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R v NV HC Hamilton CRI-2007-219-335 [2008] NZHC 2604 (30 September 2008)

Last Updated: 27 February 2015

ORDER PROHIBITING PUBLICATION OF ANY PART OF THE PROCEEDINGS (EXCEPT THE OUTCOME) UNTIL FINAL DISPOSITION OF TRIAL.

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI-2007-219-335}

THE QUEEN

v

NV

Hearing: 18, 19 and 22 September 2008

Appearances: Mr R Douch for Crown

Mr M Robb for Accused

Judgment: 30 September 2008 at 12 noon

JUDGMENT OF LANG J

_{[on application for orders pursuant to s 344A Crimes Act 1961]}

This judgment was delivered by me on 30 September 2008 at 12 noon, pursuant to

Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors:

Crown Solicitor, Hamilton

Counsel:

_{Mr M Robb, Hamilton}

R V NV HC HAM CRI-2007-219-335 30 September 2008

[1] On the evening of 22 September 2007 the police found the body of a deceased person lying in a courtyard at the rear of commercial premises in the central business district of Hamilton. A post-mortem examination subsequently revealed that that person, Mr Lance Kingi, had died of head injuries inflicted some hours earlier.

[2] In the course of their investigation into Mr Kingi’s death the police came to believe that responsibility for Mr Kingi’s death could be attributed to the accused, Mr V. At that time he was just 16 years of age.

[3] On the morning of 10 October 2007 Detective Rolley of the Hamilton Police conducted a lengthy videotaped interview with Mr V at the Hamilton Police Station. Mr V made a number of admissions during that interview. These, together with the evidence of eyewitnesses regarding the events that led to Mr Kingi’s death, persuaded the police that there was sufficient evidence to charge Mr V with Mr Kingi’s murder. He has now been committed for trial in this Court. The Crown case at trial will be that Mr V caused Mr Kingi’s death by striking him at least once on the head with a brick at some stage during the evening of 21 September 2007.

[4] Mr V now challenges the admissibility of the videotaped interview. He contends that Detective Rolley conducted the interview in breach of Mr V’s rights under the Children, Young Persons, and Their Families Act 1989 (“the Act”). As a result, he contends that the Court should rule the interview inadmissible at his trial.

[5] In order to understand the issues that the present application raises, it is necessary to provide a brief overview of the events leading up to the interview.

The events leading up to the interview

[6] Following the discovery of Mr Kingi’s body the police carried out enquiries to establish who may have been in the area in which the body was discovered during the course of the previous evening. As a result, they discovered that the general area had been frequented on that evening by a large number of young persons.

[7] Mr V was amongst the people who had been seen in the area. The police also learned that he may have been involved in an assault on another person on that evening. They learned that he may have been the person who struck another young person on the side of the head with a beer bottle.

[8] The police initially visited Mr V at his sister’s address in Hamilton on 2

October 2007. They did not, however, at that time formally interview him in relation to Mr Kingi’s death.

[9] Detective Rolley and other members of the police went back to Mr V’s sister’s address on 10 October 2007. Other police officers spoke to Mr V’s sister K whilst Detective Rolley introduced himself to Mr V and showed him his identification. Detective Rolley told Mr V that he wished to speak to him about the person who had died and about the man who had been hit on the head with a bottle. The detective said that he would like to talk to Mr V at the Hamilton Police Station.

[10] Detective Rolley explained that Mr V’s sister, K, was also going to be interviewed by the police. He told Mr V that he was not required to come to the police station but that he would like to “get to the truth of what happened that night”.

[11] As a result of these discussions Mr V agreed to return to the Hamilton Police Station. On the way back to the police station Detective Rolley explained to Mr V his rights under the Act to have a nominated person present during any interview. He explained to Mr V that it would not be appropriate for his sister to be the nominated person, because she was to be interviewed by the police herself in relation to any knowledge that she might have regarding the circumstances in which Mr Kingi died.

[12] Detective Rolley then asked Mr V whether there was an adult that he trusted that could come and be with him at the police station. Mr V was unable to provide the name of any such person. Detective Rolley said that Mr V’s reaction was that there was no one that he trusted and that he only trusted himself. Detective Rolley then advised Mr V that, if he could not nominate a person, it would be necessary for

the police to choose a nominated person from a list that the police held at the police station. Mr V indicated that he understood the position in that regard.

[13] When Detective Rolley and Mr V arrived at the police station they went to an interview room. There the Detective told Mr V that he needed to talk to him about the man who was dead, and that he needed in particular to talk to him about information that the police had to the effect that Mr V had struck the deceased person with a brick. He also told Mr V that he needed to talk to him about the incident in which another person had been hit with a bottle. The Detective told Mr V that he would like him to tell the truth about what had gone on. He said that Mr V understood and that he nodded his head in agreement.

[14] The Detective then explained to Mr V his rights under the Act. He took these from a printed standard form checklist that he kept in the front of his notebook. At the conclusion of this process Detective Rolley told Mr V that he would like to talk to him on videotape about what had happened, but that this could not occur until a nominated person was present. He told Mr V that he was able to consult with and talk to a lawyer or any person that he nominated himself or a nominated person from the list. He also told Mr V that he could talk to this person or the lawyer in private and without the Detective being present. Detective Rolley also advised Mr V that, if he made a statement, the nominated person needed to be present and that a lawyer could also be present if he wanted to have a lawyer there.

