MAANGI v NEW ZEALAND POLICE [2016] NZHC 2571

MAANGI v NEW ZEALAND POLICE [2016] NZHC 2571 [27 October 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCRI-2016-404-130CRI-2016-404-131[2016] NZHC 2571BETWEEN ESTHER RAWINA TE HIREREMAANGIAppellantAND NEW ZEALAND POLICERespondentHearing: 11 July 2016Counsel: D Schellenberg for AppellantM Harborow for RespondentJudgment: 27 October 2016JUDGMENT OF DUFFY JThis judgment was delivered by me on 27 October 2016 at 3.30 pm pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors / Counsel:DHP Schellenberg, AucklandMeredith Connell, Auckland[1] The appellant, Esther Maangi, was the subject of a hearing under s 9 of theCriminal Procedure (Mentally Impaired Persons) Act 2003 ("CP(MIP)A") todetermine her fitness to stand trial ("special hearing"). She is charged with unlawfullytaking a Mazda motor vehicle, registration number DFG479 ("the Mazda"). At theconclusion of the special hearing, Judge Couch decided that the evidence against MsMaangi was sufficient to establish that she had caused the act that forms the basis ofthe offence with which she is charged.1 She now appeals against that decision.[2] This judgment follows an earlier judgment on separate issues that were alsothe subject of the s 9 hearing before Judge Couch. It should be read together with theearlier judgment.2Facts[3] The evidence for the prosecution was provided to the Court in the form ofwritten police statements. The evidence of the owner of the Mazda was that on 23April 2015, she had left it parked outside her home. She heard a noise which soundedlike her car starting, checked a few moments later and found that it was gone.[4] Sergeant Franklin gave evidence that on 23 April 2015 he learned the Mazdahad been taken. Approximately 16 minutes after he gained this information, he sawthe Mazda driving along Eskdale Road on the North Shore. The police helicopter wasalso searching the area. The officers in the helicopter advised him that they hadlocated the Mazda at the intersection of Saffron Street and Lannigan Street, and itappeared there was no-one in the vehicle. Sergeant Franklin went to the area to securethe vehicle. He said that he stopped short of the Mazda, and directly in front of awalkway next to 28 Saffron Street. He looked along the walkway and saw a male anda female standing about 30 metres from his position. The male ran off. SergeantFranklin directed a dog handler to the location where he saw the persons standing. Hethen moved to where the female was standing; he stated that he "requested her to staywhere she was". By way of explanation, the female stated that she had been having a1 New Zealand Police v Maangi [2015] NZDC 18433.2 Maangi v New Zealand Police [2016] HZHC 1930 [19 August 2016].domestic with her sister's partner. The female was subsequently identified as MsMaangi.[5] Sergeant Franklin noticed that the more he spoke with Ms Maangi, the morenervous she became. He looked down at her hands and noticed a Mazda car key inher hands. He asked Ms Maangi if she "had just got out of that car" and pointed to thestolen Mazda. He recorded Ms Maangi's reply as being that she "had taken thevehicle". Sergeant Franklin took the car keys from her and arrested her. He advisedher of her rights pursuant to the New Zealand Bill of Rights Act 1990 and then askedher the following questions:Q. Do you understand the rights I have just given you?A. Yes.Q. What do you know about the burglary in Ocean View Road thismorning?A. I did it.Q. How did you get inside the address?A. No answer.Q. Did you take the vehicle DQF479 [Mazda]?A. Yes.Q. Who was the driver when the vehicle fled from the Police?A. Me.Q. Why did you run?A. Because I knew the car was stolen.[6] Ms Maangi was then transported back to the North Shore Police Centre.Legal submissions[7] Ms Maangi argues that the incriminating admissions she made were obtainedin breach of her rights under the New Zealand Bill of Rights Act 1990 ("NZBORA")and the rules set out in the Chief Justice's Practice Note on Police Questioning. Theargument is that from the time Sergeant Franklin requested her to stay where she was,Ms Maangi was detained arbitrarily. Further that, having made the request for her tostay where she was and having viewed the Mazda keys in her possession, SergeantFranklin should have informed Ms Maangi of her right to silence rather than askingher if she had got out of the Mazda, which carried with it the implication that she hadearlier been in a car that Sergeant Franklin knew to have been unlawfully taken fromits owner.