R v Shortland [2007] NZCA 37 (2 March 2007)

Last Updated: 7 February 2014

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 314/06
CA 315/06 [2007] NZCA 37

THE QUEEN

v

ERUERA GRIFFIN SHORTLAND TAWHIA ADDISON HUGHES

Hearing: 19 February 2007

Court: William Young P, Randerson and Harrison JJ

Counsel: W D McKean and L J Postlewaight for the Respondents

K B F Hastie for Crown/Appellant

Judgment: 2 March 2007 at 4 pm

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted. B The appeal is allowed.

C The evidence in issue is inadmissible.

4. Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on Internet or other

_{publicly accessible database until final disposition of trial.}

R V SHORTLAND AND ANOR CA CA 314/06 2 March 2007

REASONS OF THE COURT

_{(Given by William Young P)}

Introduction

[1] Tawhia Hughes and Eruera Shortland are awaiting trial on counts of murder and aggravated robbery arising out of events which occurred in Whangarei on the night of 2 December 2005. On 24 August 2006, Williams J ruled (under s 344A of the Crime Act 1961) that the defence may lead evidence of admissions allegedly made by the late Mr Piripi Shortland. The Solicitor-General now seeks leave to appeal. The case comes down to whether the Judge exercised his discretion appropriately. Before we discuss that question, however, it is necessary to explain the general factual background, the relevant legal principles and the approach taken by the Judge.

[2] We note that we are simultaneously delivering judgment in R v Hughes [2007] NZCA 38 which deals with a separate pre-trial issue associated with the same trial but challenging a ruling made by another Judge.

The general factual background

Overview

[3] The late Stanley Wells was assaulted shortly before 11.00 pm on the night of

2 December 2005. At around 11.00 pm he staggered onto a nearby property. An ambulance was summoned at 11.07 pm and picked Mr Wells up but he died soon afterwards.

[4] An eye witness maintains that the incident started with Mr Hughes punching Mr Wells as a result of which Mr Wells fell backwards to the ground and that subsequently Mr Eru Shortland rifled through Mr Wells’ pockets, picked him up,

lent him against a fence and punched him. Mr Wells was left unconscious on the ground and the two accused and two other men then left the immediate vicinity of the incident. The eye witness referred to the other two men as “Sheriff” and “Titirangi”. The man she referred to as “Titirangi” was referred to by Messrs Hughes and Eru Shortland in their statements to the police as “Puturangi”.

[5] On the Crown case, the time between this incident occurring and Mr Wells seeking help was comparatively short. According to the eye witness, the ambulance left very soon after the incident which she described. As well, Mr Eru Shortland has made admissions which suggest that in the immediate aftermath of the assault he saw Mr Wells go to the property from which he was later picked up.

[6] The aggravated robbery charge relates to an incident which occurred soon afterwards. On the Crown case, Messrs Hughes and Eru Shortland obtained a vest from another young man, Philip Mitchell, by threats of violence. For the present purposes, the only materiality of this incident is that it formed part of what the Crown will no doubt say is a linked series of events and that Mr Piripi Shortland did not feature in it.

[7] The death of Mr Wells prompted a major police investigation which very soon came to focus on Messrs Hughes and Eru Shortland. The police interviewed Mr Hughes on 6 December 2005 and Mr Eru Shortland voluntarily attended for an interview the next day. They gave accounts of events which were in a sense broadly similar and also to some extent consistent with that of the eye witness. On all the accounts, Messrs Hughes and Eru Shortland were accompanied by two other men, “Sheriff” and “Titirangi”/“Puturangi”, both Messrs Hughes and Eru Shortland used violence towards Mr Wells, the two other men were not directly involved and after the incident all four men left. There were, however, some critical differences, in particular between the accounts given by Messrs Hughes and Eru Shortland as each said that the other took the primary role in the incident with Mr Wells.

The disputed evidence

[8] The defence wishes to lead evidence from Ms Gayleen Shelford as to admissions which she claims the late Mr Piripi Shortland made to her on the morning of 3 December 2005. It is common ground that Mr Piripi Shortland died later that day or the next day (apparently from a drug overdose).