[15] Detective Rolley told Mr V that the lawyer would be provided from a list like the nominated person, and that the lawyer would not cost him any money because the police would pay for the lawyer under the Police Detention Legal Assistance Scheme. The detective says that throughout this explanation he checked to ensure that Mr V understood what he was saying.

[16] Detective Rolley then asked Mr V whether he would prefer a male or a female nominated person, and Mr V indicated that he would prefer a male. As a result, Detective Rolley contacted Mr Dwayne Henshilwood and arranged for him to come to the police station to act as Mr V’s nominated person. Mr Henshilwood was on the list that the police held of persons who were available to act as nominated

persons under the Act. He had previously attended a training course designed to assist such persons to understand their duties under the Act, and he had acted as a nominated person on three earlier occasions.

[17] When Mr Henshilwood arrived at the station Detective Rolley provided him with a standard form setting out the obligations of a nominated person under the Act. Mr Henshilwood told the Detective that he had seen the form before, and that he understood his role as a nominated person. Detective Rolley also at that point explained to Mr Henshilwood the reason why Mr V was at the police station, and he told Mr Henshilwood that he wished to speak to Mr V on videotape. Mr Henshilwood then asked whether Mr V had spoken to a lawyer. Detective Rolley explained that he had advised Mr V of his rights regarding the ability and entitlement to contact a lawyer, and said that to this point Mr V had not requested to speak to a lawyer.

[18] Detective Rolley then took Mr Henshilwood to the interview room where Mr V was waiting. He introduced Mr Henshilwood to Mr V and explained to both of them that Mr V was not under arrest and that he was free to return home when he wished. The detective told Mr V that Mr Henshilwood was there as his nominated person, that Mr Henshilwood was not a police officer and that Mr V should feel free to speak to Mr Henshilwood about whatever he wished and to ask him any questions that he may have. Detective Rolley says that he confirmed that Mr V understood what he had just said, and then told them that he would leave the room whilst they talked alone. He told them to take as much time as they wished. He then left the room so that Mr V and Mr Henshilwood could speak in private.

[19] Mr Henshilwood emerged from the interview room after approximately 10 minutes. He told Detective Rolley that he had spoken to Mr V and that Mr V was happy to give an interview and that he did not at this point wish to speak to a lawyer.

[20] Detective Rolley then began to interview Mr V in the presence of Mr Henshilwood. He began the interview by repeating to Mr V his rights under the both the Act and the New Zealand Bill of Rights Act 1990. He then questioned Mr V extensively regarding his involvement in the incident that led to Mr Kingi’s death.

It was during this part of the interview that Mr V made the admissions that the

Crown proposes to rely upon at trial.

[21] Before I turn to consider the issues that the application raises it is appropriate to briefly set out the relevant statutory provisions.

The statutory provisions

[22] Part 4 of the Act deals with issues relating to youth justice. It commences by setting out in s 208 the principles that must guide the exercise by the Court or any other person of any powers conferred by the Act. For present purposes the most relevant of these is s 208(h), which provides that the vulnerability of children and young persons entitles them to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.

[23] The principles in s 208 are subject only to those set out in s 5. Section 5 contains the general principles that must be applied whenever a Court or other person exercises any power conferred by the Act.

[24] For present purposes the most relevant of these are the principles set out in ss

5(d) and (e). Section 5(d) provides that the wishes of the child or young person are to be taken into account to the extent that they can be ascertained and that they be given such weight as is appropriate having the age, maturity and culture of the child. Section 5(e) provides that endeavours should be made to obtain the support of the parents or guardians and also the child or young person him or herself to any exercise or proposed exercise of powers.

[25] The provisions of s 215 are particularly important for present purposes. It sets out the requirements that every enforcement officer must comply with before interviewing any child or young person in relation to the possible commission of an offence. The section requires the enforcement officer to explain to the child or young person their rights under the Act. These include the right to a lawyer, the right not to make any statement, the fact that any statement may be used in evidence and the right under s 222 of the Act to nominate a person to assist them. The latter

right is in addition to, and not in substitution for, the right to have a lawyer present whilst being questioned. Importantly, the enforcement officer is also required, under ss 218 and 221(2)(a), to explain the various rights in language that is appropriate to the age and level of understanding of the child or young person who is to be the subject of the interview.

[26] In the event that the enforcement officer does not comply with the requirements of s 215, any statement that the child or young person might make is rendered inadmissible by s 221(2) of the Act. This is, however, subject to s 224. It provides that no statement shall be rendered inadmissible on the ground that any requirement imposed by the Act has not been strictly complied with, or not complied with at all, provided there has been reasonable compliance with the requirements of the Act.

[27] The Court of Appeal has recently considered the manner in which the Act must be applied in R v Z CA 604/07, 17 July 2008. In that case the majority (Glazebrook and Hammond JJ) considered at [32] that the starting point in any discussion of what is required under the Act in the present context must be the overriding principles set out in s 208(h). The Court said:

[32] ... In our view, this places a positive obligation on investigators to accord special protection to children and young person during any investigation relating to the possible commission of any offence by that child or young person. That special protection must be given in a manner that respects the autonomy of the child or young person and with (if possible) the support of his or her parents or guardians, in accordance with the principles set out at s 5(d) and (e) of the CYPFA.

