BENNETT v R [2004] NZCA 26 (23 March 2004)

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BENNETT v R [2004] NZCA 26 (23 March 2004)

Last Updated: 1 April 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA32/04

THE QUEEN

v

SHANNON BENNETT

Hearing: 22 March 2004

Coram: Anderson P
William Young J
O'Regan J

Appearances: J McGuire for Applicant
A Markham for Crown

Judgment: 23 March 2004

JUDGMENT OF THE COURT DELIVERED BY ANDERSON P

[1] This is an application for leave to appeal against a decision of the District Court, on a pre-trial application, holding that alleged confessional statements by the applicant are admissible.
[2] On 23 May 2003, when the applicant was 17 years 8 months old, a number of police officers executed a search warrant at a residence occupied by him and his younger brother, Jarrod Bennett. The search was in connection with burglaries, one of which had occurred on 4 May 2003 at the Poneke Rugby Club rooms from which alcohol, cash and personal effects including a number of compact discs of popular recording artists were stolen. On 17 May 2003 there had been a burglary at business premises in Wellington. The owner of the business, who slept on the premises, disturbed three people who absconded, taking with them money and clothing belonging to the complainant. A burglary the following night, obviously by the same people, resulted in the theft of a flat screen monitor.
[3] When the Police arrived at the applicant’s residence there was no one at home. The applicant and his brother turned up. Police Constable Barnard spoke with the applicant and noted his name, date of birth, address and similar personal particulars of no significance. Then, with reference to an item found in a freezer and commonly used in connection with the smoking of illicit drugs, Constable Barnard asked "Whose bong is in the freezer?" he received the reply from the applicant "It’s ours".
[4] Constable Barnard immediately informed the applicant that he was not obliged to say anything, that anything he did say may be given in evidence, and further informed him of his rights to legal representation under the New Zealand Bill of Rights Act. The applicant indicated that he understood and the constable then began to ask questions commencing with "Is there anything else of yours apart from the bong?" After a few relatively inconsequential questions the applicant said "I don’t want to make a statement" notwithstanding which the constable asked whether the applicant had gone out at all during Wednesday. The applicant replied "To the shop".
[5] At this point Constable Barnard was approached by Constable Heath who told him about goods which the search had disclosed in the basement. Constable Barnard stopped questioning the applicant and took him down to the basement area where the applicant was confronted with a number of items which had in fact been stolen in the burglaries. These included bags with the Poneke Rugby Club marking, clothing, compact discs and the flat screen monitor. Constable Barnard asked the applicant whose property it was and the applicant denied any knowledge of it or any knowledge of how it came to be in his residence. There had in fact been nothing of a confessional nature at all by him to that point.
[6] Constable Barnard then arrested the applicant for burglary, advised him that he was not obliged to say anything and anything he did say might be given in evidence, that he had the right to refrain from making a statement and that he would be given the opportunity to consult and instruct a lawyer in private and without delay as soon as practicable. He indicated that he understood this caution and advice. At this point, according to the uncontradicted, indeed unchallenged evidence of Constable Barnard, there followed a spontaneous admission "I did the burgs. I did two of them."
[7] The applicant’s demeanour, which until that point had been "slightly arrogant" now became "more compliant" and easy to deal with, according to Constable Barnard’s evidence. In response to a series of questions the applicant admitted complicity in the burglaries at the rugby club and business premises. Without going into detail it is sufficient for us to note that the applicant’s explanation of the methods of entry, goods stolen and other incidental matters, the general reliability of the information conveyed and the incalpatory nature of it, is significant. On the evidence presently available the applicant’s admissions are essential to proof of his complicity in the three crimes of burglary for which he is to be tried.

Applicant’s challenge to admission of evidence

[8] Counsel’s argument, both in the District Court and on appeal, is that the New Zealand Bill of Rights Act is engaged because the applicant was not in fact accorded his right to remain silent since, having indicated that he did not wish to make a statement the applicant was asked further questions by Constable Barnard. Second, NZBORA is said to be engaged because in continuing to question the applicant and in taking him down to the basement Constable Barnard arbitrarily detained him. Alternatively, it was argued that the admissions should be excluded because they were unfairly obtained having regard to the facts upon which the previous grounds were advanced and that the applicant was a young person who in fact did not have legal advice at the crucial time. Further, the admissions were made in consequence of an allegedly unlawful arrest by the Police, such in itself being sufficient to precipitate and in fact precipitating the confessions.

