On being helpful

A defendant’s right to a fair trial is an absolute right, but is the right to procedural fairness absolute? Can a trial be fair if its procedure is less than fair?

At sentencing, the defendant may claim mitigation for having given assistance to the authorities. There may be good reasons for not making public the fact that such assistance was given, and procedures may be in place to provide information to the judge on a confidential basis. Such information can take the form of a memorandum prepared and agreed to by counsel for each side. But what if the prosecutor wishes to include information for the judge’s eyes only, favourable to the defendant, but where disclosure of it to the defendant might compromise ongoing investigations?

This was considered in HT v The Queen [2019] HCA 40 (13 November 2019). Three judgments were delivered, all agreeing in the result. The majority opinions were given jointly by Kiefel CJ, Bell and Keane JJ, with support from Gordon J. Generally, where this problem arises, counsel should approach the sentencing judge for an appropriate order restricting disclosure, for example to counsel for the defendant but not to the defendant, or for disclosure to independent counsel who will then obtain instructions from the defendant to the extent that it is possible to do so while still keeping the confidential information from the defendant. At the sentencing hearing suppression and non-publication orders, or an order for an in camera hearing, could also be made.

Nettle and Edelman JJ accepted that suppression and in camera orders could be used, but they dissented by holding that the defendant must see everything that the judge sees [59]. It should only rarely not be possible for counsel to agree on a memorandum describing assistance given by the defendant, and the drafting of a suitable memorandum must be done in the light of the prosecutor’s duty of fairness. They pointed to the need for legislation to cover situations where agreement could not be reached.

In New Zealand it has been held that there is no power to exclude the public from a sentencing hearing, or to hear submissions in chambers. There are rules concerning assistance to the authorities: Criminal Procedure Rules 2012, r 5A.8. Sentencing involves deciding on a starting point in view of the seriousness of the offending and the role of the offender, and then adjusting it for mitigating or aggravating circumstances relating to the offender, and then giving credit for any assistance rendered by the offender to the authorities, and finally giving such credit as is appropriate in the circumstances for any guilty plea. In the result, the mitigatory effect of assistance to the authorities can be substantial. Failure to follow the sealed envelope procedure in the rules led to problems in AB(CA300/2017) v R[2018] NZCA 51 (not publicly available online), where on appeal credit by way of reduction of sentence by one third was considered appropriate, in the absence of a guilty plea, but where important information had been given in relation to serious offending. Orders were made suppressing the details of the assistance, the identifying particulars of the appellant, and limiting access to the court file. The Court noted that there have been cases where, when credit for assistance is combined with that for a guilty plea, a reduction from the appropriate sentence of up to 60 per cent has been approved.

An unreasonable jury verdict

The criminal courtroom can make innocence look like guilt.

A combination of circumstances persuaded a jury and a first appeal court that a murder had been committed by the defendant, but on second appeal the verdict was held to have been unreasonable, the conviction was quashed and an acquittal entered: Fennell v The Queen [2019] HCA 37 (6 November 2019).

It is worth reading the judgment for an illustration of how to take apart a prosecution case which relies on circumstantial evidence.

From the point of view of the law on how an appeal court may decide whether a jury verdict is reasonable, see [81]-[82]:

“[81] Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused's guilt or that the jury has had the benefit of having seen and heard the witnesses. [M v The Queen (1994) 181 CLR 487 at 493.] At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. [Bingham, "The Judge as Juror: the Judicial Determination of Factual Issues" (1985) 38 Current Legal Problems 1 at 16-18.] The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. [Fox v Percy (2003) 214 CLR 118 at 129 [31]. See also Devlin, The Judge (1979) at 63; Bingham, "The Judge as Juror: the Judicial Determination of Factual Issues" (1985) 38 Current Legal Problems 1 at 7-8, 10-11; R (G) v Governors of X School [2012] 1 AC 167 at 196-197 [80].] And especially is that so in a case like this where the jury has been subjected to the seductive effects of a species of identification evidence that has in the past led to miscarriages of justice. [See R v Clout (1995) 41 NSWLR 312. See and compare Domican v The Queen (1992) 173 CLR 555 at 561.] ... .