[28] The majority in R v Z also considered (at [33]) that the positive obligation to accord special protection requires the enforcement officer to use language appropriate to the age and level of understanding of the particular child in all questioning of children and young persons. They therefore considered that that obligation was not restricted to the explanations required by s 215. That view was not shared by the third Judge, Ellen France J, who did not see a need to impose the additional requirements suggested by the majority at [33]. She took the view that the principle in s 208(h) is reflected in the provisions that follow. In addition, the child or young person will have the benefit of protections available under statutes

such as the NZBOR and the Evidence Act 2006. She took the view that the imposition of any other additional protections is a matter for the legislature.

[29] In dealing with the obligations under s 215 the majority said at [35]:

In our view, the over-riding principle in s 208(h) must also be used in interpreting the specific requirements of the following sections, as Woodhouse J correctly held. Seen in that light, s 215, properly interpreted, requires police officers to explain a child or young person’s rights in a manner that ensures that the particular child or young person understands the various rights and how to exercise them. We agree with Woodhouse J that this conclusion is reinforced by the use of the term “explain” in s 215 of CYPFA, as against “inform” in s 23 of BORA. We also consider our conclusion as to the necessity to ensure full comprehension reinforced by the existence of s 215A, which requires further explanations to be given where a child or young person makes an inquiry or what could reasonably be interpreted as inquiry.

[30] Further, they had this to say regarding the issue of legal advice:

[37] With regard to legal advice, it seems to us that s 23(1)(b) of BORA is drafted on the assumption that most adults will have, from person experience, at least a basic understanding of what a lawyer does and some idea how one might find one. The CYPFA, by contrast, is drafted on the assumption that most children and young persons will have no or limited understanding and experience of what a lawyer is, how to instruct one and what functions the lawyer would perform. Hence the use of the more expansive term “explain” in s 215 of CYPFA.

[38] In addition, merely informing a child or young person of the right to a lawyer, even in age appropriate language, would not meet the requirements in s 218 because it would not be dealing with the level of understanding of the particular child or young person. The obligation to explain (as against inform) does not necessarily dissipate due to the fact that a young person has had prior contact with the police. That will depend on the actual circumstances of that prior contact.

[39) Further, we do not accept the submission that the presence of a nominated person can in any way diminish the responsibilities on police officers to explain the rights in language that is appropriate to the age and level of understanding of the child or young person involved. The s 215 explanations are designed to enable the child or young person him or herself to understand the rights and to make an informed decision whether or not to exercise them. Such a decision can of course be made after consultation with the nominated person in accordance with s 221(2)(b) of the CYPFA.

...

[42] In accordance with the above principles s 215(1)(f), interpreted in accordance with the principles set out in s 208(h), requires police officers to explain, in a manner which depends on the age and level of understanding of the particular child, the right to instruct a lawyer, the assistance that a

lawyer could provide, and the mechanics of instructing a lawyer. This is with the view of ensuring that the child or young person understands the right and can make an informed decision whether or not to exercise that right. (Emphasis added)

[31] Against that general overview I turn to consider the issues that the present case raises.

Issues

[32] Counsel for Mr V identified the following issues:

(a) The police failed to “explain” Mr V’s rights under Section 215 of the Children Young Persons and Their Families Act as any explanation was not given in a manner and language that was appropriate to his age and his level of understanding in accordance with Section 218 and Section 9 of that Act.

(b) In particular the police did not explain in language appropriate to his age and level of understanding the right to speak with a lawyer, the right to silence nor provide an adequate explanation of the role of a lawyer.

(c) English is not Mr V’s first or preferred language and as a result a Tongan Interpreter should have been provided for him for the purposes of the interview.

(d) The police also failed to provide an appropriate nominated person in accordance with Section 222 of the Children Young Persons and Their Families Act 1989 or make sufficient efforts to arrange for a parent or other Tongan speaking relative as a nominated person.

(e) The nominated person failed to meet his duties in accordance with Section 222(4) and Section 231(4) of the Children Young Persons and Their Families Act 1989.

[33] All of these shade, in one way or another, into a single issue that is determinative of the present application. This is whether Detective Rolley explained Mr V’s rights in a manner that he actually understood.

[34] This issue arises because Mr V was born in Tonga and lived there until he and his family moved to New Zealand in or about 2005. Mr V was aged approximately 14 years of age at the time that he came to live in New Zealand. When he arrived in New Zealand he did not speak much, if any, English. He had

spoken Tongan throughout his childhood years and had apparently had no need to learn English.

[35] As a result, there is no dispute that English is Mr V’s second language. He can speak and understand English only to the extent that he has been able to develop those skills during the relatively short period that he has been living in New Zealand. The extent to which Mr V had the ability to speak and understand English lies at the heart of the present application, because Detective Rolley conducted the interview in English and without the assistance of a Tongan interpreter. Before taking that step the detective asked Mr V whether he would like the interview to be conducted in English or in Tongan, and Mr V indicated that he had no problem with it being conducted in English. It is therefore entirely unsurprising that the detective did not seek to engage the assistance of an interpreter before commencing the interview.

