Morgan v R

JurisdictionNew Zealand
JudgeElias CJ,Wilson J
Judgment Date16 March 2010
Neutral Citation[2010] NZSC 23
Docket NumberSC 92/2008
CourtSupreme Court
Date16 March 2010
BETWEEN
Deryck Joseph Morgan
and
The Queen

[2010] NZSC 23

Judge

Elias CJ, Blanchard, Tipping McGrath and Wilson JJ

SC 92/2008

IN THE SUPREME COURT OF NEW ZEALAND

Appeal concerning admissibility of earlier evidence of witness declared after he refused to give evidence in a retrial due fear of personal safety — whether the witness' evidence from previous trial should be allowed, or excluded under s8 Evidence Act 2006 (evidence not permitted that would unfairly prejudice a trial).

Counsel:

K H Cook and A J Bailey for appellent

D B Collins QC, Solicitor-General, J Murdoch L C Preston for Crown

JUDGMENT OF THE COURT

REASONS

Para No

Elias CJ

[1]

Blanchard, Tipping, McGrath and Wilson JJ

[23]

Elias CJ
1

The appeal concerns the admissibility of a previous statement made by a Crown witness held to be hostile. The witness refused to give oral evidence of the information provided in the statement when called at the trial of the appellant on a charge of aggravated robbery. The statement was admitted in evidence without hearing defence counsel on the question of admissibility. It disclosed the account by the Crown witness, Mark Anthony Roskam, of a confession by the appellant that he had committed the aggravated robbery. The confession was said to have been made while the two men were sharing a prison cell and to have been prompted by a television programme about the robbery. Evidence of the confession was important because the case against the appellant was otherwise circumstantial and not particularly strong. In acceding to the Crown request for the statement to be produced in evidence, the trial Judge did not refer in his ruling to the obligation to exclude evidence where there is a risk that it will have an unfairly prejudicial effect on the proceeding under s 8. He seems to have been of the opinion that the statement was admissible if relevant. I have come to the conclusion, in disagreement with the other members of the Court, that the statement should have been excluded under s 8 unless the Court could take the view that the circumstances of its making provided reasonable assurance of its reliability. I consider such standard to conform with the scheme of the Evidence Act 2006. It also means that the Crown should not call a witness known to be likely to prove hostile (as I consider this witness was known to be before he was called) in order to produce his previous statement unless it is able to demonstrate reasonable assurance of the statement's reliability. No such reasonable assurance was offered here or was in my view available.

Scheme of the Evidence Act 2006
2

In substantial reform of the pre-existing law, s 4 of the Evidence Act excludes from the definition of hearsay out of court statements made by a witness, defined by s 4 as “a person who gives evidence and is able to be cross-examined in a proceeding”. Such statements are not therefore subject to the safeguards contained in the Act for the admissibility of hearsay, particularly the general requirement in s 18 that “the circumstances relating to the statement provide reasonable assurance that the statement is reliable”. Although a previous statement made by a witness is not hearsay, it cannot without the consent of the other party be produced as the evidence in chief of a witness in criminal proceedings by asking the witness to confirm the statement unless such leading question is permitted as a matter of discretion by the judge under s 89(1)(c) of the Act. 1 In other cases, the basis of admissibility of the previous statement differs depending upon whether it is consistent or inconsistent with the evidence given by the witness. If a previous statement by a witness is consistent with the evidence he or she gives, it is admissible only if the conditions in s 35 of the Evidence Act are met: in order to respond to a challenge to veracity based on a previous inconsistent statement or claim of recent invention; or if the witness cannot recall the information in the statement and “the circumstances relating to the statement provide reasonable assurance that the statement is reliable”. If the previous statement is inconsistent with the evidence of the witness, it can be admitted by a party cross-examining the witness if relevant to an issue in the proceedings. Parties are not generally permitted to cross-examine witnesses they have called unless a judge gives permission to do so under s 94 after determining that the witness is hostile. Even then, cross-examination is only to the extent permitted by the judge. 2 In all cases the admission of evidence is subject to the general obligation to exclude relevant evidence under s 8 of the Evidence Act where the risk that the evidence “will have an unfairly prejudicial effect on the proceeding” outweighs its probative value. The appeal arises at the intersections of these provisions of the Act.

Background
3

The confession described in Mr Roskam's statement to the police had been confirmed by him in his earlier evidence both at depositions and at an earlier trial in which the jury had been discharged. At the trial which gave rise to the current appeal, before Judge Saunders and a jury, he refused however to give any evidence of substance on the matter of the confession.

