Interviews and Statements

Purpose

Generally interviews are designed to record what witnesses to an offence observed, not what they thought about it. Nevertheless, the witnesses ' opinions and intuition can provide enforcement officers with leads that can be tested through asking further questions about why the witnesses think what they do.

The main focus, while ensuring some basic freedom in the interview, is to assist interviewees to tell their story - all that they can recollect, in a way that is most productive. This could mean that an interview on-site is best, or with photographs of the incident, or in a quiet space away from their usual distractions.

Interviews may produce different kinds of results:

If interviewing a witness, you may obtain original evidence of material facts (facts that satisfy an element of the offence).
If interviewing a suspect, you may obtain an admission as well as an explanation with possible defences, and evidence of motive or negligence as aggravating factors on sentence.
In any interview you may obtain a lead, especially through hearsay.
Interviewees ' behaviour and consistency in what they say can give you clues about the veracity of their statements.

Approach

Remember, an interviewee is not on trial, and care needs to be taken to avoid the line of questioning becoming aggressive. There is nothing wrong with trying to strike up a rapport; engage with the person first about things particular to their experience that you share some knowledge or interest in, before inviting the answers to questions. Enforcement officers are more likely to get witnesses or suspects thinking carefully about what they observed if they are happy to be part of an investigation.

Nothing can replace practice when interviewing. A good way to practice in a safe setting is to question your colleagues on a story they know but you don't. It is also a good idea to sit in on interviews and observe experienced officers in action.

It is recommended that enforcement officers follow a consistent format and structure when carrying out interviews. This will help you get the most out of your time with an interviewee, and keep things on track if the interviewee is difficult or distracted. It will also enable lessons (positive and negative) obtained from previous interviews to be incorporated into future interviews.

Planning the interview

It is good practice for enforcement officers to:

consider what would be an appropriate location for the interview:
- Witnesses are often best interviewed on their 'own turf ' where they feel most comfortable recalling details.
- Suspects can be interviewed at local authority offices (as practicable), where enforcement officers may be more comfortable dealing with uncooperative behaviours.
write down a few key questions that can act as prompts. This enables you to probe some areas in more detail without losing track of the overall line of inquiry
frame questions giving consideration to the elements of the offence. Start by establishing the identity and role of the witness in relation to the incident; this assists in keeping the interview relevant
use open questions during the interview, starting with "who, what, when, why, where, how?" rather than closed questions that invite only a yes/no response (eg, "did you see a man with a black moustache …?") Witnesses should be allowed to tell their story, in their own words. Open questions can also elicit details and uncover potential new evidence or lines of inquiry that may not otherwise have been considered
assist the story telling by trying questions that prompt the interviewee’s recollection of events in sequence, for example "when did you first notice…? what happened after that?… what has changed recently?"
consider questions for the end of your interview that explore your theory of the case. Be sure not to let this direct the interview too early, or close your mind to what the witness is telling you
have a plan for dealing with uncooperative behaviours (such as a reluctance to answer questions, lies, hostility, or a threat to walk out)
take notes as the interview proceeds. Those notes will allow the officer to build a witness statement at the end of the interview. Any admissions should be checked and recorded in full.

Conducting the interview

A framework for conducting interviews follows the acronym PEACE:

P lanning and preparation
E ngage and explain
A ccount, clarification and challenge
C losure
E valuation.

Planning and preparation : Ensure that you find a space for your interview that permits minimal distractions, especially for potentially difficult interviews with suspects.

Engage and explain : This involves assessing the personality of an interviewee at the beginning of an interview, adapting your style to fit the style and personality of the interviewee so that you can get the most out of them. It also involves establishing the ground rules for the interview: explaining what it is for and how it will proceed; try to get buy-in from the interviewee about that.

Account, clarification and challenge : This involves the central purpose of an interview: obtaining a person's account of what happened. You should take care to clarify what someone says, when statements are vague or ambiguous. You should also be ready to challenge an account when you know the information given is false. Your challenge should be adapted to the person (i.e. to what is more likely to work with the particular interviewee).