[36] Had Mr V been an adult whose first language was English, the words that Detective Rolley used when he initially spoke to Mr V would have been sufficient to adequately inform Mr V of his rights under the New Zealand Bill of Rights Act

1990. It is also clear that at the beginning of the videotaped interview the detective genuinely endeavoured to explain Mr V’s rights under the Act to him in relatively simple language. The issue is whether, having regard not only to Mr V’s youth and past experience but also to his limited command of the English language, the words that the detective used were sufficient to comply with his obligations under the Act.

[37] There can be no doubt that Mr V had some ability to understand and speak English at the time of the interview. The difficulty, and the point at which the Crown and the defence diverge, lies in assessing the exact nature and extent of that ability at the relevant time. The Crown contends that Mr V had sufficient ability at the time of the interview to understand the plain words that the detective used when he endeavoured to explain Mr V’s rights to him. The defence contends that, although Mr V may have had some ability to understand and speak English at that time, that ability was insufficient to allow him to grasp the true purport of what the detective was telling him.

[38] In considering this issue I accept that arguments run both ways.

Factors that suggest that Mr V had sufficient ability to understand what Detective

Rolley was telling him

[39] Of considerable importance in this context is the fact that Mr V has now lived in New Zealand for more than two years. During that period he has been required to communicate with other people in the community, most of whom do not speak or understand the Tongan language. This means that he has had no option but to acquire sufficient ability to understand English, and to make himself understood, in order to get by on a day-to-day basis.

[40] Next, there is evidence to suggest that he was in fact able to understand English and to make himself understood to people who spoke to him during the course of the police investigation into Mr Kingi’s death. These included not only Detective Rolley but also other police officers who spoke to him at various times during the investigation.

[41] There is also evidence confirming that members of the Hamilton police had spoken to Mr V on no less than five separate occasions between 1 April and September 2007. The first of these occurred when the police arrested Mr V following an incident in the early hours of 1 April 2007 after he had allegedly assaulted another person in the central business district of Hamilton. Each of the other subsequent contacts with police occurred after police officers observed him breaching his curfew conditions by being out and about in the central city area at night.

[42] On each of these encounters the police officers who spoke to Mr V advised him of his rights under the Act and they all said that he appeared to understand them. On most occasions he also signed a standard form document that set out his rights in written form. None of the officers spoke of any apparent difficulty in making him or herself understood, or in understanding what Mr V said. On one occasion Mr V actually volunteered the information that he knew and understood his rights. On another, he told the officer who arrested him that the officer that he should try to contact Mr V’s sister, because his mother was not at home and his father did not speak very good English.

[43] Next, there is the fact that Mr V had had a reasonable amount of contact in the past not only with the police but also with the court system and lawyers. He had appeared in Court on several previous occasions, and had had the apparent ability at that time to instruct his present counsel, Mr Robb, to act on his behalf. On one occasion he had declined to make a statement after taking advice from Mr Robb.

[44] Mr Henshilwood was also able to conclude, as a result of his discussions with Mr V before the interview began, that Mr V did not wish to have a lawyer present during the interview. He gained the impression that Mr V was anxious at that stage to tell the truth to the detective.

[45] The videotaped interview probably provides the best indication of Mr V’s ability to comprehend and speak English as at 10 October 2007. Mr V was not, generally speaking, expansive in the answers that he gave to Detective Rolley’s questions. He responded to many questions by saying “Yeah” or “Mmm” or by moving his head. He did, however, generally answer the detective’s questions in an appropriate manner and in a manner that confirmed that he understood the import of the question. He appeared to be most easily able to express himself when the detective asked him factual questions about his background and, in particular, towards the end of the interview when the detective asked him about the events that occurred on the evening of 21 September 2007.

[46] I am also able to take into account the manner in which Mr V answered questions when giving evidence before me. I acknowledge that I must exercise caution before ascribing too much significance to this aspect of the evidence. Mr V is now nearly a year older than he was at the date of the interview, and one would expect his ability to speak and comprehend English to have improved over the last

12 months. Moreover, Mr V had ready resort to the interpreter when giving evidence, and this may have masked the extent to which he actually understood the questions that he was being asked. It is also likely that Mr V had at least some appreciation of the nature and significance of the hearing before me. I acknowledge that there is therefore a risk that he may have been tempted to create the impression that his ability to speak and understand English was more limited than is actually the case.

[47] Generally speaking, however, Mr V answered questions in an appropriate manner and in a way that suggested that he had some understanding of what he was being asked.

[48] All of these matters suggest that Mr V had a reasonable ability to understand and speak English as at 10 October 2007, and that he also had a working knowledge at that time both of the criminal justice system and the type of assistance that a lawyer could provide.

Factors that suggest that Mr V did not have sufficient ability to understand what

Detective Rolley was telling him

[49] The starting point in this context is undoubtedly the fact that Mr V has only been speaking and listening to English on any regular basis for less than three years. Although the time that he has spent in New Zealand may have provided Mr V with the ability to get by on a day to day basis, his time in this country would hardly have equipped him with the ability to comprehend any discussion about a technical or specialised topic.

