R v TAITAPANUI [2018] NZHC 1853

R v TAITAPANUI [2018] NZHC 1853 [19 July 2018]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.IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYI TE KŌTI MATUA O AOTEAROATE ROTORUA-NUI-A-KAHUMATAMOMOE ROHECRI-2017-087-131[2018] NZHC 1853THE QUEENvRONALD FISHER TAITAPANUIHearing: 19 July 2018Appearances: R W Jenson for CrownL Smith for DefendantJudgment: 19 July 2018Reasons: 25 July 2018REASONS FOR JUDGMENT OF LANG J[on application for orders as to admissibility of evidence]This judgment was delivered by me on 25 July 2018 at 11.30 am,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Taitapanui faces charges of participating in an organised criminal group,rioting, discharging a firearm with reckless disregard for the safety of police officersand discharging a firearm with reckless disregard for the safety of any person. All ofthe charges were laid following an incident that occurred in Arawa Street, Whakataneon 17 January 2017. During that incident a group of Black Power members gatheredin Arawa Street and two shots were fired by a member of the group towards a largegathering of members of the Mongrel Mob approximately 150 metres further downthe street. Several police officers were in the vicinity of the Mongrel Mobendeavouring to keep them apart from the Black Power gang members.[2] The police arrested several members of the Black Power group on 27 January2017. They then spent more than six months endeavouring to identify other membersand associates of the Black Power gang who may have been involved in the incident.They were aided in this task by film footage and still photographs taken by personswho were in the vicinity of the incident.[3] Mr Taitapanui was not arrested until 12 September 2017. Prior to his arrest heagreed to be interviewed by Detective McKenzie of the Whakatane Police. Theinterview was recorded on videotape and the Crown proposes to play the videotapedinterview to the jury at the trial.[4] Mr Taitapanui contends the police undertook the interview in a manner thatwas unfair and in breach of his rights under the New Zealand Bill of Rights Act 1990(NZBORA). For that reason he has advised the Crown that he challenges theadmissibility of the evidence. The Crown has responded by filing an application unders 101 of the Criminal Procedure Act 2011 seeking orders as to the admissibility of theevidence.[5] Following a hearing held on 19 July 2018, I advised counsel that I ruled theevidence admissible. I now give my reasons for doing so.Grounds of challenge[6] Mr Taitapanui challenges the circumstances in which the evidence wasobtained on two bases. First, he contends the detective was aware he wanted to havea lawyer present at the interview. Notwithstanding this knowledge the detectiveproceeded to conduct the interview when Mr Taitapanui did not have the benefit of hislawyer's presence. In doing so the detective breached Mr Taitapanui's right under s23(1)(b) of NZBORA to consult and instruct a lawyer without delay whilst he wasdetained at the police station. Secondly, Mr Taitapanui contends the detective offeredunfair inducements to him before he began the interview. These took the form ofpromises that Mr Taitapanui would receive favourable bail terms if he wouldundertake the interview, and that he would also receive a lighter sentence.The evidence[7] The Crown called two witnesses at the admissibility hearing. They wereDetectives McKenzie and Twomey. Both detectives confirmed they had travelled toMr Taitapanui's home on the morning of 12 September 2017. They spoke toMr Taitapanui inside the address and advised him that they needed to speak to himabout the gang shooting in Arawa Road, Whakatane in January 2017.[8] Detective McKenzie says Mr Taitapanui agreed to accompany him to the policestation to discuss those issues further. As he and Mr Taitapanui walked from the houseto the patrol vehicle, the detective says Mr Taitapanui asked his partner to contact MrTaitapanui's employer, Mr Kevin McConnell.[9] Detective McKenzie says Mr Taitapanui did not tell his partner to ask MrMcConnell to contact a lawyer, and Mr Taitapanui never indicated he wished to speakto a lawyer either at his house or at any stage during the journey to the police station.Detective Twomey's evidence is to similar effect.[10] Detective McKenzie said that when they arrived at the police station he placedMr Taitapanui in an interview room whilst he made preparations to interview him. At9.17 am, the detective re-entered the interview room and obtained Mr Taitapanui'spersonal details. He also advised Mr Taitapanui of his NZBORA rights. He saidMr Taitapanui did not indicate at this point that he wished to see a lawyer.[11] The detective said he then took Mr Taitapanui into another office, where heshowed him video footage and still photographs of the incident in Arawa Street. Hesaid Mr Taitapanui agreed that he was one of the persons depicted in both the filmfootage and the still photographs. He then initialled the still photographs that thedetective had shown him.