Awatere v The Queen

[2018] NZHC 883

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 202 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI 2018-485-9

[2018] NZHC 883

BETWEEN

WAINUI AWATERE

Appellant

AND

THE QUEEN

Respondent

Hearing:	27 February and 2 March 2018
Counsel:	C Thorburn and D Ewen for Appellant S Carter for Respondent
Judgment:	1 May 2018

REASONS JUDGMENT OF ELLIS J

[1]Mr Awatere appealed his conviction in the Hutt Valley District Court on:1

(a)one charge of breaching a protection order pursuant to s 19 of the Domestic Violence Act 1995; and

(b)one charge of male assaults female  pursuant  to  s  194  of  the  Crimes Act 1961 (the CA).

[2]    The complainant in relation to the charges was Mr Awatere’s former domestic partner, M.

1      New Zealand Police v Awatere [2018] NZDC 1226.

AWATERE v R [2018] NZHC 883 [1 May 2018]

[3]    On 2 March 2018, I allowed his appeal, with reasons to follow.2 These are those reasons.

Background

[4]M has had a protection order in place against Mr Awatere since 30 April 2013.

[5]    On 17 March 2017, Mr Awatere was sentenced to eight months’ home detention following his conviction on one charge of wilful damage, two charges of contravening a protection order, one charge of threatening to kill/do grievous bodily harm, and one charge of burglary.3

[6]    On 16 May 2017, Mr Awatere removed his electronic monitoring tracker and left his home detention address.

[7]    The events giving rise to the two charges relevant to his appeal were recounted by M to the Police on 8 July 2017 and recorded in a formal statement. She told them that at around 3.30 pm that afternoon she had seen Mr Awatere get out of a car outside her home. She quickly closed the curtains and went to find her cell phone to call the Police. But her front door was open and Mr Awatere walked in. He then went into her bedroom. She asked him to leave. Then, she said:

But he didn't leave. Instead he grabbed me by my throat with his left hand and slammed me onto my bed. He didn't let go of my throat after he slammed me onto my bed. He really put a lot of force onto my throat. I'd say that he had his hand on my throat for about 10 seconds. Most of the pressure to my throat was through his thumb. The pressure he put on my throat with his thumb left a red mark on the throat region. This made me feel extremely scared because of what he has done to me previously. I managed to push him off me and we began to argue. I asked him what he was doing here. He said he needed a place to stay because he was on the run.

[8]    M said that she refused to agree to Mr Awatere staying with her and called out to her grandmother for help, knowing that she would call the Police.   As soon as   Mr Awatere became aware that M’s grandmother was home, he left the property.

2      Awatere v R [2018] NZHC 311.

3      This offending had occurred in January 2017.

[9]    Mr Awatere was subsequently charged with assault with intent to injure, male assaults female, threatening to kill, burglary and four charges of breaching a protection order. He pleaded not guilty to all these charges.4

The trial in the District Court

[10]   At the beginning of Mr Awatere’s Judge alone trial, an application was made for M to give evidence from behind a screen. That application was granted. But when M came to give her evidence in chief she was far from forthcoming. She identified photographs that had been taken by the Police depicting marks on her neck. Beyond that, however, many of her replies were either inaudible or unhelpful.

[11]   About 12 minutes into her evidence, after M had twice responded to a question by saying “I can’t do this”, the prosecutor made an application to close the Court under s 197 of the Criminal Procedure Act 2011 (the CPA). It was suggested that M was being intimidated by people in the public gallery. The Judge declined the application but indicated that he would be prepared to make an order that M give evidence in some other way, including by way of CCTV. As it quickly transpired, CCTV was not an option because the necessary courtroom was not available.

[12]   When questioning resumed, M confirmed that Mr Awatere had come to her house on 8 July 2017 but denied that anything had happened when Mr Awatere had entered her bedroom. An application to have M declared hostile was then made and granted. The prosecutor’s subsequent attempts to cross examine M proved no more fruitful. She continued to deny that the offending had occurred. When asked about her previous statement to Police, she accepted that she had made it but said it was untrue. Shortly afterwards the Judge said to M:

You need to answer questions …, I know it’s difficult and you’re worried but you’re safe here and the law does require everyone to give evidence in Court.

