Hannigan v R

JurisdictionNew Zealand
JudgeElias CJ,Elias,McGRATH,William Young,Chambers,Glazebrook JJ,William Young J,Ablett-Kerr
Judgment Date26 April 2013
Neutral Citation[2013] NZSC 41
Docket NumberSC 20/2012
CourtSupreme Court
Date26 April 2013
Shane Daniel Hannigan
and
The Queen

[2013] NZSC 41

Court:

Elias CJ, McGrath, William Young, Chambers and Glazebrook

SC 20/2012

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against conviction for arson — Crown case was that H started a fire in the kitchen of a house he and his wife owned, to generate an insurance claim to fund a better kitchen. Crown alleged Mr H started two earlier fires — H's wife made an statement during cross-examination which was inconsistent with her earlier statement to police — statement to police then became admissible as to the truth of its contents — prosecutor then re-examined wife — whether course adopted was inconsistent with s94 Evidence Act 2006 (“EA”) (cross-examination by party of own witness) in that the prosecutor had been permitted to cross-examine wife on her prior statements without the Judge having first determined that she was hostile — whether prosecutor had been permitted to challenge veracity of wife in absence of a determination of hostility and s37(4)(a) EA (veracity rules) therefore had been breached.

Counsel:

J M Ablett-Kerr QC and D J Matthews for Appellant

C L Mander and L C Preston for Crown

The appeal is dismissed.

JUDGMENT OF THE COURT
REASONS

Elias CJ

[1]

McGrath, William Young, Chambers and Glazebrook JJ

[61]

Elias CJ
1

The appeal concerns the conditions upon which the Evidence Act 2006 permits a witness to be contradicted on examination by the party who calls him by reference to a previous statement made by the witness inconsistent with the evidence he has given. The appellant argues that such contradiction is cross-examinationwhich can be undertaken in conformity with s 94 of the Act only following a determination of hostility.

2

A previous inconsistent statement is not hearsay for the purposes of the Act if the maker of the statement is called as a witness. 1 It does not therefore attract the former common law restrictions and may be admitted as truth of its contents even if not adopted by the witness. Nor is an inconsistent previous statement subject to the limitations on the introduction of previous consistent statements under s 35. 2 In addition, if offered as proof of the facts in issue rather than to challenge the veracity of the witness, a previous inconsistent statement is not subject to the restriction in s 37(4)(a) on the party calling the witness offering evidence to challenge the witness's veracity without a prior determination that the witness is hostile.

3

Whether the previous statement by the witness was otherwise admissible under the Act is not directly in issue on the appeal because it was not offered in evidence. Nor were its contents elicited by “cross-examining a witness called by another party” (as the definition of “offer evidence” in the Act envisages is permissible). 3 Instead, the contents of the previous statement which contradicted the witness's testimony were led from the witness by the party calling her in re-examination. For the reasons that follow, I am of the view that the fact that other impediments under the Act would not have applied to restrict the introduction of the statement does not affect the need for compliance with s 94 where the inconsistency of the statement was put to the witness by the party calling her to challenge the account she had given in evidence. Determination of the appeal turns on distinct application of s 94, such as was undertaken by this Court in Rongonui v R 4 and Morgan v R. 5 I consider that the trial Judge erred in law by failing to apply s 94. He should not have permitted the Crown to cross-examine its own witness (as in my view he did) without first determining that the witness was hostile.

4

Nor am I able to agree with the view suggested in the reasons of other members of this Court (although it is not one developed in the District Court or in the Court of Appeal), that the leading questions put to its own witness in the present case by the Crown were allowed by the trial Judge in the exercise of his discretion under s 89 of the Act and did not otherwise amount to cross-examination, so that s 94 was not engaged. For the reasons given in what follows, I consider that the exercise of the discretion under s 89 is not properly to be inferred from what happened and that the challenge to the witness based on her previous inconsistent statement was cross-examination not properly undertaken in examination in chief or re-examination by the party calling the witness without a prior determination of hostility.