[50] It is also unlikely that his ability to speak and comprehend English would have been significantly enhanced as a result of his experience at school in New Zealand. His contact with the education system in this country appears to have been very limited, and was no doubt hamstrung from the outset by the fact that he did not speak any English.

[51] The evidence of Mr Henshilwood also suggests that it was not easy to hold a conversation with Mr V. Under cross-examination from Mr Robb, Mr Henshilwood said that he tried to talk to Mr V but that it was not easy to get a dialogue happening. He said that Mr V answered his questions but did not offer a lot more.

[52] The videotaped interview also produced material to suggest that Mr V did not fully comprehend what Detective Rolley said to him. Although Mr V was generally able to answer Detective Rolley’s questions in an appropriate manner, that was not always the case. It is also significant for present purposes that the areas of concern

in this regard arise in relation to questions that the detective posed in the early part of the interview when he was endeavouring to explain Mr V’s rights to him. That is an issue to which I shall return when stating my conclusions.

[53] In his oral evidence at the hearing before me Mr V said that he was confused when he spoke to Detective Rolley and that he did not know what to do or say. He said that he had no idea of the legal system in New Zealand and that nobody explained to him how a lawyer could have provided him with assistance when he spoke to the police on 10 October 2007.

[54] Mr V’s oral evidence leaves me with some uncertainty regarding his present ability to understand and speak English. This arises because, on some occasions when he did not seek the assistance of the interpreter, Mr V provided answers that suggested that he had not properly understood the questions. A good example is a series of questions that I asked him regarding the fact that Mr Henshilwood had wanted him to obtain the services of a lawyer. The exchange was as follows:

Mr [V], remember Mr Henshilwood the man who sat in the interview. The last fella [who] was here.

Yes .. oh yeh.

You spoke to him alone before that video interview started didn’t you .. yeh. He wanted you to get a lawyer didn’t he .. no.

He thought it was important to get a lawyer .. can you say that again please.

He thought you used the word important before, he thought it was important that you get a lawyer didn’t he .. no.

He wanted you to get a lawyer .. yeh. Why didn’t you get a lawyer .. I dunno.

You said no you didn’t want a lawyer didn’t you .. yeh.

[55] My conclusion from this apparently contradictory exchange was that Mr V was experiencing difficulty in understanding my questions and/or articulating answers to those questions.

[56] In considering the extent of Mr V’s ability to speak and comprehend English in October 2007 I consider that I am able to place considerable store on the evidence that I heard from Dr Rees Tapsell. Dr Tapsell, who is a very experienced psychiatrist, was directed by the District Court to provide a psychiatric report in relation to Mr V shortly after his arrest on the present charge. Dr Tapsell spoke to Mr V on 6 November 2007, and produced a comprehensive report dated

12 November 2007.

[57] The existence of Dr Tapsell’s report only became known after both counsel had closed their cases in relation to the present application and were about to make their final submissions. After hearing submissions from counsel I granted counsel for Mr V leave to re-open his case and to call Dr Tapsell as a further witness for the defence.

[58] I took that step over the opposition of the Crown because I considered that the evidence of Dr Tapsell, whose involvement with Mr V had not previously been known, might be highly germane to the issue that I was being asked to determine. The Crown had adduced extensive evidence from police officers to establish that Mr V had had the ability, during the six-month period prior to the interview with Detective Rolley, to answer their questions and to understand the advice that the officers had given him. I viewed Dr Tapsell’s evidence as being directed essentially to the same issue. Given the proximity in time of Dr Tapsell’s interview with Mr V to that undertaken by Detective Rolley, I considered that Dr Tapsell might well be able to shed further light on Mr V’s ability to speak and understand English.

[59] Dr Tapsell said in evidence that he interviewed Mr V for approximately two hours. He said that he conducted the interview in the presence of a Mr Kepu, who was a youth worker attached to the institution in which Mr V was living at the time of the interview. He said that Mr Kepu speaks both Tongan and English, and that Mr Kepu had obviously built up a significant rapport with Mr V as a result of his contact with Mr V over several weeks prior to the interview. Dr Tapsell said that from a relatively early stage in the interview he realised that he needed Mr Kepu’s assistance in order to be able to get a sensible answer. For that reason he quickly began to address all questions directly to Mr Kepu. Mr Kepu would then translate

the questions into the Tongan language for Mr V. Mr V would then respond directly to Mr Kepu in Tongan, and Mr Kepu would then translate the answers back into English for Dr Tapsell.

[60] Dr Tapsell believes that it would have been very difficult for him to have completed an assessment of Mr V without Mr Kepu’s assistance. He said that he had to have every word that he said literally translated in order to get a response. He also sensed that Mr V understood very little about the court process that lay ahead. Dr Tapsell believes that it would have been impossible to have conducted the interview to the extent that he was able, and to have obtained the level of detail that he did, without the assistance of a person who was not only a fluent Tongan interpreter but also a person who knew, and had a good relationship with, Mr V.

