Leslie-Whitu v R

JurisdictionNew Zealand
CourtHigh Court
JudgeWOOLFORD J,Woolford
Judgment Date05 October 2011
Date05 October 2011
Docket NumberCRI-2009-263-000163

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

court:

Woolford

CRI-2009-263-000163

Joshua Leslie-Whitu
and
The Queen
Counsel:

J P Temm, Barrister, Rotorua for Applicant

A F Pilditch / C H Macklin, Crown Solicitor, Rotorua. for Crown

H H Roose, Barrister, Tauranga for Accused Rewi

S J Lance, Barrister, Auckland for Accused Winiata and on instructions from W L Lawson, Lance & Lawson, Rotorua for Accused Duff

RESERVED JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 5 October 2011 at 11:00 am

pursuant tor 11.5 of the High Court Rules.

Registrar/Deputy Registrar

1

The applicant, Joshua Leslie-Whitu, is one of five defendants facing trial for murder, In his closing address, the applicant wishes to rely on certain statements made by a co-defendant, Mr Rewi, during a police interview. The interview records statements of what Mr Rewi says he saw and was told, which the applicant submits will be favourable to his case.

2

At tliis stage it appears that Mr Rewi intends to exercise his right not to give evidence at trial. His police interview will be admitted into evidence by the Crown under s 27(1) of the Evidence Act 2006, which provides:

27 Defendants' statements offered by prosecution

(1) Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.

3

It is common ground that the Crown may not use Mr Rewi's statement as evidence against the applicant. The issue to be determined is whether the applicant can himself rely on favourable aspects of Mr Rewi's statement at trial, or whether s 27(1) or some other rule of evidence prohibits him horn doing so.

Defence submissions
4

Mr Temm's submission, in a nutshell, is that s 27(1) is a shield for codefendants which they can choose to lower. It exists to restrain the Crown's use of evidence against a co-defendant, not any use by the co-defendant himself. Once evidence is admitted as part of the Crown's case, it is generally admissible for all purposes at trial unless its use is explicitly limited. 1

5

Mr Temm’ submits that there is no provision in the Evidence Act prohibiting a co-defendant from relying on a favourable statement of a defendant that has already been admitted into evidence. Section 27(1) constrains only the Crown's use of the evidence. That construction is supported by the text of s 27(1), which prevents evidence “offered by the prosecution” being used “against” a co-defendant. Mr Temm submits that in this case the evidence is neither proposed to be utilised by

the Crown nor to be offered “against” the applicant; to the contrary, it is sought to be utilised by the defence and offered “for” the applicant. Section 27(1) therefore does not bar his application.
6

Mr Temm cites Asher J's judgment in R v Vagaia (No 2) in support 2. In Vagaia—also a murder trial—the issue was whether a defendant (Mr Ati) could utilise an out-of-court admission by a co-defendant (Mr Vagaia) in his closing address to the jury. The statement was unhelpful to Mr Vagaia's case but helpful to Mr Ati's case, in that it tended to show that Mr Ati was not the person who killed the deceased. Asher J held that s 27(1) did not prevent Mr Ati from relying on Mr Vagaia's statement:

[9] As the parts of the statement referring to “I have done something stupid” and “I stabbed someone” are admissible against Mr Vagaia under s 27(1), I do not consider there can be any objection under s 27(1) to a codefendant using that admission for his own benefit in closing. This is because in such circumstances the evidence is not being used “against” a codefendant. It is being used, instead, “for” a co-defendant and indeed “by” a co-defendant. Section 27(1) does not contain any prohibition on portions of an accused's statement elicited by the prosecution being used for, rather than against, a co-accused.

7

Asher J found support for that conclusion in the Court of Appeal's decision in R v Wilding3, and considered that the approach promoted fairness to the parties and witnesses:

[15] … I have no doubt that a fair-minded New Zealander would regard it as most surprising if as a matter of principle a co-accused could not refer in closing to a statement by the other accused already before the Court and of benefit to the co-accused seeking to rely on it. There are sound reasons for a damaging statement by an accused not being used against a co-accused when the statement cannot be tested if the maker of the statement does not give evidence. However, a co-accused should be free to use the statement if it has been admitted already and if it is beneficial to that co-accused. In such circumstances there is no unfairness. The statement can already be used by the Crown because it has passed through the admission portal and there is no need for the co-accused to have the opportunity to challenge it as in fact it is accepted.

