Home | Databases | WorldLII | Search | Feedback Court of Appeal of New Zealand

THE QUEEN v VAZEER RUAN MOHAMED AHAMAT [2000] NZCA 90 (19 June 2000)

ORDER PROHIBITING PUBLICATION OF ANY REPORT OF THIS JUDGMENT UNTIL AFTER TRIAL

[1] This is an application for leave to appeal against a pre-trial ruling that evidence of a telephone discussion which was recorded on an audio tape is admissible at the forthcoming trial of the applicant on charges of indecent assault and kidnapping.

[2] The charges arise out of conduct alleged to have taken place when the applicant and the complainant, who were both musicians, had been practising at the applicant's home.

[3] Immediately afterwards the complainant made contact with a friend who was a police officer.She saw him and told him what had occurred but declined to identify the applicant.The following day, however, she made a complaint to the police.Earlier that day the applicant had telephoned her and left a message on her answer machine saying he would call her when he returned from the office.Later, while she was at the police station, the applicant again telephoned her on her cell phone.She did not answer but could see that the caller was the applicant from the caller display.She also checked her telephone messages at home and ascertained that the applicant had called there again before his call to her cell phone.

[4] The police officer asked the complainant to call the applicant and discuss what had happened the previous day.He said he would tape the conversation for possible evidence purposes.This duly occurred and subsequently, when the applicant came to be interviewed by the police, part of the recording of the telephone discussion was played to him.At various points he was asked whether he wanted to continue listening to the tape.On two occasions he said yes but on the third occasion he requested that the tape be switched off and that was done immediately.

[5] The Crown applied to have the taped telephone conversation ruled admissible.The defence opposed.The Judge held that the evidence was admissible and the present application seeks to appeal against that ruling. The matter was argued in the District Court on the deposition statements. There was no voir dire.

[6] In the District Court two grounds were advanced in support of the objection to the admissibility of the taped conversation.They were that to admit the evidence would be unfair and that it was obtained in breach of the applicant's rights under the New Zealand Bill of Right Act 1990.It was accepted that s21 of the Bill of Rights Act did not apply so it was unnecessary for the Judge to consider whether the recording of the telephone conversation constituted a search and if so whether that was unreasonable.The objection was based on ss23(4) and 25(d) of the Act.The first affirms the right of persons arrested or detained to refrain from making a statement.The second affirms the right of persons charged with an offence not to be compelled to be a witness or to confess guilt.It was accepted, however, that since at the time of the telephone conversation the applicant was not arrested, detained or charged those provisions could be invoked only by analogy in the discretion to exclude evidence on the ground of unfairness.

[7] The Judge recorded the acceptance of counsel that it is not unlawful for a participant to record a conversation surreptitiously :R v A [1994] 1 NZLR 429, 436.She noted that there was some deception of the applicant, to which the police were party, but she was unable to see unfairness calling for exclusion of the evidence.She found that the applicant entered into the conversation willingly while being aware that the complainant might already have involved the police.Having referred to the decision of this Court in R v Barlow (1995) 14 CRNZ 9 the Judge said:

I find that the accused spoke openly and freely to the complainant and his statement can be seen as voluntary in every sense of the word.I do not accept that the complainant tried to elicit incriminatory remarks from the accused, and even if she had, there was nothing in the conversation or the fact that it was recorded which was likely to cause him to make any untrue admission.While he may have been trying to placate the complainant and to avoid her disclosing the matter to his wife or the police, the effect which that had on what he said is a matter of fact for the jury to decide.

[8] The Judge also dealt with the issue of the impact of replaying the conversation to the applicant in the course of his interview and the risk of over-emphasis to the jury at trial.They are no longer issues and need not be dealt with in this judgment.

[9] In this Court Ms Ord submitted that the Judge was wrong in not excluding the evidence on fairness grounds.She also sought to argue that we should rule the evidence inadmissible as having been obtained in breach of the applicant's right to be free from unreasonable search and seizure under s21 Bill of Rights Act.That issue having been expressly given up before the Judge, the Crown reasonably objected to it being raised now on appeal.

[10] It emerged, and was accepted by Ms Ord in the course of argument, that even if objection under s21 could now be raised, and if we assumed that the telephone conversation amounted to search and seizure - which in light of Barlow would be a considerable assumption, there would remain the issue of unreasonableness which, in the context of this case, would not involve considerations different from those to be assessed on the fairness ground. Accordingly, we turn to that.

[11] The discretion to exclude evidence on fairness grounds involves fairness not just to the accused but also to the Crown.It is not to be called in aid simply because the circumstances approach, but fall outside, those engaged by the Bill of Rights Act.There must be unfairness in the manner in which the evidence is obtained (bearing in mind that even illegally obtained evidence is not automatically excluded) or unfairness likely to arise from the giving of the evidence at the trial.In rare cases evidence might be excluded on this ground as a sanction against police misconduct - see R v Coombs [1985] 1 NZLR 318, R v Dally [1990] 2 NZLR 184 and R v Fahey CA94/00 and CA135/00, judgment 11 May 2000.To exclude probative evidence on fairness grounds is warranted only when that is consistent with the interests of justice or when that is necessary to assure the fundamental right of an accused to a fair trial.