“[82] In an appeal where a ground of appeal is that the verdict was unreasonable or cannot be supported having regard to the evidence, and particularly where the Crown case is based upon a number of matters of circumstantial evidence, it is necessary for the appellate court to assess the whole of the case and to weigh that case as a whole. A circumstantial case cannot be considered in a piecemeal fashion. [R v Hillier (2007) 228 CLR 618 at 638 [48]. And see my note on this case here.] A corollary of this principle, particularly in cases in which the conclusion is not clear-cut, is that a substantial error, or errors, by an intermediate court of appeal in the process of assessing the case as a whole can infect the entire process.”

Here, the first appeal court had made an important error. The credibility of a significant item of evidence (an assertion that a hammer had been lent to the defendant) was greatly over-estimated ([76]-[80], [89]). This error may, I suspect, have occurred because, if true, the evidence would have been highly probative. The treatment of other circumstances as also being more sinister than they were could have led the court to over-estimate the likelihood that the hammer had been correctly identified.

Generally speaking, two steps are involved: first, assessing the credibility - or reliability [1] - of the witness's testimony ("This is the hammer I lent the defendant"), and second, if it is sufficiently credible to satisfy the fact-finder that it is true, the assessment of its probative value on an issue in the case. There is not necessarily a standard of proof for deciding whether testimony is credible, although it is often said that if the evidence must be accepted before a verdict of guilty can be returned then the credibility of that item of evidence must be established beyond reasonable doubt. For less central testimony it is likely that credibility need only be established to a level that "satisfies" the fact-finder that it is true, and here satisfies means on the balance of probabilities. However, this is a rather vexed topic and jurisdictions may differ in how they express the requirement for acceptance of the truth of evidence.

Credibility and probative value are matters specific to the particular testimony that is being considered, but when it comes to assessing the verdict on the accepted evidence, it is all the accepted evidence that must be taken into account. This is why the court can say it is wrong to latch on to one item of evidence and claim that it creates a reasonable doubt about the defendant's guilt. There will be occasions where that can be done, for example if an alibi is accepted notwithstanding that the other evidence strongly supports an inference of guilt. But other than alibi evidence, and also evidence supporting an affirmative defence (where the defendant's actus reus and mens rea are not disputed), in most cases, including Fennell, all the accepted evidence must be considered in deciding whether guilt has been proved beyond reasonable doubt.

In the course of a criminal trial, as evidence of guilt appears to accumulate, further evidence may be given greater credibility than it deserves.

But that’s not all. References by the High Court of Australia in Fennell to Bingham remind us of how Lord Bingham, delivering the judgment of the Privy Council, analysed our notorious circumstantial evidence case, Bain v R [2007] UKPC 33 (10 May 2007), noted here. But the Bain appeal was different insofar as it involved fresh evidence which called into question whether the combined effect of the circumstantial evidence would, in its light, be sufficient to support a verdict of guilty. As there was fresh evidence, it was appropriate to order a retrial. It was not for the appellate court to itself come to a verdict on the new evidence. In contrast, Fennell was not a fresh evidence case. The prosecution relied on categories of evidence - alleged theft, alleged motive, alleged possession of the murder weapon, and alleged opportunity - and each was shown to be unreliable. This was a case of absence of reliable evidence, not a case of assessing on an overall view the probative value of reliable evidence. On finding the conviction unsound the Court could order an acquittal.
______________________________

[1] In New Zealand s 28 of the Evidence Act 2006 is relevant where the reliability of a defendant's statement is being considered, and this has been interpreted as meaning that the truthfulness of the evidence can be relevant to assessing its reliability, a position not criticised by the Law Commission in its Second Review of the Evidence Act 2006, NZLC R142 at [6.19]-[6.23]. In R v Wichman [2015] NZSC 198 at [76] the majority in its joint judgment observed in relation to the possibilities that someone who is innocent may be convicted on evidence which turns out not to have been reliable, that these risks "... are inherent in the criminal trial process and cannot be completely avoided. They can, however, be mitigated in various ways; in particular by recognising the risk of unreliability; the provision of a reliability screening process to be carried out by the judge; judicial warnings; jury assessment and the rules as to the burden and standard of proof."

Sentencing for methamphetamine dealing

In a splendidly clear judgment our Court of Appeal has revised the law on sentencing for methamphetamine dealing (importing, manufacturing, and supplying): Zhang v R [2019] NZCA 507.