[12] The detective says he then invited Mr Taitapanui to undergo a videotapedinterview and Mr Taitapanui agreed to do so. At the beginning of the interview thedetective described the events leading up to the interview, and Mr Taitapanui agreedwith these. The detective then gave Mr Taitapanui his NZBORA rights again, andasked for confirmation that Mr Taitapanui was "happy to keep talking to me as we arehere now". Mr Taitapanui confirmed that he was. At no stage during the course of theinterview did Mr Taitapanui seek to speak to a lawyer or raise the issue of legalrepresentation in any way. Detective McKenzie says that if Mr Taitapanui had askedto speak to a lawyer at any stage he would have stopped the interview and madearrangements for a lawyer to come to the police station to speak to Mr Taitapanui.[13] Mr Taitapanui's version of events is different. He says that whilst inside thehouse he told the detective he wanted his lawyer Rebecca Plunket to meet him at thepolice station. He says he did not have Ms Plunket's contact details. He therefore toldDetective McKenzie he would ask his partner to call Mr McConnell and request himto arrange for Ms Plunket to go to the police station to look after Mr Taitapanui'sinterests. As a result, Mr Taitapanui says he expected his lawyer to meet him at thepolice station and to provide him with advice there.[14] Mr Taitapanui also says that before the interview commenced the detective toldhim he would get bail if he agreed to be interviewed, and that he would also receive alighter sentence. He says the detective also told him that he should attempt to engagein the restorative justice process. He therefore agreed to undertake the videotapedinterview.[15] Mr Taitapanui's partner supports Mr Taitapanui's evidence regarding theconversation that took place in the house. She also says she contacted Mr McConnell'soffice and asked the person to whom she spoke to arrange for Ms Plunket to go to thepolice station to speak with Mr Taitapanui.[16] A member of Mr McConnell's staff then contacted one of Ms Plunket's staffsolicitors, Ms Kim Johnson, and asked her to meet Mr Taitapanui at the WhakatanePolice Station. Ms Johnson says she received this request as she was travelling backto Whakatane from the Opotiki Court. She then drove directly to the WhakatanePolice Station, which took about 20 minutes. At the police station Ms Johnsonintroduced herself to the police officer at the front counter and said she was MrTaitapanui's lawyer. She also told the officer that she wanted to speak to MrTaitapanui immediately.[17] The police officer then left the counter and Ms Johnson waited in the foyer. Afew minutes later, the officer returned and told Ms Johnson that Mr Taitapanui was inan interview and it was not possible to interrupt the interview. Ms Johnson advisedthe officer that she needed to speak with her client urgently. The officer then wrote anote to that effect, along with contact details for Ms Johnson. She understood theofficer had slid the note under the door of the interview room.[18] Ms Johnson continued waiting in the foyer of the police station forapproximately 45 minutes, but did not get to speak to Mr Taitapanui. She eventuallyleft after providing the police with Ms Plunket's telephone number and asking themto give it to Mr Taitapanui. Mr Taitapanui says he then contacted Ms Plunket a coupleof days later.Factual findings[19] I do not accept that Mr Taitapanui advised Detectives McKenzie and Twomeythat he wished to speak to a lawyer when they were at his address. Nor do I acceptthat Mr Taitapanui told his partner in their presence that he wanted Mr McConnell toarrange for a lawyer to meet him at the police station. I accept the evidence of the twodetectives on these points and do not accept the evidence of Mr Taitapanui and hispartner.[20] I did not find Mr Taitapanui and his partner to be satisfactory witnesses inrelation to these issues. Mr Taitapanui's partner was extremely diffident when givingher evidence. More importantly, at one stage when she was giving evidence I had tointervene to tell Mr Taitapanui not to make overt gestures of support to her. I wasobliged to intervene because I had observed Mr Taitapanui giving his partner a"thumbs up" signal from the dock when she was giving evidence about what she saidMr Taitapanui had told her. I consider there is a real risk that Mr Taitapanui and hispartner have colluded in constructing their evidence in an effort to have the interviewruled inadmissible.[21] Furthermore, if such a discussion had occurred, I have no doubt Mr Taitapanuiwould have told Detective McKenzie he did not wish to proceed with the interviewuntil his lawyer arrived at the police station. Instead, Mr Taitapanui confirmed to thedetective that he was happy to speak to him. He did so immediately after the detectivehad given him his NZBORA rights at the beginning of the interview. If Mr Taitapanuihad been expecting a lawyer to be present at the police station I have no doubt hewould have raised that issue as soon as he arrived at the police station.