Grace v Orion New Zealand Limited
[2020] NZHC 2176
•26 August 2020
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-20176-409-000454
[2020] NZHC 2176
BETWEEN C GRACE AND OTHERS
Plaintiffs
AND
ORION NEW ZEALAND LIMITED
First Defendant
LEISURE INVESTMENTS NZ LIMITED PARTNERSHIP
Second Defendant
Hearing: 20 and 21 August 2020 Appearances:
C M Stevens and B R D Cuff, S K Battersby and C S M Henley for Plaintiffs
T C Weston QC and M J Dennett, R J H Scott and S M Crosbie for First Defendant
G N Gallaway, W J Hamilton and L A Merrick for Second Defendant
Ruling:
26 August 2020
RULING OF GENDALL J
Admissibility – Paul Donnellan
GRACE v ORION NEW ZEALAND LIMITED [2020] NZHC 2176 [26 August 2020]
[1] On Thursday and Friday last, 20 and 21 August 2020 when Mr Donnellan was giving evidence in this proceeding, Mr Weston QC, counsel for Orion New Zealand Limited, raised a number of objections to his evidence on admissibility grounds.
Paragraph 82
[2] One of those objections related to that part of paragraph 82 of Mr Donnellan’s brief of evidence where he stated:
I am aware that Police could not locate any evidence that the Early Valley Road fire was arson.
[3] Orion’s objection to this evidence was advanced on the basis that it was inadmissible hearsay in terms of s 17 of the Evidence Act 2006.
[4] In an earlier oral ruling dated 7 August 2020 I gave relating to an objection by Orion to the admissibility of certain evidence of Kenneth Ross McKenzie, I addressed a somewhat similar statement from Mr McKenzie where he said:
I understand the police found no basis for the allegations made by Mr Legat and Ms Levey to them that I should be investigated as an arson suspect.”
At paragraph [11] of that decision, I ruled this statement inadmissible as it fell within the definition of inadmissible hearsay evidence.
[5] On 21 August 2020, I gave an oral decision ruling that this paragraph 82 of Mr Donnellan’s evidence was also plainly hearsay and inadmissible. It was a statement offered in evidence to prove the truth of its contents and clearly here a representative of the police could have been called as a witness to confirm matters if required.
[6] A number of other objections from Mr Weston to the admissibility of statements made by Mr Donnellan have also been advanced. On 20 and 21 August 2020 I reserved my decision relating to those objections. I now give that decision.
Paragraphs 17 – 33 inclusive
[7] The first group of further objections advanced on behalf of Orion related to paragraphs 17 – 33 inclusive of Mr Donnellan’s brief of evidence. Mr Weston contended that essentially here this brief of evidence provided supplementary evidence or evidence in reply which effectively required the leave of the Court, pursuant to r 9.8 of the High Court Rules, and this leave had not been obtained.
[8]The brief of evidence of Mr Donnellan in question is dated 29 June 2020. Rule
9.8 of the High Court Rules states:
9.8Supplementary Briefs
(1)A party wishing to offer a supplementary brief must serve it as soon as possible.
(2)The acceptance and use of the supplementary brief in court will be at the discretion of the trial judge.
[9] Here, although the plaintiffs may not strictly have sought leave in this case, in balancing the overall justice and weighing any possible prejudice to all the parties concerned, I am satisfied that these paragraphs that address “Background to the Fire Investigations” and the early stages of Mr Donnellan’s part in the “Early Valley Road Fire Investigations” do provide some general background, are generally factual statements from Mr Donnellan of what he did at the time and, therefore, are not unduly prejudicial to the first defendant. They are properly allowed here.
[10] That said, insofar as it may be required, leave for this part of Mr Donnellan’s brief of evidence is granted. The objection against these paragraphs 17 – 33 is disallowed.
Paragraphs 39 – 46 inclusive
[11] Orion’s objection to these paragraphs 39 – 46 is also expressed on the basis that they are not in reply and are effectively supplementary evidence provided without leave in terms of r 9.8 of the High Court Rules.
[12] As to these paragraphs, those numbered 39 – 45 follow the heading “Effects of Loss on the Community” and paragraph 46 relates simply to the identification by Mr Donnellan of some of the witnesses he has interviewed in relation to the Early Valley Road fire.
