A man convicted of reckless driving following the death of a woman in a car he was racing has failed to get his charge thrown out because he made a statement to police without been compelled to do so.
Rowan Asvin Matthews was fined $750, ordered to pay court costs and disqualified from driving for six months, following the crash on 13 August 2011 that resulted in the death of Fay Roberts.
Matthews and his girlfriend Chely Gacitua were racing with her brother Felipe Gacitua and Roberts from Botany Downs to Manurewa to watch a boxing match when the car Roberts was a passenger in had a head-on crash at the corner of Mill and Ranfurly roads.
Matthews wasn't initially charged in relation to the death, but later voluntarily went to the Manukau police station where he made a statement that was used to lay a charge of reckless driving against him.
He then appealed that conviction to the High Court claiming his statement should have been excluded as evidence because it was improperly and unfairly obtained.
Before Matthews was found guilty of the charge an admissibility hearing took place in May this year where both Matthews and the police constable that interviewed him gave evidence.
The constable said police were not investigating Matthews' actions on the night of the crash when he turned up unannounced and gave a statement.
When the constable became concerned Matthews might say something to "incriminate himself" he cautioned him and told him he was under no obligation to say anything, a recent High Court decision reads.
According to the Chief Justice's Practice Note on Police Questioning, police may ask questions of anyone they think "useful information may be obtained" from regardless of whether they're a suspect or not.
Matthews counsel, Alistair Haskett, also argued that at the time Matthews was cautioned police didn't have enough evidence to charge him, something the judge that resided over the admissibility proceedings agreed with.
However, prior to Matthews' interview the constable had already received statements from several witnesses to the crash that claimed two cars were "being driven at speed", racing, and passing dangerously.
Haskett said the standard caution given to Matthews wasn't sufficient as it wasn't made clear to him that any statement he made could be used against him, not just Felipe Gacitua.
"If information was being collected for the purposes of prosecuting Mr Matthews, then the police should have taken reasonable steps to inform Mr Matthews of this," Haskett argued.
The High Court decision says: "In this case it is alleged that Mr Matthews did not understand the jeopardy he faced because he believed he was a witness (only) not a suspect. His waiver is therefore said to be ineffective and his witness statement unfairly obtained."
Appeal Judge Sarah Katz found Matthews was "well able to stand up for himself" and knew his statements may be used against him, though he ''may have hoped to persuade the police that neither he nor Mr Gacitua had done anything wrong".
"It is often the case that a statement made by a detainee in a police station is shown to be in hindsight a mistake," the decision reads.
"A confession may be made in the wrong belief that it will be exculpatory, when it in fact inculpates. A confession may be made because the detainee is under the self-induced misconception that if everything is confessed the police will not lay charges."
According to the decision, Matthews expressly denied racing "before ultimately conceding (albeit in somewhat guarded terms) that he may have".
Judge Katz found the caution given to Matthews was fair and the evidence before the court sufficient to convict him and dismissed his appeal.
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