Hannigan v R

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

[2013] NZSC 41

IN THE SUPREME COURT OF NEW ZEALAND

Court:

Elias CJ, McGrath, William Young, Chambers and Glazebrook

SC 20/2012

Shane Daniel Hannigan
and
The Queen
Counsel:

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

C L Mander and L C Preston for Crown

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.

At issue was: (1) whether the 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 Mrs H on her prior statements without the Judge having first determined that she was hostile; and (2) whether the prosecutor had been permitted to challenge the veracity of Mrs H despite the absence of a determination of hostility and was thus in breach of s37(4)(a) EA (veracity rules).

Held: Following cross-examination of Mrs H, it would have been premature for the Judge to have made (and counsel to have sought) a determination of hostility. Mrs H had not otherwise said anything suggestive of hostility and although the inconsistency was stark, it was conceivable that she would be able to explain it if given a fair opportunity.

Therefore when it came to re-examination there were three options practically open to the prosecutor: (a) inviting Mrs H to refresh her memory from her prior statement, requiring leave of the Judge under s90(5) EA (use of documents in questioning witness or refreshing memory) and a repudiation of the 26 June statement might have set the scene for a determination of hostility; (b) the addressing of leading questions to Mrs H as to the statement, requiring leave under s89(1)(c) EA, which was the course adopted; or (c) requiring the 26 June statement to be produced as an exhibit.

The availability of option (c), which did not require leave of the Judge, was highly relevant to any decisions which the Judge had to make in relation to options (a) and (b).

Section 89 EA prohibited leading questions in examination in chief and re-examination unless the exceptions set out in s89(1) applied. Section 89(1)(a) permitted leading questions to be asked, without permission, on introductory or undisputed matters. It was undisputed that Mrs H had made the 26 June statement and the substance of what she had told the police on that occasion was also undisputed. For those reasons, there was scope for argument that under s89(1)(a) the prosecutor was entitled to take Mrs H to the statement and its contents and that he did not require leave to do so. There was no reason why the prosecutor would have needed leave to require her to produce the statement as an exhibit. The argument that the Judge ought not to have granted permission seemed to depend on the proposition (or assumption) that the questions were in the nature of cross-examination and that, given s94 EA, they could not properly be permitted unless the Judge had first determined Mrs H to be hostile.

Sections 89 and 94 had to be read together. Both were permissive in character and operated as exceptors to the s89(1) prohibition on leading questions. Importantly, s94 did not provide that questions in the nature of cross-examination could only be permitted if there was a determination of hostility. The two sections could not sensibly operate together if every leading question which a Judge might give permission to ask was also to be treated as cross-examination requiring leave under s94. However if s89(1)(c) was construed too generously, s94 would be redundant.

Mrs H was giving evidence almost two years after the events in question. It was unclear how she would react when the 26 June statement was put to her, and the statement was admissible under the EA independently of the s37 veracity provision. However the statement was to be proved, it was necessary, in fairness to Mrs H to give her the opportunity to explain the inconsistencies between it and her evidence in Court. Section 92 EA (cross-examination duties) was not directly relevant as the questions were put to Mrs H in re-examination, but the principles of fairness and completeness which s92 embodied were applicable in their practical operation.

In this context, the Judge was entitled to give counsel permission to ask the questions he did without first determining that she was hostile. Resort to s89(1)(c) EA would be appropriate where counsel wished to explore ambiguities in the evidence of a witness or apparent inconsistencies between the evidence of that witness and other evidence which was, or would be, before the court. In contrast, questioning which was primarily addressed to the breaking down (or impeachment) of the evidence of a witness might properly be seen as requiring a prior determination of hostility. The questions in this case were of the former, not the latter, category and the Judge was right to allow them without a prior determination of hostility.

The prosecutor was not seeking to show that Mrs H had a disposition to tell lies and there was nothing in the questions he asked to suggest he was implicitly contending that she was lying. Because the re-examination was not a challenge to her veracity, the veracity rules in s37 EA did not apply. Even if s37(4)(a) EA did apply and a challenge to veracity was permissible if the Judge had first determined the witness to be hostile, s37(4)(b) would apply in this case as the evidence in question was the prior inconsistent statement of the witness that was directly admissible as to the truth of its contents. The exclusionary operation of the veracity rules was confined to evidence which was not admissible independently of those rules, and it was thus not applicable to the 26 June statement which was directly relevant to the facts in issue.

Appeal dismissed (majority decision, Elias CJ dissenting).

JUDGMENT OF THE COURT

The appeal is dismissed.

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 R4 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...

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