[13] In his cross-examination of Mr Donnellan, Mr Weston asked certain questions relating to several of the paragraphs between 39 and 45 of this brief. In addition, and also in part, for the general reasons I have outlined above relating to paragraphs 17 – 33 of his evidence that also apply here, I find that, even if they might be considered not to be strictly in reply and thus providing supplementary evidence, little prejudice to Orion results from the admission of these paragraphs. The overall interests of justice in this case, as I see it, support the position that these paragraphs should be admitted.
[14] Insofar as it may be required, therefore, leave is also granted to the provision of this evidence in paragraphs 39 – 46 inclusive.
[15]Orion’s objection to these paragraphs is disallowed.
Paragraphs 43, 44, 45, 46 and 47
[16] Orion raises further specific objections to paragraphs 43, 44, 45, 46 and 47 on the basis, first, that it says these all contain inadmissible hearsay evidence in terms of s 7 of the Evidence Act 2006, and, secondly, they relate to statements of parties that have been taken but not supplied.
[17] As best I can tell, these paragraphs refer generally to residents in the area who were affected by the fire together with around 35 witnesses in relation to the Early Valley Road fire interviewed by Mr Donnellan.
[18] Paragraphs 43, 44 and 45 address impressions Mr Donnellan says he has gathered. These paragraphs outline broadly the impression which Mr Donnellan says he received when meeting and interviewing various residents. As an expert investigator, in my view, Mr Donnellan would have gained some insight into human reactions generally after major traumatic events. His comments here are to be
expected in a situation such as this and, as I see it, are largely innocuous given the overall circumstances of these events. It is perhaps unfortunate that any statements taken from witnesses have not been supplied but, as I understand the position from Mr Donnellan’s evidence, statements were either not recorded or may have gone astray.
[19] But, in any event, even if some of this evidence might fall within the definition of a hearsay statement in terms of s 17 of the Evidence Act 2006 I am satisfied that it is nevertheless admissible in terms of s 18. This is on the basis that the circumstances relating to the statements in question provide a reasonable assurance that the statement is reliable and that some of the witnesses concerned (with the possible exclusion of Mr Bayley and Mr and Mrs McKenzie, all of whom gave evidence here) might be generally either unavailable as witnesses or, alternatively, undue expense and delay would be caused here if they were all required to be called as witnesses.
[20] Accordingly, I rule again that these paragraphs 43 – 47 inclusive are admissible in the circumstances here.
Paragraph 53
[21]Paragraph 53 of Mr Donnellan’s brief states:
I do not find it [Mr McKenzie’s police statement dated 22 February 2017] unusual that there are small inconsistencies in some of the answers that he has made to police rather than to myself the day before. The slightly different information supplied is dependent on the way the questions are put to him by the interviewing officer. It is also dependent on the focus and understanding of that interviewing officer as to what information he was intending to extract.
[22] Orion objects to this paragraph in its entirety. This is on the basis that it is a submission in breach of r 9.7(4)(d) of the High Court Rules. This rule states in part:
9.7(4) Every brief –
…
(d)must not contain any material in the nature of a submission…
[23] In his cross-examination of Mr Donnellan, Mr Weston asked a number of questions directed at this paragraph 53 of his brief of evidence. He asked specifically what were the “inconsistencies” provided in Mr McKenzie’s police statement. Mr Donnellan set these out. Mr Donnellan went further and explained that in his considerable experience in interviewing people following tragedies such as this, he found that a traumatised person could be mistaken on a particular fact. Mr Donnellan added that he was providing the comments in paragraph 53 from his own experience and knowledge, first, as a police officer and, secondly, as an experienced investigator, and that he had formed his overall assessment of Mr McKenzie on the basis of his experience and his dealings with him.
[24] I accept here that Mr Donnellan from his past experience is properly seen as an expert in matters of this type. This is to include all manner of police and other investigations (including where arson allegations are made) and the general interviewing techniques used in such investigations. This, coupled with what I see, first, as Mr Weston’s significant cross-examination of Mr Donnellan which occurred relating directly to this paragraph 53 and, secondly, Mr Donnellan’s offering of an expert opinion on these matters, in my view, suggest that this paragraph 53 is not one that might be seen here as generally objectionable. The lines between expert opinion and general submission in situations like the present are necessarily somewhat blurred.
[25]Orion’s objection to this paragraph 53 is disallowed.
Paragraph 70
[26] In paragraph 70 of Mr Donnellan’s brief, under the heading “The Cyclist” he states:
70. Witnesses who were shown the cropped photograph said that this appeared to be the person that they had seen that had been watching the fire with them. Most were of the opinion, that the cyclist was more than likely a person riding past, who has come up the valley to see what was happening.
