Grace v Orion New Zealand Limited

[2020] NZHC 1998

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-000454

[2020] NZHC 1998

BETWEEN

C GRACE AND OTHERS

Plaintiffs

AND

ORION NEW ZEALAND LIMITED

First Defendant

LEISURE INVESTMENTS NZ LIMITED PARTNERSHIP

Second Defendant

Hearing:

7 August 2020

Counsel:

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:

7 August 2020

ORAL RULING OF GENDALL J

Admissibility of Evidence – Kenneth Ross McKenzie

[1]    The Court has been in the midst of hearing the  evidence-in-chief  of  Kenneth Ross McKenzie (Mr McKenzie), one of the plaintiffs called to give evidence for all the plaintiffs.  Issues  have  arisen  regarding  the  admissibility of  parts  of Mr McKenzie’s evidence raised on behalf of the first defendant by Mr Weston.

[2]    The objections by the first defendant to Mr McKenzie’s evidence are that it is said to be inadmissible and refer to the following:

GRACE v ORION NEW ZEALAND LIMITED [2020] NZHC 1998 [7 August 2020]

(a)The first is paragraph 7 which states in part:

I disagree with Mr Legat’s definition of a “person of interest”. My understanding is it is a term used quite specifically by police for referring to a suspect. He has labelled me a suspected arsonist responsible for the Fire.

Mr Weston contends this is inadmissible opinion evidence in terms of s 23 of the Evidence Act and, further, it offends in terms of r 9.7(4)(d) of the High Court Rules.

(b)Secondly, paragraph 8 of Mr McKenzie’s reply brief of evidence is objected to.

This states (at paragraph 183(b)): Mr Legat details the reasons for why he classified me as a person of interest. These so- called reasons are baseless when making a serious allegation about me committing a crime that endangered the life of my wife and friends and neighbours on Early Valley Road. I cannot believe that someone who is supposed to be a professional and an experienced police officer is prepared and able to make these types of allegations without any evidence, in open court.

The first defendant objects to the majority of this on the basis that it is said to be inadmissible opinion evidence in terms of s 23 of the Evidence Act and, further, it is a submission in terms of r 9.7(4)(d) of the High Court Rules.

(c)Thirdly, paragraph 9 of the reply brief of Mr McKenzie is objected to where he states:

It was humiliating to find out from neighbours that they had been questioned about me as well.

The first defendant maintains this is inadmissible hearsay in terms of s 17 of the Evidence Act.

(d)Fourthly, paragraph 10 of Mr McKenzie’s reply brief is objected to where he states:

I just do not understand why Mr Legat and Ms Levey have targeted me like this. Why would I light a fire directly downhill and downwind of my own house where my wife was at the time and which resulted in us suffering over $300,000 uninsured losses? We have had to pay for those losses out of our own pocket. My wife was seriously endangered by the Fire and any suggestion I had anything to do with this Fire is insulting.

It is said this evidence is inadmissible in that it is a submission in terms of r 9.7(4)(d) of the High Court Rules and s 23 of the Evidence Act.

(e)Fifthly, paragraph 29 of Mr McKenzie’s reply brief is the subject of an objection. It says:

I understand the police found no basis for the allegations made by Mr Legat and Ms Levy to them that I should be investigated as an arson suspect.

Mr Weston says this evidence is inadmissible hearsay in terms of s 17 of the Evidence Act.

(f)Lastly, paragraph 35 of Mr McKenzie’s reply brief is the subject of an objection. It says:

I had realised by this time that other people were not being questioned in the same way that I was and that I was clearly her main focus. This was unfair and made me feel very uncomfortable and would explain any difference in my natural demeanour/presentation. Given the accusatory nature of the questions I do not think I acted out of the ordinary especially after what I had been through.

Mr Weston says that this evidence is inadmissible hearsay in terms of s 17 of the Evidence Act and offends against the submission rule in 9.7(4)(d) of the High Court Rules.

[3]    At the outset I need to make clear that Mr Weston emphasised in his background discussion before me today that there is  no  allegation  by Orion  that Mr McKenzie is an arsonist or deliberately lit the fire concerned. But, notwithstanding this, Mr Weston quite properly acknowledged before me that Mr McKenzie must be entitled to say in his evidence that it was not him who caused the fire.

[4]    Turning now to address, first, the inadmissible opinion rule contained in s 23 of the Evidence Act, this states:

23.      Opinion Rule

A statement of an opinion is not admissible in a proceeding, except as provided by s 24 or 25.

[5]    Section 25 probably has no application here as it relates to admissibility of evidence by an expert and Mr McKenzie is not regarded as an expert here.

[6]Section 24, however, states:

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard or otherwise perceived.