[61] Dr Tapsell accepted that it was possible that Mr V may have been apprehensive about the interview and that Mr V may therefore have relied upon Mr Kepu’s assistance as a form of defence mechanism. He remained of the view, however, that Mr V had little comprehension of the court process and of the roles that people, including lawyers, played in that process. He could not even provide the name of Mr Robb, the lawyer who had acted for him previously and who was acting for him in relation to the murder charge.

[62] Dr Tapsell’s evidence was therefore broadly to the effect that, in November

2007, Mr V was not readily able to answer questions posed to him in English. Moreover, at that time Mr V had extremely limited understanding of the New Zealand criminal justice system.

Conclusion

[63] I accept that as at October 2007 Mr V had a working knowledge of the English language and that this was sufficient to enable him to get by on a day to day basis.

[64] This explains how Mr V has been able to function during his time in New

Zealand. It also explains why the various police officers who dealt with him

between April and September 2007 were able to converse with him in an apparently normal manner. He would also have known enough about the criminal justice system to understand that he was in breach of his curfew, and on one occasion he was sufficiently worldly to give false particulars in a vain attempt to avoid apprehension.

[65] It is noteworthy, however, that Mr V’s earlier encounters with the police officers appear to have been relatively brief, and the officers may not have the desire or the opportunity to deal with Mr V on more than a formal and relatively cursory basis. Moreover, I have no ability now to determine the extent to which Mr V may have understood what the officers told him. I am left with their evidence that they believed that he understood what they were saying, but there is no objective measure by which the weight to be given to their beliefs may be assessed.

[66] I am left in little doubt, however, that in October 2007 Mr V did not have the necessary language skills to enable him to readily engage in conversations concerning complex or technical concepts.

[67] I reach that conclusion based on my observation of Mr V during the videotaped interview and when he gave evidence before me. I also place store on Dr Tapsell’s evidence, which I consider to have been of particular value. He had the advantage of spending a considerable amount of time with Mr V, and he also has substantial experience in interviewing people from all walks of life.

[68] In determining the extent to which Mr V understood what Detective Rolley was saying I naturally place considerable weight on the videotaped interview itself. I was assisted in my assessment of Mr V’s responses during the interview by asking Dr Tapsell how, if at all, he had been able to sense whether Mr V had understood the questions that Dr Tapsell asked him during his interview on 6 November 2007. As I understood his answer, Dr Tapsell said that the level of detail that Mr V gave in response to a question was the clearest way of getting some sense of his level of understanding of the question.

[69] Dr Tapsell’s point is logical, and I think that it can be validly applied in determining the level of understanding that Mr V displayed during the course of his interview with Detective Rolley. Detective Rolley himself clearly applied the same logic, because on several occasions he asked Mr V to explain in his own words what the detective had just told him.

[70] During the initial phase of the interview, in which Detective Rolley was endeavouring to explain to Mr V his rights under the Act, there was little in the way of response from Mr V. For the most part Mr V responded to questions asking him if he understood the advice by saying “Yeah” or “Mmm”. Those responses do not really assist in determining the extent to which Mr V had actually understood what the detective was telling him.

[71] The first occasion on which Detective Rolley asked Mr V to provide a more detailed response arose immediately after the detective advised Mr V of his right to remain silent. The following exchange then occurred:

NR Okay. The first thing you need to know is that you don’t have to talk to me and you can remain silent okay? You understand?

NV Yeah.

NR What does that, what does that mean to you in your words, what does that mean?

NV I understand it but I, I’m not going to explain that to you. NR Okay. You, just try, try and explain.

NV By saying.

NR What was that? I need you to try mate cos I need to know that you understand, just, just how you, what that means to you. So if I said um that if ah if you don’t want to answer my questions you don’t have to. What would that, what would that mean to you?

NV That means that I’m not going to answer anything.

NR Okay. Mmm, okay so you don’t have to answer if you don’t want to.

[72] Mr V’s initial answer, namely that he understood the advice but was not going to explain it to the detective, was clearly not satisfactory. It left open the possibility that Mr V did not actually understand the question but wished to avoid

the embarrassment of having the detective know that that was the case. The detective was obviously alert to the problem, and for that reason emphasised that he needed to know that Mr V understood what the explanation meant.

[73] The second response, namely “That mean that I’m not going to answer anything”, appears to have been sufficient to satisfy Detective Rolley that Mr V understood the explanation. I am not sure, however, that Mr V’s response provided an adequate foundation for that conclusion. The detective had been trying to explain to Mr V that he had the right to remain silent. In simple terms, Mr V did not have to say anything to the detective if he did not wish to do so. The response that he gave to Detective Rolley leaves room for doubt, however, as to whether Mr V had grasped what the detective had had been telling him. This is because the response “That I’m not going to answer anything” does not capture the essence of the notion that Mr V did not have to answer anything.

[74] Had this been the only area of concern, it could easily be argued that the detective had substantially complied with his obligations under the Act. There are, however, other areas of the initial part of the interview in which similar concerns arise.

[75] After Detective Rolley had completed his explanation of the right to silence, he moved on to explain to Mr V that he would be recording the interview and that it could be played in evidence if Mr V was charged. He explained that concept in the following terms:

NR You do? Okay. Okay, now anything you say to me today, everything we we talk about now is going to be recorded on the video alright? Now that that video, um can be used in Court alright? Okay, so if you are charged with um doing the wrong thing, doing offences we can bring this video along to show the Judge what you told me okay? D

NV Yeah.

