PESE v R [2017] NZCA 106

PESE v R [2017] NZCA 106 [4 April 2017]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, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYSS 203 AND 204 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA66/2017[2017] NZCA 106BETWEEN MANU PETER PESEApplicantAND THE QUEENRespondentHearing: 13 March 2017Court: Cooper, Woodhouse and Collins JJCounsel: O Woodroffe for the ApplicantA J Ewing for the RespondentJudgment: 4 April 2017 at 3 pmJUDGMENT OF THE COURTA The application for leave to adduce further evidence is declined.B The application for leave to appeal is declined.C Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of trial.Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Pese is charged with two offences of indecently assaulting a female under16 years of age.1 On 22 December 2016 Judge Moala dismissed Mr Pese's pre-trialapplication to exclude from the evidence at his trial a DVD interview he had with thepolice in November 2015.2 Mr Pese now seeks leave to appeal that ruling. He alsoapplies to adduce further evidence in support of his application for leave to appeal.Background[2] The complainant, W, is a 15 year old deaf student. Mr Pese, who has lived inNew Zealand since 1971, was engaged to drive W and other students in a taxi vanbetween their homes and school. Whilst transporting W in his taxi van Mr Pese isalleged to have touched her thigh on a number of occasions between 7 August 2015and 7 September 2015. On 7 September 2015 Mr Pese also allegedly kissed W on herleg. She had anticipated something wrong was about to happen and recorded thisincident on her cellphone camera. When she got to her school W immediatelycomplained to a teacher. The school then referred the incident to Mr Pese's employerwho was shown the cellphone footage and confronted Mr Pese. Mr Pese resignedfrom his position on 7 September 2015 after being shown the cellphone footage andtold his conduct breached the policies of his employer.[3] On 10 November 2015 Detective David Yandall telephoned Mr Pese's homeand spoke to a member of Mr Pese's family. Detective Yandall asked if Mr Pese wouldcome to the Manukau Police Station. Mr Pese went to the police station the followingday at around 8 am.[4] In his evidence before Judge Moala, Detective Yandall said that when Mr Pesearrived at the police station he told Mr Pese that he wanted to talk to him about the1 Crimes Act 1961, s 134(3), which carries a maximum penalty of seven years' imprisonment.2 R v Pese [2016] NZDC 26205.complaint of indecent assault made by W. At the start of the interview DetectiveYandall explained to Mr Pese his rights and made a record of this in his notebook. MrPese said he understood those rights.[5] The transcript of the DVD interview shows that Detective Yandall againexplained the purpose of the interview to Mr Pese, told him he was not under arrestand did not have to say anything, that anything Mr Pese did say would be recorded,that he could consult a lawyer free of charge, and that if Mr Pese did not understandthe detective's questions he should say so. Before the substantive part of the interviewcommenced Mr Pese said he wanted to speak to a lawyer. Detective Yandallimmediately stopped the interview and arranged for Mr Pese to speak to a lawyer. Thetelephone conversation between Mr Pese and the lawyer took place in the Samoanlanguage. After speaking to the lawyer Mr Pese agreed to continue the interview. Inhis interview Mr Pese initially denied kissing W's leg but, when shown the videorecording from W's cellphone, Mr Pese acknowledged doing so.District Court judgment[6] In the hearing before Judge Moala it was argued on behalf of Mr Pese that theDVD interview had been improperly obtained and should therefore be excluded bys 30 of the Evidence Act 2006. Subsections (5) and (6) of s 30 of the Evidence Actprovide:(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) in consequence of a statement made by a defendant that is orwould be inadmissible if it were offered in evidence by theprosecution; or(c) unfairly.(6) Without limiting subsection (5)(c), in deciding whether a statementobtained by a member of the Police has been obtained unfairly for thepurposes of that provision, the Judge must take into accountguidelines set out in practice notes on that subject issued by the ChiefJustice.