R v Hallett Hc Rot

• Jurisdiction: New Zealand
• Judge: Duffy J
• Judgment Date: 14 May 2013
• Neutral Citation: [2013] NZHC 1076
• Docket Number: CRI-2011-063-005475
• Court: High Court
• Date: 14 May 2013

BETWEEN

The Queen

and

Menzies Reginald John Hallett

[2013] NZHC 1076

CRI-2011-063-005475

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

Application for admission at trial of evidence of a statement tantamount to a confession to murder made, by Hallett (“H”) to his former wife (“S”) in 1979 — statement previously inadmissible under common law and Evidence Act 1908 (“EA 1908”) — charge laid against H in 1979 was dismissed for want of proof — Evidence Act 2006 (“EA 2006”) removed barrier prohibiting a spouse from testifying against his or her spouse — police laid a fresh charge of murder against H — whether s71 EA 2006 (eligibility and compellability generally) removed the impediment to testimony by a willing spouse about matters that s/he learnt about at a time when the law precluded them from giving this testimony.

Apperances:

A F Pilditch and A J Gordon for the Crown

P G Mabey QC P O Box 13199 (DX HP40075) for the Accused

P G Mabey QC for the Accused

REASONS JUDGMENT OF Duffy J

[Re Evidence Admission]

1 In 2013 Mr Hallett stood trial for the murder of Rodney Tahu in August 1979. The Crown's evidence against Mr Hallett included a statement he made to his former wife (now Mrs Sharpe) in 1979, shortly after Mr Tahu was murdered. This statement was tantamount to a confession that he had committed the murder.

2 In 1979 the common law and the Evidence Act 1908 (the 1908 Act) prevented Mrs Sharpe from giving evidence against Mr Hallett on the charge of murder. Without her evidence, the prosecution case against Mr Hallett was weak. A charge was laid against him, but at a committal hearing in the Magistrate's Court in October 1979 the charge was dismissed for want of proof.

3 The Evidence Act 2006 (the 2006 Act) removed the barrier prohibiting one spouse from testifying against his or her spouse. After the enactment of this legislation, the Police laid a fresh charge of murder against Mr Hallett. At his trial the Crown proposed to call Mrs Sharpe to give evidence of the confession Mr Hallett had made to her. Mr Hallett's counsel took the view that her evidence was admissible under s 71 of the 2006 Act, so no pre-trial steps were taken to have the Court determine if this evidence was indeed admissible. During the course of the trial, however, Mr Hallett changed his stance. He objected to the admissibility of Mrs Sharpe's evidence on the grounds that the 2006 Act did not apply; and therefore the legal impediment that had prevented her from testifying earlier was still in place. Time was made available to hear and determine this objection.

4 The question I had to determine was whether s 71 of the 2006 Act enables a willing witness to testify in a criminal trial against a former spouse about matters that she learned from that spouse at a time when the law precluded her from giving this testimony. This entailed an analysis of the protection that the law in 1979 gave to spousal communications. If the protection were characterised as an evidential or procedural rule, there would be little or no difficulty in finding that the 2006 Act would apply: see R v Bain [2008] NZCA 585 at [15]. But if the protection were to be characterised as a substantive right or entitlement that was enjoyed by Mr Hallett, matters might be quite different. Unless the 2006 Act plainly provided for s 71 to apply retrospectively, there would be great difficulty reading the provision that way, as to do so would run up against the well settled principle of statutory interpretation that a Court “should be slow to impute to Parliament an intention to override established rights and principles where that is not clearly spelt out”: see Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [26]. This is especially so where the removal of such rights and principles would be retrospective in operation.

5 Further, s 7 of the Interpretation Act 1999 provides that enactments do not have retrospective effect, though the provision is subject to legislation to the contrary. Thus, whilst Parliament has the power to pass retrospective legislation, when it affects pre-existing substantive rights and entitlements, clear language is required before legislation will be understood to have retroactive effect. There is therefore a need for a clear understanding of the character of the protection given to spousal communications in 1979.

6 After hearing from counsel, I delivered a result ruling in which I found that the 2006 Act cleared the way for the Crown to call Mrs Sharpe to testify against Mr Hallett. I stated that my reasons for this finding could be categorised as follows:

• (a) Section 71 of the 2006 Act did no more than make a change to the evidential rules by which a Court conducts proceedings before it, and as such it was a procedural change that did not affect any substantive rights that Mr Hallett may have held before the commencement of s 71.

