Haywood v Bray Hc Wn

JurisdictionNew Zealand
CourtHigh Court
JudgeMackenzie J
Judgment Date01 Mar 2013
Neutral Citation[2013] NZHC 371
Docket NumberCIV-2012-485-839

[2013] NZHC 371

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-839

BETWEEN
Eric Haywood
Plaintiff
and
Ian Roy Bray
Defendant
Counsel:

M F McClelland and P D Tancock for Plaintiff

R J Fowler and K J Hamill for Defendant

Application to adduce of hearsay statement under s18 Evidence Act 2006 (“EA”) (general admissibility of hearsay), showing evidence of reputation under s42 Defamation Act (notice of evidence of bad reputation) and of acts of misconduct tending to show character under s30 EA (misconduct of plaintiff in mitigation of damages) — defamation proceeding set for jury trial — plaintiff said defendant put up a poster at marina where they lived alleging that plaintiff had been secretly taking private photographs of people for sexual motives — defendant sought to adduce hearsay statement of a witness who had died — statement was at variance with that of defendant in one respect — reputation evidence was that plaintiff was known as complaining and disputatious in marina community — whether the hearsay statement was admissible — whether under s8 EA (general exclusion), the probative value of the statement was outweighed by the risk of an unfairly prejudicial effect — whether evidence of plaintiff's general reputation and alleged misconduct was directly related to the sector of plaintiff's life or character relevant to the defamation.

The issues were: whether the statement was admissible; whether under s8 EA (general exclusion), the probative value of the statement was outweighed by the risk of an unfairly prejudicial effect; and whether the alleged misconduct was related to H's reputation in the aspect to which the proceedings related.

Held: The hearsay statement was admissible if circumstances relating to the statement provided reasonable assurance that the statement was reliable. The circumstances included the nature and content of the statement, circumstances relating to the making of the statement, the veracity of the person, and the accuracy of observation of the person. C could not be cross-examined and this was likely to be significant. The nature and contents of the statement were such that cross-examination to explain the evidence and to elicit further detail was important. A reading of the statement indicated a degree of partiality on the part of C; she clearly favoured B. Cross-examination, to provide some balance, was therefore, important. The degree of partiality demonstrated by the statement, coupled with the lack of ability to cross-examine, went to the reliability of the statement.

Further C's evidence varied from that of B and it would be relevant to determine if it was reliable. The inaccuracy of the statement on this point indicated that the circumstances in which the statement was made may not have been conducive to accurate recall by C. It was also not clear from C's statement whether she was purporting to describe events which she witnessed or events of which she was otherwise aware. This also weighed against the admissibility of C's statement. The circumstances relating to the statement did not provide reasonable assurance that the statement was reliable.

The admissibility of evidence of general bad reputation was subject to the restriction had to be confined to the sector of the claimant's character relevant to the defamation. Admission of evidence of acts of misconduct showing character and reputation had to relate to reputation “in the aspect to which the proceedings related”. The essence of both tests was the same.

In applying the test, the pleadings, both as to the words complained of and their alleged defamatory meanings, were relevant. The statement of claim alleged the words in the poster bore meanings which not only implied that H was a pervert, stalker or dirty old man but had implications beyond that. Assuming that the words were capable of bearing the meanings claimed, that did not confine the relevant aspect of the plaintiff's character to those matters. The matters pleaded to were broader. They related to H's pursuit of other concerns and his position within the marina was a central aspect.

H claimed that the alleged defamation had caused him to move from the marina, resulting in a loss on the consequential sale of his marina berth. His general reputation in the marina community was directly relevant to that claim.

The allegedly defamatory poster was published only within the confines of the marina. The scale of the publication was relevant to the assessment of damages. The general reputation of H among a limited class to which the defamatory material was published was also relevant to that assessment. H's actions, of which B complained in his poster, were directly concerned with the marina. It would be totally unrealistic to treat as a separate matter, unrelated to the alleged defamation, H's general reputation within the marina community.