The Court of five Judges helpfully sets out a summary of the judgment at [10], and adds at [11]:

“...Those who willingly participate in commercial-level dealing in methamphetamine will gain little succour from this judgment. Its benefits lie more for those who take a lesser role in methamphetamine offending, and particularly those who do so as a result of vulnerability.”

There is no need for me to summarise the case (six jointly heard appeals), as the Court has done the hard summarising work in [10] and [11].

I make two observations.

First: If you thought that in referring to only two stages of analysis the Court was overlooking the taking into account of an early guilty plea, don’t worry. Looking at the discussions of the cases appealed you can see, for example at [201] and [258] the traditional approach.

Second: You may remain confused over the way an appropriate sentence for a conspiracy is identified. At [239] the Court says that taking half the penalty identified for the full offence is the correct approach, citing in footnote 133 Parata v R [2017] NZCA 48 at [5]. Yes, you say, but in Parata no authority for that was given. I dare not suggest that there might be some confusion here between s 310(1) of the Crimes Act 1961 and s 311(1) of that Act which provides (materially) for half the penalty for the full offence if only the attempt is committed. But s 310 does not apply here either, because the penalties for conspiracy to deal in drugs are set out in s 6(2A) of the Misuse of Drugs Act 1975. They are 14, 10 and 7 years’ imprisonment, compared with, for the corresponding full offences, life, 14 and 8 years. The approach to sentencing in the drugs context for conspiracies has been to reduce the levels set out in the bands by about 30 per cent: R v Haarhaus HC Auckland CRI-2007-004-018646, 24 July 2009, applied in R v Feng [2016] NZHC 1333 (neither of these cases was referred to in Zhang). Nor did the Court refer to its earlier decision in R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627, where detailed consideration was given to conspiracy sentencing in the context of dealing guidelines. So, what should we do? Follow High Court authority which has not been overruled, and take (as the first step in setting a starting point) about 30 per cent off the penalty identified in the new bands if the full offence had been committed? Or follow Zhang which, for no apparent reason, halves the penalty for the full offence as identified in the bands?

You decide.

New edition of Criminal Procedure in New Zealand

Don’t let me stop you ordering your copy of the newly published Criminal Procedure in New Zealand (3^rd ed) by Emeritus Professor Jeremy Finn and me.

Probative value and prejudicial effect: when weighing is not balancing

Weighing probative value against unfairly prejudicial effect

Section 8 of the Evidence Act 2006 sets out a generally applicable exclusionary rule:

8 General exclusion

(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will—

(a) have an unfairly prejudicial effect on the proceeding; or

(b) needlessly prolong the proceeding.

(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

The weighing exercise in subsection (1) was introduced into our evidence legislation by the Evidence Amendment Act (No 2) 1980. This stated in s 18:

18 Court may reject unduly prejudicial evidence

Notwithstanding sections 3 to 8 of this Act [the Evidence Act 1908], where the proceeding is with a jury, the Court may, in its discretion, reject any statement that would be admissible in the proceeding under any of those sections, if the prejudicial effect of the admission of the statement would outweigh its probative value, or if, for any other reason, the Court is satisfied that it is not necessary or expedient in the interests of justice to admit the statement.

Obvious differences are the elimination of the description of the weighing exercise as a discretion, and the introduction of the word “unfairly” to qualify “prejudicial effect”. Another change is the omission of the reference to the interests of justice.

The Law Commission’s initial comments

In relation to the current provision, the Law Commission said of probative value:[1]

Probative value will depend on such matters as how strongly the evidence

points to the inference it is said to support, and how important the evidence

is to the ultimate issues in the trial.

As to unfair prejudice, the Commission said:[2]

There must be an undue tendency to influence a decision on an improper or illogical basis, commonly an emotional one; for instance, graphic photographs of a murder victim when the nature of the injuries is not in issue. Evidence will also be unfairly prejudicial if it is likely to mislead the jury; for example, if it appears far more persuasive than it really is, as is occasionally the case with some types of expert and statistical evidence. The judge will need to consider whether any misleading tendency can be countered by other evidence that is likely to be available, or by a suitable direction to the jury. Whether evidence has an unfairly prejudicial effect must be considered in terms of the proceeding as a whole, and not just from the point of view of a particular party or a defendant.