[8] Ms Maangi contends that the arbitrary detention and admission obtainedthereunder taint the further admissions that followed the police caution, such that alladmissions should be excluded from use as evidence against Ms Maangi.[9] The respondent accepted on appeal that without the admissions fromMs Maangi, there was insufficient evidence to prove that Ms Maangi caused the actthat forms the basis of the offence of unlawfully taking the Mazda. The respondentargued that questions regarding admissibility of evidence should be left to the trial, inthe event that Ms Maangi is found fit to stand trial.[10] The respondent also argued that it was open to the Judge to conclude that thestatements by Ms Maangi were admissible. In this regard, the respondent said therewas no unequivocal evidence before the Judge to suggest that Ms Maangi labouredunder a mental illness at the time the relevant act was committed, such that anyadmissions by her should be rendered entirely null and void. The respondent referredto the Judge's finding:3I conclude the admission should be treated in this way [some minimal weight]because the psychiatrist's opinion is directed to the Court's request for a reportunder s 38 as to the defendant's fitness to plead. That necessarily focused thepsychiatrist's consideration and opinion on her fitness to plead as at the currenttime. The report is not clear about the defendant's mental health at the timethese offences are said to have occurred. I therefore do take the admissions intoaccount but I place somewhat less weight than I would otherwise place on themhad they been made by a person with no apparent cognitive difficulties.Appellate principles[11] The CP(MIP)A provides for rights of appeal to this Court:3 At [12].16 Appeal by defendant against finding relating to fitness to standtrial(1) A defendant about whom a finding under section 14(2)(b) has beenmade may appeal against one or both of the following findings:(a) that the evidence against the defendant is sufficient toestablish that the defendant caused the act or omission thatforms the basis of the offence with which the defendant ischarged:(b) that the defendant is unfit to stand trial or, as the case may be,fit to stand trial.(2) For the purposes of an appeal under this section,—(a) the finding appealed against is to be regarded as a conviction;and(b) the provisions of Part 6 of the Criminal Procedure Act 2011relating to appeals against conviction, so far as they areapplicable and with any necessary modifications, apply to theappeal.[12] Appeals under s 16 of the CP(MIP)A are general appeals, subject to generalprinciples established in Austin Nichols & Co Inc v Stichting Lodestar.4Discussion[13] The key issues which fall to be determined, it seems to me, are as follows:(a) Does s 30 of the Evidence Act 2006 apply in relation to a specialhearing?(b) If so, should the evidence of Ms Maangi's confession be excluded fromconsideration?Does s 30 of the Evidence Act apply in relation to a special hearing?[14] In order to determine whether s 30 of the Evidence Act is applicable to a specialhearing, it is first necessary to consider whether the Evidence Act as a whole applies.Section 5 of the Evidence Act relevantly provides as follows:4 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].5 Application(1) If there is an inconsistency between the provisions of this Act and anyother enactment, the provisions of that other enactment prevail, unlessthis Act provides otherwise.(2) (3) This Act applies to all proceedings commenced before, on, or after thecommencement of this section except—(a) the continuation of a hearing that commenced before thecommencement of this section; and(b) any appeal from, or review of, a determination made at ahearing of that kind.[15] Therefore the Evidence Act applies to a special hearing except insofar as theprovisions of the CP(MIP)A which govern a special hearing are inconsistent with theEvidence Act.[16] Section 9 of the CP(MIP)A provides as follows:9 Court must be satisfied of defendant's involvement in offenceA court may not make a finding as to whether a defendant is unfit tostand trial unless the court is satisfied, on the balance of probabilities,that the evidence against the defendant is sufficient to establish thatthe defendant cause the act or omission that forms the basis of theoffence with which the defendant is charged.