Hart v R

• Jurisdiction: New Zealand
• Judge: Tipping J
• Judgment Date: 23 July 2010
• Neutral Citation: [2010] NZSC 91
• Docket Number: SC 74/2009
• Court: Supreme Court
• Date: 23 July 2010

Phillip Wayne Hart

and

The Queen

[2010] NZSC 91

Court:

Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ

SC 74/2009

IN THE SUPREME COURT OF NEW ZEALAND

Appeal against conviction for sexual offending — whether a statement made by the complainant to a family friend concerning the offence should have been admitted under s35 Evidence Act 2006 (previous consistent statements rule) — whether the statement was admissible as a response to an attack on the complainant's veracity based on recent invention of the account of the incident given in evidence.

Counsel:

S J Shamy for Appellant

M D Downs and T Epati for Crown

JUDGMENT OF THE COURT

REASONS

	Para No
Elias CJ	[1]
Blanchard, Tipping, McGrath and Wilson JJ	[23]

ELIAS CJ

1 The Evidence Act 2006 is significant legislation which restates the principles upon which evidence is admitted in court proceedings and substantially reforms the pre-existing law. It is the first stop when questions of admissibility arise. And in many cases it will be the last stop. In interpretation of the Act and where the Act is silent on a question of admissibility, ss 10 and 12 permit recourse to the common law, provided the common law is consistent with the purpose and principles of the Act. In this case, turning on the admissibility of a previous consistent statement under s 35(2) of the Act, a topic of conceptually unsatisfactory case law at common law, care needs to be taken not to stray from the text and principles of the new Act.

2 The complainant in a case of sexual offending was cross-examined in order to provide a basis for the defence case that she had invented the story in order to qualify for a lump sum ACC payment. Having ascertained that the defence intended to close on invention with this suggested motive, the trial Judge permitted the prosecutor in re-examination to lead from the complainant evidence of when she first became aware of her potential eligibility for an ACC lump sum payment and her disclosure of the sexual offending to a family friend before that time. The Crown was also permitted to call the family friend who gave evidence that the complainant had told him about the offending in an apparently spontaneous response to unrelated family stress and confirmed the timing of the disclosure as being some months before the time at which the complainant had said she knew of her eligibility for compensation.

3 The issue on the appeal is whether the statement made to the family friend should have been excluded in application of s 35(1) of the Act or whether it was admissible within the exception in s 35(2) as an answer to an attack on the complainant's veracity based on recent invention of the account of the incident given in her evidence to the court.

The text, legislative history, and purpose of s 35

4 Section 35(1) of the Act provides that:

(1) A previous statement of a witness that is consistent with the witness's evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

5 Exceptions to the general rule are contained in s 35(2) and (3). Only s 35(2) is of direct relevance to the present appeal. It provides:

(2) A previous statement of a witness that is consistent with the witness's evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

6 The wording originally proposed by the Law Commission 1 for what has become s 35 was altered in the text as enacted to limit the relevant challenges to veracity (or “truthfulness”, as the Law Commission had it) to those based on a previous inconsistent statement or an allegation of recent invention. The last was an illustration given by the Law Commission in its commentary, 2 and which in the legislation has been enacted as one of two grounds of challenge to veracity which engage the exception. The change was made on the report of the Select Committee that the exception as recommended by the Law Commission, which had not limited the exception to the two grounds now specified, was too broad. 3 The opinion of the Select Committee was that stating the two grounds “would ensure a workable rule, and limit the circumstances in which previous consistent statements could be used to those available under current law”. 4

7 It is clear from the Law Commission's commentary that s 35 was intended to replace common law and statutory exceptions to a similar common law rule of

37 Previous consistent statements rule

• A previous statement of a witness which is consistent with the witness's evidence is not admissible except

