TE AMO & ANOR v R [2022] NZCA 122

TE AMO & ANOR v R [2022] NZCA 122 [8 April 2022]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF ANY PERSONS UNDER THE AGE OF 18YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THECRIMINAL PROCEDURE ACT 2011.NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OFWITNESS/CONNECTED PERSON(S) PURSUANT TO S 202 OF THECRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE.NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THEINDIVIDUAL WHO WAS FOUND UNFIT FOR TRIAL PURSUANT TO S 200OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE UNTIL4 MAY 2022.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA309/2020[2022] NZCA 122BETWEEN KERRY TE AMOAppellantsAND THE QUEENRespondentCA333/2020BETWEEN TOKO (ASHLEY) SHANE REI WINTERAppellantAND THE QUEENRespondentHearing: 22 February 2022Court: Cooper, Peters and Palmer JJCounsel: S Tait and J M Hudson for K Te AmoW C Pyke for T S R WinterZ R Johnston and F E S F Girgis for RespondentJudgment: 8 April 2022 at 10.30 amJUDGMENT OF THE COURTThe appeals are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Palmer J)[1] Ms Ashley Winter and Mr Kerry Te Amo were convicted of kidnapping andmurder, the maximum penalties for which are 14 years' imprisonment and lifeimprisonment respectively. The horrific facts, which involved them torturing andhanging a 17-year-old girl, do not need rehearsing for the purposes of this appeal.They were well-outlined by the trial judge, Brewer J, in sentencing them each to lifeimprisonment for the murder and, concurrently, seven years' imprisonment for thekidnapping.1 On the charge of murder, Ms Winter was given a minimum period ofimprisonment of 19 years and four months and Mr Te Amo was given 19 years. Athird person was found unfit to stand trial.2 The youngest, and least involved of thegroup, received immunity from prosecution and gave evidence for the Crown.Mr Te Amo and Ms Winter appeal their convictions and sentences.[2] Under s 232(2)(c) of the Criminal Procedure Act 2011, we must allow anappeal if satisfied that "a miscarriage of justice has occurred for any reason". Amiscarriage of justice is defined by s 232(4) to mean: any error, irregularity, or occurrence in the trial that—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.1 R v Winter [2020] NZHC 1115.2 That situation ceased to apply on 23 February 2022.Mr Te Amo's appeal[3] Mr Te Amo appeals his conviction on the basis that a recording of his secondinterview by police was wrongly admitted into evidence by Edwards J before the trial,resulting in a miscarriage of justice.3What happened?[4] We gratefully adopt the account by Edwards J of the events relevant to thisground of appeal.4 In his first interview with the police, Mr Te Amo admitted beingat the house where the offending occurred but denied participating in the offending.After that interview, Mr Te Amo was charged with murder at 3.53 am on 19 July 2018.Shortly after that, Detective Inspector Va'aelua, the District Crime Manager atManukau, entered the interview room. He had a further conversation with Mr Te Amo,in what he described as his standard "after-care" practice of checking whether a personwho has just been charged is okay and if they need anything to eat or wear.5 TheDetective Inspector subsequently misplaced his notes of the conversation but he andMr Te Amo were cross-examined about it.[5] As Edwards J stated:[170] It is not clear who initiated the conversation about next steps, but it iscommon ground that the discussions turned to Mr Te Amo's options. TheDetective recalls telling Mr Te Amo that the charge of murder, if proven guilty,had a minimum sentence of 10 years' imprisonment. Although he said in hisstatement that he recalled talking about sentences around the 17 and 20-yearmark, he acknowledged in cross-examination that he did not mention the17-year minimum period of imprisonment. He also accepted that he did nottell Mr Te Amo that the penalty for murder was life imprisonment.[171] The Detective went on to explain that early guilty pleas could result insignificant discounts and a good lawyer would try to get as close as possibleto 10 years' imprisonment for a defendant. He then suggested several lawyerswho he thought could assist him and wrote down the name of one lawyer onthe back of Mr Te Amo's DNA form. The Detective did not give Mr Te Amoa copy of the Police Detention Legal Assistance roster which contains namesof lawyers who may advise defendants.3 R v Winter [2019] NZHC 1766.4 At [168]–[173].5 At [169].