Closure : Check that you have covered all the basics (the "who, where, what, why, when and how" of the events witnessed). Your understanding of the key points of the account should be summarised and checked back with the interviewee to ensure accuracy. Query, ask for clarification on, or otherwise consider anything you still don't understand, which remains vague, or which is subject to a discrepancy with other evidence you have collected; consider how to obtain further information from the interviewee that might assist.

Evaluation : Finally, assess what the enforcement officer has learnt on two fronts:

What has been discovered in relation to the investigation and what other enquiries should now be pursued as a result of the interview?
What can be done to improve the interviewing technique and confidence? Assessment from peers may assist here.

Statement taking

The importance of recorded statements

It is good practice to summarise a person's account or statement about key events. The record is important for a number of reasons:

Information discovered to date can be traced and it becomes easier to determine where to take the investigation next.
Statements are useful for briefing witnesses if they are to appear in court later; their earlier statements can be used as a starting point.
Witnesses can use statements to remind themselves in court if they were made at a time when the events recorded in it were fresh in their memory ('refreshing memory rule ' in s90(4),(5) of the EA)
A statement may still be admissible as evidence even when the witness has forgotten some of what was said, provided that the information is useful and reliable for the court (exception to previous consistent statements rule s35(3) of the EA)
If a witness makes mistakes in court, the prosecutor can correct them by offering a previous statement in relation to the facts of the case (s37(4)(b) of the EA)
If a prosecution witness actually becomes hostile, the prosecutor can (with the judge’s leave) cross-examine the witness using previous statement to show inconsistency: (s37(4)(a) of the EA). In this way, the prosecutor may limit damage done to the case by casting doubt on the witness's disposition to tell the truth.
A statement can be used in court to back up what a witness has said, if the defence challenges the ability to provide an accurate and truthful account due to a previous but recent inconsistent statement or claim (s35(2) of the EA).
A statement might be admitted if the statement-maker is unavailable as a witness, so long as the circumstances provide reasonable assurance that it is reliable (exception to the hearsay rule s18(1) of the EA).

Note that the general rule is that, the statement is inadmissible if it is consistent with what the witness will say in court. The purpose of the rule is to focus the fact-finding on evidence given by a witness in court: evidence of statements made consistently outside of court generally add nothing to a case; and evidence is best tested in court through cross-examination of a witness. However, there are exceptions, as explained below.

If the statement-maker is a defendant, recording the statement may be important because:

The statement might be admitted against the defendant as evidence of facts in issue, including to prove his or her identity as the offender.
The defendant may offer evidence in favour of their own veracity or against one of your witnesses. If the statement you have from the defendant runs contrary to that evidence, a judge may allow it in response (s38(2) of the EA).

Given how useful a recorded statement can be, it is important to make sure that the method of taking it and the circumstances in which it is taken do not prevent its admission into evidence at court.

Statements with no signature or that are changed

If the statement-maker refuses to sign a statement, as a suspect may, the enforcement officer should still date and sign the record of what was said and make precise notes of the circumstances and refusal. The lack of endorsement may not necessarily invalidate the statement as the court will weigh the lack of endorsement against other factors.

Statement-makers wanting to correct what has been recorded should write in the correction themselves and sign it on the same page. By reference to their handwriting and signature, any later allegation that you made an alteration without their approval can be resisted.

Hearsay

Sometimes a potential witness, or an enforcement officer, may not have observed what occurred first hand, but have been told about it by another person who did so. This type of evidence is called hearsay, and it is normally inadmissible in court unless the other person is also a witness.

There are some other exceptions. One key exception is that evidence offered by the prosecution of a statement made by a defendant is admissible and the rules of hearsay, opinion and previous consistent statements do not apply (s27 of the EA). Note however, that the statement may be still be excluded for other reasons including reliability, oppression, and improperly obtained evidence (ss28-30 of the EA).

Rules and limitations on interviews and statements

Freedom to leave

Section 22 of the New Zealand Bill of Rights Act prohibits arbitrary arrest or detention. There is no specific power under the RMA to detain a person for questioning; therefore the interviewer must avoid giving the impression that the interviewee is not free to refuse to answer questions or to depart at any time. The test is whether the interviewee reasonably formed the perception that he or she was not free to go. An obvious example would be directing an interviewee during a meeting to 'stay put '.