[7] The case for Mr Pese in the District Court was that his admissions had beenimproperly obtained because they were received in the context of breaches of ss 23,24 and 27 of the New Zealand Bill of Rights Act 1990 and of the Practice Note –Police Questioning (s 30(6) of the Evidence Act 2006).3 The relevant contentions forthe purpose of the application for leave to appeal before us are that Mr Pese did notunderstand the jeopardy he was in when he was interviewed, the questions put to himor his right to consult and instruct a lawyer.[8] Judge Moala heard evidence from Detective Yandall and Mr Pese during thehearing and watched the DVD interview. She assessed the reliability and credibilityof Detective Yandall and Mr Pese. She concluded Detective Yandall's evidence was"straightforward and was supported by the notes he made and the DVD interviewitself". Judge Moala said she found Detective Yandall "to be an honest witness whodealt with Mr Pese in a fair way when he interviewed him. During the interview heasked clear and uncomplicated questions and did not play games with Mr Pese."4[9] On the other hand, Judge Moala concluded "Mr Pese was not a credible orreliable witness".5 She also concluded after listening and watching him give evidencethat Mr Pese had a good command of the English language and that at no point duringthe interview with Detective Yandall did Mr Pese indicate he did not know what wasbeing said or that he needed the assistance of an interpreter.[10] Judge Moala made the following key points in coming to the conclusion thatthe evidence was not improperly obtained:(a) First, she said:[63] Detective Yandall gave Mr Pese his rights andMr Pese responded by confirming that he understood thoserights. He did this twice (first time at page 4 of the transcriptand second time at page 6 of the transcript) and explainedeach right in simple language.(b) Second, she explained that:3 Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297.4 R v Pese, above n 2, at [54].5 At [55].[69] From the outset, Mr Pese knew about the allegations.He was informed by his employer and shown the footage ofthe incident on 7 September 2015. He resigned as a result ofthe allegations so he was fully aware of the seriousness of thismatter.(c) Third, she observed in her judgment that at the start of the DVDinterview Detective Yandall told Mr Pese what the interview was about.This explanation of the purpose of the interview was repeated at pages3, 4, 5, 6 and 9 of the transcript of the interview.6 The Judge concluded:"There is overwhelming evidence that Mr Pese understood the natureof the allegation and the evidence against him."7(d) Fourth, she noted that Mr Pese had been told of his right to consult alawyer and had exercised that right.8Additional evidence[11] Ms Woodroffe has applied to adduce an affidavit from Dr Innes, a linguist, whoreviewed Mr Pese's DVD interview, in support of the application for leave to appeal.Dr Innes opined Mr Pese:(a) may or may not have understood the implications of what he said toDetective Yandall; and(b) may have agreed with Detective Yandall's statements out of a sense ofdeference.[12] Dr Innes' proposed evidence was somewhat equivocal. She said: the interview was conducted in a courteous and calm manner on the part ofboth the interviewer and the interviewee. Mr Pese [appeared] generally tounderstand the gist and many specifics of the questions. The question of how far Mr Pese may have understood everything he wasasked is raised early in the interview when the interviewer asks him directlyabout his understanding of English. His answer is that he is not fullyconversant with it. As noted, he appears to generally understand, but whether6 At [72]–[73].7 At [74].8 At [84].he would have understood everything and its implications fully cannot bedetermined from the interview.[13] The Crown opposes the application to adduce this evidence on the ground thatit is neither fresh nor cogent to the issues on appeal.[14] The test for adducing fresh evidence was explained in the following way bythe Privy Council in Lundy v R:9[120] The Board considers that the proper basis on which admission of freshevidence should be decided is by the application of a sequential series of tests.If the evidence is not credible, it should not be admitted. If it is credible, thequestion then arises whether it is fresh in the sense that it is evidence whichcould not have been obtained for the trial with reasonable diligence. If theevidence is both credible and fresh, it should generally be admitted unless thecourt is satisfied at that stage that, if admitted, it would have no effect on thesafety of the conviction. If the evidence is credible but not fresh, the courtshould assess its strength and its potential impact on the safety of theconviction. If it considers that there is a risk of a miscarriage of justice if theevidence is excluded, it should be admitted, notwithstanding that the evidenceis not fresh.