A similar weighing exercise applies to propensity evidence pursuant to s 43(1) of the Evidence Act 2006. This was brought to attention recently in Brooks v R,[3] where, in refusing leave to appeal, the Supreme Court quoted from its earlier decision, the leading authority:

“[8] When a judge is considering the extent of any unfair prejudicial effect on the defendant [under s 43], the judge should examine whether the fact that the propensity evidence is prior acquittal evidence gives rise to any, or any additional, unfair prejudice. To the extent that it does, the judge should consider how that additional dimension affects the overall balance between probative value and unfair prejudice ...”. [emphasis added]

It is this “overall balance” that is, I suggest, a misuse of the metaphor of weighing. The section uses the word “outweighs”, and the only rational interpretation in context is that it means that the risk of an unfairly prejudicial effect on the defendant is negligible; it is contextually insignificant insofar as there is no real risk of trial unfairness. Unfortunately, outweigh also means to be greater or more significant than, and this tempts the reader to invoke a balancing metaphor. Although this weighing exercise is cemented in legislation, and therefore must be applied when it is relevant, it is appropriate to note that, when understood as necessitating balancing, it has been criticised as requiring a comparison of things that are not comparable. While it is easy to accept that probative value can have metaphorical weight, unfair prejudice is something that either exists or it doesn’t, and it is not apt to think of it as having weight.[4]

Common law origins

The origins of this weighing exercise are in the common law, as applied to New Zealand indirectly via the Privy Council’s decision in Noor Mohamed v R (British Guiana):[5]

“... the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interests of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.”

This is not a balancing exercise. It reflects what had been said in R v Christie,[6] about there being a “practice of a very salutary nature” that had “long existed” (although there is apparently no confirmation of that in the law reports)[7]of the judge inviting the prosecutor not to persist in adducing evidence that, although legally admissible, would operate unfairly against the defendant. Lord Moulton said:

“Under the influence of this practice, which is based on an anxiety to secure for everyone a fair trial, there has grown up a custom of not admitting certain kinds of evidence which is so consistently followed that it almost amounts to a rule of procedure.”

Christie is often referred to as the source of this exclusionary common law evaluative judgement, but it was not expressed there as a weighing exercise. Nevertheless, evidence legislation internationally often adopts the weighing formula, although the United Kingdom legislation now avoids a weighing model in favour of a requirement that evidence must not be admitted if admission would have “such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”[8]

The Law Commission’s 2008 comments

Our Law Commission has, in a report in 2008, had more to say about this:[9]

“7.55 The so called “weighing” of probative value and risk of prejudicial effect required by these provisions needs some elucidation. It is something of a shorthand expression, picked up and carried forward from the common law into the statute. As a matter of logic, probative force and prejudice are incommensurables. The comparison is not one of like with like. What really occurs is that the judge evaluates the probative strength in the trial of the evidence, and also the degree of risk of an unfair trial through prejudice if it is admitted. The effect of each on the fair trial process then is evaluated, and a value judgement is made based on the interests of justice....

“7.56 ...What matters in the “weighing” exercise is whether the evidence carries a risk of prejudice relative to probative value which goes beyond the bounds of the legitimate by creating an unacceptable degree of risk of an unfair trial. ... will the propensity evidence be given greater force than it could properly warrant, bolstering an otherwise weak Crown case? It is the risk of “illegitimate” prejudice which is the concern; and at which the weighing exercise is directed.”

This amounts to acknowledging that the legislation is not to be applied literally. It is “so called” weighing, needing “some elucidation”, it is “something of a shorthand expression”, “carried forward from the common law”. The Commission seems to be wishing that courts could “elucidate” the legislation in the same way they can alter the common law by explaining it. This explanation of the weighing exercise (“what really occurs”) amounts to a new model for the decision process. Although perhaps acceptable – but that may be being generous - for the time in which it was made, it needs to accommodate the recognition in the Supreme Court of decisions which the Commission does not cite, upholding the absolute nature of the right of the defendant to a fair trial.[10]

