The Queen v Shivneel Shahil Kumar

• Jurisdiction: New Zealand
• Judge: William Young,Glazebrook,Arnold,O'Regan JJ,Elias CJ,WILLIAM YOUNG,GLAZEBROOK,ARNOLD,O'REGAN JJ
• Judgment Date: 06 August 2015
• Neutral Citation: [2015] NZSC 124
• Docket Number: SC 115/2014
• Court: Supreme Court
• Date: 06 August 2015

BETWEEN

The Queen

Appellant

and

Shivneel Shahil Kumar

Respondent

[2015] NZSC 124

Court:

Elias CJ, William Young, Glazebrook, Arnold and O'Regan JJ

SC 115/2014

IN THE SUPREME COURT OF NEW ZEALAND

Appeal by the Crown against a ruling that incriminating statements made to undercover police officers while in custody were inadmissible — respondent was arrested and charged with murder — near end of interview respondent requested a lawyer — police advised lawyer they would not carry out further interviews in the absence of fresh information — in the meantime two undercover officers spent time in the police cells with the respondent, appearing as cellmates and building a rapport with him — respondent made incriminating statements to the un officers in response to their questions — undercover officers questioned respondent steered conversation towards his offending — consideration of the active elicitation test — whether there had been active elicitation of inculpatory statements so as to breach the respondents rights under right to refrain from making a statement as protected by s23(4) New Zealand Bill of Rights Act 1990 (NZBORA) (right to refrain from making a statement and to be informed of that right) — whether the operation had undermined the respondent's right to consult and instruct a lawyer once detained.

Counsel:

M D Downs and P D Marshall for Appellant

R M Mansfield and D A C Bullock for Respondent

The appeal is dismissed.

JUDGMENT OF THE COURT

REASONS

William Young, Glazebrook, Arnold and O'Regan JJ - [1]

Elias CJ - [75]

WILLIAM YOUNG, GLAZEBROOK, ARNOLD and O'REGAN JJ

Table of Contents

Para No
Introduction	[1]
The police investigation	[6]
The rights at issue	[22]
The right to refrain from making a statement and police undercover cellmates	[27]
The statements at issue Evaluation	[51]
The right to counsel	[72]
Decision	[74]

Introduction

1 This appeal concerns the admissibility of incriminating statements made by the respondent, Mr Kumar, while he was in custody following his arrest on a charge of murder. The statements were made in the course of an 80 minute conversation with two undercover police officers in a police cell following a formal video interview in which Mr Kumar had denied responsibility for the murder. In the High Court, Venning J held that the statements were admissible; 1 on appeal, the Court of Appeal disagreed 2 This Court granted leave on the question. 3

… [W]hether the Court of Appeal was right to conclude that an inculpatory statement made by Mr Kumar to undercover police officers was improperly obtained and should not be admitted in evidence at his trial.

2 As Mr Kumar's trial was due to commence on 2 March 2015, we issued a results judgment dismissing the appeal 4 In this judgment we set out our reasons. We note that both Mr Kumar and his co-accused, Mr Permal, were found guilty at trial.

3 Counsel were agreed that, on the authorities, the assessment to be made was whether the undercover police officers had “actively elicited” relevant information from Mr Kumar in the course of their conversation with him. In the particular circumstances of the case, if the officers did actively elicit information, they necessarily undermined Mr Kumar's rights, in particular his right to refrain from making a statement as protected by s 23(4) of the New Zealand Bill of Rights Act 1990 (NZBORA).

4 For the Crown, Mr Downs acknowledged in oral argument that there had been active elicitation from a particular point in the conversation and accepted that, as a consequence, statements made by Mr Kumar after that point should be excluded. In respect of those statements, Mr Downs did not argue that they should be admitted under the balancing process contemplated by s 30(2)(b) of the Evidence Act 2006. For Mr Kumar, Mr Mansfield submitted that the active elicitation had been present

from the outset of the conversation with the undercover officers, so that all the statements made by Mr Kumar should be excluded

5 We have concluded that the transcript of the conversation between Mr Kumar and the undercover officers must be excluded in its entirety. Mr Downs was right to acknowledge that there had been active elicitation by the undercover officers during the course of the conversation. However, we consider that it began at an earlier point than that identified by Mr Downs. In effect, the undercover officers conducted an interrogation of Mr Kumar, in circumstances where his formal video interview had been brought to an end to enable him to take legal advice and he had retained a lawyer. We consider that the actions of the undercover officers undermined Mr Kumar's right to refrain from making a statement and, as a result, the statements were improperly obtained in terms of s 30(5) of the Evidence Act. We consider that none of the appellant's statements should be admitted under the s 30(2)(b) balancing process.