Under s22 of the RMA, the only information the person interviewed is required to give an enforcement officer on request is:

if he or she is a natural person, their full name, address and date of birth.
if not, its full name and address only.

The officer can also direct a person to give the following information about another person on whose behalf they are breaching or have breached any obligations under part 3 of the Act:

if the other person is a natural person, their full name, address and date of birth
if not, its full name and address only.

Cautioning a potential defendant

There is a divergence of practice in New Zealand about formally cautioning defendants for local government offences. A caution involves telling potential defendants that they do not have to say anything but what they do say may be taken down and used as evidence against them in criminal proceedings.

Cautioning first became standard (police) practice in England after 1912 as a result of the ‘Judges' Rules’ - guidelines that judges would follow in using their discretion to exclude evidence and ensure a fair trial. The rules were formulated to deal with concerns about police conduct in detaining and questioning suspects, and in particular the divergence in practice between different police forces. High Court Judge Lawrence J explained in R. v Voisin [1918] 1 KB 531, that:

In 1912 the judges, at the request of the Home Secretary, drew up some rules as guidance for police officers. These rules have not the force of law; they are administrative directions the observance of which the police authorities should enforce upon their subordinates as tending to the fair administration of justice. It is important that they should do so, for statements obtained from prisoners, contrary to the spirit of these rules, may be rejected as evidence by the judge presiding at the trial.

Strictly speaking, the Judges' Rules have only ever applied to police interviews. However, a similar requirement is imposed under section 23(4) of the New Zealand Bill of Rights Act, which provides that:

Everyone who is—
(a) Arrested; or
(b) Detained under any enactment—

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

Under the RMA, there is no right of arrest or detention, so s23(4) of the New Zealand Bill of Rights Act does not apply.

The law in this area may develop further. Today, the Judges' Rules are relevant to a judge’s discretion to exclude 'improperly obtained' evidence for unfairness (s30 of the EA (EA)) and to the exclusion of defendant statements made in circumstances that affected their reliability (s28 of the EA).

While the Judges' Rules apply only to the police, the obligation to be fair applies to all investigations. Being fair in asking a suspect questions might mean disclosing that you have information suggesting an offence has been committed, and that you are obliged to investigate and make a decision about how to proceed under the RMA. As explained above, an interviewer must also avoid giving the impression that the interviewee is not free to refuse to answer questions or to depart at any time.

Any future developments in this area are likely to reflect the fundamental reforming principle of the EA, which is to facilitate the admission of any evidence that will assist the court in determining proceedings.

Reliability of statements

In Court the defendant (on an evidential foundation) or judge may question whether the circumstances in which a statement was made adversely affected its reliability (refer s28 of the EA). In such cases, the judge must always be satisfied that reliability was not affected, or the statement will be excluded. Relevant circumstances include:

any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not)
any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not)
the nature of any questions put to the defendant and the manner and circumstances in which they were put
the nature of any threat, promise, or representation made to the defendant or any other person.

The defendant (on an evidential foundation) or judge may also raise the issue of the statement being influenced by oppression (refer s29 of the EA).

If the issue of oppression is raised, the prosecution is obliged to show beyond reasonable doubt that that statement was not influenced by oppression - or the statement will be excluded.

The guidelines in s29 partly overlap with the general obligation to conduct an investigation fairly, and with the requirements about excluding of improperly obtained evidence under s30 of the EA. Taken together these requirements mean it is important to:

avoid leading the defendant's answers
avoid making any promises or threats that may affect what the defendant says
be alert to the mental state of the defendant, including whether the defendant is distressed or under influence of alcohol or drugs.

If an enforcement officer thinks a suspect perceives a threat or inducement to answer questions, it should be reiterated that he or she is free to refuse to answer questions and to leave at any time.

The issue with threats and inducements is whether the behaviour of the investigating officer(s) led to admissions that would not have been made otherwise.