• (b) Insofar as it might be thought that the changes brought about by s 71 affect substantive law, they are better seen as changes affecting a privilege that Mrs Sharpe previously enjoyed, rather than one enjoyed by the accused. She was willing to give evidence and so was entitled to waive any privilege given to her. Thus, any issue regarding retrospective loss of the privilege was irrelevant.

• (c) Insofar as the changes might be seen to affect a substantive right or entitlement enjoyed by Mr Hallett, rather than Mrs Sharpe, the legal foundation for seeing matters in that way was based on a legal fiction, now in disuse, namely that on marriage, a husband and wife become one person with the result that if one spouse gave evidence against the other, it was tantamount to self-incrimination. Such a way of looking at matters is no longer supported by how the law and society view marriage, and is inconsistent with present principles, including the principle that every person who has relevant evidence to offer should participate in the proceeding. Protecting this principle is of far more importance and outweighs any benefit that accused persons might enjoy simply by reason of a legal fiction that would see their spouses prohibited from giving evidence against them.

7 Mr Hallett then made a fresh objection in the form of a request to have Mrs Sharpe's evidence excluded as a confidential communication under s 69 of the 2006 Act. After hearing from counsel, I delivered a result ruling in which I ruled against Mr Hallett's request.

8 For both rulings, counsel were content for me to delay issuing reasons until after the trial. My reasons for these rulings now follow. I shall deal with the application of the 2006 Act first, and then the refusal to exclude the evidence under s 69 of that Act.

Background facts

9 Mr Tahu was killed in the early hours of the morning of 16 August 1979. At the time, Mr Hallett and Mrs Sharpe were legally married, but they had been separated for approximately 18 months. The Crown's evidence is that after killing Mr Tahu, Mr Hallett drove to Mrs Sharpe's home in Wellington where he gave her a full account of how he had come to kill Mr Tahu.

10 In short, Mr Hallett told Mrs Sharpe that at about 1.00 am he was on his way south from Taupo. He was upset because he had received a letter from Mrs Sharpe the previous day informing him that their elder daughter did not want to live with him, and that Mrs Sharpe would be having custody of their two daughters. He was driving either to see Mrs Sharpe in Wellington, or his elder daughter in Palmerston North to “sort it out”. While he was driving, his car engine developed a rattle. He drove into the petrol station in Turangi where Mr Tahu worked and sought to buy oil to alleviate the rattle. Mr Tahu was in the process of shutting the station and so he refused to serve Mr Hallett. Mr Hallett was infuriated by this. He later described it to Mrs Sharpe as his “flash point”. He called Mr Tahu a “black bastard”. Mr Tahu walked towards him. Mr Hallett was carrying a loaded pistol on his person. He pulled the pistol out and fired a shot which missed Mr Tahu. Mr Tahu ran away from Mr Hallett. He followed Mr Tahu, firing again and hitting him in the shoulder. Mr Tahu fell to the ground. Mr Hallett walked up to Mr Tahu and fired a fatal shot to his head, just above the inner corner of his left eye.

11 Shortly after hearing this confession, Mrs Sharpe contacted the Police and relayed to them what Mr Hallett had told her. Quite soon thereafter, on 20 August 1979, Mrs Sharpe signed a Police statement recording her account of Mr Hallett's confession to her.

The law before 2006

12 In 1979, Mrs Sharpe could not testify against Mr Hallett. At the time, the

1908 Act was in force. Save for some expressed exceptions (none of which applied to Mrs Sharpe's testimony), s 5(1) of that Act stipulated that a spouse was not competent, and therefore not compellable, to testify against his or her spouse in a criminal prosecution. The section provided (emphasis added):

5 Evidence of accused and wife or husband in criminal cases

• (1) Except as provided by or under this or any other Act, neither the person charged with any offence nor the wife or husband, as the case may be, of the person so charged shall be a competent or compellable witness for the prosecution or defence in any proceeding in connection with the offence.

• (2) Where any person is charged with an offence, whether solely or jointly with any other person, the person so charged shall be a competent witness for the defence, and the wife or husband, as the case may be, of the person so charged shall be a competent and compellable witness for the defence, at every stage of the proceedings:

• Provided that-

  • (a) A person so charged shall not be called as a witness in pursuance of this...