[17] Although the section refers to "the evidence against the defendant", there is nofurther indication regarding the permissible form or content of that evidence.However, there is some guidance on this issue in ss 10, 11 and 12 of the CP(MIP)A.Section 10 applies in respect of a special hearing which takes place before trial, as inthe present case. Sections 11 and 12 apply in respect of a special hearing during thecourse of a trial (Judge-alone and jury trials, respectively). Section 10 provides:10 Inquiry before trial into defendant's involvement in offence(1) This section applies if the question whether the defendant is unfit tostand trial arises before the trial.(2) The court must ascertain whether the court is satisfied of the matterspecified in section 9.(3) For the purposes of subsection (2), the court may consider—(a) any formal statements that have been filed under section 85of the Criminal Procedure Act 2011:(b) any oral evidence that has been taken in accordance with anorder made under section 92 of the Criminal Procedure Act2011:(c) any other evidence that is submitted by the prosecutor ordefendant.[18] Paragraphs (3)(a) and (3)(c) seem to indicate that the forms of evidence whichwill be acceptable for the purposes of a special hearing may be more wide-rangingthan those that would generally be acceptable at trial. However, subs (3) does not offerany indication regarding the content of evidence that may be offered in the course ofa special hearing, other than that the court may consider "any" of the listed evidence.[19] On its ordinary meaning, the use of the word "any" may be understood toindicate a complete absence of restrictions regarding the acceptable content ofevidence presented in a special hearing. However, a brief moment of consideration issufficient to determine that this interpretation cannot apply here. Clearly, for example,the court could not consider evidence which relied solely upon a defendant's race orsexuality, or was in any way irrelevant to the s 9 hearing.[20] A narrower interpretation of the word "any" is required. In my view, there aretwo possibilities:(a) "Any" could mean "any relevant evidence of any kind"; or(b) "Any" could mean "any admissible evidence, as determined by theprovisions of the Evidence Act."[21] I prefer the second interpretation, for two reasons. The first reason is that thisinterpretation is consistent with the direction in s 5 of the Evidence Act, that the Actapplies to all proceedings save where there is an inconsistency between the provisionsof the Evidence Act and the provisions of any other enactment. I have not seen anyinconsistency between the provisions of the Evidence Act and those of the CP(MIP)A.[22] The second reason is more complex and requires consideration of the broaderscheme for dealing with persons who are unfit to stand trial under the CP(MIP)A. Theissue of whether a defendant is fit to stand trial may be raised at any stage after thecommencement of proceedings against the defendant until all the evidence has beenconcluded at trial.5 The special hearing procedure will be triggered if the accused, hisor her counsel, or the Crown raises a question regarding the defendant's fitness to standtrial.6 Once the issue has been raised, the court must hold a special hearing todetermine whether it is satisfied, on the balance of probabilities, that the evidenceagainst the defendant is sufficient to establish that the defendant caused the act oromission forming the basis of the offence(s) for which the defendant is charged.7 Ifthe court is not satisfied of that matter, the charge(s) must be dismissed.8[23] However, if the court is satisfied of the defendant's involvement, the court mustproceed to determine whether the defendant is unfit to stand trial.9 If the defendant isfound unfit to stand trial, the court is required to deal with the defendant under s 24 or25 of the CP(MIP)A. Section 24 provides for the detention of the defendant as aspecial patient under the Mental Health (Compulsory Assessment and Treatment) Act1992 or, depending on the nature of the defendant's impairment, as a special carerecipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act2003.10 The court may only make an order under s 24 if it is satisfied that the makingof the order is necessary in the interests of the public or any person or class of personwho may be affected by the court's decision.11 Depending on the nature of thecharge(s) against the defendant, he or she may be detained as a special patient orspecial care recipient for up to 10 years.12 If all of the charges are withdrawn ordismissed, the order requiring the defendant's detention is treated as being cancelled.13Alternatively, the defendant's health may improve to the point where the defendantcan instead be detained as a normal patient