The Crown’s submissions

[9] The short point to the Crown’s argument is that there is simply no evidential grounding for allegations of breach of NZBORA, unfairness or unlawful arrest. The aspects of the evidence which are complained about are the admissions following arrest and there was no evidence or even cross-examination by way of challenge to Constable Barnard’s testimony that the admissions were spontaneous. The Crown invokes the specific finding by the Judge that Constable Barnard’s questioning was open-ended and fair, that the applicant was extremely forthcoming in his answers, the questioning was over a relatively short period of time, recorded and signed, and that there was no basis for any suggestion of undue pressure by the Police.

Discussion

[10] The applicant did not give evidence at the pre-trial hearing or depositions so that there was nothing before the Judge in terms of his subjective situation. Nor was Constable Barnard challenged or contradicted in relation to his evidence that the admissions were spontaneous. There is no proper basis upon which this Court could infer facts contrary to the stated unchallenged evidence. What the evidence as a whole indicates is that although initially seemingly arrogant in his manner this young person realised, when confronted with the stolen goods in his house and having been arrested, that his best course was to own up. We see no grounds on which we could properly come to a different view from the trial Judge that there was no basis for any suggestion of undue pressure.
[11] As to the Police officer continuing to question the applicant after he had indicated he had not wished to make a statement, it is sufficient to point out that although a couple more questions were asked the answers contain nothing incriminating. Similarly, when the applicant was confronted with and questioned about the stolen goods his responses were exculpatory. In short, these matters had no relevant consequences.
[12] Mr McGuire submitted that there was an unlawful detention in his client’s being escorted to the basement, particularly in view of the Police officer’s expression "I took the defendant down to the basement area". But Constable Barnard was not cross-examined as to what he intended to convey by the word "took" and in our view it ought not be interpreted as indicating any more than that he indicated he wished the applicant to accompany him to the basement, which is exactly as one would expect in the circumstances. To characterise the transit to the basement as a "detention" so as to engage NZBORA is an overstatement.
[13] As to the submission that the arrest was unlawful in that the Police did not have good cause to suspect the applicant of a relevant offence, we make the following observations. The applicant and his brother were the tenants of the residence in which the goods were found. The evidence both express and inferred is that complaints were made to the Police following the burglaries and that the nature of the goods stolen by the burglars was known. Two of the burglaries had occurred only days before the execution of the search warrant and the other, the burglary at Poneke Rugby Club rooms, had occurred less than three weeks previously. The goods found in the basement were believed by the Police, correctly, to have been the products of the burglaries and the applicant could properly be regarded as being in recent possession of the goods stolen a few days before. The test of good cause to suspect that the applicant was the burglar or at least a criminal receiver of the goods was clearly satisfied.

Conclusion

[14] In our view the Police conduct does not relevantly involve Bill of Rights issues; the arrest is not demonstrated to have been unlawful; and there is no basis for contradicting the District Court Judge’s conclusion that there was no unfairness.
[15] For these reasons leave to appeal is declined.