8

This position is endorsed by the learned authors in Mahoney and others. 4

9

Mr Temm submits that the purpose of the legislation also supports his interpretation. Preventing a defendant from relying on a co-defendant's statement that has already been admitted into evidence would potentially result in unfairness at trial. Unlike other witnesses, co-defendants cannot be compelled to give evidence at trial. 5 Defendants would be at a disadvantage if they could not rely on a codefendant's admissible out-of-court statement in circumstances where they cannot call the statement-maker to give evidence. It would undermine a defendant's right not to be compelled into the witness box. In addition, if a co-defendant's statement disclosed matters on which a defendant had no direct knowledge, the defendant would be placed in an impossible situation where they could not usefully give evidence themselves nor could they rely on a co-defendant's evidence which has already been placed before the jury.

10

Mr Temm submits that the evidence would be admissible if the co-defendant were instead an independent eye-witness, a severed co-defendant, a defendant who had pleaded guilty and been dealt with, or a defendant who had been discharged at an earlier point. The Court should not allow unfairness to arise merely because of the administratively convenient manner in which the case is brought.

11

In the alternative, Mr Temm submits that the co-defendant's statement is hearsay evidence and is admissible under s 18(1), although this argument was not advanced in any detail at the hearing before me.

Crown submissions
12

Mr Pilditch opposes the application on the basis that it would improperly allow co-defendants to “cherry-pick” facts from a defendant's statement while disregarding contemporaneous facts deemed unfavourable to their case. He submits that s 27(1) prevents all of a defendant's evidence offered by the Crown from being used in a co-defendant's trial, whether it is favourable or unfavourable to them. Because a defendant cannot be compelled into the witness box, the reliability of their out-of-court statement cannot be tested in court through cross-examination.

Subjective interpretation of s 27(1)
13

Mr Pilditch submits that the application misconstrues the word “against” as it is used in s 27(1), He contends that a literal reading of “against”, which the application adopts, results in a subjective and fact-dependent interpretation of the subsection, and creates an illogical internal inconsistency within it. Section 27(1) states that a defendant's statement is inadmissible “against” a co-defendant where it is offered by the prosecution. If that is read to mean that a defendant's statement is inadmissible “where it is unfavourable to the case of' a co-defendant, an inquiry into the favourable and unfavourable aspects of the defendant's statement is necessary. This in turn produces a plethora of problems.

14

First, whether particular evidence is favourable to a co-defendant is not only a factual question; it is a question that is entirely dependent on the co-defendant's theory of the case. For instance, a defendant's statement that the co-defendant was present during the crime but that he did not attack the victim will be favourable if the co-defendant's case is that he was merely a bystander. But the same evidence will be unfavourable if the co-defendant's case is one of mistaken identity, as the evidence would place the co-defendant at the scene of the crime. Mr Pilditch submits that this subjective inquiry complicates the s 27(1) test well beyond what could have been intended by Parliament.

15

Secondly, who decides what is favourable? In the first place, a defendant is entitled to craft and present their theory of the case however they consider it appropriate, which includes emphasising favourable evidence to the jury above unfavourable evidence. So it might be thought that the determination lies with the defendant. That is the basis on which Mr Temm proceeded. In the second place, it is the judge's role to determine issues of admissibility, which must include directing the jury as to what (favourable) aspects of a defendant's statement may be taken into account and what (unfavourable) aspects must be put aside when determining the evidence against a co-defendant. In yet a third place, it is the jury's role to interpret the facts and ultimately to determine what matters help or hinder the defendant's case.

16

A third problem with a subjective interpretation of s 27(1) is that it allows codefendants to cherry-pick exculpatory evidence from a defendant's statement while ignoring inculpatory portions in the same...

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