or care recipient;14 or, if the defendant is5 Criminal Procedure (Mentally Impaired Persons) Act 2003 [CP(MIP)A], s 7(1).6 McKay v R [2009] NZCA 378, [2010] 1 NZLR 441 at [34] and [39].7 CP(MIP)A, s 9.8 CP(MIP)A, s 13(2).9 CP(MIP)A, s 13(4).10 CP(MIP)A, s (2).11 CP(MIP)A, s 24(1)(c).12 CP(MIP)A, s 30(1).13 CP(MIP)A, s 30(5).14 See CP(MIP)A, s 31(3).no longer unfit to stand trial, the defendant may be released and brought before theappropriate court.15[24] If a defendant is unfit to stand trial but the court is not satisfied that an orderunder s 24 is required, the court must deal with the defendant under s 25, by:16(a) Ordering that the defendant be treated as a patient under the MentalHealth (Compulsory Assessment and Treatment) Act;(b) Ordering that the defendant be cared for as a care recipient under theIntellectual Disability (Compulsory Care and Rehabilitation) Act;(c) If the person is liable to be detained under a sentence of imprisonment,deciding not to make an order; or(d) Ordering the immediate release of the defendant.[25] When the court makes an order under s 25 or a decision under s 25(1)(c) inrespect of a defendant who has been found unfit to stand trial, the court may order thatthe criminal proceeding against the defendant in respect of that charge is stayed.17 Ifcircumstances change such that the defendant is no longer unfit to stand trial, the stayon proceedings may be lifted. This often occurs where, for example, a defendant isable to obtain medication for a previously untreated mental illness and subsequentlyattains a level of competence which is sufficient to enable the trial to proceed. Thereis no equivalent provision which regulates the conduct of proceedings following anorder under s 24. The reason for that omission is not clear.[26] I have summarised the procedures for dealing with a person who is unfit tostand trial because this demonstrates the significant impact that a special hearing mayhave on the course of a defendant's life. If at the conclusion of a special hearing, thecourt is not satisfied that the evidential threshold has been met, then the charges againstthe defendant will be dismissed. On the other hand, if the court is satisfied of the15 See CP(MIP)A, s 31(2).16 CP(MIP)A, s 25(1).17 CP(MIP)A, s 27(1).defendant's involvement in the offence, then the defendant may in some cases facedetention as a special patient or special care recipient for up to 10 years without everhaving been convicted of the offence at trial. In other words, the defendant may suffera significant loss of liberty which would not have occurred, but for the outcome of thes 9 hearing.[27] I consider, therefore, that there are strong policy reasons which favour theconsideration of admissibility issues in the course of a s 9 hearing. The alternativecould result in a perverse outcome where a defendant who is fit to stand trial is later,at trial, exonerated for lack of admissible evidence while a co-defendant who is allegedto have committed the same offence and who has been found unfit to stand trial isdetained for up to 10 years, on the basis of that same inadmissible evidence. I do notconsider that to be an acceptable outcome. If a defendant poses a significant threat tosociety due to a mental disorder or intellectual disability, there are other means bywhich he or she can be cared for.18 Thus there are no public policy reasons for treatinga mentally disordered person differently from other persons who may avoid being heldresponsible for their offending because their evidence is excluded on legal grounds.[28] I consider that the Evidence Act is relevant to determining questions ofadmissibility in a special hearing.[29] One final matter which remains to be determined under this heading is whethers 30 of the Evidence Act applies in respect of a special hearing. Section 30 governsthe admissibility of improperly obtained evidence, but only applies in criminalproceedings. I am satisfied that a special hearing is a criminal proceeding. The titleof the legislation, being the Criminal Procedure (Mentally Impaired Persons) Act, andthe language of the relevant sections (particularly the repeated references to "thedefendant") are strong indicators regarding the nature of the special hearing procedure.Furthermore, a special hearing takes place as part of wider criminal proceedings.Therefore, s 30 is relevant when considering the admissibility of evidence in a specialhearing.18 See the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the IntellectualDisability (Compulsory Care and Rehabilitation) Act 2003.Should the evidence of Ms Maangi's confession be excluded from consideration?