[6] At about 8.40 am, Mr Te Amo advised the police that he wished to make afurther statement to clarify points made in his first interview. The second interviewcommenced at 9.20 am and concluded at 10.53 am. At the beginning of the interview,Mr Te Amo had this exchange with the interviewing officer:JM You understand that? Okay good. Alright so that's what we're speakingabout today and you understand and ah sort of the seriousness of what isbeing spoken about. So you have the right to remain silent and you donot have to make any statement. Anything you say will be recorded andmay be given in evidence in court. You have the right to speak with alawyer without delay and in private before deciding whether to answerany questions and Police have a list of lawyers that you may speak to forfree. Do you understand those rights Kerry?KT Yeah.JM Alright.KT Um one of the other Detectives gave me a lawyer.JM Right.KT Oh but nah.JM Okay.KT Nah I'll just.JM You you're happy to talk to us.KT Yeah.JM And you feel like you're, you're aware of your rights and you're awareof the gravity of the situation.KT Yeah.[7] Mr Te Amo was cross-examined before Edwards J about what he meant insaying "one of the other Detectives gave me a lawyer" and "Oh but nah". He said:A. Um, well, 'cos I knew that, that lawyer in particular, was like a lawyerthat could help get me 10 years and in my mind that's just a guilty plealawyer but I'm not guilty, that's why I said nah.Q. Did you not think you could ask the policeman for a not guilty lawyerinstead of a guilty one?A. Um, I've never been in a situation like this before.Q. Well, what do you mean by "situation like this"?A. Like, um, just a charge that's just so, like –Q. A charge like what?A. That's real bad and it's not minor, it's major.[8] In the second interview, Mr Te Amo clarified that he had prepared the noosethat was used to hang the victim and he had cut her down after she had hanged.High Court decision[9] On 25 July 2019, among other things, Edwards J dismissed Mr Te Amo'schallenge to the admissibility of the interview.6 Mr Hudson submitted that theconversation with the Detective Inspector confused Mr Te Amo into thinking he wouldonly need to speak to a lawyer if he was going to plead guilty. Accordingly,Mr Hudson submitted Mr Te Amo did not fully understand his right to speak to alawyer was not linked to whether he intended to plead guilty or regarded himself asguilty. Therefore, he submitted, Mr Te Amo's waiver of his right to a lawyer was noteffective and the second interview was improperly obtained. Edwards J dismissed thechallenge, stating:[175] I say at once that there is no suggestion that Detective Inspector Va'aeluawas trying to induce Mr Te Amo to plead guilty or to pressure him to makefurther admissions. The Detective was completely genuine and wellintentioned in his after-care practice. That practice itself is to be credited.However, the Detective was treading on dangerous ground in giving adviceon possible sentences or outcomes. There is a real risk that advice of thatnature may mislead a defendant into pleading guilty, making admissions, orengaging a particular lawyer with the expectation that doing so would resultin a particular sentence. Police officers should refrain from giving advice ofthis nature.[176] However, I am not persuaded that the conversation with the DetectiveInspector meant that Mr Te Amo's election not to speak to a lawyer wasineffective in the circumstances. I consider that Mr Te Amo (correctly)apprehended that the Detective was recommending a lawyer to achieve a goodsentencing outcome in the event Mr Te Amo decided he wanted to plead guilty.But I do not accept that this means that Mr Te Amo did not understand that hecould speak to a lawyer whether he intended to plead guilty or not.[177] The advice given to Mr Te Amo of his right to consult a lawyer for freewas given in plain terms. It was not linked to a particular plea or whetherMr Te Amo regarded himself as guilty or not. He was also told that police hada list of lawyers that he could speak to for free. The police officer confirmedwith Mr Te Amo that he understood his rights and that he understood the6 At [166] and [181].gravity of the situation. He re-confirmed that Mr Te Amo was happy to speakto him.[178] I consider Mr Te Amo understood what he was being told. He indicatedthat he did. Mr Te Amo struck me as intelligent and astute. There is nosuggestion of any mental illness or disability indicating that he did not in factunderstand his rights when they were given at the time. Although Mr Te Amonow says that he did not know what to do because he had never been in thissituation before, he showed no signs of confusion at the time. He knew thathe was charged with murder, that it was serious, and it was in that context hewas being told of his right to a lawyer.[179] It must also be remembered that Mr Te Amo had indicated that hewanted to make the further statement to clarify some points in his earlierinterview. Mr Te Amo had presented himself at the station and had waivedhis right to a lawyer in that earlier interview. This was not, therefore, the firstoccasion he had been told of his right to a lawyer in relation to Ms Pairama'sdeath.