Craig v Stringer

[2022] NZHC 505

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2015-409-575

[2022] NZHC 505

BETWEEN

COLIN GRAEME CRAIG

Plaintiff

AND

JOHN STRINGER

Defendant

Hearing:

14 March 2022

Appearances:

Plaintiff in person Defendant in person

W Akel, counsel assisting the Court

Judgment:

18 March 2022

JUDGMENT OF CAMPBELL J

[Admissibility challenges to Mr Stringer’s brief]

This judgment was delivered by me on 18 March 2022 at 9:30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

CRAIG v STRINGER [2022] NZHC 505 [18 March 2022]

[1]                 Mr Craig challenges the admissibility of large parts of Mr Stringer’s brief. He says those parts are hearsay, irrelevant, in the nature of submission or inadmissible opinion.

Background to challenges

[2]                 Mr Craig raised challenges to Mr Craig’s brief well in advance of the trial. I first addressed the challenges during a telephone conference on 8 February 2022. In advance of that conference, Mr Craig had filed and served a copy of Mr Stringer’s then brief with his objections highlighted using colour-coding. During the conference I explained to Mr Stringer why some of Mr Craig’s objections were sound, using a couple of examples. Mr Stringer took my comments on board. He said he would file a memorandum in advance of the next telephone conference (which had been scheduled for 16 February 2022) setting out which of Mr Craig’s objections he accepted and explaining his position on any objections he did not accept. I recorded that Mr Stringer would file and serve such a memorandum by 14 February 2022, with Mr Craig to file and serve a memorandum in response by 15 February 2022.

[3]                 On 15 February 2022, instead of filing and serving a memorandum, Mr Stringer served (and filed) an updated brief of evidence. He removed some but not all the passages to which Mr Craig objected. He did not explain his position on those objections he did not accept.

[4]                 Shortly before the conference on 16 February 2022, Mr Craig filed and served a copy of Mr Stringer’s amended brief with his remaining objections marked up. His mark ups indicated the basis of his objections.

[5]                 It was not possible to deal with the objections at the conference on 16 February 2022. At that conference I directed Mr Craig to file and serve a memorandum explaining the basis for his objections by 23 February 2022, with Mr Stringer to respond by 2 March 2022. I said Mr Stringer should indicate any objections that he accepted. For those that he did not accept, I said he should explain why he considered the passages were admissible. I said I would then hear from the parties on any objections that remained in issue at the commencement of the trial on 14 March 2022.

Mr Craig’s challenges and Mr Stringer’s response

[6]                 Mr Craig says that Mr Stringer strays into submission in numerous sections of his brief. As an example, Mr Craig points to [7(1)] of Mr Stringer’s brief, in which Mr Stringer, after stating that he has heard Ms Rachel MacGregor say repeatedly that sexual harassment took place, says:

My experience of her various actions reinforce this truth. Her testimony in various contexts details behaviour of the plaintiff that was sexual harassment and there is unity to her testimony …

[7]                 Mr Craig filed (with his memorandum dated 23 February 2022) a copy of Mr Stringer’s latest brief. On that brief he has highlighted, in blue, all the passages that he says are submission.

[8]                 Mr Craig’s second objection is hearsay. He gives, as an example, [28] of Mr Stringer’s brief:

Much has been said and written by many, including Mr Craig and Ms MacGregor (whom I have discussed this with) about parameters being put in place …

[9]                 Mr Craig says that what has been “said and written by many” is an attempt to give evidence of the observations and opinions of others.

[10]              Mr Craig has highlighted, in green, all those passages that he objects to on the ground of hearsay.

[11]              Mr Craig objects to a few passages on the grounds of irrelevance. It is not necessary for me to give specific examples. Mr Craig highlights these passages in yellow.

[12]              Finally, Mr Craig says that some passages in which Mr Stringer is offering inadmissible opinion. As an example, he refers to [20], where Mr Stringer refers to Ms MacGregor’s “shock” resignation and then says, “It is fair to say it evoked a media maelstrom.” Mr Craig highlights such passages in pink.

[13]              Mr Stringer notes that the parties are lay litigants. He submits I should adopt a liberal approach to the evidence. He says I should allow him to read all his brief and then determine, in the course of my substantive judgment, which of the evidence is admissible. The only submission that he made specifically in response to Mr Craig’s grounds of objection was to emphasise that when he referred in his brief to the testimony of others, this was testimony that he (Mr Stringer) had heard.

[14]              In response to Mr Stringer’s submission that I take a liberal approach, Mr Craig submits that it is worth narrowing down the evidence to what is admissible.

Should I determine the objections now?

[15]              I do not accept Mr Stringer’s submission that I should allow him to read all his proposed brief, and then simply determine the objections in the course of my substantive judgment. Both parties have had ample opportunity to express their position on the challenges, as the background above shows. I should determine the objections where I am able to do so.

Is there inadmissible submission in Mr Stringer’s brief?

[16]              I accept Mr Craig’s submission that there are many passages in Mr Stringer’s brief that stray into submission. Such passages are not evidence and should not be in Mr Stringer’s brief. High Court Rule 9.7(4)(d) reinforces this by stating that a brief “must not contain any material in the nature of a submission”. The place for that material is Mr Stringer’s opening and closing, not his brief.