NR Okay, so if if you have to go to Court um and we have this video. NV Mmm.

NR What do you think we would do with the video of you telling me what happened?

NV (shrugs) (Inaudible) NR What’s that?

NV (Inaudible)

NR I don’t understand sorry. NV (Inaudible)

NR What what was your answer [N]? NV Just do what you want with the tape. NR Okay.

NV Mmm.

NR So we would, we would do what we want with the tape? NV Mmm.

NR Okay. That that’s right, we would. We would play the tape um in

Court.

NV (nods)

[76] Most of Mr V’s responses during the above exchange were completely inaudible even to the detective. They provide no clue as to whether he had understood what the detective had told him. The only substantive response that Mr V provided was when he said “Just do what you want with the tape”. I consider that that response, too, suggested that Mr V may not have understood the explanation properly. It does not convey, expressly anyway, the impression that Mr V understood that the videotape could be played in Court if he was charged.

[77] Detective Rolley then moved on to explain to Mr V his right to have a lawyer present. He endeavoured to do so through the following exchange:

NR Now you can, we can ah talk to a lawyer, alright? Do you, what’s a lawyer? What what do you think a lawyer is in your own words? I know it’s a hard one.

NV Someone to support you.

NR Yeah, yeah. Someone to support you, you’re right. Someone who knows the law.

NV Mmm.

NR And and and can give you ah advice. Okay, so you can talk to a lawyer any time. Okay? All right. And you can have, you can have a lawyer here, like Dwayne’s here okay, when you talk to me so you can, we could get a lawyer and sit him there or her there (indicates) and they can be there for you when you’re talking to me as well. Alright? Do you want a lawyer here?

NV Nah I'm good.

[78] In order to comply with this obligation as it has been interpreted by the Court of Appeal in R v Z at [42], the detective needed to explain in simple language the right to instruct a lawyer, the function that a lawyer would perform and the mechanics of instructing a lawyer. I do not consider that that obligation was diminished in the present case by virtue of Mr V’s previous contacts with lawyers and/or the criminal justice system. Although he had had previous dealings with lawyers, and with Mr Robb in particular, there is nothing in the evidence to suggest that he had ever had a lawyer present when being spoken to by the police before being charged with an offence. His contact with lawyers in the past appears to have been solely in circumstances where he was actually appearing at Court.

[79] In the present case the words that Detective Rolley used clearly explained that Mr V had a right to instruct a lawyer. Mr Henshilwood had similarly urged him to obtain the services of a lawyer when he spoke to Mr V before the interview began. Mr V must therefore have been aware of his right to have a lawyer present at the police station.

[80] I am also satisfied that Detective Rolley adequately explained the mechanics of instructing a lawyer and also the fact that Mr V would not have to pay for the lawyer. He did this through the following exchange, which occurred shortly after the detective had explained to Mr V his right to have a lawyer present:

NR Okay. Now that, that lawyer or or and Dwayne doesn’t cost any money okay? So no cost, its just like Dwayne’s here now um we’ll get a list and we’ll like I did, get on the phone, ring up, say come down and ah talk to [N], alright?

NV (nods)

NR Do you understand what I’ve told you? NV (nods)

NR You do? NV (nods)

NR I’ll I’ll have to get you to do more than just nod for me alright, I

need to hear you say yes or not or. NV Yes I understand that.

[81] The real issue in this context is whether Detective Rolley adequately explained to Mr V the role or function that the lawyer would perform. In simple terms that would involve explaining to Mr V that the lawyer could provide him with legal advice. The advice from the lawyer would relate to whether, and to what extent, Mr V should talk to the police about any involvement that he may have had in causing the death of Mr Kingi. Those matters needed to be explained to Mr V, because the role of his lawyer in the past had primarily been to represent Mr V in court after he had been charged.

[82] The exchange on this topic leaves me far from convinced that Mr V understood what role his lawyer would perform. He was undoubtedly labouring under a misapprehension when he told the detective that he understood that a lawyer was “someone to support you”. The role and responsibility of a lawyer in the context of Mr V’s situation obviously extended well beyond that of a mere support person.

[83] Detective Rolley clearly recognised this. Whilst he agreed with the proposition that the lawyer would be a support person, he provided the further explanation that a lawyer was “someone who knows about the law...and can give you advice”. I accept that this explanation went much closer to identifying the role that a lawyer could perform for Mr V. Even so, it was not in my view sufficient to explain in simple terms the role that the lawyer could perform. In order to comply with the Act as interpreted in R v Z, the explanation needed, in my view, to go further. To borrow the words of Miller J in A v R HC AK CRI 2003-292-1224 23

June 2004 at [49], the explanation needed to convey to Mr V the understanding that a lawyer was “a person qualified to advise [him] about the investigation, the risk of prosecution and punishment that it presents for [him], and what [he] should do”.