4      He pleaded guilty to one charge of breaching the conditions of a home detention sentence pursuant to s 80S(a) of the Sentencing Act 2002.

[13]   It was then put to M that she had told police that when Mr Awatere came to her room she had asked him to leave several times. She admitted saying that to the Police but said it was false. And when the specifics of the alleged assault were put to her (less than four minutes after she had been declared hostile) M simply said “I’m not doing this. I’m walking out.” She then left the Court, in a distressed state.

[14]Immediately after M’s departure, the Judge said:

All right. There’s nothing more to be done with that witness. I’m not going  to arrest her or anything like that.

[15]Then, he said:

What you need to understand is that anything the witness has said is admissible. Not only to prove that she said it, but to prove the truth of the statement. That’s what happens these days, quite often, in domestic violence, family violence cases such as this.

[16]   The Judge indicated that M’s statement to Police could be put in evidence by the person to whom M had made it. The prosecutor then advised she would call Constable Morter. Defence counsel objected on the grounds of the unfair prejudice said to arise from not being able to cross-examine M, who had not accepted the contents of her statement. The Judge nonetheless ruled the statement admissible, saying it came down to a question of the weight.

[17]   After Constable Morter had produced M’s statement, defence counsel made an application under s 147 of the CPA on the grounds that there was no case no answer. That application was granted in relation to all but the male assaults female charge and one charge of breaching a protection order.

[18]   In his subsequent decision finding Mr Awatere guilty of those two remaining charges the Judge said:5

[7]        But turning to the relevant evidence. Ms [M] was called to give evidence. She was quite plainly a reluctant witness. She eventually gave evidence that she was at home …, on the day in question and that Mr Awatere, who she said was the father of her children, arrived at the house.

5      New Zealand Police v Awatere, above n 1.

[8]        However, when questioned further about what happened then, she either stayed mute or gave unhelpful answers such as "nothing happened". Eventually an application was made for her to be declared hostile. I granted that application. She was then cross-examined on a statement that she had made to the police on 8 July. She declined to adopt any important matter from the statement, although she did acknowledge making it.

[9]        Also in her evidence she identified two photographs of herself, which later evidence showed were taken on 8 July by a police officer, and which showed reddening of her throat area consistent with being held by someone's hand to the throat.

[10]      The other witness was Constable Morter. He was called to the address about 3.00 pm on the afternoon. He gave admissible evidence as to what   Ms [M] told him. Essentially she told him at the house that Mr Awatere had arrived at the house and assaulted her. He also observed that she was visibly distressed and crying. She went to the station and so did he and he took a typewritten statement from her which was produced in evidence.

[11]      What a witness has said to another person is admissible in general terms, not only as evidence that that is what she said, but also as evidence that what she said is true. The evidence was contained in the usual form of a police statement which has at the end of it the following passage I confirm the truth and accuracy of this statement. I make this statement with the knowledge that it is to be used in Court proceedings. I am aware that it is an offence to make a statement known to me to be false or intended by me to mislead. It was signed by her and dated 8 July and timed at 5.50 pm. Constable Morter signed the statement as witness.

[19]After then setting out the relevant parts of M’s statement, the Judge went on:

[13]      The remaining charge, male assaults female, I understand and have treated it as relating to the allegation that Mr Awatere assaulted Ms [M] by holding her with his hand and thumb by the throat on that occasion. There was no specificity in opening from the prosecution as to what the male assaults female charge relates to but in my mind an allegation of that nature is an allegation that a male has assaulted a female.

[14]      The only other relevant evidence or at least admission was an admission that at the time there  was  a  protection order  in  force  against Mr Awatere in favour of Ms [M] and that would have been served and he knew about it. I was told about that admission quite late in the piece but before any election was made by Mr Awatere.

[15]      So, does that evidence satisfy me that Mr Awatere did indeed assault Ms [M] by holding her by the throat which would amount to physical abuse in breach of the protection order? I am satisfied to that standard. I am satisfied of that because of the fact that the police were called to the address; the fact that Ms [M] acknowledged that Mr Awatere had arrived at the address previous to that and was not there when the police arrived, the fact that she acknowledged to Constable Morter that Mr Awatere had assaulted her, the fact that she was visibly upset and crying, the fact that there were red marks consistent with a hand and thumb being held to the neck, observed by Constable Morter and photographed by him, and finally I am satisfied of it

because of the detail and very formal statement which Ms [M] made to Constable Morter directly after the event.