[180] Indeed, Mr Te Amo has a number of other criminal convictions and hasbeen told of his right to a lawyer and his right to silence on several prioroccasions. In some cases, Mr Te Amo declined to make a statement and inother cases he waived his right to silence. Mr Te Amo confirmed undercross-examination that he had been given his rights on a number of times,understood those rights, and in particular, understood the right to silence andthe right to speak to a lawyer for free. I accept that Mr Te Amo has neverfaced a charge as serious as murder before, but there is no indication that theseriousness of the charge impinged on his understanding of his right to alawyer.[181] In summary, although the Detective Inspector was unwise to giveMr Te Amo legal advice, his statements did not ultimately confuseMr Te Amo such that his waiver of the right to counsel was ineffective. Thisground of challenge is dismissed.Relevant law[10] Section 23(1)(b) of the New Zealand Bill of Rights Act 1990 requires thateveryone who is arrested or detained "shall have the right to consult and instruct alawyer without delay and to be informed of that right".[11] Under s 30(5)(c) of the Evidence Act 2006, evidence obtained "unfairly" isimproperly obtained. If a Judge determines evidence has been improperly obtained,under s 30(4) of the Evidence Act, they must exclude it if they also determineexclusion is proportionate to the impropriety.[12] In R v Chetty, the Supreme Court observed that failure to record a discussionbetween a defendant and a police officer was a significant breach of r 5 of PracticeNote — Police Questioning (s 30(6) of the Evidence Act 2006).7 The majority heldthat was not causative of the defendant's admissions in that case.8 However, it alsoobserved that, in appropriate cases, a material detrimental impact on the task of a judgecaused by non-compliance with the Practice Note could be sufficient to justifyexclusion of an admission, even where the non-compliance was not causative of theadmission.9Submissions[13] Mr Hudson, for Mr Te Amo, submits:(a) The second interview was obtained in breach of the Practice Note, andin breach of his right to a lawyer and to silence.(b) The Detective Inspector failed to advise Mr Te Amo that conviction formurder attracts a sentence of life imprisonment.(c) The Detective who conducted the interview should have clarifiedMr Te Amo's understanding about being "given a lawyer" and hisunderstanding of the situation.(d) The Judge's conclusion that Mr Te Amo was told of his right to speakto a lawyer, that the police had a list of lawyers he could consult andthat he understood this advice discounts the impact of his interactionwith the Detective Inspector.(e) Mr Te Amo confirmed he was influenced by the Detective Inspector'sadvice about the sentence and getting a lawyer. By underminingMr Te Amo's confidence in the police's list of lawyers, theDetective Inspector created a situation where Mr Te Amo elected to beinterviewed without the benefit of legal advice. The "after-care"7 R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26; and Practice Note — Police Questioning (s 30(6)of the Evidence Act 2006) [2007] 3 NZLR 297.8 At [54].9 At [47].practices were conducted in bad faith and designed to deter Mr Te Amofrom seeking independent legal advice.(f) The statement was improperly and unfairly obtained, causedMr Te Amo great disadvantage, and caused a miscarriage of justice.Exclusion is justified even if the police failure to comply with r 5 wasnot causative of Mr Te Amo's admissions.Should evidence of the second interview have been admitted?[14] We agree with the Judge that the Detective Inspector's discussion withMr Te Amo trod on dangerous legal ground. The Crown acknowledges it was unwise.But, like the Judge, we do not consider Mr Te Amo's rights were infringed by beinggiven an additional option of a lawyer to talk to if he wanted to do so. He did not takeup the option. He was advised, both before and after the discussion with the DetectiveInspector, of his rights to silence and to a lawyer. We are satisfied he understood thoserights. There is no real dispute about what happened. Neither the discussion, nor theDetective Inspector's subsequent misplacing of his notes of the conversation,undermined Mr Te Amo's rights or caused his admissions.