[30] Section 30 of the Evidence Act governs the admissibility of improperlyobtained evidence. That term is defined in subs (5), which provides:(5) For the purposes of this section, evidence is improperly obtained ifit is obtained—(a) in consequence of a breach of any enactment or rule of law bya person to whom section 3 of the New Zealand Bill of RightsAct 1990 applies; or(b) (c) unfairly.[31] Counsel for Ms Maangi argues that the evidence of her confession wasobtained in breach of ss 22 and 23 of the NZBORA, on the basis that she wasunlawfully detained and that Sergeant Franklin failed to inform Ms Maangi of herrights at a sufficiently early stage. He further contends that although Ms Maangi'sconfession was recorded after she had been cautioned, that evidence is "fruit of thepoisoned tree" and should therefore be inadmissible as improperly obtained evidence.Was there an arbitrary detention?[32] In Everitt v Attorney-General, the Court of Appeal considered whether arequest that a cyclist turn up his cycle for inspection constituted an unlawfuldetention.19 It held:20Police work properly involves making inquiries without there necessarilybeing a power to demand compliance and the brief time involved inresponding to an inquiry of that kind could not sensibly be described as anunlawful detaining. In general terms, whether someone is detained within themeaning of s27 of the Bill of Rights may be determined by a "mixedobjective/subject test: does the suspect have a reasonably held belief, inducedby police conduct, that he or she is not free to leave" (R v M [1995] 1 NZLR242, 245). A common sense and practical approach is called for an somethingmore than a temporary check on a citizen's liberty is required. As was said inPolice v Smith and Herewini [1994] 2 NZLR 306, 316, what beyond thatconstitutes a sufficient restraint on liberty to come within the guarantee of s22of the Bill of Rights against arbitrary detention, will depend on thecircumstances of the case and will involve consideration of the nature,purpose, extent and duration of any constraint.19 Everitt v Attorney-General [2002] 1 NZLR 82.20 At [7].[33] The unchallenged evidence of Sergeant Franklin is that when he first sawMs Maangi, he "requested Ms Maangi to stay where she was". On a common senseand practical approach, this cannot amount to an arbitrary detention of Ms Maangi. Atthe time she was standing in a public place. Sergeant Franklin was the only policeofficer who was interacting with Ms Maangi. There is nothing in the circumstancesof the interaction between Sergeant Franklin and Ms Maangi that would suggest herwill was overborne by his request. Further such circumstances would not reasonablysuggest to anyone that he or she had no choice but to accede to Sergeant Franklin'srequest. I am satisfied, therefore, that his request to Ms Maangi for her to stay whereshe was not an unlawful request. Furthermore, given the circumstances confrontingSergeant Franklin, I consider his request was reasonable.Did Sergeant Franklin fail to promptly caution Ms Maangi?[34] Section 23 of the NZBORA provides that persons who are arrested or detainedunder any enactment must be informed of certain matters including the right to refrainfrom making a statement and the right to instruct a lawyer without delay.[35] The Practice Note – Police Question (s 30(6) of the Evidence Act 2006)provides the following guidance regarding appropriate practice when asking questionsof a potential suspect:211. A member of the police investigating an offence may ask questions ofany person from whom it is thought that useful information may beobtained, whether or not that person is a suspect, but must not suggestthat it is compulsory for the person questioned to answer.2. Whenever a member of the police has sufficient evidence to charge aperson with an offence, or whenever a member of the police seeks toquestion a person in custody, the person must be cautioned beforebeing invited to make a statement or answer questions. The cautionto be given is:(a) that the person has the right to refrain from making anystatement and to remain silent;(b) that the person has the right to consult and instruct a lawyerwithout delay and in private before deciding whether toanswer questions and that such right may be exercised withoutcharge under the Police Detention Legal Assistance Scheme;21 Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.(c) that anything said by the person will be recorded and may begiven in evidence.