[16]      That statement was not anything perfunctory or unofficial. It was a very official statement made by someone who was aware that it is an offence to make a statement like this which is false. There was specific confirmation of the truth and accuracy of it and a signature. All of those make the statement in my mind reliable. What also makes the statement reliable to me is the detailed nature of the allegations and the fact that they are consistent with the observations and the events which I have earlier described.

[20]   The Judge concluded that he was satisfied that Mr Awatere had assaulted M and had breached the protection order in force against him at that time.

[21]   On 7 February 2018 Mr Awatere was sentenced to 22 months’ imprisonment, which included his resentencing for the offending that gave rise to the earlier sentence of home detention.

The appeal: discussion

[22]   The appeal turns on whether M’s prior statement to Police was admissible, notwithstanding her failure to complete her evidence in chief and defence counsel’s inability to cross-examine her on it. It raises the vexed issue of how the law of evidence, and the Courts as a matter of practicality, deal with victims of domestic violence who, for reasons of fear, do not wish to testify in court against their partner or former partner. That wider issue is discussed in more detail later in this judgment.

[23]   Here, the starting point is that there can be little doubt that the truth of the contents of M’s statement to Police was critical to the Crown case. Although there was evidence that supported what she had told them, that evidence would, by itself, have led nowhere without the factual narrative contained in her account.

[24]   In terms of the evidential issue itself, it seems apparent from the Judge’s reasons set out above that he primarily considered admissibility in terms of the hearsay rule, and I deal with that shortly. But the observation at the beginning of [11] of those reasons suggests he also had in mind the exclusion of previous statements made by a witness from the definition of “hearsay statement” in the Evidence Act 2006 (the EA). It is therefore convenient to deal with that possibility first.

[25]   In my view, M’s previous (inconsistent) statement does not fall within the exception to the s 4 definition of “hearsay statement”.6 The exclusion of a previous statement made by a witness from that definition is (obviously) predicated on the maker of the statement being a “witness” at trial. The EA definition of “witness” is “a person who gives evidence and is able to be cross-examined in a proceeding”. M was not able to be cross-examined by defence counsel and so, in my view, was not such a person.7 In particular, I am unable to accept Ms Carter’s contention that the fact that M was, subsequent to the declaration of hostility, “cross-examined” by the prosecution suffices for the purpose of the definition. Such a conclusion would, in my view, be inconsistent with an interpretation that reflects the fair trial rights contained in s 25(e) and (f) of the New Zealand Bill of Rights Act 1990 (the NZBORA). Further, both the majority and the Chief Justice in Morgan v R noted that the EA provides that previous statements made by a witness are admissible as proof of their contents without adoption on the basis that the evidence contained in the statement can be tested by cross-examination.8

[26]   If M is not properly to be regarded as a “witness”, then her previous statement is properly regarded as hearsay. As I have said, my reading of the Judge’s reasons overall suggests that this was his view as well. The question is, therefore, whether it was admissible under s 18(1) of the EA, which provides that:

(1)A hearsay statement is admissible in any proceeding if—

(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b)either—

(i)the maker of the statement is unavailable as a witness; or

6      Nor was the statement produced in evidence through M herself; she had departed before that could be done.

7      Whether or not a hostile witness who is unable to be effectively cross-examined by defence counsel can be said to be a “witness” as defined was an issue raise by the Chief Justice in her dissent in Morgan v R [2010] NZSC 23. She noted, however, that the point had not been developed in argument by counsel and that it was unnecessary to consider it as a stand alone question.

8      At [17] and [41]. The fact that the theory of that premise may differ from the reality was noted by the majority and, in part, formed the basis for the Chief Justice’s dissent. But the present case is a step removed from one in which a hostile witness has been unresponsive in cross-examination; here, the defence has been afforded no opportunity to cross-examine at all. So while it may be that M’s answers to defence questions would not have been helpful or advanced matters, that remains a matter of mere speculation.

(ii)the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

[27]   It may usefully be observed at this point that the exception to the common law rules against hearsay articulated in s 18 are contingent on establishing both reliability (subs (1)(a)) and necessity (subs (1)(b)).

[28]   As the Judge noted in his decision, there can be no real issue as to reliability here. But it seems to me that both of the two, alternative, necessity limbs are more problematic.