[15] Neither can we see any evidential foundation for Mr Hudson's allegation ofbad faith or an intention to deter Mr Te Amo from seeking independent legal advice.We do not consider Mr Te Amo's statements in the second interview were unfairly orimproperly obtained. We do not consider there was a miscarriage of justice. Wedismiss the conviction appeal.Mr Te Amo's sentence appeal[16] Mr Te Amo appeals the length of his 19-year minimum period of imprisonmentonly if he succeeds in his conviction appeal. We do not consider the minimum periodto be manifestly excessive in the circumstances of this case. The Judge took intoaccount Mr Te Amo's personal circumstances pointed to by Mr Hudson. We considerthe minimum period, including the five per cent reduction made to reflect Mr Te Amo'spersonal circumstances, was within the range available to the sentencing Judge.Ms Winter's appeal[17] Ms Winter appeals her conviction on the basis that the trial Judge's directionserred in three respects. We deal with them under two headings.Standard of proof[18] Early in summing up the case for the jury, the Judge noted:[17] This is not about liking or not liking people and it is not a court of morals.Your task is not an emotional one. You must look at the evidence logicallyand rationally, putting aside any emotion.[19] He then explained that the onus of proof is on the Crown before turning to thestandard of proof:[23] The standard that the Crown must achieve is proof beyond reasonabledoubt. A reasonable doubt does not mean a vague or fanciful doubt. Areasonable doubt is an honest and reasonable uncertainty left in your mindabout the guilt of the defendants after you have given careful and impartialconsideration to all the evidence. As the lawyers have said to you, to besatisfied beyond reasonable doubt means you feel sure.[24] What I have just said is a formal, legal description of the standard ofproof. Let me see if I can make it a bit more real for you.[25] It is often said that juries can agonise over what proof beyond reasonabledoubt means. Mr Foreman, members of the jury, it is at the end of the day avery human judgment you have to make. It is not a matter of mathematicalpercentages – and I imagine some of you are very logical folk and youprobably like mathematical percentages – but in human affairs almost nothingis mathematically certain. However, "possibly", "maybe", "probably","likely", "very likely" are not good enough when it comes to proof beyondreasonable doubt. If, when you consider an issue, you think, well, "possibly","maybe", "probably", "likely", "very likely", that means you are not sure andyou would have to give the doubt to the defendant.[26] You might consider it useful to look at it this way. When you are in thejury room and you are looking at an issue the Crown has to prove, if you cansit back and say, "Well, I've looked at the evidence as it relates to this issueand I've thought about the law as the Judge says applies to the issue and, forme, you know, I am not sure. I've got a doubt and I believe it to be areasonable doubt. It's not something I have plucked from thin air. I havethought about it and it's a reasonable doubt. I'm not sure." Well, if that is howyou approach it, the Crown has not discharged its onus on that point. It willnot have proven that issue to you beyond reasonable doubt. But if you insteadsit back and say, "Well, I've looked at the evidence relating to the issue and Ihave applied to it the law as the Judge says I must and, yes, I'm sure. I'msatisfied that this issue has been proved." Well, then the Crown hasdischarged its onus. It is, as you see, a human judgment; a process that yougo through and on each critical issue you will either find yourself to be sureor you will find yourself to be unsure, and that is a matter for each of youindividually. If after that process you are sure that either Ms Winter orMr Te Amo is guilty, then you must find them guilty. But if you are not sureMs Winter or Mr Te Amo is guilty then you must find them not guilty.[20] Mr Pyke, for Ms Winter, submits that the direction that the jurors' process ofreasoning should involve "human judgments", in [25], invited reasoning based onnon-analytical factors — intuitions or gut feelings. He submits this is an error.[21] We consider the Judge's direction should be read together with his advice tothe jury to "look at the evidence logically and rationally, putting aside any emotion."Characterising their judgement as human is similar to the usual advice to juries to usetheir common sense. It is difficult to see how jurors can make judgements that areother than human. The Judge was distinguishing the standard of proof frommathematical certainty, as is commonly done in directions on the standard of proof.He was making the formal legal description of the standard of proof "more real" forthe jury. This was entirely appropriate. The standard of proof had already beenexplained in the Judge's opening comments to the jury, in the Crown's opening, andin the question trail. We do not consider the direction was in error.A warning and immunity[22] In his summing up, the Judge also directed the jury regarding the immunityfrom prosecution granted to the fourth person involved. He said:[29] [RT] was given immunity from prosecution on condition she tell the truthabout what happened. Both defence counsel have criticised her for that. Theysay she got a "sweetheart deal" and they imply her evidence, in parts, issuspect as a result.