[15] In addition to satisfying the test for admissibility set out in Lundy, as expertevidence, the proposed evidence from Dr Innes must be shown to likely besubstantially helpful in either understanding the evidence or "in ascertaining any factthat is of consequence to the determination of the proceeding".10[16] In our assessment, even if Dr Innes' evidence is fresh we are far from satisfiedthat it is of any assistance to resolving the issues we have to consider when determiningthe application for leave to appeal. That is because we are not satisfied that JudgeMoala could have reached any different conclusion had the evidence of Dr Innes beenbefore her. The Judge reached her conclusions about Mr Pese's knowledge andunderstanding of the circumstances he was in during the interview by relying on MrPese's own evidence. Mr Pese did not at any stage during his evidence claim that hehad misunderstood the significance of his situation or that he felt pressured to respondto questions from Detective Yandall. Nor did he at any stage of the interview indicatehe needed the assistance of an interpreter or that he did not appreciate that he had aright to consult a lawyer. In these circumstances Dr Innes' evidence is not of any9 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.10 Evidence Act 2006, s 25(1).assistance to us in addressing the issues raised on appeal even if her evidence wascredible in the sense that term was used by the Privy Council in Lundy. Theapplication for leave to adduce further evidence is accordingly declined.Application for leave to appeal[17] Ms Woodroffe, counsel for Mr Pese, has advanced three grounds in support ofthe application for leave to appeal:(a) First, Judge Moala applied the wrong test when determining whetherMr Pese knew he was in jeopardy of being prosecuted at the time of theinterview.(b) Second, Judge Moala erred when concluding Mr Pese understood thejeopardy he was in at the time of the interview.(c) Third, Judge Moala erred when concluding Mr Pese understood hisright to a lawyer and the questions put to him.Relevant lawLeave to appeal[18] Because Judge Moala's decision was a pre-trial ruling under s 101 of theCriminal Procedure Act 2011 concerning the admissibility of evidence, an appeal maybe brought only with the leave of the first appeal court.11 Parliament's decision torestrict the matters12 that can be appealed prior to trial and to require leave be obtainedbefore an appeal of this nature can be considered suggests that the appeal provisionsconcerning pre-trial decisions have been designed to ensure that trials are notunnecessarily disrupted by appeals that lack merit.1311 Criminal Procedure Act 2011, s 217(2)(b).12 Section 217(2).13 See generally R v Coleman [1996] 2 NZLR 525 (CA) at 528.Jeopardy[19] The prosecution is required to demonstrate that the defendant understood hisor her rights before the legitimate interests of the defendant are jeopardised.14 In orderto have understood his or her rights the defendant must have understood the jeopardythey were in.15 Two decisions from this Court explain the relevant law in the followingway:(a) In R v Robinson it was said:16 an accused must be possessed of sufficient information toenable him or her to make an informed decision as to whetherto speak to a lawyer . It follows that a suspect must knowthe real substance of the likely allegations against him or herat the point of the interview .(b) In R v Z (CA318/07) this Court said:17The question is whether, in all the circumstances, the Crownhas established that even although Z was not told of theprecise potential charge, he knew enough to make aninformed decision. The assessment is not of what the policesaid, but of what the suspect knew.Right to a lawyer[20] The right of a person who is detained to consult and instruct a lawyer withoutdelay is enshrined in s 23(1)(b) of the New Zealand Bill of Rights Act and in cl 2(b)of the Practice Note.18[21] Section 23(1)(b) of the New Zealand Bill of Rights Act reads:23 Rights of persons arrested or detained(1) Everyone who is arrested or who is detained under any enactment—(b) shall have the right to consult and instruct a lawyer withoutdelay and to be informed of that right; and14 R v Mallinson [1993] 1 NZLR 528 (CA) at 532.15 See for example R v Simanu [2011] NZCA 326.16 R v Robinson CA16/97, 12 May 1997 at 5 (citations omitted).17 R v Z (CA318/07) [2007] NZCA 401 at [35].18 Practice Note, above n 3.