4

Roskam was called on the second day of the trial, after the Crown had opened on the confession said to have been made to him by the appellant. Before he was called, Crown counsel, in the absence of the jury and the appellant, had raised with the Judge information she had received from the prison officer escorting the witness that he had asked to speak to a lawyer. Given the fact that this witness was the only witness able to give direct evidence implicating the accused, counsel suggested the Judge might facilitate his consultation with his lawyer. The Judge, who seems initially to have thought that the witness might be concerned about self-incrimination, decided to make direct inquires of him. The witness stated flatly: “I've got nothing to say today. And won't be saying nothing.”

5

The Judge explained to Roskam that the Crown could take steps to declare him hostile. Roskam continued to say he “[wouldn't] be talking”, refusing to give an explanation. After advising him he could be held in contempt of court, the Judge arranged for Roskham to see his own counsel. While he was doing so, the judge and trial counsel conferred further. The Judge indicated that if the witness refused to take the oath he would be held in contempt. Crown counsel pointed out that he might, alternatively, take the oath but prove hostile. In that case, she foreshadowed an application under s 94 to enable him to be cross-examined as hostile.

6

The jury and the witness were brought back into court. Initially Roskam failed to answer when asked whether he would take the oath or affirm. When pressed by the Judge he said “I don't want to give evidence because I fear for my own safety”. After having been advised that he would be held to be in contempt of court if he did not either swear or affirm, he eventually made the affirmation.

7

In answers to Crown counsel the witness agreed that he had been an inmate in September 2006 in Paparua Prison, but said that he could not recall with whom he shared a cell at the time. He said that he could not recall watching a television programme in which the aggravated robbery featured (and which was said to have been the trigger for the confession by the appellant) and could not recall making a statement to the police some time after he was bailed. Roskam said that it would not help him to refresh his memory from the statement because he did not remember making it. Crown counsel then made an application under s 94 and the Judge ruled:

Yes, I'm satisfied on the demeanour and the answers already given that this witness is hostile before the Court. You may cross-examine him about a previous document that you have.

8

Once Roskam was held to be hostile, the Judge seems not to have considered whether limits should be set under the discretion conferred by s 94 to his cross-examination by the prosecution. For his part, Roskam continued to maintain in answer to cross-examination by Crown counsel that he could not remember sharing a cell with anyone and could not remember watching a television programme. Crown counsel put to him passages from the statement but he replied that he did not remember saying what was recorded. The transcript of the questions put by Crown counsel and the answers by the witness cover more than eight pages. Throughout it Roskam claimed not to remember being in a cell with the appellant and not to remember the information recorded by the police in the statement or telling the officer what was recorded. He claimed not to remember making the statement at all although he acknowledged that the signature at the foot of each page looked like his. The final passage of cross-examination by Crown counsel was:

  • Q. Now when you talked to the police on that day, unlike today, you were prepared to talk about that incident weren't you.

  • A. I can't remember.

  • Q. Well it's not that you can't remember is it. It's that you don't want to today remember. Isn't that the case.

  • Q. No. I just can't remember it.

  • Q. Well anyone else if they didn't remember and were then shown a document that they had signed in that way would have their memories jogged and isn't it the case that you fully remember but you just don't want to acknowledge that today.

  • A. No.

  • Q. You remember those events.

  • A. No.

  • Q. So you are not going to help us any further.

  • A. I don't know.

  • Q. I will ask you one more time. Can you tell us why not.

  • A. ‘cos I can't remember.

  • Q. You gave evidence, Mr Roskam, under affirmation at the depositions hearing, the preliminary hearing of this case in the Christchurch District Court and you gave evidence on the 5th...

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  • Hannigan v R
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    ...in evidence. Determination of the appeal turns on distinct application of s 94, such as was undertaken by this Court in Rongonui v R 4 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 wit......
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2 books & journal articles
  • The exclusion of prison informant evidence for unreliability in New Zealand
    • United Kingdom
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    • 1 July 2021
    ...to his incarceration with Johnson.92. WvR, above n. 3 at [90], fn 144.93. RvVagaia [2008] 2 NZLR 516 (HC) at [15], approved by Morgan vR[2010] NZSC 23, [2010] 2 NZLR 508.234 The International Journal of Evidence & Proof often in the form of liberty for provision of evidence that a fellow pr......
  • Case Commentaries
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    • 1 July 2010
    ...of the outstanding charges. Previous statement of a hostile witness—New Zealand The appeal to the New Zealand Supreme Court in Morgan v R [2010] NZSC 23 concerned the admissibility of a previous statement of a Crown witness who, giving the police a statement and testifying for the Crown at ......

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