[9] Ms Shelford has been interviewed three times by the police and once by a private investigator retained by the defence. As well, she gave evidence during the s 344A hearing before Williams J. The upshot is that there are five accounts of what she claimed she was told by Mr Piripi Shortland and they are far from consistent. Their common elements are that Mr Piripi Shortland had some involvement in the killing of Mr Wells but beyond that, the details of what she has attributed to Mr Piripi Shortland differ dramatically. Ms Shelford has given essentially two versions of what she claims to have been told. The first version (which she told the police on 16 December 2005), involved Mr Piripi Shortland claiming to having been present at the time that Mr Wells was assaulted but doing no more than giving encouragement (primarily to Mr Eru Shortland). We note that this version is of no practical forensic assistance to Messrs Hughes and Eru Shortland as he allegedly asserted that both of them (and a third man) has killed Mr Wells. The other version has Mr Piripi Shortland claiming to have gone back to and assaulting Mr Wells after Mr Eru Shortland and others had failed to do the job properly. When she came to give evidence, Ms Shelford adhered to the second of these two versions attempted to explain away the differing accounts she had given by attributing improprieties to the police. These explanations were rejected by Williams J and we need say no more about them. We also note that Mr McKean for Mr Eru Shortland maintained that a good deal of the material mentioned by Ms Shelford in the various accounts she has given ties reasonably well into the general evidence as to the circumstances in which Mr Wells was assaulted. While there is some force in what Mr McKean said, there would not be much point in coming up with a false confession unless it tied in (at least to some extent) with the known facts associated with the crime.

[10] Ms Shelford had previously been in a relationship with Mr Piripi Shortland. Although that relationship was apparently violent, she could nonetheless be regarded as having his confidence. She did not disclose to the police what she now claims she was told by Mr Piripi Shortland until 16 December 2005, 12 days after his death and well after Messrs Hughes and Eru Shortland had been arrested. She also has a family connection with Mr Eru Shortland. She is illiterate and has a history of mental illness.

The relevant legal principles

[11] The case falls to be determined under ss 8, 9, 17 and 18 of the Evidence

Amendment Act (No 2) 1980:

8 Conditions for admissibility of oral hearsay evidence

In any criminal proceeding where direct oral evidence of a fact would be admissible, any oral statement made by a person and tending to establish that fact shall be admissible as evidence of that fact, if—

(a) The maker of the statement had personal knowledge of the matters dealt with in the statement, and is unavailable to give evidence; and

(b) The statement qualifies for admission under any of sections

9 to 14 of this Act.

9 Statement against interest

(1) Subject to section 8 of this Act, a statement qualifies under this section for admission if the maker of the statement knew or believed, or may reasonably be supposed by the Court to have known or believed, that the statement was, in whole or in part, against his interest at the time he made it.

(2) In subsection (1) of this section, interest means any pecuniary or proprietary interest, and any interest in any proceeding pending or anticipated by the maker of the statement.

17 Weight to be attached to hearsay evidence

In determining the weight, if any, to be attached to a statement that is admissible as evidence under this Part of this Act, the Court shall have regard to all the circumstances from which any inference can

reasonably be drawn relating to the accuracy or otherwise of the statement, and, in particular, to—

(a) The time when the statement was made in relation to the occurrence or existence of the facts or opinions stated that the statement is tendered to prove; and

(b) The question whether or not the maker of the statement, or any person by or through whom information was supplied to the maker of the statement, had any motive to conceal or misrepresent any fact or opinion relating to the subject-matter of the statement.

18 Court may reject unduly prejudicial evidence

Notwithstanding sections 3 to 8 of this Act, 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.

[12] The Crown accepted in the High Court that:

(a) Mr Piripi Shortland’s alleged statement dealt with matters of which he apparently had personal knowledge;

(b) He is unavailable to give evidence; and

(c) He can be taken to have recognised that the statement was against his interests when he made it. The Crown now regrets making this concession but does not seek to withdraw it. We will revert later to this feature of the case.

[13] On the basis of the concessions made, the issue for the Judge was whether he should exclude the evidence under the discretion provided for in s 18.

[14] Of at least contextual significance in the present circumstances are two other cases, first R v Manase [2001] 2 NZLR 197 (CA) and secondly R v Wilding CA104/05 19 May 2005.