[22] The relevant portion of the Practice Note is as follows:(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:(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;AnalysisFirst proposed ground of appeal[23] The first proposed ground of appeal is that Judge Moala did not apply thecorrect test when deciding Mr Pese knew he was in jeopardy at the time he was beinginterviewed. Ms Woodroffe expressed this proposed ground of appeal in the followingway: Judge Moala failed to apply the correct legal test, as to [Mr Pese's]knowledge of the jeopardy he was in, focussing solely on what he was toldand not on what [Mr Pese] knew, at that time.[24] This proposed ground of appeal has little attraction. We say this because JudgeMoala clearly set out the test from R v Z (CA318/07), which we have repeated aboveat [19].19 There is no doubt that she went on to apply this test correctly.[25] The Judge's factual findings clearly involved her focussing on Mr Pese'sunderstanding. Those factual findings include:(a) Mr Pese was interviewed in the context of him having already beenconfronted by his employer about the video recording W made on hercellphone of the incident on 7 September 2015. Mr Pese must haveappreciated the seriousness of the allegations made by W because heresigned from his role when confronted about her allegations.2019 R v Pese, above n 4, at [27].20 At [69].(b) Detective Yandall explained to Mr Pese before the interview and on sixoccasions during the interview what the purpose of the interview was,namely to talk to Mr Pese about W's allegations of indecent assault.21[26] The fact Mr Pese took advantage of his right to consult with a lawyer beforethe commencement of the substantive part of the interview further underscores the factthat he knew the jeopardy he was in.[27] The Judge's conclusion that "[t]here is overwhelming evidence that Mr Peseunderstood the nature of the allegation and the evidence against him" solidifies ourview that she applied the correct test when assessing whether or not Mr Pese knew thejeopardy he was in.22Second proposed ground of appeal[28] There is a degree of overlap between the first and second proposed grounds ofappeal. The second proposed ground of appeal alleges Judge Moala erred whenconcluding Mr Pese understood he was in jeopardy.[29] This ground too has little merit. The evidence before Judge Moala, parts ofwhich we have summarised above at [25], clearly established that Mr Pese knew thejeopardy he was in. Further, we reiterate that at no stage during the interview didMr Pese give the slightest indication that he had not understood the purpose of theinterview and he did not say in his evidence before the Judge that he failed toappreciate its purpose.[30] Judge Moala's findings in relation to the second proposed ground of appealcannot be seriously challenged.21 At [71]–[73].22 At [74].Third proposed ground of appeal[31] The third proposed ground of appeal alleges Mr Pese did not sufficientlyunderstand his right to consult a lawyer and the questions put to him, and Judge Moalaaccordingly erred in concluding that he did.[32] This proposed ground of appeal is unsustainable. Detective Yandall explainedto Mr Pese very clearly and unequivocally that he had a right to consult a lawyer. MrPese exercised that right and spoke to a lawyer in the Samoan language at the earlystages of the interview and before any admissions were made. There is therefore nobasis to the suggestion Mr Pese did not genuinely understand his right to consult witha lawyer.[33] We are also in no doubt that the Judge correctly determined that Mr Peseunderstood the questions that were put to him. Again, he gave no evidence that he didnot understand the questions. We see no reason to differ from the Judge's conclusion,especially when it was formed after watching Mr Pese's DVD interview.Conclusion[34] None of the proposed grounds of appeal have merit. For that reason theapplication for leave to appeal is declined.Result[35] The application for leave to adduce further evidence is declined.[36] The application for leave to appeal is declined.[37] For fair trial reasons we make an order prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internetor other publicly available database until final disposition of the trial. Publication inlaw report or law digest is permitted.Solicitors:Woodroffe Law Partnership, Auckland for AppellantCrown Law Office, Wellington for Respondent