5

As I consider other restrictions on admissibility are immaterial to application of s 94 of the Act and determination of the present appeal, it is strictly unnecessary to determine whether the veracity rules under s 37 would have prevented the statement itself being offered in evidence. The view that s 37(4) would not have prevented admission of the previous statement was however influential in the conclusion of the Court of Appeal 6 and in the reasons given by the other members of this Court that s 94 did not prevent the questions put. 7 And the requirement of a determination of hostility under s 37(4) before a party can offer evidence challenging the veracity of its witness suggests some symmetry with s 94, although the symmetry is imperfect. It is therefore necessary to consider the meaning and application of s 37(4), because it has contextual relevance when considering the meaning and application of s 94 in the scheme of the Act.

The conduct of the trial
6

Shane Hannigan was convicted at trial before a judge and jury on a charge of arson. He appealed unsuccessfully to the Court of Appeal on a number of grounds. He was granted leave to appeal to this Court on the single question of whether the way in which his wife, a witness for the Crown, was re-examined complied with the Evidence Act. 8

7

It was the Crown case that Mr Hannigan had attempted to set fire on two previous occasions to the kitchen of a house the couple owned before succeeding in destroying it in the fire on 21 June 2009 which was the basis of the charge of arson. The house was unoccupied at the time and was for sale, but the sub-standard lean-to kitchen was apparently deterring purchasers. The Crown suggested at trial that Mr Hannigan's purpose in lighting the fires was to obtain insurance which would enable the kitchen to be rebuilt.

8

Mr Hannigan's opportunity on 20 June to light one of the earlier fires was in issue at the trial. Indeed, the Judge described it as the “crucial issue” in the context of the trial. In a statement to the police given on 26 June, Mrs Hannigan said that the couple had driven to the house on 20 June to check that it was secure. She said that, while she waited in the car, Mr Hannigan “went inside the house also just to look around, as we had been doing [on previous occasions]”. If Mr Hannigan went into the house, there was opportunity for him to start the fire. In her evidence in chief at the trial, however, Mrs Hannigan's account was not specific on the question of entry into the dwelling. On this point, she simply responded to a question from the prosecutor which referred to entry “into the property” by confirming “Shane did. I stayed in the car.”

9

The prosecutor seems not to have picked up on the potential distinction between entry into the house and entry into the property, perhaps because the particular exchange followed Mrs Hannigan's description of the general practice she and her husband had followed on previous occasions when checking that the unoccupied house was secure and in which she said that they would “go inside and check everything was all right”. Indeed, as appeared from a subsequent jury question (referred to below), the jury seemed to have understood Mrs Hannigan's evidence in chief to be that her husband had gone inside the house on 20 June while she remained in the car outside. So it is perhaps not surprising that the potential gap between Mrs Hannigan's earlier statement and her evidence in chief seems not to have been noticed by Crown counsel.

10

When Mrs Hannigan was cross-examined for the defence on the events of 20 June, however, she agreed with questions put to her suggesting that Mr Hanniganhad checked the outside of the house only. She supplied the additional information, again in response to a suggestive question, that her husband could not have gone inside the house because she had the key. These answers set up a clear conflict with the previous statement of 26 June made to the police.

11

In the absence of the jury, Crown counsel raised what he thought was an inconsistency between the witness's evidence in chief and cross-examination. Defence counsel pointed out that there was not any necessary inconsistency because of the way in which the question had been answered. It was agreed that this could be clarified in re-examination. Crown counsel also sought “some guidance” from the Judge as to “whether or not I can permissibly raise her previous statement to police where she did say again Mr Hannigan went inside the property”. Crown counsel indicated that he would simply ask the witness whether she “recall[ed] making a statement around the time and if she sticks to the evidence that she's given today, does she recall saying something different”. As Crown counsel explained:

Certainly not cross-examination but questions around that prior statement. Might she have said something different?

12

The discussion was inconclusive before the morning adjournment was taken although the Judge indicated his preliminary view that the previous statement could not be put to Mrs Hannigan without attacking her veracity, a course that he considered would require her to be treated as hostile and for which he thought there was insufficient basis:

Well as it stands she has not said in cross-examination anything that's necessarily inconsistent with her evidence-in-chief. Strictly speaking she...

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