[15] Manase confirms the existence of a general jurisdiction to admit hearsay evidence in criminal cases. The key passage is at [30]-[31]:

[30] Whether to admit hearsay evidence under the general residual exception ... turns on three distinct requirements: relevance, inability and reliability.

(a) Relevance. This is not strictly a requirement directed to this exception to the hearsay rule. Rather it is an affirmation and a reminder of the overriding criterion for the admissibility of all and any evidence. It is a self-contained issue. The evidence in question either has sufficient relevance or it does not. The same test applies as would have applied to the primary (ie non-hearsay) evidence.

(b) Inability. This requirement will be satisfied when the primary witness is unable for some reason to be called to give the primary evidence. If the primary witness is personally able to give that evidence, it will seldom, if ever, be appropriate to admit hearsay evidence simply because the witness would prefer not to face the ordeal of giving evidence or would find it difficult to do so. To adopt that approach would be to tilt the balance too far against the accused or opposite party who is thereby deprived of the ability to cross-examine.

(c) Reliability. The hearsay evidence must have sufficient apparent reliability, either inherent or circumstantial, or both, to justify its admission in spite of the dangers against which the hearsay rule is designed to guard. We use the expression “apparent reliability” to signify that the Judge is the gatekeeper and decides whether to admit the evidence or not. If the evidence is admitted, the jury or Judge, as trier of fact, must decide how reliable the evidence is and therefore what weight should be placed on it. If a sufficient threshold level of apparent reliability is not reached, the hearsay evidence should not be admitted. The inability of a primary witness to give evidence is not good reason to admit unreliable hearsay evidence.

[31] As a final check, as with all evidence admitted before a jury, the Court must consider whether hearsay evidence which otherwise might qualify for admission should nevertheless be excluded because its probative value is outweighed by its illegitimate prejudicial effect.

The concept of reliability logically requires consideration of two aspects of the hearsay evidence; first the reliability of the evidence as to what the maker of the statement actually said; and, secondly, assuming that that evidence is reliable, the reliability of what the maker of the statement had to say. Often enough there will be no difficulty about the first issue perhaps because the statement is in writing or otherwise accurately recorded but this may not always be so, as the facts of the present case indicate. As well, as the passage from Manase indicates, “circumstantial” considerations will also have a role to play.

[16] In Wilding, this Court was faced with the question whether one defendant could use in his own defence a confession made by his co-defendant despite that confession being inadmissible against the co-defendant. The Court discussed the general problems which had arisen in relation to third party confessions. It noted that the general rules as to hearsay applied against a defendant as well as the Crown and went on:

[14] There is ample authority which supports this approach, most notably the House of Lords decision in R v Blastland [1986] 1 AC 41. At his trial for buggery and murder, Blastland ran a defence which suggested that the offender was a man called Mark. Mark had indeed come under police suspicion in the immediate aftermath of the murder. In the course of the investigation he made admissions that Blastland wished to rely upon at trial. His counsel sought to adduce this evidence through the police officer to whom the admissions were made. The trial Judge did not permit that course to be taken. Blastland was duly convicted and his appeals to the Court of Appeal and House of Lords were dismissed. In the House of Lords, the admissions made by Mark were seen as inadmissible hearsay, see the speech of Lord Bridge at 53-54 and again at 61-62.

[15] The approach of the House of Lords in Blastland was very much affected by its earlier judgment in Myers v Director of Public Prosecutions [1965] AC 1001 which held that the list of exceptions to the hearsay rules was now closed. There is, however, another, and more practical consideration, which supports the Blastland approach. As Brennan CJ in Bannon v The Queen [1995] HCA 27; (1995) 185 CLR 1 at 9, pointed out, this is because unless there are sharp limitations on the admissibility of third party admissions:

... false confessions untested by cross-examination would bedevil criminal trials. Gaol-house confessions allegedly made by prisoners who would decline to admit guilt testimonially would be commonplace.