The Law Commission’s 2013 Review

When it reviewed the working of the Evidence Act in 2013, the Law Commission appears not to have received submissions on whether the balancing model should be retained or amended.[11] The issues relating to propensity evidence that were considered were in effect a repetition of the discussions in Mahomed v R.[12] The Commission did not criticise the Court’s view that there is little difference between the “balancing” exercises in s 8 and s 43(1),[13]while noting that there is “at least [a] theoretical” difference if the balance is determined to be equally poised. Importantly, the Commission concluded that it was not prepared to countenance any approach that would give rise to a risk of unfair trials, and this governing principle led it to reject submissions that were directed at linking (by a so-called “tit for tat” rule) the permitting of a defendant to cross-examine a complainant in a sex case about previous sexual history with permission to lead evidence of a defendant’s past sex offence convictions.[14]

In dealing with the hypothetical example of the balance being “equally poised” while at the same time upholding the need to avoid giving rise to a risk of unfair trials, the Commission overlooked the level of risk to trial fairness posed by an equal balance. A likelihood of unfairness of 50% would be regarded as too great a risk of unfairness. The decision should be exclusion when the likelihood of unfairness is much lower. The hypothetical example really asked what happens when the balance is on the boundary between admission being fair and not fair.[15]

In assessing this risk of unfairness the judge will have regard to the likely efficacy of any instruction that the jury may be given about the proper use of the evidence and any warning about avoiding its improper use.

Prior acquittal evidence

Acquittal does not mean innocence. It could be consistent with proof of guilt but only to the insufficient standard of the balance of probabilities. When finding facts in a criminal trial, the balance of probabilities will be sufficient in deciding what evidence to accept and what to reject. Of course, the combined effect of the evidence that is accepted is the basis for the verdict, and a verdict of guilty requires the combined effect to be proof beyond reasonable doubt.

This means that evidence given at a defendant’s earlier trial where the verdict was not guilty can be adduced if it is relevant as propensity evidence in a subsequent trial for a different offence. This does not infringe the rule against double jeopardy because at the subsequent trial the defendant is not in jeopardy of conviction for the conduct that was the subject of the earlier trial. Brooks and Fenemor (above) were cases of this sort. The focus is on what the defendant claims to be prejudice that is unfair: there must be “something about the circumstances of or leading to the acquittal which gives rise to prejudice that is unfair”.[16]

The split in the Court of Appeal[17] in Brooks over whether there was unfair prejudice, is an indication of how difficult this evaluative judgement can be. The majority, Miller and Simon France JJ, said this about unfair prejudice in this context, and held that none had been demonstrated:

“[41] Following Fenemor, a defendant may be able to point to something about a previous acquittal which makes the admission of evidence tending to prove the same allegation unfairly prejudicial for purposes of s 43. That may arise where admission of the evidence forces the defendant to adduce evidence showing how the acquittal came about.

“[42] By way of illustration, the defendant may have offered a successful alibi, as noted above, and will need to re-establish it. Defence witnesses may now be unavailable. The record of the first trial may establish that the evidence was seriously deficient in some way, [citing RPG v R 2015] NZCA 275] or a key witness lacked credibility. [citing Blackburn v R [2011] NZCA 365 and R v Edwards [1991] 2 All ER 266 (Crim App)]  (If that witness is to give the propensity evidence, the evidence may also be of low probative value for s 43 purposes.) The defendant may also show that the need to call evidence bearing on the acquittal contributes to a risk that the propensity evidence will overwhelm the trial, unduly influencing the fact-finder.

“[43] We accept that in such a case unfair prejudice may result where a police or trial file is unavailable and the relevant evidence cannot be established in another way. That conclusion is consistent with the authorities. [...]  However, following Fenemor , the court will not assume that the mere absence of a file is prejudicial. The defendant must both point to something about the acquittal that is relevant and show that the absence of the file is prejudicial.”

However, Peters J was unable to agree that there was no unfair prejudice in this case. Effective cross-examination was not possible because of passage of time and the absence of a proper record:

“[58] First, there is the matter of delay and its adverse effects on the accuracy of memory [CT (SC 88/2013) v R [2014] NZSC 155, [2015] 1 NZLR 465 at [14] and [26]; and Rompa v R [2010] NZCA 277 at [11].] The fact that this Court noted Mr Brooks' inability to recall details of his earlier trial is significant to me.

