Enjoying s 22A of the Evidence Act 2006 [NZ]

Why was s 22A of the Evidence Act 2006 [NZ] needed? To what extent is it to be interpreted with the assistance of the common law?

The New Zealand Law Commission originally hoped that the law of evidence could be codified. That is to say, the planned Act would be called the Evidence Code, and it would be the exhaustive source of evidence law, subject only to case law explaining how it was to be applied, and to legislation subsequently modifying it. It was to replace the common law.

In the rather protracted early stages of its work on this, the Commission produced a draft Evidence Code, which had no reference to the pre-concert exception. Seminars at various locations in New Zealand were held to obtain feedback from interested members of the profession.

On 11 March 1998 I was at the well-attended seminar in Auckland. When I asked what had happened to the pre-concert exception, I was told that it would not survive if the draft Code was enacted, and there would no longer be an “in furtherance” requirement. There was no other discussion of this point.

I must admit to then being unsure whether the issue was understood by the panellists from the Commission. But, assuming – realistically – that they fully grasped the point, the answer would probably mean that the pre-concert rules were to be replaced by the general exception (now, s 18) to the rule excluding hearsay (now, s 17). The pre-concert rules were, after all, a way of providing a reasonable assurance of the reliability of the challenged hearsay evidence.

By late 1999 there could be said to have been some doubt as to whether the Commission was proposing a Code. Although its Report  NZLC R55 of August 1999 used “Code” in the title to the proposed legislation, it now contained, as a new clause, what corresponds to the current s 12, recognising that some issues may not be resolved by reference only to the Act.

Anyway, when it was enacted on 4 December 2006 the Evidence Act still had no reference to the pre-concert exception. The Act did not come into force until 1 August 2007. As an indication of some equivocation in the meantime, a speed-wobble if you will, the Act was amended by inserting s 12A (4 July 2007). This preserved the common law rules relating to the pre-concert exception. 

Obviously, someone had at last turned their attention to the point and realised that there was some uncertainty over whether s 18 was an adequate replacement for the common law rules in the context of conspiracies and pre-concerted criminal activities.

The Law Commission understood that s 12A was always intended to be a temporary measure, to be considered in more detail in its first review of the operation of the Act. The review recommended (at R6) the “codification” (the word used at [3.112]) of the common law in what is now s 22A.

So, from 8 January 2017 s 12A was repealed and the current s 22A was inserted into the Act. This attempted to reproduce the common law. The Justice and Electoral Committee Report on the Evidence Amendment Bill does not, in its Commentary, address s 22A, so it seems that the Committee thought this was just a “minor or technical amendment” (the phrase used in the last sentence of the Introduction to the Commentary).

Why the moving of the section? Why not just a new s 12A? It is now at the end of the subpart on hearsay evidence, instead of being placed in the context of s 12 which provides for regard to be had to the common law where the Act does not deal with particular evidence. So this contextual change is consistent with s 22A now being intended to replace the common law.

But it is clear that s 22A is not a complete enactment of the common law. For example, the “in furtherance” requirement in s 22A(c) is limited at common law to things said or done while the common purpose is still in existence, and recounting of past events is not (usually) in furtherance of the common design. Also, statements made after the defendant has ceased to be a participant in the conspiracy or common design are not, at common law, within this exception.

Further, recent comments on s 22A, in Winter v R [2019] NZSC 98 at [63] (and see my note on this case here), question whether it is a complete statement of the common law. Here, attention is on s 22A(a) and (b). It is clear from the Law Commission’s 2013 review of the Act (NZLC R127) that it had in mind the point later referred to here by the Supreme Court (see [3.113] of the review). The Commission here was making the point that a feature of hearsay evidence is that it is adduced to prove the truth of its contents. For example, (my example), if an alleged participant in a conspiracy, who is not available to give evidence, is recorded saying to someone, “D has said he did X, and because he has I will do Y”, that is used to prove the participant understood that D did X and that the participant intended to then do Y. In this non-hearsay use, the evidence is aimed at establishing, or contributing to establishing, a reasonable basis (here, the alleged participant’s belief about what D did and the intention to do Y) for concluding that there was a purpose of doing Y (s 22A(a)), but at common law it is not admissible to prove that D participated in the common purpose: R v Morris (Lee) [2001] 3 NZLR 759 at [17]-[18],[1] and contrast the apparently wider terms of s 22A(b). Only if the thresholds are met by admissible evidence can the statement (“D said he did X”) be used for the hearsay purpose as proof D did act as described (that he did X). The threshold evidence does not include the hearsay use of the challenged evidence, notwithstanding the apparently more permissive wording of s 22A.

It seems plain that the Law Commission intended that s 22A should be informed and elaborated by the common law, and that in this sense it was not a codification. If I cracked the whip, I would have put the provisions of s 22A as a subsection to the existing s 18. It is, after all, an exception to the rule excluding hearsay and it is aimed at providing a reasonable assurance of reliability in the particular context of conspiracies or joint enterprises.

So, not a Code, people should stop using the C word.

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¹ The decision is not freely available online, so here are the paragraphs I have mentioned: 

“[17] The existence of the conspiracy and the accused’s participation in it must be shown to the requisite standard without use of hearsay. But statements made by other persons about what they are intending to do, against the background of their statements about what they have done, are not hearsay if received as evidence of their state of mind at the time of speaking, and thus of their purposes and intentions at that time. Such statements are received not to prove the truth of the participation of someone not a party to the conversation, but as facts from which the existence of the agreement or combination to engage in an illegal common enterprise may be shown (Ahern at 94). The existence of a conspiracy can thus be shown by their statements, including what they have said about the accused.