[16] Over the last decade or so a more flexible approach to the hearsay rules have been adopted in a number of common law jurisdictions, including New Zealand. For general New Zealand practice, reference can be usefully made to R v Manase [2001] 2 NZLR 197 where the relevant authorities are reviewed. Of the New Zealand cases, the most relevant for present purposes is R v Baker [1989] 1 NZLR 738; this given the comments made by Cooke P about Blastland at 740:

... Although the House of Lords unanimously affirmed unanimous decisions in the Courts below, Blastland has attracted considerable criticism from academic writers in England. See for instance PB Carter in (1987) 103 LQR 106; DJ Birch in [1985] Crim LR 727; AAS Zuckerman in All ER Rev [1985] 155, 158; TRS Allan in [1985] CLJ 345 (the latter writer directs his comments to the harshness of the hearsay rule rather than the logic of the decision). It

is difficult not to share the view that justice and fairness to the accused would seem to point towards the admission of such evidence, particularly as there appears to have been some other admissible evidence capable of suggesting that the other man may have been the criminal. The difficulty is of course not diminished by the fact that the Crown case against the accused was described by Lord Bridge in delivering the reasons for the House of Lords decision as extremely cogent.

[17] The admissibility of third party confessions has occupied the attention of Courts in Australia and Canada, see for instance the judgments of the High Court of Australia in R v Bannon, supra and of the Supreme Court of Canada in R v Lucier [1982] 1 SCR 28, R v Demeter [1978] 1 SCR

538 and R v O’Brien [1978] 1 SCR 591. In Canada, where third party confessions are seen as admissible, this is subject to strict admissibility criteria (or “guides”) which include a real, and not remote, vulnerability to penal consequences associated with the making of the admission. The relevant principles are helpfully discussed in Sopinka, Lederman and Bryant, The Law of Evidence in Canada (Butterworths, Toronto 1992) at 177-187.

[18] The experience of members of the present Court is that the rather informal practice of New Zealand trial courts is that third party confessions sometimes are admitted in evidence in favour of a defendant; this without opposition from the Crown, see for instance R v Taylor CA130/02 4 May

2005 (where the confession was contained in a suicide note). However, no formal principles of admissibility have been developed.

[19] If and when such principles come to be developed, the concerns of

Brennan CJ referred to in [15] above will have to be accommodated.

[17] The particular problem which arose in Wilding did not directly invoke ss 8 and 9 as the statements in question were made on an “off the record basis” and s 9(1) was thus not satisfied. Likewise in Taylor (referred to in Wilding at [18]), the statement in issue (being in the form of a suicide note) did not satisfy s 9(1). So the principles discussed in Wilding are properly seen as a subset of the rules discussed in Manase rather than as an indication as to how the s 18 discretion should be exercised, a point to which we will revert shortly.

The approach of the Judge

[18] In the key section of his judgment, the Judge then outlined the law relating to s 18, in particular the statement of Cooke P in R v Baker [1989] 1 NZLR 738 at 741 (CA):

At least in a case such as the present it may be more helpful to go straight to basics and ask whether in the particular circumstances it is reasonably safe and of sufficient relevance to admit the evidence notwithstanding the dangers against which the hearsay rule guards. Essentially the whole question is one of degree, which indeed is partly what Lord Bridge said in his second statement of principle. If the evidence is admitted the Judge may and where the facts so require should advise the jury to consider carefully both whether they are satisfied that the witness can be relied on as accurately reporting the statement and whether the maker of the statement may have exaggerated or spoken loosely or in some cases even lied. The fact that they have not had the advantage of seeing that person in the witness box and that he or she has not been tested on oath and in cross-examination can likewise be underlined by the Judge as far as necessary.

[19] Williams J also considered that this Court’s decision in Manase was useful, especially the three-step test (relevance, inability and reliability) outlined at [30].

[20] The Judge considered that circumstances surrounding the deceased’s statement to Ms Shelford indicated that it was more likely to be truthful than not. Going towards truthfulness were:

(a) The circumstances of the statement (the prior relationship between the deceased and Ms Shelford indicating that she was a likely confidant of the deceased’s truthful information) made it more likely than not that the statement was true;

(b) The common theme in all of Ms Shelford’s statements was that the deceased had been involved in the murder to some extent;

(c) This was a serious offence in which the deceased had admitted guilt to someone he had known for a long time; and

(d) Had the deceased lived and been charged, the Crown would only be able to cross-examine him if he chose to give evidence. Furthermore, they had plenty of ammunition with which to attack Ms Shelford’s reliability.