(emphasis added)
[27] Orion’s objection to this paragraph 70 is framed on the basis that it claims Mr Donnellan has refused to provide the statements made by these “witnesses who were shown the cropped photograph” of the cyclist.
[28] Once again, as I note also at [18] above (relating to earlier paragraphs in Mr Donnellan’s evidence) it is perhaps unfortunate that any statements taken from these witnesses have not been supplied but, as I understand it from Mr Donnellan’s evidence, statements here were either not recorded or may have gone astray.
[29] And again, in his cross-examination, Mr Weston asked Mr Donnellan to define what he meant by “most” in the second sentence of this paragraph 70. He also asked specifically whether any of these people were concerned the cyclist needed to be investigated as being someone who had been involved in the starting of the Early Valley Road fire. To this question, Mr Donnellan answered, “yes”. It is presumed that Orion will want the evidence relating to this aspect of paragraph 70 to be admissible.
[30] Orion’s objection to this paragraph 70, assuming it is still alive, is disallowed. The weight to be given to this evidence is always a matter for the Court, however.
Paragraph 87
[31]Paragraph 87 states:
87. Mr McKenzie knew that Ms Levey was working for the first defendant and that Orion were taking the stance the fire had been deliberately ignited rather than because of the expulsion fuse. The interview demonstrates that Ms Levey held the view that Mr McKenzie had an interest in fire.
[32] Orion contends this is inadmissible hearsay in terms of s 17 of the Evidence Act as well as comprising submission in breach of r 9.7(4)(d) of the High Court Rules. I agree. Although these are matters for Mr McKenzie and he is someone who did give evidence, under the circumstances here, I am satisfied this paragraph adds little and is appropriately ruled inadmissible.
[33] Orion’s objection to this paragraph 87 succeeds. This paragraph is inadmissible.
Paragraphs 88 – 102
[34] These paragraphs relate generally to matters contained in Ms Levey’s interview of Mr McKenzie. Orion’s objection to these paragraphs suggests also that they include submissions in breach of r 9.7(4)(d) of the High Court Rules.
[35] As an expert witness, I am satisfied that there are matters within some of these paragraphs which are properly in Mr Donnellan’s area of expertise and which do not necessarily offend the prohibition against a brief including submissions. As I have noted above, the lines between expert opinion and general submissions in situations like the present are necessarily somewhat blurred. Some material in these paragraphs do refer to general repetitive approach techniques of questioning. In my view, this is admissible. Other matters concern several factual statements from, for example, Mr McKenzie which were able to be properly tested when he gave evidence.
[36] Certain other statements, in my view, are rather inconsequential and can remain.
[37] But, overall, I find that paragraphs 100, 101 and 102 add little here and can properly be excluded. Orion’s objection to these paragraphs is upheld.
[38] As to the remaining paragraphs, I am satisfied that paragraphs 88 – 92 are generally unobjectionable, as are paragraphs 94 – 98. Orion’s objection to these paragraphs is dismissed.
[39] Paragraph 93 of Mr Donnellan’s brief also generally adds little, is unhelpful and overall, in my view, is inadmissible. I also uphold Orion’s objection to this paragraph 93.
Paragraph 109 – in part
[40]Paragraph 109 of Mr Donnellan’s brief states:
109. I am one of the most experienced Fire Factual Investigators in New Zealand. As a result I am regularly dealing with the victims who have suffered loss as a result of fire. I find this statement of Mr Legat
[as to Mr McKenzie’s behaviour being outside of the norm] objectionable and without support.
(emphasis added)
[41] Orion objects to the last (italicised) sentence of paragraph 109. This is Mr Donnellan’s statement that “I find this statement of Mr Legat objectionable and without support”. The objection suggests this comment is a submission in breach of r 9.7(4)(d) of the High Court Rules. Although a possible argument does exist that this statement might be more properly described as an opinion from an expert, in my view, the better view here is that this is an unsupported submission on an area of human behaviour outside Mr Donnellan’s direct area of expertise. This sentence in paragraph 109 also, in my view, generally adds little here. I find it is properly inadmissible. I rule accordingly.
...................................................
Gendall J
Solicitors:
DLA Piper New Zealand, Auckland Kennedys, Auckland
Chapman Tripp, Christchurch
Copy to
Craig Stevens Barrister, Wellington
Thomas Weston QC, Barrister, Tai Tapu
0
0
0