Friday, September 13, 2019

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.