[29]   As to s 18(1)(b)(i), s 16(2)(e) of the EA relevantly provides that a person is “unavailable” as a witness in a proceeding if the person “is not compellable to give evidence”. The concept of compellability is dealt with in s 71 and, subject to ss 72 to

75 (none of which apply here), involves being “eligible” to give evidence. Accordingly, on the face of it, M was, at all times, compellable.

[30]   Ms Carter nonetheless submitted that M was not compellable because she had a “just excuse” to refuse to give evidence in terms of s 165 of the CPA. No specific authority was advanced in support of that proposition, although Ms Carter did refer me to a number of decisions in which the ambit and application of the phrase “just excuse” has been considered.

[31]   First, she noted that in Brannigan v Davison the Court of Appeal gave the words “just excuse” a broad interpretation to allow for recognition of any justification for silence that is right, proper and fair in all of the circumstances.9

[32]   Then, Ms Carter referred  me  to  the  more recent  High  Court  decision  in  R v Lologa where the meaning of “just excuse” was considered in the context of a murder trial in which the Crown proposed to call the defendant’s partner to give evidence of an admission he had allegedly made to her.10 The witness applied to be excused from giving evidence on the grounds that she had been in a relationship with

9      Brannigan v Davison [1996] 2 NZLR 278 (CA) at 289 and 330. The relevant statutory provision there at issue was s 352 of the Crimes Act 1961, the materially similar predecessor to s 165.

10     R v Lologa [2007] 3 NZLR 844, (2007) 23 CRNZ 790 (HC).

the defendant for two and a half years and that they had two children together. It was clear that her principal concern related to the consequences for the relationship should she be required to testify.

[33]In the course of his analysis, Lang J considered the following factors:

(a)the adversity faced by the witness and the effect her giving evidence

would have on her relationship with the defendant;

(b)the potential consequences for the witness’s partner which, while grave, could not be said to be particularly uncommon in cases of that sort;

(c)the seriousness of the charge and the interests of the community in ensuring all relevant evidence available is placed before the Court;

(d)the importance of the evidence of the witness to the Crown case.

[34]   On balance, the Judge concluded that the concerns expressed by the witness were outweighed by the public interest in ensuring all relevant evidence giving rise to the charge was before the jury. No “just excuse” had been established. In reaching that view the Judge noted that the circumstances of the case before him were “very different” from those which arose in R v Burgess (No 2),11 where the witness seeking to be excused was also the complainant. He said in a case where the witness was also the complainant, she had a direct interest in the prosecution of the charge which meant that her own wishes and views should be accorded more weight.

[35]   And lastly, reference was made by Ms Carter to the decision in R v Burgess (No 2) itself. In that case, Williamson J was required to considered the issue of “just excuse” in the context of a complainant who declined to give evidence in a domestic violence case. In determining that “just excuse” had been made out, the Judge said:12

11     R v Burgess (No 2) HC DunedinT16/91, 18 February 1992.

12 At [4].

Viewed in the context of overall justice or fairness, from her personal viewpoint I do not consider that the Court can exclude her excuse as being other than a just one. Such a determination must be made, however, not only on the basis of the person offering the excuse but also in the context of an objective assessment. It could well be argued that the task of the law is to consider the circumstances of the community as a whole and that persons who commit offences of the nature alleged in this case are dangerous and consequently that an excuse not to give evidence in relation to such activities could hardly ever be a just one. The decision though must be made in the context of the particular allegations, the overall circumstances, the relationship between the persons and the circumstances of the witness at the time when the refusal to give evidence is made. She has assured the Court that she is not doing so because she now fears that if she gives evidence she will be the subject of abuse. She says she is doing so for the future of their family. Obviously she may be taking a big risk by doing that but it is a risk she says she appreciates.

[36]   As noted earlier, Ms Carter acknowledged that Lologa and Burgess were not concerned with any consequential issues about whether the evidence of an excused witness could nonetheless effectively be given by way of a hearsay written statement earlier made to Police. Indeed, the result in Lologa meant that the issue did not arise and it is implicit in the judge’s comments in Burgess, quoted above, that excusing the complainant meant that the trial would not proceed. The two decisions are nonetheless instructive, in terms of the type of balancing exercise undertaken by the Judges in coming to their respective decisions.