[36] I consider that Sergeant Franklin's first question to Ms Maangi, namelywhether she "had just got out of that car", was reasonable in the circumstances. At thetime he had seen her in the company of another person who acted suspiciously bydecamping from the scene; she was approximately 30 metres from the stolen Mazdaand she had a Mazda key ring with keys in her hand. That would be sufficient toconnect her in Sergeant Franklin's mind with the stolen Mazda in some way but thosecircumstances in my view were not sufficient to give Sergeant Franklin good cause tosuspect she was the person responsible for unlawfully taking the Mazda or assistingsomeone else to unlawfully take it. In my view Sergeant Franklin needed to find outmore about Ms Maangi's connection with the Mazda before he could have good reasonto suspect she was involved in the unlawful taking. By asking Ms Maangi if she hadgot out of the Mazda Sergeant Franklin framed his request for information in a neutralway as the question sought to discover if Ms Maangi had been in the Mazda in a waythat did not necessarily tie her to its unlawful taking. In this regard the question leftopen the possibility that Ms Maangi had entered the Mazda some time after it wasunlawfully taken without such knowledge. Once Ms Maangi volunteered that she hadtaken the Mazda, Sergeant Franklin cautioned her.[37] Further I am satisfied from Sergeant Franklin's description of thecircumstances that there was nothing about Ms Maangi that would have informed himthat she might have mental health issues that made anything she said to himproblematic.[38] I am satisfied, therefore that there was nothing unlawful in the oral exchangebetween Sergeant Franklin and Ms Maangi. According, there is no basis in that regardfor finding that Ms Maangi's confession was improperly obtained or that the exchangeshould be held inadmissible as evidence against Ms Maangi.Should the confession be otherwise excluded?[39] The issue of the confession being unreliable in terms of s 28 of the EvidenceAct due to Ms Maangi's mental health issues was not specifically raised at the hearing.Accordingly the procedural requisites set out in s 28(1) were not addressed. (I do notpropose therefore to consider her confession in the light of s 28).[40] There remains the issue of whether it would be unfair to admit Ms Maangi'sevidence on view of the subsequent psychiatric report dated 29 July 2015 ofDr Olivera Djokovic. Dr Djokovic found that at the time she interviewed Ms Maangishe displayed signs of a mental illness and that in Dr Djokovic's opinion a court wouldhave difficulties finding Ms Maangi fit to stand trial. The interview took place on 22July 2015 at the Auckland Region Women's Corrections Facility.[41] The alleged offending occurred in April 2015 which was some months earlierthan the interview. By July 2015 Ms Maangi had been arrested and remanded incustody. Dr Djokovic did not address what Ms Maangi's mental state might have beenin April 2015 or what effect if any the arrest and remand in custody might have hadon Ms Maangi. A second report from a psychiatric registrar dated 25 September 2015observed an improvement in Ms Maangi's mental state as the opinion was that a courtwould find Ms Maangi fit to stand trial. There is nothing in either report to suggestwhat Ms Maangi's mental state might have been in April 2015.[42] From the exchange recorded by Sergeant Franklin Ms Maangi appears to havegiven clear cogent answers. Those answers are incriminating. However, on manyoccasions persons give incriminating answers to police questions following a caution.The fact such answers were provided cannot necessarily be taken as an indication thatMs Maangi did not fully appreciate the caution or the consequences of disregard of it.Was there sufficient evidence against Ms Maangi to satisfy the section 9 test ?[43] The District Court Judge adjusted the weight he placed on Ms Maangi'sincriminating answers in view of her subsequent mental health condition. Since thehearing was conducted on the papers he was in no better position than I am to reach aview on this topic. Like the District Court Judge, I am satisfied that even if regard ispaid to Ms Maangi's subsequent mental health condition and the likelihood it waspresent to some extent, albeit unknown, in April 2015, her admissions are sufficient toconnect her to the actus reus of the offence of unlawfully taking the Mazda.Accordingly, the Judge was right to find this outcome.Result[44] The appeal against the decision of Judge Couch in relation to the unlawfultaking of the Mazda motor vehicle is dismissed.