[84] I consider that the position was also clouded to some extent when Detective Rolley said “we could get a lawyer and sit him there or her there and they can be there for you when you’re talking to me as well”. This advice could easily, in light of Mr V’s earlier misunderstanding as to the role of a lawyer, be interpreted by Mr V as meaning that the lawyer would be a support person fulfilling a similar role to that of Mr Henshilwood. It certainly does not convey the impression that the lawyer could provide him with advice as to whether he should speak to the police at all.

[85] My conclusion may have been different in the present case if Mr V had clearly known, as a result of earlier dealings with lawyers, about the role that a lawyer could perform. For the reasons that I have already given, however, I am satisfied that Mr V’s previous dealings with lawyers were not such that he would necessarily have appreciated the role that a lawyer could perform on 10 October

2007.

[86] My conclusion may also have been different if he had had that appreciation as a result of his earlier discussion with Mr Henshilwood. In saying that, I am not suggesting that it is any part of the function of a nominated person to explain the role that a lawyer may perform.

[87] The role of a nominated person was explained by a Full Court of this Court in S v Police [2006] NZHC 227; (2006) 25 FRNZ 817 at [78]. The Court said that the role of the nominated person is to ensure performance of the duty of the enforcement officer to explain the s 215 rights. It is also to give the young person the security of having someone looking after his or her interests at all times prior to and during the questioning process. The nominated person also has the opportunity to intercede during the questioning process and has the ability “to press the need for taking legal advice before answering further questions”: R v K CA 216/02 24 July 2002 at [36]

[88] I do not, however, take the Full Court to suggest that the nominated person also has a responsibility, independent of the duty imposed upon the enforcement officer, to explain the s 215 rights to the young person. Moreover, as this Court has noted in the past, the legislation “does not envisage a judicial inquiry into the nature and quality of the support given in any particular case”: A v R at [41].

[89] Nevertheless, if Mr Henshilwood had taken it upon himself to explain the role that a lawyer could perform, it would be a simple step to conclude that there had been substantial compliance with the requirements of the Act. Mr Henshilwood accepted, however, that his discussion with Mr V did not go down this path. He said that he had told Mr V that he needed to obtain a lawyer because of the seriousness of the charges. He also told Mr V that he “needed somebody who could help him through this stage”. He did not attempt, however, to explain to Mr V how a lawyer might be able to help him.

[90] When I asked Mr Henshilwood whether he had given Mr V any assistance as to how a lawyer might be able to help him other than simply to give him advice, he responded:

...I thought about this a lot afterwards and could have used a lot of you know really got him to explain to me what he felt about a lawyer get him to explain to me about what a lawyer could do for him. I guess we didn’t go into great detail and spend a lot of time on it because he was saying no, he just wanted to tell his story.

Mr Henshilwood did you have any concerns about whether or not you were making yourself plain to him and he understood, despite his different view .. he I can only say that I believe he clearly knew what choice he was making....

[91] Mr Henshilwood’s evidence suggests that, although Mr V clearly understood the choice that he was making not to have a lawyer present, there is some doubt as to whether he knew exactly what a lawyer may have been able to do for him.

[92] The responses that Mr V gave to critical questions during the interview are therefore problematic. I then add to the equation the language and communication difficulties that both Mr Henshilwood and Dr Tapsell encountered during their discussions with Mr V at around the same time. The end result is that I find myself unable to conclude, even on the balance of probabilities, that Mr V understood the rights that Detective Rolley tried to explain to him at the beginning of the interview.

[93] It is always easy to be wise after the event. It now seems reasonably clear, however, that the language barrier has operated to prevent Detective Rolley from being able, despite his genuine efforts, to comply with the obligations imposed upon

him by the Act. The s 215 rights are not particularly complex, particularly when the young person in question is 16 years of age, is of average intelligence and has had previous experience in dealing with the police. The position becomes much more difficult, however, when language and cultural issues arise.

[94] As the present case demonstrates, the need to ensure that the young person understands the explanation means that a great deal of extra care must be taken when there is any doubt regarding the young person’s grasp of the English language. That is the only way in which the young person receives the benefit of the special protection that the youth justice provisions of the Act are designed to provide. In the present case, and with the benefit of hindsight, I suspect that it may not have been possible to ensure that Mr V properly understood his rights without the use of an interpreter

Result.

[95] A failure to comply with the requirements of the Act will render any statement given by a young person inadmissible unless there has been reasonable compliance overall with those requirements. A proper understanding of the right to legal advice is, however, a fundamental requirement of the Act. In the circumstances of the present case, the so-called “reasonable compliance” provisions of the Act cannot operate to render the videotaped interview admissible.

[96] I therefore make an order under s 344A of the Crimes Act 1961 declaring the videotaped interview inadmissible in its entirety.

[97] In R v Leonard [2007] NZCA 452; [2008] 2 NZLR 218 at [13] the Court of Appeal encouraged trial court Judges, when giving decisions on pre-trial matters, to indicate to the extent that they saw it as appropriate their views on matters relevant to the desirability of leave being granted on pre-trial rulings. In the present case the Crown advised me that, although Mr V’s videotaped statement was not the only evidence against him. It nevertheless formed a significant part of the Crown case. The Crown will also have limited post-trial appeal rights. For that reason, if the Crown wishes to exercise

its appeal rights, it may be appropriate in this case for leave to be granted to allow it to do so.

Lang J