[37]   Before addressing the question of balancing, however, it transpires that the admissibility of a prior written statement made by a complainant who has been found to have a “just excuse” to refuse to give evidence was directly considered in R v M-T, a pre-EA decision that also concerned a domestic violence prosecution.13 There, the Court of Appeal confirmed that those who refuse to give evidence because they “would prefer not to face the ordeal of giving evidence or would find it difficult to do so” should not be considered “unavailable” as a witness or, in common law terms, “unable” to testify.14 The Court noted that the policy consideration supporting that conclusion was that to extend the concept of unavailability to cover those who refuse to give evidence would tend to encourage witnesses to opt out of testifying.

13     R v M-T [2003] 1 NZLR 63 (CA).

14     At [28], referring to R v Manase [2001] 2 NZLR 197 (CA) at [30].

[38]   As Professor Elisabeth McDonald subsequently noted, the decision in R v M-T is confounding.15 While it was clear that the complainant did not wish to testify against her domestic partner (with whom she was still in a relationship), in fact, the trial Judge had declined to excuse her from doing so on that basis. Rather, he held that she had just excuse for declining to give evidence on health grounds, and no issue seems to have been taken with that as a matter of fact on appeal. For reasons that do seem entirely clear, the Court of Appeal did not ultimately grapple with whether the existence of such a “just excuse” meant that the complainant was “unable” (or “unavailable”) to testify. Instead, the Court ruled her written statement inadmissible on the grounds that unwillingness did not constitute inability.

[39]   I acknowledge that, as a matter of logic, s 165(3) of the CPA could be read as modifying or glossing the (EA) rules about compellability and (accordingly) the meaning of “unavailable” for the purposes of the hearsay rule. On that basis, a finding by a first instance judge that a witness (or proposed witness) has “just excuse” for refusing to give evidence might well mean that that witness is rendered no longer compellable and thus “unavailable” as a witness.

[40]   That was the view taken by Professor McDonald in the 2003 article to which I have already referred. In that article, however, she notes that in 1998 the Law Commission consulted on (but ultimately did not pursue) the possible enactment of a specific provision dealing with the compellability of persons fearing domestic violence on the following lines:16

A person who has reasonable grounds to fear that he or she will suffer domestic violence as a result of giving evidence in civil or criminal proceeding is not compellable to give evidence for any party in that proceeding unless the Court is satisfied that sufficient safeguards to prevent that violence have been or will be put in place.

[41]   In the United Kingdom, statements of witnesses who decline to give evidence for reasons of fear have, for some time now, constituted a contingent exception to the hearsay rules. What was previously s 23(3)(b) of the Criminal Justice Act 1988 (UK) now finds form in s 116 of the Criminal Justice Act 2003 (UK). By s 116(1) and (2)(e),

15     Elisabeth McDonald Hearsay in Domestic Violence Cases [2003] NZLJ 174.

16     Law Commission Evidence: Reform of the Law (NZLC R55, 1999) at [56]-[59].

the (hearsay) statement of a witness who is “unavailable” because he does not give evidence through fear is, subject to conditions, made admissible. Section 116(3) provides that “fear” is to be widely construed and (for example) includes fear of the death or injury of another person or of financial loss.

[42]   In the present context, s 116 is notable for a number of reasons. First, its use of the word “unavailable” arguably lends some support to Ms Carter’s position. Secondly, however, it is clear that its operation has given rise to serious fair trial challenges under art 6(1) and (3)(d) of the European Convention on Human Rights, both domestically and in the European Court of Human Rights.17 In all fora, the ultimate conclusion has been that s 116 does not breach a defendant’s fair trial rights, but only because of the other checks and balance contained in the Act.18

[43]   In the course of its summary of these safeguards in Horncastle the United Kingdom Supreme Court noted that:19

Hearsay evidence is only admissible in strictly defined circumstances. In essence the judge has to be satisfied beyond reasonable doubt that the prosecution is not able to adduce the evidence by calling the witness.

[44]   There can, therefore, be little doubt that the “unavailability” threshold contained in s 18(1)(b)(i) should be regarded as high. As noted earlier, the bar is one of necessity; it will not be satisfied on the grounds of mere convenience or pragmatism.