[12] Ms Ord argued the matter broadly.Taking together her points raised as indicating unreasonableness and unfairness, they can be summarised as follows:

Because the complainant had been asked by the police officer to make the call which he would record for possible evidence purposes she had become "an agent of the State".

The complainant called from the police station with the officer beside her.

The police had the formal complaint and were in a position to charge the applicant so that he was deprived of the usual caution as to silence he would have received on being charged and advice of the right to counsel.

The complainant lied to the applicant telling him there was no-one there, that she was at home and that she had not told anyone what had occurred the day before.

The complainant broke "all the normal rules" in the conversation.It is said she instigates, elicits, cross-examines and threatens in the course of the conversation.It was suggested the threats (to tell the applicant's wife) constituted criminal extortion.

The alleged admissions by the applicant were not voluntary and not saved by s20 Evidence Act 1908.There was reference to the possibility of false admissions brought about by "deception" and "trickery".

The interest of the State in the detection of crime was outweighed by the privacy expectations of the applicant as an individual.

The complainant was not an independent or neutral participant but "enormous benefit accrues to her if she is able to extract admissions ...".

Analysis of the transcript demonstrates the Judge was wrong to conclude that the applicant spoke freely and voluntarily.

The tape is not probative in that alleged admissions were not unequivocal.

The courts should not condone the use by the police of deceptive tactics except perhaps where that is justified in the investigation of "major crime".

[13] Collected in this way, the assertions amount to over-statement and a departure from reality.

[14] The applicant already had made three attempts that day to contact the complainant by telephone.The conversation inevitably would have taken place. Just who placed the call is not material:R v Barlow (p21).The applicant plainly wanted to talk to the complainant and the irresistible inference is that what happened the previous day would have been discussed.

[15] As the Judge pointed out, there was no evidence that the complainant conducted the conversation in accordance with the instructions of the police officer.On the contrary the transcript indicates an angry and hurt woman confronting the applicant very much as herself rather than as a police interrogator.

[16] The protective rights of suspects when interviewed by the police have their basic rationale in the coercive atmosphere in which those interviews take place (Barlow p23).As we said in Fahey,the confrontation by a complainant of her alleged abuser presents a very different situation.There is no power imbalance, no overbearing of will.The emotional tension is in the nature of such confrontation but that gives no concern on grounds of coercion or involuntariness.

[17] The contention that mention by the complainant that she might tell the applicant's wife amounted to criminal extortion is unjustified.We are quite unconvinced that the recorded comments represented threats "with intent to extort or gain anything".

[18] The deception involved was no greater than is inherent in the use of informants.In this case it can be accepted that the applicant would not have continued with the conversation if told that a record was being made by the police.But he had no assurance that the complainant would not recount the conversation.He asked her "can I trust you with this" seeking an assurance she would not tell anyone what occurred.She declined to give that. Therefore, though he may have had some expectation of privacy in the belief that no one was listening in on the conversation, he had no reason to expect the conversation would not be recounted to others, including the police.

[19] It is a matter for the jury, as the Judge recognised, whether and to what extent there are admissions in the conversation.

[20] The only ground for concern would be if there had been some deliberate attempt by the police to delay charging the applicant and to orchestrate interrogation in contravention of the rights to which the applicant, as a suspect, was entitled.But in this case there was no cross-examination of the police officer.It was not put to him that he was in a position to charge the applicant and sought to delay his protective rights while conducting, through an agent, an interrogation designed to elicit admissions.It is, therefore, not appropriate for the Court to be asked to draw inferences to that effect. Indeed it seems unlikely that even if the applicant had been at the police station he would not have been charged before the police had taken steps to view the scene of the alleged offending as was in fact done before he was interviewed.

[21] We see this case as one similar to Barlow and M (CA64/96) v R, CA64/96,judgment 22 April 1996.Here the police took advantage of the opportunity presented by the inevitability of telephone discussion during which there would be mention of events on the day before.Evidence of that conversation could be given by the complainant.The tape recording of it was with her consent and was not unlawful.It represented an accurate record of what was said.The applicant spoke freely and spontaneously, although challenged by the complainant.He was not tricked or coerced into statements of doubtful reliability.Like the Judge, we are not persuaded that the circumstances in which it was obtained or will be given before the jury call for exclusion of the evidence on fairness grounds.

[22] Leave to appeal is refused.

Solicitors

Sladden Cochrane & Co, Wellington, for Applicant

Crown Solicitor, Wellington, for Crown