[21] Factors going against admission were that:

(a) Ms Shelford claimed that Mr Piripi Shortland had lied in the past about killing people and was apparently intoxicated when making the admission;

(b) There was only a short interval between the assault by the accused and Mr Wells being found, leaving little time for a subsequent assault by Mr Piripi Shortland; and

(c) Ms Shelford has mental health problems, is illiterate and has exhibited a tendency to sign or agree to things under what she perceives as pressure.

[22] The Judge concluded that the evidence should be admitted.

Did the Judge exercise his discretion correctly?

Overview

[23] The case is complicated by two factors, one specific to the way in which the case was argued in the High Court and the other of a general nature.

[24] The first problem is the concession made by the Crown in the High Court that Mr Piripi Shortland can be taken to have recognised that the statement (whatever it was) attributed to him by Ms Shelford was against his interest when he made it. The concession, of course, implies that Mr Piripi Shortland did indeed make a statement to Ms Shelford in which he admitted involvement in the death of the deceased. We doubt if that really is the Crown position. Further, given Mr Piripi Shortland’s relationship with Ms Shelford, it is far from clear that any such admission (assuming he made it) is properly seen as having been against his interest. It could only be against his interest if there were a realistic prospect that Ms Shelford would go to the police. It might be thought to be highly material that she did not speak to the police until 12 days after his death by which stage he was necessarily immune from

prosecution. In the statutory scheme, s 9(1) is there to ensure that hearsay which is admitted has some measure of reliability. So the concession made by the Crown requires us to address the case in an artificial way. As to this, we note in passing that rulings under s 344A are necessarily provisional and if the issue came to be resurrected at trial (as it could be) it would be well-open on the material we have seen to conclude that s 9(1) has not been satisfied.

[25] The second problem is that the language of ss 8, 9, 17 and 18 of the Evidence Amendment Act is not wholly congruent with the way in which the corresponding common law principles (as discussed in Manase) have been expressed. In particular:

(a) The discretion to exclude evidence under s 18 applies only in jury trials; and, more importantly,

(b) The reliability of the evidence as to what the maker of the statement said is not specifically referred to in the Evidence Amendment Act provisions. Section 18 is instead explicitly addressed to the balance of prejudicial effect and probative value and to what is necessary or expedient in the interests of justice.

[26] When he analysed the case, Williams J:

(a) Referred to the timing issue (as to whether there was time for Mr Piripi Shortland to have become involved) but in general placed no real weight on the general circumstances of the case which very much suggest that Mr Piripi Shortland had nothing to do with the death of Mr Wells. Most importantly, Mr Piripi Shortland does not feature in the evidence of the eye witness or in the statements made by Messrs Hughes and Eru Shortland to the Police. Those statements give reasonably coherent accounts of what happened and are broadly consistent with what the eye witness says. On the basis of that evidence there does not appear to be any obvious scope for Mr Piripi Shortland to have been involved. And

(b) Saw the reliability and credibility of Ms Shelford as being properly left for the jury. In reaching this conclusion he recognised the inconsistencies in her accounts of what she says Mr Piripi Shortland told her and of course he rejected her explanations for these inconsistencies. But in concluding that her evidence was “not so lacking in credibility or reliability” as to warrant exclusion, he largely left out of consideration the apparent implausibility of the key contention, namely that Mr Piripi Shortland played a critical role in the death of Mr Wells.

The provenance of the statutory provisions

[27] In addressing this appeal, we have been assisted by the July 1967 report of the New Zealand Torts and General Law Reform Committee, Hearsay Evidence, upon which the Evidence Amendment Act was based. This report came in the wake of Myers v Director of Public Prosecutions [1965] AC 1009 in which the House of Lords held that it was no longer competent to create exceptions to the prohibition on hearsay evidence. Despite Myers, common law exceptions to the prohibition on hearsay evidence have continued to develop broadly in parallel to the statutory reforms, as Manase indicates. But for present purposes it is important to note that the present case is to be addressed in accordance with the Evidence Amendment Act provisions.