[22] Mr Taitapanui endeavoured to explain his passive approach by saying he didnot raise the issue with the detective at the police station because he just thought hewould be polite to the detective and "go with it". I find that explanation unconvincingto say the least.[23] I am also satisfied the detective did not offer Mr Taitapanui any inducementsbefore commencing the interview. The detective said that he had already decided toarrest and bail Mr Taitapanui at the conclusion of the interview. He had also decidedit would be a condition of Mr Taitapanui's bail that he would not be permitted to residein the Whakatane area. He knew Mr Taitapanui would not be receptive to thatcondition. He therefore deliberately left any discussion about bail until after theinterview.[24] I accept the detective's evidence on that issue because it makes sense.Furthermore, the police had already identified Mr Taitapanui from the film footage asbeing one of the participants in the events giving rise to the charges. That evidencewas available regardless of whether Mr Taitapanui agreed to be interviewed. Theinterview was therefore not crucial to the prosecution case. Given that backgroundthere was no need for the detective to provide any inducements to persuade MrTaitapanui to be interviewed.[25] Furthermore, I do not draw any adverse inferences against the police in relationto what occurred after Ms Johnson arrived at the police station. The circumstances inwhich she went to the police station are not entirely clear because no evidence wascalled from the person at Mr McConnell's office who contacted Ms Johnson. MrTaitapanui's partner says she told the person with whom she spoke at Mr McConnell'soffice that Mr Taitapanui wanted Mr McConnell to arrange for a lawyer to meet MrTaitapanui at the police station. That may be correct. Alternatively, Mr McConnell ora member of his staff may have decided to contact Ms Plunket's office of his or herown volition after learning that the police had taken Mr Taitapanui to the police station.Either way, however, I am satisfied Detective McKenzie did not know a lawyer wascoming to the police station to assist Mr Taitapanui.[26] It is clear that the police officer behind the counter endeavoured to interruptthe interview to tell Detective McKenzie that Ms Johnson had arrived and wished tospeak to Mr Taitapanui. During the interview a knock on the door can be heard atapproximately 10.19 am. This accords with the time Ms Johnson estimated she wouldhave arrived at the police station.[27] Detective McKenzie responded to the knock on the door by saying "Sorry,interview". He explained it was common for police officers to wish to use theinterview room when a suspect was already being interviewed. If the door to theinterview room was closed, they would knock on the door to ensure the room was notalready in use before entering. Detective McKenzie says he responded to the knockby saying "Sorry, interview" because he believed the person knocking on the door wasanother police officer who wished to use the interview room. I see nothing suspiciousor untoward in relation to this issue.[28] Detective McKenzie also said he only saw the note that had been slid under thedoor at the conclusion of the interview. Mr Taitapanui's evidence did not contradictthe detective's evidence on this point. Mr Taitapanui said he saw the note beingpushed under the door but he did not alert Detective McKenzie to that fact. He said itwas not for him to do so, and that the detective was the person who ought to havepicked up the note immediately. I accept Detective McKenzie's evidence, however,that he had no knowledge of the note until after the interview had concluded.[29] It follows that nothing about the manner in which the police dealt with eitherMs Johnson or Mr Taitapanui on 12 September 2017 leads me to conclude the policebreached Mr Taitapanui's NZBORA rights or acted unfairly towards him inundertaking the interview.[30] In addition, there must be proof of a causative link between unfair policeconduct and the making of a statement.1 In the present case it is clear from MrTaitapanui's manner throughout the interview that he was happy to speak to thedetective. It follows that, even if there were any shortcomings in the detective'sconduct, these did not result in Mr Taitapanui undertaking the interview. There istherefore no causative link between the conduct of the detective and Mr Taitapanui'sdecision to agree to be interviewed.[31] My conclusion on this point is reinforced by the fact that, when I asked MrTaitapanui whether he had been happy to talk to the detective, he said "Yeah, but Iwouldn't have minded my lawyer there as well". This response speaks volumes.Conclusion[32] For the reasons set out above I concluded there was no factual basis for MrTaitapanui's challenge to the admissibility of the videotaped interview. I thereforeruled the interview admissible at Mr Taitapanui's trial.Lang JSolicitors:Crown Solicitor, TaurangaMrs L O Smith, Barrister, Auckland1 Boskell v R [2014] NZCA 497 at [9].