“[59] Secondly, almost all relevant contemporaneous information was unavailable, that is, the information from the police investigation and trial. Of course, this could occur in respect of any documents relevant to propensity evidence, but in this case it comprised the notes of evidence, police job sheets, notebook entries and (subject to what is said below) witness statements and/or briefs of evidence. [The Detective], the officer in charge of J's trial, gave evidence that these documents would have existed, but could not now be found or that (former) [another detective], the officer in charge of the S trial, had advised that the documents had been destroyed. Also, the video of Mr Brooks' own police interview was unavailable and a transcript of it which appeared to have been prepared was also unavailable. In fact, the only available contemporaneous information of consequence comprised the witness statements and briefs of evidence of S and a related witness, D. The Crown provided these documents to S and D prior to trial to refresh their memory. Even then, each was unable to recall matters of detail when giving evidence.”

At least there was no suggestion here that if propensity evidence had a high probative value it could only be outweighed by prejudice that had an even greater value. Unfairly prejudicial evidence is evidence which gives rise to an unacceptable risk of trial unfairness, regardless of how much probative value it may have.

---

[1]Evidence Code and Commentary (NZLC R55 Vol 2 1999) at C58.

[2]Evidence Code and Commentary (NZLC R55 Vol 2 1999) at C59.

[3] Brooks v R [2019] NZSC 107 (8 October 2019), quoting Fenemor v R [2011] NZSC 127 at [8].

[4]Compare McHugh J in Pfennig v R [1995] HCA 7, (1995) 182 CLR 461 at 528, [39], almost making the same point: “...The use of the term ‘outweigh’ suggests an almost arithmetical computation. But prejudicial effect and probative value are incommensurables. They have no standard of comparison. The probative value of the evidence goes to proof of an issue, the prejudicial effect to the fairness of the trial. In criminal trials, the prejudicial effect of evidence is not concerned with the cogency of its proof but with the risk that the jury will use the evidence or be affected by it in a way that the law does not permit. In no sense does the probative value of evidence disclosing propensity, when admitted, outweigh its prejudicial effect. On the contrary, in many cases the probative value either creates or reinforces the prejudicial effect of the evidence. In my view, evidence that discloses the criminal or discreditable propensity of the accused is admitted not because its probative value outweighs its prejudicial effect but because the interests of justice (181 cf. Lord Morris in Boardman (1975) AC at 439) require its admission despite the risk, or in some cases the inevitability, that the fair trial of the charge will be prejudiced.” The reason given in this last sentence is now not correct if the defendant’s right to a fair trial is absolute.

[5]Noor Mohamed v R [1949] AC 182, 192.

[6]R v Christie [1914] AC 545.

[7]MS Weinberg, “The Judicial Discretion to Exclude Admissible Evidence” (1975) 21 McGill Law Journal 1 at 23.

[8]Criminal Justice Act 2003 [UK], s 101(3), Police and Criminal Evidence Act 1985 [UK], s 78.

[9]Disclosure to Court of Defendants’ Previous Convictions, Similar Offending, and Bad Character NZLC R103 at [7.55]-[7.59].

[10]Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [77]. The Report was published in May 2008 yet does not cite Condon. Subsequently in Mohamed v R [2011] NZSC 52, [2011] 3 NZLR 145, (2011) 25 CRNZ 223 at [66] per McGrath and Tipping JJ it was said that under s 43(1) ‘the only relevant prejudicial effect which logically needs to be considered is the likely impact on the fairness of the trial from the point of view of the defendant.”

[11]The 2013 Review of the Evidence Act 2006, NZLC R127.

[12]Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145, applied in Turner v R [2014] NZCA 480.

[13]The 2013 Review of the Evidence Act 2006, NZLC R127 at [6.120], [6.126], [6.133].

[14]The 2013 Review of the Evidence Act 2006, NZLC R127 at [6.136]-[6.137].

[15]Aside from that point, the Commission agreed that if this theoretical situation were to occur, s 8 would require admission (as the probative value was not outweighed), while for propensity evidence s 43(1) would require exclusion (as the probative value did not outweigh the risk of unfairness).

[16] Brooks v R [2019] NZSC 107 at [6].

[17] Brooks v R [2019] NZCA 280 (the post-trial CA judgment, not currently freely available online).

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.