[17]              I accept all Mr Craig’s objections on this ground, as marked up in blue on the “Amended Brief of Evidence of John C Stringer” dated 15 February 2022 (attached to Mr Craig’s memorandum of 23 February 2022), except the following:

(a)       [32];

(b)That part of [38] after the first sentence (the first sentence is clearly inadmissible on the ground of hearsay);

(c)       [39];

(d)      [46];

(e)       That part of [51] starting with the words “I have serious questions …”; (f)     [67];

(g)       [75];

(h)The last sentence of [104], except that Mr Stringer cannot give evidence of what his wife did or did not see;

(i)        [125];

(j) [138] and [139];

(k) [190]–[192].

Is there inadmissible hearsay in Mr Stringer’s brief?

[18]              Section 17 of the Evidence Act 2006 provides that a hearsay statement is, subject to certain exceptions, inadmissible. Mr Stringer has not relied on any exceptions.

[19]              There are two elements that make a statement a hearsay statement. A hearsay statement is a statement that:

(a)Was made by a person other than a witness; and

(b)Is offered in evidence to prove the truth of its contents.

[20]              Because of the first element, a statement made by Mr Craig is not a hearsay statement, since he is a witness in this proceeding.

[21]              Some of the passages to which Mr Craig objects are statements made by Ms Rachel MacGregor. Ms MacGregor is not a witness. However, the parties have agreed to admit as evidence in this proceeding Ms MacGregor’s evidence in three prior proceedings. For that reason, I have generally treated any statements made by Ms MacGregor as not being hearsay. However, I should make clear that if a witness in this proceeding gives evidence of a statement made by Ms MacGregor to prove the truth of the contents of the statement, and Ms MacGregor did not herself give evidence of that statement in one of the three prior proceedings (neither of which matter I am yet in a position to consider), I am likely to give the witness’s evidence very little if any weight.

[22]              Because of the second element, it is important to consider why the statement is being offered in evidence. It is only if the statement is offered to prove the truth of its contents that it is hearsay. With some of Mr Craig’s objections, it appears to me that Mr Stringer is offering the statement not to prove the truth of its contents but rather to prove his own state of mind (as a result of the statement having been made). This is the reason I have rejected some of Mr Craig’s objections under this head.

[23]              Some of the passages to which Mr Craig objects are obviously hearsay. For example, at [109] and [110], Mr Stringer purports to give evidence of statements made by a Ms Money to him, in which Ms Money relates a conversation she had with Ms MacGregor. It is clear from Mr Stringer’s brief that he offers this evidence to prove the truth of the statements he says Ms Money made to him. Ms Money is not being called as a witness. The statements are therefore hearsay and inadmissible.

[24]              I accept all Mr Craig’s objections on this ground, as marked up in green on the “Amended Brief of Evidence of John C Stringer” dated 15 February 2022 (attached to Mr Craig’s memorandum of 23 February 2022), except the following:

(a)       [22];

(b)[24], [25], [26], [27] and [88] (because I anticipate that Mr Stringer is relying on this not to prove the truth of what was told to him, but rather to prove what he believed);

(c)The penultimate sentence of [31], in which Mr Stringer says he felt betrayed and deceived (but he cannot give evidence about what others felt);

(d)[47], [48] and [73] (all being references to Ms MacGregor’s prior evidence);

(e) [69], [71], [117], [118], [120], [121] and [123] (these passages may be relevant to Mr Stringer’s defences, to the extent that those defences depend on Mr Stringer’s opinion); and

(f) [89] and [108].

Is there irrelevant evidence in Mr Stringer’s brief?

[25]              I accept all Mr Craig’s objections on this ground, as marked up in yellow on the “Amended Brief of Evidence of John C Stringer” dated 15 February 2022 (attached to Mr Craig’s memorandum of 23 February 2022), except the following:

(a)[24] (because what was in Mr Stringer’s mind is relevant to some of his defences);

(b)[56], [164] and [174]. To be clear, I have found it difficult to assess, at this stage of the trial, the relevance of these passages. It may be that I will in due course find them to be irrelevant and therefore inadmissible. I will allow them in on a provisional basis.

Is there inadmissible opinion evidence in Mr Stringer’s brief?

[26]              The effect of s 23 of the Evidence Act is that statements of opinion are generally inadmissible.

[27]              Some of Mr Craig’s objections are directed merely at adjectives (for example, Mr Stringer’s reference to the “fledgling” Conservative Party). With respect, I do not find it necessary to deal with those.

[28]              I accept all Mr Craig’s objections on this ground, as marked up in pink on the “Amended Brief of Evidence of John C Stringer” dated 15 February 2022 (attached to Mr Craig’s memorandum of 23 February 2022), except the following:

(a)[13], [20] and the first passage marked up in [157];

(b)[155] (this is not an expression of an opinion, rather Mr Stringer is offering evidence of one of the things the Board members consulted each other on);

(c)[123] (if Mr Stringer clarifies when this was clear to him);

(d)[133] (if Mr Stringer clarifies when he realised this);

(e)The second passage marked up in [157] (if Mr Stringer clarifies when he formed this opinion).

Conclusion

[29]              Mr Stringer may not read from his brief the passages that I have ruled inadmissible. I direct Mr Stringer to provide a replacement brief that has all those passages struck through (like this).

Campbell J