[28] The 1967 report recognised (at [13]) that one of the rationales for the hearsay rule was:

The danger which exists, in the case of oral hearsay evidence, that the statement of a person other than the witness testifying may not have been accurately reported. (emphasis in original)

As to this, the report commented (at [16]):

... this is clearly valid, though it does not necessarily lead to the conclusion that all oral hearsay evidence should be excluded. Some oral hearsay is already admissible at present, e.g. ... . But clearly there is a double source of error when oral hearsay is admitted. Not only may the veracity of the

maker of the statement be in doubt or his powers of observation, memory or narration defective, but there may also be doubt as to whether the statement is accurately remembered and reported the court.

The report then went on (at [20]):

We are unanimously agreed that oral hearsay evidence should not be admitted in criminal proceedings. ... We think that the dangers of fabricated evidence are much more real in criminal than in civil proceedings. From the accused’s point of view his liberty is at stake and accused persons tend to be unscrupulous in the methods they are prepared to use to secure an acquittal, often to the extent of deception of their legal advisers. Another factor which has influenced the Committee is that the standard of proof in criminal proceedings provides an incentive to fabricate, say, a false confession of crime from a person unavailable to give evidence in order to raise a reasonable doubt in an otherwise hopeless case. We think that a number of those now convicted would be unjustly acquitted if oral hearsay evidence were admitted. (emphasis in original)

[29] Given this conclusion one might wonder why the Committee recommended the enactment of provisions broadly equivalent to ss 8 and 9. The basis for this recommendation was that the provisions the Committee proposed (ie those corresponding to ss 8 and 9) were to be largely by way of codification of existing common law principles although the Committee recognised that the exception in relation to statements against interest was being broadened to encompass statements “against criminal or tortious interests” (see 14-15 of the commentary to the draft bill). The Committee appears not to have recognised that the widening of the statements against interests exception brought in by the back door the admission of third party confessions against which it had so resolutely set its face earlier in the report.

[30] One other passage from the report, although not directly on point, warrants notice. It concerned the admissibility of oral hearsay in civil jury trials. As to this the report noted (at [21]):

The majority considers that the dangers of fabrication, coupled with the generally inferior quality of oral hearsay as compared to documentary hearsay, militate against permitting its admission before a jury which, however well-educated, lacks experience in weighing evidence. Juries would need guidance on the question of weight. But if they were to be given it, and even assuming that it had the necessary effect, they would still need to be told, in terms comprehensible to them, what pieces of evidence

adduced before them were hearsay and for what purposes. This would add to the difficulties of the jury, to the complexity of trials and potentially to the number of appeals. ...

The minority, on the other hand, holds the opinion that the double source of error of oral hearsay evidence should affect weight but not determine admissibility. ... They are unimpressed by the alleged danger of fabrication and think that that would occur in only a small minority of cases. ... Finally, the safeguard provided by clause 11 [corresponding to s 18] to reject evidence prima facie admissible under the Bill where this is expedient in the interests of justice, would operate. (emphasis in original)

Can the section 18 discretion be exercised in favour of the Crown?

[31] We are satisfied that the prejudicial effect / probative value test provided in s 18 can be invoked by, as well as against, the Crown and that, in any event, the Crown, as well as the defence, may argue that the disputed evidence is not necessary or expedient in the interests of justice. On this point we refer to R v Preston (1999)

17 CRNZ 558 at [47] (CA) and R v Tonga CA107/01 23 August 2001. Both cases were eventually decided against the Crown but they both involved documentary hearsay and thus did not concern “the double source of error” referred to by the Committee in it 1967 report. As well, neither case concerned possibly false confessions.

In exercising the s 18 discretion may the Judge take into account the reliability of the evidence of the witness who gives evidence of the statement and whether the statement is consistent with other evidence in the case?

[32] In Preston this Court noted:

[46] Section 18 gives the Court, in a proceeding with a jury, the discretion to reject any statement that would be admissible under s3 “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.”

[47] It is therefore for the party opposing admission (in this case the Crown) to show that the prejudice to that party outweighs the probative value of the statement. The Judge therefore erred in approaching the matter, as he seems to have done, on the basis of whether it had been shown by the defence that the statement was sufficiently reliable.

[48] Mrs Walden’s statements related to the central issue in the case against Mr Preston: whether he was the driver of the car. If he was, then he was almost certainly going to be found guilty as a party to the murder because the evidence strongly suggested that the movements of the car and the men who killed Mr Jillings were co-ordinated; that the car was the getaway vehicle.

