Dushkar Kanchan Singh v R

• Jurisdiction: New Zealand
• Judge: Baragwanath J
• Judgment Date: 21 May 2010
• Neutral Citation: [2010] NZCA 144
• Date: 21 May 2010
• Court: Court of Appeal
• Docket Number: CA208/2009

[2010] NZCA 144

IN THE COURT OF APPEAL OF NEW ZEALAND

Court:

Glazebrook, Baragwanath and Randerson JJ

CA208/2009

Between

Dushkar Kanchan Singh

Appellant

and

The Queen

Respondent

Counsel:

G J King and A J Haskett for Appellant

N P Chisnall for Respondent

JUDGMENT OF THE COURT

A The appeal against the conviction for forgery is allowed and the conviction and sentence upon it are quashed.

B In all other respects the appeal against conviction and sentence is dismissed.

C The appellant must surrender himself to the District Court at Auckland or such other place as directed by the Department of Corrections by 9am on 29 April 2010.

D There is an order under s 140 of the Criminal Justice Act 1985 preventing publication of the complainant's name and identifying particulars.

REASONS OF THE COURT

(Given by Baragwanath J)

Table of Contents

	Para No
Introduction	[1]
The Evidence reform	[4]
Submissions for appellant	[14]
Further facts	[15]
Discussion
(a) Self-incrimination	[29]
(b) The complainant's out of court statements should not have been admitted	[42]
(c) The Judge erred in excluding certain other out of court statements of the complainant which were consistent with her evidence before the jury	[61]
(d) The Judge erred in directing the jury	[62]
General directions	[65]
Forgery	[70]
Attempting to pervert the course of justice	[72]
(e) The Judge erred in declining to admit an out of court statement by Pastor Villiame Locoquica tendered by the defence under ss 18
and 19	[73]
(f) The verdicts were unreasonable in the light both of the evidence and of the appellant's acquittal on 14 counts	[74]
The appeal against sentence	[76]

Introduction

1 The appellant, a police officer, sponsored the issue of a visa to his de facto partner, Ms D, to enter New Zealand. While they had undertaken a formal engagement the appellant and Ms D have never married. Ms D made allegations against the appellant of violence which were recorded in her diary, in her evidence at the depositions hearing and in various written statements. But at trial she gave evidence denying his guilt on each of the 21 counts in the indictment of which all but two alleged violence against her (the others being for wilfully attempting to pervert the course of justice and for forgery). There had previously been letters from her taking a similar stance.

2 The appellant was convicted before Judge Perkins and a District Court jury on seven counts. One was for attempting to pervert the course of justice and another was for forgery. Five alleged violence against Ms D and were supported by evidence other than hers. The appellant was acquitted on the remaining 14 counts, where there was no independent evidence supporting Ms D's out of court complaints.

3 The main issue on appeal is whether the convictions, which depended primarily on Ms D's out of court written statements, are sustainable notwithstanding her oral evidence denying their truth. That depends upon the construction and application of the Evidence Act 2006 which, as the Supreme Court has recently recognised in Morgan v R, 1 has significantly altered the law.

The Evidence reform

4 The former common law was developed by the judges, 2 by rulings in individual cases often made under the pressures of a trial. A dominant theme was the requirement of orality: save in exceptional cases no evidence was admitted other than from the mouth of a witness in the box. The great virtue of the rule, substantially retained by the Evidence Act 2006, was to allow the evidence to be tested in cross-examination. But lacking systematic review the rule's overwhelming insistence on orality of evidence created grave problems. Carried, as it was, to literal extremes, it made for injustice. 3

5 A particular problem has long been presented by domestic cases, where a woman's security depends on the husband or partner whom she loves and yet who regularly attacks her. Her need for medical or other help may bring the matter to police attention. But that has often been followed by reluctance, whether out of affection or fear, to give evidence in support of a charge. There is frequently a cycle of such events. Prior to the Evidence Act, failure or refusal by the woman to give oral evidence in support of charges usually required their dismissal. This appeal requires us to consider the construction and application of that reform.

6 The new Act recognises the continued importance of orality of evidence. Section 83 describes the ordinary way of giving evidence as being for a witness to do so orally in open court and to be subject to cross-examination. 4 Such a procedure allows full opportunity for the accused and defence counsel to test the competence and veracity of the evidence and for the jury to appraise it.

7 But Parliament has accepted the advice of the Law Commission that to confine admissible evidence to what is stated orally may work injustice. Thus by s 130 of the Evidence Act a judge may order the admission of documents containing assertions relied upon as to their truth without any witness being called to produce them. Further, under s 18 hearsay statements are admissible in evidence if certain conditions (including that the witness is unavailable 5 and that the evidence is reliable) are met. Hearsay statements are defined in s 4 as statements made by a person other than a witness, offered in evidence to prove the truth of its contents. 6 This means that an out of court statement of a witness is no longer inadmissible on hearsay grounds. While there are, under s 35, restrictions on the admissibility of a prior consistent statement of a witness, there is no specific restriction on the admissibility of a prior inconsistent statement of a witness, which can be offered to show the truth of its contents. The reform does not, however, extend to allowing a party to impeach his or her own witness by adducing a prior inconsistent statement. 7

8 The admission of such a statement now turns on the application of three new sections of which the most important are ss 7 and 8. They establish the major principles of admissibility and exclusion of evidence. Section 7 states:

Fundamental principle that relevant evidence admissible

(1) All relevant evidence is admissible in a proceeding except evidence that is—

(a) inadmissible under this Act or any other Act; or

(b) excluded under this Act or any other Act.

(2) Evidence that is not relevant is not admissible in a proceeding.

(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

9 Section 7 is limited by s 8, which states:

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.

10 The third relevant section, s 94, concerns the exercise of judgment to determine if a witness is hostile and, having declared a witness to be hostile, to permit cross-examination. Section 94 states:

94 Cross-examination by party of own witness

In any proceeding, the party who calls a witness may, if the Judge determines that the witness is hostile and gives permission, cross-examine the witness to the extent authorised by the Judge.

Section 4 provides:

hostile, in relation to a witness, means that the witness—

(a) exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or

(b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or

(c) refuses to answer questions or deliberately withholds evidence.

11 Previously, any prior inconsistent statements of a hostile witness were not admissible to prove the truth of their contents, unless adopted in evidence by the witness. This has now changed as a result of the reform to the law of evidence discussed above. There was also a rule that a party could not call a witness known not to be a witness of truth: R v O'Brien. 8 This rule no longer applies to its former extent. 9

12 Both the purpose of the reform and its limits were stated by the Law Commission: 10

Current case law indicates that the prosecution should not call a witness known to be hostile for the sole purpose of introducing a previous inconsistent statement that is inadmissible as evidence of the truth of the facts stated, or for the purpose of introducing otherwise inadmissible hearsay. Under the Code, previous statements of a testifying witness will be admissible to prove the truth of their contents and reliable hearsay evidence will usually be admissible. Thus one of the justifications for restricting the cross-examination of prosecution witnesses who are known to be hostile will no longer be valid. Section 94 does, however, preserve judicial control over the questioning of hostile witnesses – for example, to limit other forms of inappropriate questioning of witnesses who have shown hostility pre-trial.

The Law Commission further stated: 11

The Code's treatment of hearsay and witnesses' previous statements will to a considerable...