The police investigation

6 A 21 year old Indian man, Shalvin Prasad, was murdered late on 30 January or early on 31 January 2013. According to the pathologist who examined his body, Mr Prasad was burnt alive after having been doused in petrol.

7 Mr Prasad's family had reported him missing early on 31 January 2013. He had been last seen around 8.30 pm on 30 January. When he did not return home that evening, his father checked his son's bank account and noticed that $30000 had been withdrawn earlier in the evening. The father then contacted the police. Around 6.30 am on 31 January, a badly burnt body, later identified as that of Mr Prasad, was found. Mr Kumar and another man, Mr Permal, were ultimately charged with Mr Prasad's murder.

8 Mr Kumar, a Fiji Indian, knew Mr Prasad. Mr Kumar was 18, almost 19, at the time. Although born in Fiji, Mr Kumar has lived in New Zealand since he was two years old and English is his preferred language.

9 Police investigations established that, at the time he withdrew the $30,000, Mr Prasad was making a phone call to Mr Kumar. He also sent Mr Kumar a text message reading “she getting money nw”. The cell phone evidence indicated that Mr Prasad had arranged to meet Mr Kumar around 8.30 pm on 30 January. CCTV footage indicated that at 9.19 pm on 30 January Mr Prasad had entered Mr Kumar's vehicle outside Mr Permal's workplace. At 10.33 pm Mr Kumar and Mr Permal went to a service station where CCTV footage indicated that Mr Permal purchased two plastic petrol containers and filled them with petrol. About an hour later, Mr Permal purchased petrol for his car at another service station.

10 Having determined that Mr Kumar and Mr Permal were suspects in the murder, the police decided to speak to them. At about 11.44 am on 14 February, Detectives Batey and Laumatia went to Mr Kumar's home. They advised Mr Kumar that they wished to speak to him about Mr Prasad's murder and advised him of his rights. Mr Kumar acknowledged that he understood his rights and agreed to accompany the detectives to a police station for an interview. On the way to the station, Mr Kumar gave Detective Batey his details. He showed the detectives where he and Mr Prasad had met on the morning of 30 January and said that they had gone to a supermarket. Mr Kumar also showed the detectives a fast-food restaurant where he and his co-accused Mr Permal had gone around 3.30 am on 31 January.

11 After they arrived at the police station, the detectives organised some food for Mr Kumar. Having confirmed that he wished to be interviewed in English, the detectives commenced Mr Kumar's video interview at 12.49 pm, with Detective Batey acting as the lead interviewer. Mr Kumar said that he and Mr Prasad had met around 10.30 am on 30 January and that he had told Mr Prasad that he and Mr Permal intended to go to the city that evening. Mr Prasad had turned down Mr Kumar's invitation to join them. Mr Kumar said that he and Mr Permal had met up around 9 pm that evening and gone into the city around 11 pm, where they had gone to several clubs. They left the city around 3.30 am on 31 January and stopped at a fast food outlet. Mr Kumar said that he had not seen Mr Prasad since their meeting the previous morning and that he had no knowledge of the $30000 withdrawn from Mr Prasad's bank account, although he later said that he knew of the withdrawal but had not seen the money. When confronted with the text data and CCTV footage which showed his contact with Mr Prasad at around 9 pm on 30 January, Mr Kumar denied killing Mr Prasad.

12 Towards the end of the interview, the detectives read from parts of the transcript of an audio recording of a conversation between Mr Kumar and Mr Permal in Mr Kumar's car a few days earlier. Mr Kumar said that he wished to listen to the full recording with his lawyer and asked for a lawyer. At that point, shortly after 4 pm, the detectives terminated the interview and arrested Mr Kumar for Mr Prasad's murder.

13 Having selected Mr Davey from a list of duty lawyers, Mr Kumar spoke to him on three occasions between 4.41 pm and 5.43 pm. Detective Batey spoke to Mr Davey during the first of these calls and advised him of the allegation against Mr Kumar, the circumstances of the offence and what had been discussed with Mr Kumar during the video interview. He also advised Mr Davey that he was intending to make a formal request of Mr Kumar for a voluntary DNA sample and medical examination. At 5.19 pm Detective Batey telephoned Mr Davey at his request. During their conversation, Mr Davey asked if the Detective would be conducting any further interviews with Mr Kumar. Detective Batey said that the interview with Mr Kumar had concluded, but if further enquiries identified other evidence that needed to be discussed with Mr Kumar, another approach for an interview would be made. According to Detective Batey, Mr Davey did not ask that he be contacted before...