[49] Although there are inconsistencies between what Mrs Walden reported seeing and other eyewitness accounts, and her timing may have been astray, we do not see that as a good reason for finding that her evidence was unreliable to a point where it so lacked sufficient probative value that the prejudicial effect on the Crown weighed heavier in the balance or it was otherwise not in the interests of justice to admit it. In many respects the evidence of the other witnesses had similar characteristics. Their timing of events and their descriptions might be thought by a jury to be more reliable than the observations of Mrs Walden, despite being given long after the event, or the jury may have preferred her nearly contemporaneous account. It is true that at the time a police sergeant expressed some doubts about Mrs Walden’s recollection but these appear to have related in the main to her problem with timing. That is a very common problem for witnesses and is not generally seen as one which necessarily makes a witness’s evidence unbelievable. Nor does it appear that Mrs Walden was motivated by a desire to protect Mr Preston or would have been unwilling to name him to the police if she had seen him during the period in question. She had been prepared to identify a Black Power member as a driver of the vehicle.

[50] We conclude that Mrs Walden’s statements had significant probative value. We are also of the view that such value was not outweighed by the likely prejudice to the Crown from its admission. That prejudice related to the Crown’s inability to cross-examine Mrs Walden. Cross-examination would no doubt have sought to make the usual points taken in relation to identification witnesses. There would certainly have been questions asked of her concerning discrepancies in her descriptions and timings as compared with the evidence of other witnesses. Given the number of identification witnesses in this case, the jury would have become fairly familiar with the relevant cross-examining technique. Crown counsel would doubtless have forcefully pointed out the inconsistencies and uncertainties which, had Mrs Walden been present in Court, would have been put to her in cross- examination and would have lamented that lost opportunity. Counsel would also have pointed to her family connections with Black Power (it seems that her children were not members of the gang) and would have alerted the jury to the possibility that she was motivated by a desire to protect Mr Preston or had not identified him because of a fear of reprisals. The Judge would then have needed to give an appropriate direction to the jury concerning the way in which a hearsay document admitted under s3 ought to be considered.

[51] In the particular circumstances of the case we see no significant disadvantage to the Crown arising from an inability to cross-examine the witness. On the other hand, the defence case possibly may have suffered a serious blow by reason of the exclusion of Mrs Walden’s statements. The Judge was therefore in error in ruling them inadmissible. We are unable to be confident that a miscarriage of justice has not occurred because the jury did not hear this evidence

[33] Three key points emerge from that passage of the judgment:

(a) The test is not simply one of general reliability, an issue which in most instances can safely be left to the trier of fact; and

(b) Inconsistency between the hearsay statement and other evidence is not a decisive factor against admissibility; but

(c) There can come a point at which a lack of probative value (and associated prejudice to the Crown) may warrant exclusion.

In Preston the “double source of error” problem did not arise because the statements were made to a police officer whose reliability or credibility were not in issue.

[34] In Canada, the Courts tend to take the view that a hearsay statement’s consistency or inconsistency with extrinsic evidence is irrelevant to its admissibility, see for instance R v Starr (2000) 147 CCC (3d) 449 (SC) and Stewart “A Rationale for the Rejection of Extrinsic Evidence in Assessing the Reliability of Hearsay”

(2005) 30 CR (6^th) 306. On the other hand, this policy has not always been seen as

applicable cf Demeter v R (1977) 75 DLR (3d) 251 at 255 (SC) (dealing with a context reasonably similar to the present). Further, as will become apparent, the Evidence Act 2006 (which of course is not yet in force) also proceeds on the basis that inconsistency with extrinsic evidence is irrelevant to the admissibility of hearsay evidence.

[35] On the other hand, there is nothing in Preston to suggest that inconsistency with extrinsic evidence is necessarily irrelevant. Further, in the broader context provided by Manase and Baker (ie in terms of the admissibility of hearsay at common law), it seems clear that a trial Judge’s assessment of reliability is to be made on a holistic basis and that all factors which logically go to reliability are material. As a matter of logic it is difficult to see why that approach is not appropriate to the similar issue (ie lack of probative value) which arises under the Preston test.

