Angus v The Queen

[2017] NZCA 454

IN THE COURT OF APPEAL OF NEW ZEALAND

CA302/2017
[2017] NZCA 454

BETWEEN	MELISSA JANE ANGUS Appellant
AND	THE QUEEN Respondent

Hearing:	11 October 2017
Court:	Kós P, Woolford and Collins JJ
Counsel:	J K Mahuta-Coyle for Appellant P D Marshall for Respondent
Judgment:	11 October 2017 at 12.35pm
Reasons:	13 October 2017

JUDGMENT OF THE COURT

AThe application for leave to appeal is granted.

BThe appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

1. Mrs Angus and her husband ran a funeral directorship between 1998 and 2005.  They offered pre-paid funerals.  The Crown alleges that they represented that pre-payments would be (1) held in a trust account or (2) not accessed for any purpose other than to carry out the payer’s funeral instructions.  The Anguses’ company failed.  Neither trust account nor the money prepaid could be found.  The Crown case is the money was used for personal or business expenses.  The Anguses have been charged with theft by persons required to account.

2. The present appeal concerns formal interview statements made to the police by five complainants who have since died.  The Crown filed notice of intention to offer hearsay evidence in relation to those written statements.  The admissibility of those statements is governed by ss 8 and 18 of the Evidence Act 2006.  Judge Tompkins granted the Crown application.[1]  Mrs Angus applies for leave to appeal.

Judgment appealed

[1]R v Angus [2017] NZDC 10666.

1. The Judge concluded that the threshold test for admission in s 18(1)(a) was satisfied.  The circumstances provided reasonable assurance that the written statements were reliable.  The statements were first-hand hearsay, given to a constable, signed as true and correct by the maker, and witnessed.  They were supported by contracts or correspondence originating from the defendants.  They were consistent with evidence by other complainants.  There was no suggestion that any of the deceased were impaired, unreliable or generally untruthful.   

2. The Judge also considered that the hearsay statements should not be rendered inadmissible under the general exclusionary provision in s 8(1)(a) because the statement makers were unable to be cross-examined.  The Crown’s case was also based on contemporaneous documents: contracts, correspondence and business brochures consistent with the written statements.  In that respect, the need for cross-examination of the deceased was less important.  Admissibility per se had no bearing on the weight or importance to be accorded at trial to the written statements.  That would be a matter for judicial direction.

Application for leave

1. Leave to appeal the pre-trial ruling was granted under s 217(2)(b) of the Criminal Procedure Act 2011.  The Crown did not oppose.

Appeal

1. The challenge to admissibility on appeal was confined to the general exclusionary provision in s 8.  It was submitted for Mrs Angus that the hearsay evidence is crucial to the prosecution because, absent it, “there is no evidence at all that the funds were provided on particular conditions”.  The defence is prejudiced by being unable to cross-examine the complainants on why they held a particular belief about use of a trust account and what representations had led them to that belief.  There was prejudice in maintaining a defence that the receipts were mere pre-payments, unimpressed by any trust or special condition as to use. 

2. These objections are misconceived.  The role of the trial judge considering an application to admit hearsay evidence is that of gatekeeper.  A judge must first consider, under s 18, whether the proposed hearsay statement has sufficient reliability to be admitted into evidence at all.  What weight is accorded the evidence is then a matter for the finder of fact.  The Judge was clearly correct in his decision under s 18, for the reasons noted at [3] of this judgment.  If these particular statements were not admissible under s 18, it is difficult to imagine what statement would be. 

3. The Judge was also clearly correct in holding that the statements should not be excluded under s 8.  They have material probative value.  That is not outweighed by any prejudice from the inability to cross-examine the makers of the statements.  As this Court has observed before, the inability to cross-examine is inherent in all cases involving hearsay evidence.  Protections against prejudice are provided for in the Act and are adequate for most cases.  In this case s 122 will apply and the Judge will have to consider warning about the need for caution in accepting this evidence, and in assessing its weight, given the inability to test it under cross-examination.

4. Here in each instance there are also consistent contracts or correspondence originating from the defendants.  As business records they are independently admissible under s 19.  While that reduces the necessity for the written statements, it also reduces any prejudice from their admission.  The defence proposition that without the written statements there is no evidence at all that the monies were paid on particular conditions is not sustainable.  The existence of a representation as to receipt of monies in trust or on special conditions as to use is tolerably clear.  What if any criminal consequence arises from departure from that representation is another matter, and one that need not trouble us on this appeal.   

Result

1. The application for leave to appeal is granted.

2. The appeal is dismissed. 

Solicitors:
Crown Law Office, Wellington for Respondent