Whipping and buggery!

Two points of interest were made in Persad v The State (Trinidad and Tobago) [2007] UKPC 51 (23 July 2007), one being a point of law, the other being a sentencing blunder.

This appeal concerns the exception to the hearsay rule created in R v Hayter (blogged here 7 February 2005). The Hayter exception to the rule against hearsay is that the jury may, when considering the evidence against the accused, take into account a co-accused’s out of court statement, made in the absence of the accused, but only to the extent that it is against the interests of its maker. The point of law decided in Persad is that where the Hayter exception applies, the jury should be directed that parts of the co-defendant’s statement that exculpate the accused must be taken into account.

The sentencing blunder involved the whipping part of a sentence for buggery. The fact that there was no jurisdiction to pass such a sentence had been overlooked in the Court of Appeal, and the sentence had since been carried out. The Privy Council called this most regrettable (para 25).

The appellant’s conviction for buggery was quashed, essentially because the only information inculpating the appellant at trial had been a self-serving out of court statement by a co-accused, and this was inadmissible against the appellant as it did not come within the Hayter exception.

The Privy Council left for consideration in an appropriate case what the position would have been if the co-accused’s hearsay statement had been exculpatory of its maker to the extent that, while accepting liability for one offence it attributed sole responsibility for another (perhaps more serious) offence to the accused. In Hayter this distinction did not arise, as the accuseds where on trial on joint charges.

In New Zealand the Hayter exception operates until 1 August 2007 (next week). Then the Evidence Act 2006 will come into force, and s 27(1) will prevent the prosecution offering evidence of a co-defendant's statement (presumably, a statement made by the co-defendant to a person in authority in the absence of the defendant) against a defendant. This does not, of itself, prevent another co-defendant offering it against the defendant, but a prohibition of such use could be implied in the interests of consistency. The policy underlyings 27(1) seems to be recognition of the inherent unreliability of accusations made by one defendant against another in out of court statements, particularly when made to persons in authority, and the legislature has omitted to acknowledge that in some circumstances (as in Hayter) these statements can have sufficient apparent reliability to be admissible.