[36] As to the relevance of Ms Shelford’s reliability, the starting point must be that the reliability of a witness of fact is for the jury. Indeed, as will become apparent, the Evidence Act 2006 proceeds on the basis that the veracity and accuracy of a witness who gives evidence of a hearsay statement is irrelevant to its admissibility. On the other hand, it is trite that one of the primary dangers associated with the admissibility of hearsay is the “double source of error” (including the risk of fabrication) identified in the 1967 report. That report led to the statutory provisions in issue in this case. Given that, it would be odd if a Court exercising the s 18 jurisdiction could not take into account “double source of error” considerations

[37] We are accordingly of the view that the Judge should have assessed the probative value of the evidence in question on a holistic basis in which he allowed for both the reliability and credibility issues directly associated with Ms Shelford and, as well, the implausibility of the contention that Mr Piriipi Shortland had a direct role in the death of Mr Wells.

The balancing exercise

[38] Given the inconsistency between the statement and the extrinsic evidence and the unreliability of Ms Shelford, we see the evidence which the defence wishes to lead as being practically devoid of probative value.

[39] If the evidence is led, it will result in the jury being required to hear evidence about the various statements which Ms Shelford has made. This could be a lengthy process given her illiteracy and complaints of police misconduct and it may well be that all police officers who interviewed her and the private investigator would have to give evidence. There may well also be an inquiry into Mr Piripi Shortland’s character (including an alleged propensity for violence). All of this would undoubtedly be distracting for the jury. Further, there is necessarily some subtlety to an assessment of the overall reliability of the evidence. Critical to that assessment is how Mr Piripi Shortland’s alleged role in the relevant events fits in with the evidence as a whole. As well, the reliability of Ms Shelford’s evidence is distinctly in issue

and, in the background, so too is the reliability of Mr Piripi Shortland. The layered nature of the exercise will not be easy for a jury to grasp and this itself carries the risk of further distraction. We consider that all of this carries the risk of appreciable prejudice to the Crown. We recognise that this conclusion is a matter of impression but we draw comfort and support from the 1967 report of the Committee and the cases referred to in Wilding which recognise that hearsay evidence of third party confessions carries the real risk of confounding the criminal trial process. In our view Judges have a responsibility to address this risk.

[40] Against that background, we are satisfied that the prejudicial effect of the admitting the statement outweighs its probative value and that it is not necessary or expedient in the interests of justice to admit the evidence.

The Evidence Act 2006

[41] If this case fell to be decided under the new Evidence Act (which of course is not yet in force), s 18 of that Act would apply. That section is in these terms:

18 General admissibility of hearsay

(1) A hearsay statement is admissible in any proceeding if—

(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b) either—

(i) the maker of the statement is unavailable as a witness; or

(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

[42] “Circumstances” is defined in this way:

circumstances, in relation to a statement by a person who is not a witness, include—

(a) the nature of the statement; and

(b) the contents of the statement; and

(c) the circumstances that relate to the making of the statement; and

(d) any circumstances that relate to the veracity of the person; and

(e) any circumstances that relate to the accuracy of the observation of the person.

[43] In its draft of the Code (New Zealand Law Commission Evidence (NZLC R55, Vol 2, 1999) at 44-46), the Law Commission defined “circumstances” in a broadly similar way and the commentary to this definition (New Zealand Law Commission Evidence (NZLC R55, Vol 2, 1999) at [C75]) notes that the circumstances of the statement do not include the truthfulness of the witness who relates the statement in Court; this on the basis that the truthfulness of the witness can be tested before, and assessed by, the fact-finder. In light of this, it may be doubtful whether it would be right to rely on the general power to exclude evidence (see s 8) for reasons which relate to the accuracy of the evidence of the witness. In the same commentary, the Law Commission also observes that where the circumstances directly referable to the making of the statement suggest that it is reliable, the statement:

... should not be held inadmissible because it contradicts other evidence.

[44] We have reservations as to whether, in practice, it will prove practicable to segment reliability assessments so as to exclude from consideration the accuracy and truthfulness of the witness who gives evidence of the statement and background externalities. But, be that as it may, the present case falls to be determined under the current law.

Result

[45] Accordingly, we grant leave to appeal and allow the appeal. We rule that the evidence in issue is inadmissible.

Solicitors:

Crown Law Office, Wellington