[45]   In the end, however, it is unnecessary for me to make any definitive finding as to whether the existence of a “just excuse” under s 165 of the CPA renders a witness unavailable in terms of the s 16(2) definition and glosses the concept of eligibility contained in s 71. Even assuming that s 165(3) can operate once a witness has begun giving her evidence,20 there was no ruling here by the Judge that M had “just excuse” for refusing to go on. Rather it would be necessary to infer such a ruling from:

17     See in particular R v Sellick [2005] EWCA Crim 651; R v Horncastle [2009] UKSC 14;

Al-Khawaja v United Kingdom [2011] ECHR 2127; [2012] Crim LR 375.

18 The contrary conclusion reached by the European Court at first instance in Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1 was not followed by the United Kingdom Supreme Court in Horncastle and was overruled by the 2011 decision of the Grand Chamber.

19     At [38], emphasis added.

20     And it is far from clear to me that it can.

(a)her obvious reluctance to give evidence;21

(b)the issue raised about intimidation from the gallery; and

(c)the Judge’s disinclination to issue a warrant for her arrest.

[46]   In my view, the implication of such a ruling is simply too long a bow to draw in an appellate context. In particular it is not possible to conclude whether the Judge’s decision not to have M arrested was actuated by his belief that she had “just excuse” for not continuing or simply by his view that requiring her to continue would be an exercise in futility. The latter seems to me to be more probable. And forming a view that requiring a hostile witness to remain on, or return to, the stand would be pointless is not, in my view, akin to a finding of “just excuse”.

[47]   My conclusion in this regard is fortified by the fact that the “just excuse” cases to which I have referred above make it quite clear that such a finding is an important one and requires a careful balancing of the competing policy considerations. There is nothing before me to suggest that the relevant analysis occurred here.

[48]   And so, too, with s 18(1)(b)(ii). The Judge may well have been of the view that undue delay would be caused if he attempted to compel M to return to the witness box. But, again, he did not expressly say so. Moreover, there must be real doubt as  to whether such a finding would have been warranted. Commentary based on cases decided prior to the enactment of the EA makes it clear that undue expense and delay are elastic concepts whose meaning and application will depend on the particular circumstances.22 Significantly, however, the importance of the hearsay statement to the outcome of the proceedings will be a factor that is relevant to the inquiry. Thus, in R v Leaitua, Brewer J endorsed a view earlier expressed by the Law Commission that s 18(1)(b)(ii) would be satisfied if the party offering the hearsay statement was intending to prove a minor issue about which there was unlikely to be any real doubt.23 He said:24

21     As to which see R v Burgess (No 2) above n 11.

22     In particular see Harte v Wood [2004] 1 NZLR 526 (CA), at [33].

23     R v Leaitua [2013] NZHC 2910.

24 At [16].

That is an evaluation which must be made by reference to the significance of the evidence in question. If evidence is of little consequence to the issues in a trial, or formal or unassailable then the threshold to expense being undue will be relatively low. Conversely, if the evidence is of real significance to the issues in a trial and is contentious then the threshold will be higher.

[49]   Self-evidently, M’s statement here did not go to a “minor” matter; it was the foundation of the prosecution’s case. In my view, that would weigh heavily against its admission under s 18(1)(b)(ii).

[50]   Lastly, there is the basic s 8 point. I accept that the fact that the law contemplates, in limited circumstances, the admissibility of a hearsay statement means that a defendant’s NZBORA right to cross-examine prosecution witnesses is not absolute.25 I also acknowledge that it is more probable than not that cross-examination of M would not have yielded anything of great or further benefit to the defence case. But in my view the existence of that fundamental right militates against an expansive or generous approach to what has occurred here; fairness to an accused necessarily underlies all the safeguards and pre-conditions for admission contained in s 18(1) and requires that they demonstrably be met.

Conclusion

[51]   In my view, M’s previous statement was inadmissible hearsay and its admission in evidence affected the fairness of Mr Awatere’s trial. There can be no doubt that it affected the outcome. I allowed his appeal accordingly.

Rebecca Ellis J

25   The right of a defendant to cross-examine Crown witnesses is expressly protected by s 25(f) of    the NZBORA and is closely linked to the s 25(e) right to present a defence and to the presumption of innocence confirmed by s 25(c). This is also reflected in the definition of “witness” in the EA.