Haywood v Bray Hc Wn
| Jurisdiction | New Zealand |
| Judge | Mackenzie J |
| Judgment Date | 01 March 2013 |
| Neutral Citation | [2013] NZHC 371 |
| Docket Number | CIV-2012-485-839 |
| Court | High Court |
| Date | 01 March 2013 |
[2013] NZHC 371
CIV-2012-485-839
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
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.
M F McClelland and P D Tancock for Plaintiff
R J Fowler and K J Hamill for Defendant
RESERVED JUDGMENT OF Mackenzie J
There are before the Court several evidential pre-trial issues for resolution in this defamation proceeding, which is set for jury trial.
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.
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.
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.
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.
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.
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.
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.
A relevant consideration in determining whether the statement should be admitted, particularly in considering its probative value under s 8, is that much of the background evidence which Ms Campbell-Board gives could be provided by other witnesses. For example, the extent of the plaintiff's engagement with the marina management is a matter which, on the face of Ms Campbell-Board's statement, is capable of being addressed in this way. She says in her statement that the plaintiff “has generally directed his issues via documentation directed at the Chairman and Board”.
To the extent that Ms Campbell-Board's statement relates to her own observations, it is not entirely clear from her statement whether she is purporting to describe events which she witnessed, or events of which she was otherwise aware. Her evidence as to the way in which the defendant's notice was posted at the marina is an example of this. That circumstance also weighs against the admissibility of the statement.
I have reached the view, taking all of these circumstances into account, that the circumstances relating to the statement do not provide reasonable assurance that the statement is reliable.
The defendant proposes to adduce general evidence that the plaintiff has a reputation amongst the Chaffers Marina community as a complaining and disputatious person. Also, in his second amended statement of defence, the defendant has given notice of his intention to adduce, under s 42 of the Defamation Act 1992 (the Act), evidence of specific instances of misconduct by the plaintiff which the statement of defence describes as “instances of unjustified, petty and disputatious complaints and demands at Chaffers Marina”.
That evidence falls into two of the three categories of evidence as to reputation which are recognised on the authorities. 1 The defendant's proposed evidence is:
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(a) evidence of general bad reputation; and
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(b) evidence of particular acts of misconduct on the part of the plaintiff tending to show his character and disposition.
Evidence in the first category was admissible at common law. Its admissibility is preserved by s 42 of the Act. Evidence in the second category was
not admissible at common law, but has been rendered admissible by s 30 of the Act. That provides:In any proceedings for defamation, the defendant may prove, in mitigation...
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