Solicitors:
J J McGuire, Wellington for Applicant
Crown Law Office, Wellington

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[1]	This is an application for leave to appeal against a decision of the District Court, on a pre-trial application, holding that alleged confessional statements by the applicant are admissible.
[2]	On 23 May 2003, when the applicant was 17 years 8 months old, a number of police officers executed a search warrant at a residence occupied by him and his younger brother, Jarrod Bennett. The search was in connection with burglaries, one of which had occurred on 4 May 2003 at the Poneke Rugby Club rooms from which alcohol, cash and personal effects including a number of compact discs of popular recording artists were stolen. On 17 May 2003 there had been a burglary at business premises in Wellington. The owner of the business, who slept on the premises, disturbed three people who absconded, taking with them money and clothing belonging to the complainant. A burglary the following night, obviously by the same people, resulted in the theft of a flat screen monitor.
[3]	When the Police arrived at the applicant’s residence there was no one at home. The applicant and his brother turned up. Police Constable Barnard spoke with the applicant and noted his name, date of birth, address and similar personal particulars of no significance. Then, with reference to an item found in a freezer and commonly used in connection with the smoking of illicit drugs, Constable Barnard asked "Whose bong is in the freezer?" he received the reply from the applicant "It’s ours".
[4]	Constable Barnard immediately informed the applicant that he was not obliged to say anything, that anything he did say may be given in evidence, and further informed him of his rights to legal representation under the New Zealand Bill of Rights Act. The applicant indicated that he understood and the constable then began to ask questions commencing with "Is there anything else of yours apart from the bong?" After a few relatively inconsequential questions the applicant said "I don’t want to make a statement" notwithstanding which the constable asked whether the applicant had gone out at all during Wednesday. The applicant replied "To the shop".
[5]	At this point Constable Barnard was approached by Constable Heath who told him about goods which the search had disclosed in the basement. Constable Barnard stopped questioning the applicant and took him down to the basement area where the applicant was confronted with a number of items which had in fact been stolen in the burglaries. These included bags with the Poneke Rugby Club marking, clothing, compact discs and the flat screen monitor. Constable Barnard asked the applicant whose property it was and the applicant denied any knowledge of it or any knowledge of how it came to be in his residence. There had in fact been nothing of a confessional nature at all by him to that point.
[6]	Constable Barnard then arrested the applicant for burglary, advised him that he was not obliged to say anything and anything he did say might be given in evidence, that he had the right to refrain from making a statement and that he would be given the opportunity to consult and instruct a lawyer in private and without delay as soon as practicable. He indicated that he understood this caution and advice. At this point, according to the uncontradicted, indeed unchallenged evidence of Constable Barnard, there followed a spontaneous admission "I did the burgs. I did two of them."
[7]	The applicant’s demeanour, which until that point had been "slightly arrogant" now became "more compliant" and easy to deal with, according to Constable Barnard’s evidence. In response to a series of questions the applicant admitted complicity in the burglaries at the rugby club and business premises. Without going into detail it is sufficient for us to note that the applicant’s explanation of the methods of entry, goods stolen and other incidental matters, the general reliability of the information conveyed and the incalpatory nature of it, is significant. On the evidence presently available the applicant’s admissions are essential to proof of his complicity in the three crimes of burglary for which he is to be tried.

[10]	The applicant did not give evidence at the pre-trial hearing or depositions so that there was nothing before the Judge in terms of his subjective situation. Nor was Constable Barnard challenged or contradicted in relation to his evidence that the admissions were spontaneous. There is no proper basis upon which this Court could infer facts contrary to the stated unchallenged evidence. What the evidence as a whole indicates is that although initially seemingly arrogant in his manner this young person realised, when confronted with the stolen goods in his house and having been arrested, that his best course was to own up. We see no grounds on which we could properly come to a different view from the trial Judge that there was no basis for any suggestion of undue pressure.
[11]	As to the Police officer continuing to question the applicant after he had indicated he had not wished to make a statement, it is sufficient to point out that although a couple more questions were asked the answers contain nothing incriminating. Similarly, when the applicant was confronted with and questioned about the stolen goods his responses were exculpatory. In short, these matters had no relevant consequences.
[12]	Mr McGuire submitted that there was an unlawful detention in his client’s being escorted to the basement, particularly in view of the Police officer’s expression "I took the defendant down to the basement area". But Constable Barnard was not cross-examined as to what he intended to convey by the word "took" and in our view it ought not be interpreted as indicating any more than that he indicated he wished the applicant to accompany him to the basement, which is exactly as one would expect in the circumstances. To characterise the transit to the basement as a "detention" so as to engage NZBORA is an overstatement.
[13]	As to the submission that the arrest was unlawful in that the Police did not have good cause to suspect the applicant of a relevant offence, we make the following observations. The applicant and his brother were the tenants of the residence in which the goods were found. The evidence both express and inferred is that complaints were made to the Police following the burglaries and that the nature of the goods stolen by the burglars was known. Two of the burglaries had occurred only days before the execution of the search warrant and the other, the burglary at Poneke Rugby Club rooms, had occurred less than three weeks previously. The goods found in the basement were believed by the Police, correctly, to have been the products of the burglaries and the applicant could properly be regarded as being in recent possession of the goods stolen a few days before. The test of good cause to suspect that the applicant was the burglar or at least a criminal receiver of the goods was clearly satisfied.

[14]	In our view the Police conduct does not relevantly involve Bill of Rights issues; the arrest is not demonstrated to have been unlawful; and there is no basis for contradicting the District Court Judge’s conclusion that there was no unfairness.
[15]	For these reasons leave to appeal is declined.