saying it could be that he didn't understand his rights. It could be that he didn't understand the benefit of having a lawyer. I don't know what his other charges are and how much he's been – had a lawyer before and understands their role.9 R v Te Huia HC Napier T17/97, 8 September 1997.So at most, Ms Dewar was only able to say it could be that Mr B did not understand his rights. Mr B did not give evidence to that effect.[36] The only indicators throughout the entire interview that Mr B may have been unsure of his situation were a rather naïve query towards the end of the interview when he asked if the interview was going to take any longer because he needed to go home and have some breakfast, and the incident Ms Dewar referred to when the detective told Mr B he was going to be charged for sexual offending. Mr B said"But you said you're not charging me". At that stage the detective clarified that,while he had told him he was not under arrest, he did not say that he would not be charged.[37] In this context it is relevant that Mr B has had previous dealings with the police. He has 20 previous convictions. He has seven convictions for dishonesty, two for violence, three of breach of community work, one of fraud, three for the disturbing use of a telephone and convictions for peeping and peering, resistingpolice, speaking threateningly and trespass. Given the extent of that offending hemust have been interviewed or spoken to by the police on several occasions beforebeing charged. The process of a police interview would not have been foreign tohim.[38] Further, it is also relevant that both Ms Fon and Dr Levien confirmed Mr B had an appreciation of the court process and the role of the lawyer within the process. This would have assisted Mr B to understand the importance of his right to speak to a lawyer when the detective told him he had that right. Mr B scored highly on his understanding of basic legal concepts and skills to assist defence (at the 80 per cent level). In Ms Fon's opinion he was able to express himself to a levelwhere he could convey his wishes to others. That supports the Judge's conclusionthe interview was not unfair. If he did not want to speak to the detective he was able to convey that to the detective. He did not do so. This is consistent with thedetective's evidence that he believed Mr B understood his rights.[39] This is not a case of inconsistent statements such as R v Ratcliffe10 nor a case where the unfairness arose because of confusion or misunderstanding as inTe Huia.11 Mr B did not misunderstand the issues. He understood the concept of inappropriate behaviour and that what he did was wrong. Mr B was able, when necessary, to seek clarification of issues when he needed to. He did not agree with every proposition the detective put to him.[40] On the basis of the current information before the Court and in the absence of any direct evidence that Mr B did not understand his rights, the general circumstances surrounding the interview, and our viewing of the interview itself,lead us to confirm the Judge's conclusion the interview was not unfair to the appellant.[41] We note that a finding in a pre-trial issue may be revisited should further evidence come to light.Result[42] Leave to appeal is granted but the appeal is dismissed.[43] To avoid identifying the complainant, we make an order prohibiting publication of the name, address, occupation or identifying particulars of the appellant pursuant to s 140 of the Criminal Justice Act 1985. For fair trial reasons, we make a further order prohibiting publication of the reasons for judgment in news media or on the internet or other publicly available database until final disposition of trial. Publication in law report or law digest permitted.Solicitors:Zindels, Nelson for AppellantCrown Law Office, Wellington for Respondent10 R v Ratcliffe (1989) 4 CRNZ 300.11 R v Te Huia, above n 11.