“[18] But the accused’s membership of that conspiracy cannot be proved by reference to what the conspirators have said about the accused in his absence. To admit such material for that purpose, as contrasted with the purpose of establishing the existence of a conspiracy, a design by the speakers, would be hearsay (Ahern at 93). It is therefore necessary for the Crown, having shown that there is evidence of a conspiracy, to prove the accused’s membership of it to the requisite standard by reference to matters external to the statements which have been made in the absence of the accused.”

The conspiracy or joint enterprise exception to the rule against hearsay

The use of hearsay evidence to prove a defendant’s participation in a joint criminal enterprise was considered in Winter v R [2019] NZSC 98 (13 September 2019). On the facts, the evidence was not “in furtherance” of the alleged joint plan, so it failed to meet the requirement for admissibility in s 22A(c) of the Evidence Act 2006.

The challenged evidence was a statement in a text message by a person, who had been a co-defendant, and it was made in the context of a domestic exchange of messages with his partner. By domestic I mean that the context had nothing to do with the alleged joint enterprise and instead was about things like when the co-defendant would arrive home that evening.

The message told his partner, ““arming up to dn wht we do” [17]. This was allegedly relevant to ensuing offending involving assault with a weapon. It was not made in order to get armed up, or to persuade the partner to join in or help with the arming up.

The person who sent this message had pleaded guilty before the trial and was awaiting sentencing. There could be a question whether he was “a co-defendant in the proceeding” within the meaning of s 27 of the Act (see [61], citing Williams v R [2017] NZCA 176 at [18]-[24]), but in any event the section governing admissibility in this context was s 22A. If the statement was not hearsay (because it was used, not for its truth, but only to prove what the co-defendant said he was doing), then, if the maker was a co-defendant it “arguably” would not be admissible at all because of s 27 (at [61]-[62]), at least not against the defendant, repeating the common law position. But here, the statement was sought to be used to prove its truth, so it was hearsay.

The Supreme Court said (at [20]) that although s 22A was intended to codify the common law, that intention was only partially achieved. The section must be interpreted without stretching its terms (at [47]).

To be frank, I must admit to having a doubt as to whether the common law was correctly stated in the passage quoted from Messenger at [63]. The word “inadmissible” should be inserted in the first sentence, so that it reads “... the existence of the conspiracy or joint enterprise must be shown to the requisite standard without the use of inadmissible hearsay evidence.” Some hearsay evidence will be admissible under s 18 if (inter alia) there is “reasonable assurance that ... [it] is reliable”. Obviously, all admissible evidence should be available to be considered in deciding whether the threshold in s 22A (reasonable evidence) has been met.

The Court’s criticism of s 22A seems to be directed at its being limited to the admission of hearsay statements (see [20], referring to [62]). If that is so, I don’t see why it is a problem, because the common law rule was also directed at the admission, in the conspiracy or joint enterprise context, of hearsay statements. The non-hearsay evidence was and is, subject to any other relevant exclusionary rule, admissible anyway.

Questions are raised: has the discussion of the inadequacies of s 27 bled into a critique of s 22A? Should the common law cases be used as aids to interpreting s 22A? Are proposals to amend or replace s 27 going to give it too much work to do?

See also my discussion here from last week.

Admissibility against a defendant of co-defendant's statements, whether hearsay or not

The Government’s response to the Law Commission’s Second Review of the Evidence Act 2006 reveals an issue that deserves deep study. It concerns sections 22A and 27 of the Evidence Act.

The Government’s response includes this, quoting in italics the Commission’s recommendation, followed by the response:

Amending the Act so that the admissibility rule in section 22A (relating to co- defendants’ statements) applies to any statement made by a defendant, whether or not it is a hearsay statement (recommendation 26)

Submissions from both defence and prosecution perspectives supported this recommendation. The Law Commission concluded that there is no principled basis for limiting this section to hearsay statements.

The Law Commission discussed the issue at pp 242-245 of its Report. Included in that discussion are some observations of Palmer J, quoted on p 243, para 15.17, with which I entirely agree. The suggestion was that the problem could be solved by amending s 27 to make it applicable to all statements by a co-defendant, whether hearsay or not. To be admissible these would have to pass the criteria in s 22A (currently only applicable to hearsay statements).

Instead of adopting this suggestion, the Commission recommended, and the Government apparently agrees, that s 22A should be repealed and a new s 27AA should be inserted into the Act. This would read (as set out in Appendix 1 to the Report, proposing a Draft Evidence Amendment Bill):

27AA Admissibility of statement against co-defendant

In a criminal proceeding, a statement made by a defendant is admissible against a co-defendant if—

(a) there is reasonable evidence of a conspiracy or joint enterprise; and

(b) there is reasonable evidence that the defendant was a member of the conspiracy or joint enterprise; and

(c) the statement was made in furtherance of the conspiracy or joint enterprise.

Accompanying this, and this is what made me raise both eyebrows, is a proposal to repeal s 22A (clause 7 of the draft Bill).

Section 22A applies to much more than just statements by co-defendants. Some people involved in joint enterprises are never identified or caught, but their statements, for example in the form of text messages or intercepted verbal communications, although hearsay, can have probative value on the issue whether the defendant was part of a joint enterprise to commit the relevant offence. If the criteria in s 22A are satisfied, those statements are admissible unless excluded by some other rule.

There is nothing wrong with supplementing s 22A with something like s 27AA (if the terminology defendant/co-defendant is sorted out), but I wouldn’t get rid of s 22A.