[7]    In the present case, as I understand it, part of the defence to be advanced by the first defendant, in particular, is that the Early Valley Road fire might well have been caused by an arsonist. In a recent updated Fire and Emergency New Zealand report which is before the Court, paragraph 8 on page 1 of this revised report states:

8. This revised report still classifies this fire as undetermined. As we consider there are two possible ignition sources: the arcing clamp and arson.

[8]    As I understand the position, arson is advanced by the first defendant here, in particular, as a live issue in this case. And on all of this, as I understand it, the evidence of the fire investigator employed by the first defendant, Mr Legat, includes suggestions that Mr McKenzie was a person of interest both for the investigators and possibly later it seems, as events transpired, for the police concerning the cause of the Early Valley Road fire. I understand, too, that Mr Legat went further at one point and set out in his material certain reasons why he considered that the person of interest he had referred to might be considered further as a possible arsonist here. There were, in fact, as I understand it now, two individuals mentioned, without being named, as possible persons of interest by Mr Legat.

[9]    Given these matters, the fact that in his reply brief Mr McKenzie might wish to address allegations, to use his language, “made against him” and to respond to

Mr Legat’s possible contentions, seems to me, to be understandable in the circumstances here. Much of the evidence he provided in his reply brief, as I see it, might simply be seen as rebuttal evidence. With all these matters in mind, even if paragraphs 7, 8 and 10 of his reply brief do include opinion evidence which would be otherwise inadmissible, in my view, it is admissible here because in terms of s 24 of the Evidence Act it might be seen as an opinion which is necessary for the Court to understand what Mr McKenzie perceived here from the evidence the first defendant is to provide from Mr Legat and to which he needed to respond. And, in any event, it represents, in my view, matters which Mr McKenzie wishes to place before the Court in what he describes as his defence to serious suggestions made against him.

[10]   So far as paragraph 9 of Mr McKenzie’s reply brief is concerned, I accept, however, that technically it is inadmissible hearsay. It does, however, describe events which form part of Mr McKenzie’s overall reactions to the events in question. Nevertheless, even though it may add little to the overall thrust of Mr McKenzie’s other evidence in his reply brief relating to these events, it is technically hearsay and it is inadmissible. I rule accordingly relating to this paragraph 9.

[11]   And so far as paragraphs 29 and 35 of Mr McKenzie’s reply brief are concerned, whilst there may be some issue as to whether these properly fall within the definition of inadmissible hearsay evidence, in any event, as I understand it, the matters addressed in paragraph 29 deal with a factual situation. Notwithstanding this, I conclude, by a fine margin, that the matters in paragraph 29 are inadmissible here and I rule accordingly.

[12]   The matters in paragraph 35 represent confirmation of Mr McKenzie’s reaction to the situation which confronted him when he received Mr Legat’s evidence. His response was understandable, in my view, and adds little to overall matters. I rule that paragraph 35 of the reply brief is admissible here.

[13]   Lastly, Mr Weston, for the first defendant, contended that paragraphs 7, 8, 10 and 35 of Mr McKenzie’s reply brief contained material in the nature of a submission which is prohibited in a brief in terms of r 9.7(4)(d) of the High Court Rules. As to

this s 83(2) of the Evidence Act provides that a written statement such as a brief may be given in evidence only if it:

(a)is the personal statement of the maker; and

(b)does not contain an inadmissible statement.

[14]   While certain matters in these paragraphs 7, 8, 10 and 35 might, in my view, be considered to be material in the nature of a submission advanced by Mr McKenzie, under all the circumstances prevailing here, and given the purpose of this reply brief, this might be seen as somewhat understandable. Mr McKenzie, after all, was responding to what he saw were potentially serious contentions made against him and, clearly, he had a right and a need to make that response. Minor transgressions into submissions, if indeed the parts of his evidence said to be offending, fall into this category, as I see it, might be explicable in this way.

[15]   Overall then, in all the circumstances here, I dismiss the first defendant’s objection to those portions of paragraphs 7, 8, 10 and 35 of Mr McKenzie’s reply brief that I note above. The objection, however, succeeds with respect to those parts of paragraphs 9 and 29 of his reply brief and I direct that those parts of paragraphs 9 and 29 are inadmissible here.

[16]   Lastly, I need to address a direction I made last night, 6 August 2020, which prevented media at that point from reporting on the reply brief of evidence read in this Court by Mr McKenzie yesterday afternoon.

[17]   Given the admissibility rulings I have just made in this decision, and the fact that all this evidence has been given in open Court to date, I now rescind that earlier direction. Media may report on matters contained in Mr McKenzie’s reply brief apart from those parts of paragraphs 9 and 29, which I note above, if they so choose.

...................................................

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