The hearsay statement of C was not admissible. The evidence as to H's allegedly bad reputation was admissible.

RESERVED JUDGMENT OF Mackenzie J

Mackenzie J
1

There are before the Court several evidential pre-trial issues for resolution in this defamation proceeding, which is set for jury trial.

Admissibility of hearsay statement
2

The plaintiff and the defendant were each living on their boats at the Chaffers Marina in Wellington when the relevant events happened there in February 2012. Ms Campbell-Board had been the manager of the marina. She had resigned due to ill health in September 2011 but was well enough then to continue and assist the new manager. The defendant, Mr Bray, asked her to provide a statement of the evidence which she would give if called as a witness. She prepared a statement and sent it to Mr Bray in June 2012. She died in August 2012. The defendant now seeks toadduce her statement as a hearsay statement under s 18 of the Evidence Act 2006. The plaintiff opposes that course.

3

The statement is admissible if the circumstances relating to the statement provide reasonable assurance that the statement is reliable. The circumstances include the nature and content of the statement, and circumstances relating to the making of the statement, the veracity of the person, and the accuracy of observation of the person.

4

The statement takes the form of a narrative statement of events, similar to a brief of evidence to be given in court. Mr Bray, who gave evidence at the hearing before me and was cross examined, said that he approached Ms Campbell-Board after proceedings were issued in May 2012. He was aware that she was ill and that there were concerns for her long-term health. On the instructions of his solicitor he approached her in June 2012 about providing some evidence. She responded that when the time came she would be willing to give evidence in court. Mr Bray was able to persuade her to make a statement at that stage on the basis that it would provide the starting point for her proposed brief of evidence. She emailed a statement to him on 29 June 2012.

5

Mr Bray identified the statement which he had requested from Ms Campbell- Board and he identified her signature on the statement. Counsel for the plaintiff challenged Mr Bray's evidence as to the circumstances that relate to the making of the statement. Counsel submits that an email produced by Mr Bray is inadequate to support his evidence as to the way the statement was forwarded to him. I do not find it necessary to discuss that evidence in detail. I accept Mr Bray's evidence as to the circumstances in which the statement came to be made.

6

In the ordinary course of events, a witness giving evidence can be cross examined. That will not be possible in this case. The lack of an ability to cross examine does not directly go to the circumstances relating to the statement and whether they provide reasonable assurance as to its liability, but is, at least indirectly, relevant to that issue. It is also relevant to the question of whether, under s 8 of theEvidence Act, the probative value of the statement is outweighed by the risk of an unfairly prejudicial effect.

7

The lack of an ability to cross examine is likely to be significant. The nature and contents of the statement are such that cross-examination to explain the evidence and to elicit further detail would be important. Further, a reading of the statement indicates a degree of partiality on the part of Ms Campbell-Board. She clearly has a favourable view of the defendant, and a less than favourable view of the plaintiff. That is obvious from a number of points which she makes in her statement. Cross- examination, to provide some balance, would be important. The degree of partiality demonstrated by the statement, coupled with the lack of ability to cross examine, goes to the reliability of the statement. Those factors also suggest that the prejudicial effect of the evidence may well outweigh its probative value.

8

Another matter relevant to the reliability of the statement is that, in one respect, Ms Campbell-Board's statement is at variance with Mr Bray's evidence. She says that, at a meeting at the marina, a Wellington City Council representative showed the defendant the photographs which the plaintiff took. Mr Bray says that is not so. That would be an important consideration, if the statement were admitted, for the fact finder in determining whether Ms Campbell-Board's evidence on that point was reliable. The focus at this stage, so far as reliability is concerned, is not on the evidence itself, but on the circumstances in which the statement was made. The inaccuracy of the hearsay statement on this point indicates that the circumstances may not have been conducive to a completely accurate recall by Ms Campbell-Board of events which had happened some four months previously.

9

A relevant...

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