  • (a) to the extent necessary to meet a challenge to that witness's truthfulness or accuracy; or …

exclusion of repetition with a single principled rule, adapted to any case where repetition tends to prove veracity when it is put in issue. The Law Commission intended the new rule to extend to “recent complaints” in sexual cases and the former s 22A of the Evidence Act 1908 (which allowed the admission of evidence of an earlier description of the offender given by an identifying witness). The trigger for admissibility is the challenge to truthfulness or accuracy: “[i]f there is no such challenge, the evidence will not be necessary”. 5

8 The general rule contained in s 35(1) is based on the experience that, in general, repetition does not add anything to the evidence given by a witness. It has long been treated as superfluous 6 (although as Thayer points out, before the 19th century it had been usual to lead evidence of consistency of witnesses, 7 an approach that may have lingered on in respect of “recent complaint” in cases of sexual offending). This is the basis on which the Law Commission put the purpose of s 35. 8 Evidence of previous consistent statements is not however superfluous when it answers a challenge to evidence either as recent invention or as inconsistent with a previous statement, the two bases of the exception in s 35(2). In the present case the evidence was therefore admissible if “necessary to respond to a challenge to the witness's veracity or accuracy, based … on a claim of recent invention on the part of the witness”.

9 The common law policy against admission of statements which merely repeat evidence given in court (sometimes referred to as a “rule against narrative” 9) was often obscured by the different policy behind the hearsay rule, a common basis on which previous statements were excluded. Reform of the law of hearsay in the Evidence Act 2006 made it necessary to deal distinctly with what was the

“independent common law ban on proof of the previous oral or written statements of the witness as evidence of his consistency”. 10 Section 35 provides the restatement and reform of the rule against admission of previous consistent statements and its exceptions. The former overlap between hearsay and repetition is removed by the definition of hearsay to exclude out of court statements made by a witness. 11 Care therefore needs to be taken to ensure that authorities under the former law, in which evidence of a previous consistent statement by a witness was excluded to meet the policies behind the exclusion of hearsay (and which have been largely overtaken in the reforms), do not distort the application of s 35. The policy behind the exclusionary rule in s 35(1) is, rather, “to prevent the parties from inundating the courts with voluminous amounts of repetitive material in order to shore up a witness's consistency”. 12

10 “Consistency” is not a term defined in the Act. The Law Commission expressed the view that consistency is not “lack of inconsistency”. 13 It considered that if the witness's evidence omitted something contained in the previous statement, the omitted information is not within the exclusionary rule of s 35(1). That is also the view taken in cases such as Nominal Defendant v Clements. 14 It is supported by Gallavin. 15 The New Zealand edition of Cross, however, takes the view that “consistent” is properly to be interpreted as “not inconsistent”. 16 The second meaning seems to be that required in s 35(3), 17 which however was acknowledged by the Law Commission to be strictly unnecessary and to have been included to prevent dispute. 18 If the rationale for the rule of exclusion is unnecessary repetition, then the better view may well be that remedying an omission in evidence

through admitting a previous statement does not engage the rule of exclusion in s 35(1). Production of the statement may then require assessment of reliability, as both s 35(3) and the rules for admission of hearsay statements envisage, a symmetry that makes sense and may assist in the application of the rule of general exclusion in s 8. These matters do not require resolution here because the statement was clearly admitted on the basis of its consistency, not to remedy an omission in evidence

“Necessary to respond”

11 A statement within the exception to the general rule of inadmissibility in s 35(1) must comply with the overarching requirement of relevance under s 7: the previous consistent statement must have “a tendency to prove or disprove anything that is of consequence to the determination of the proceeding”, 19 namely here the veracity or accuracy of the complainant when attacked on one of the two bases specified by s 35(2).

12 To be relevant, the circumstances must invest the statement with greater probative value than is available from the mere fact of repetition. But more restriction than the text provides should not be read into the section. “[N]ecessary to respond” is a requirement of logical connection which, consistently with the fundamental principle contained in s 7 of the Act, permits admission if the statement “has a tendency to … disprove” the...