[30] Well, the Solicitor-General has the power to grant an immunity toprosecution in circumstances where the Solicitor-General thinks it appropriateto do so. She did it in this case. Your task is to evaluate [RT's] evidence. Ifyou think the immunity has any significance, then give it the significance youfind it has. Just do not say, "well, because she has immunity we cannot trusther". The point of immunity is to free a witness to tell the truth. Whether thewitness does tell the truth is best assessed by how their evidence stacks upagainst other evidence you accept.[23] Mr Pyke submits that the Judge was obliged to caution the jury unders 122(2)(c) of the Evidence Act 2006 that, as an accomplice or incentivised witness,the witness may have a motive to give false evidence prejudicial to Ms Winter. Hesubmits a reliability warning was necessary because: the Judge's direction aboutimmunity conveyed official endorsement of the witness; the witness's young age madeher susceptible to pressure; the witness was present at the scene of the homicide; andthe witness was related to or knew the other participants. As it was, Mr Pyke submitsthe Judge's directions gave the witness, and therefore the Crown, a hand up.[24] We agree with Ms Johnston, for the Crown, that the grant of immunity wasfully ventilated and squarely before the jury. The witness's incentives were plain andthe jury would have been well aware of them. In addition to reminding the jury of thedefence criticisms of the witness, the Judge invited the jury to assess how her evidencestacked up against the other evidence. His direction on credibility and reliabilityidentified this witness in particular. And the Judge made comprehensive reference tothe defendants' criticism of the witness's evidence. Further direction was unnecessary.[25] Section 122 of the Evidence Act requires a judge to consider whether to give areliability warning where they consider evidence may be unreliable. But it does notrequire a warning to be given. Sometimes, giving such a warning can over-emphasisereliability issues. We think that would have been the case here. The Judge fairlysummarised the defence criticisms of the witness's evidence. We are satisfied theJudge was not required to give a reliability warning as well. This is not a case of anaccomplice seeking to deflect blame or a prison informant. The witness's evidence,which implicated a family member, was consistent with her statements to the policebefore she had immunity.[26] Mr Pyke submits the Judge erred by directing that the immunity given meantthe witness was free "to tell the truth". But that is not what the Judge said. He said:The point of immunity is to free a witness to tell the truth. Whether the witnessdoes tell the truth is best assessed by how their evidence stacks up againstother evidence you accept.[27] Neither does that suggest the Solicitor-General accepted what the witness saidpreviously was the truth. The Judge's directions clearly left that for the jury. It wouldhave been obvious to the jury, including from counsel's submissions and the Judge'sdirections, that immunity does not guarantee truthfulness. The Judge was not requiredto go further than he did.[28] Mr Pyke also submits, rather faintly, that the Judge erred in not referring toinconsistencies in the witness's evidence relied upon by the defence. But we considerthe Judge fairly and comprehensively outlined Ms Winter's case in his summing up.[29] We have concluded the trial Judge did not err. We do not consider any of thepoints raised led to a reasonable possibility another verdict would have been reached.There was no miscarriage of justice. We dismiss Ms Winter's conviction appeal.Ms Winter's sentence appeal[30] Mr Pyke said Ms Winter had also filed a sentence appeal which remains live,on the ground that the 10 per cent reduction for Ms Winter's personal circumstanceswas insufficient. Mr Pyke did not have instructions to abandon the appeal but couldnot offer any argument in support of it. We understand that. We can see no merit tothe appeal. The Judge dealt fairly with Ms Winter's personal circumstances, given thenature of the offending. In particular, we note that they were an important reason whythe Judge decided it would be manifestly unjust for Ms Winter to serve her lifesentence without the prospect of parole, as a second strike offence. We dismiss thesentence appeal.Result[31] The appeals are dismissed.Solicitors:Crown Law Office, Wellington for Respondent