The appeal concerns the conditions upon which the Evidence Act 2006 permits a witness to be contradicted on examination by the party who calls him by reference to a previous statement made by the witness inconsistent with the evidence he has given. The appellant argues that such contradiction is cross-examination which can be undertaken in conformity with s 94 of the Act only following a determination of hostility.
A previous inconsistent statement is not hearsay for the purposes of the Act if the maker of the statement is called as a witness.[1] It does not therefore attract the former common law restrictions and may be admitted as truth of its contents even if not adopted by the witness. Nor is an inconsistent previous statement subject to the limitations on the introduction of previous consistent statements under s 35.[2] In addition, if offered as proof of the facts in issue rather than to challenge the veracity of the witness, a previous inconsistent statement is not subject to the restriction in s 37(4)(a) on the party calling the witness offering evidence to challenge the witness’s veracity without a prior determination that the witness is hostile.
[1]Section 4 of the Evidence Act 2006 defines “hearsay statement” to apply only to statements made by a person who is not a witness.
[2]Section 35 applies to “a previous statements of a witness that is consistent with the witness’s evidence”.
Whether the previous statement by the witness was otherwise admissible under the Act is not directly in issue on the appeal because it was not offered in evidence. Nor were its contents elicited by “cross-examining a witness called by another party” (as the definition of “offer evidence” in the Act envisages is permissible).[3]Instead, the contents of the previous statement which contradicted the witness’s testimony were led from the witness by the party calling her in re‑examination.For the reasons that follow, I am of the view that the fact that other impediments under the Act would not have applied to restrict the introduction of the statement does not affect the need for compliance with s 94 where the inconsistency of the statement was put to the witness by the party calling her to challenge the account she had given in evidence. Determination of the appeal turns on distinct application of s 94, such as was undertaken by this Court in Rongonui v R[4] and Morgan v R.[5] I consider that the trial Judge erred in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hannigan v R

Details

AGLC: Hannigan v R [2013] NZSC 41
Case: [2013] NZSC 41
Decision Date: 26 April 2013

CaseChat Overview and Summary

The appeal by the appellant, Shane Daniel Hannigan, against his conviction of arson was dismissed by the Supreme Court of New Zealand. The conviction was based on evidence from the appellant's wife, who gave evidence for the Crown. The appeal hinged on the contention that the trial judge had erred in allowing the prosecutor to cross-examine the appellant's wife on her previous inconsistent statement without first determining that she was hostile. The Supreme Court found that the trial judge had not erred in law and dismissed the appeal. The court held that the questions put to the appellant's wife by the prosecutor amounted to re-examination rather than cross-examination. The questions were not leading and did not require a determination of hostility under s 94 of the Evidence Act. The court also held that the previous inconsistent statement was independently admissible and could be referred to in re-examination without compliance with s 94. The court found that the previous statement could not be introduced in evidence to challenge the witness's veracity without a determination of hostility under s 37(4)(a). However, the court held that the need for the "practical operation" of the legislation did not prevent observance of s 37(4)(a) in cases where a previous inconsistent statement was offered by the party calling the witness both as proof of the truth of its contents and to challenge the veracity of the witness in the evidence given in the proceedings. In such cases of overlap, the court held that a determination of hostility must be sought if the statement was to be used to impugn the veracity of the witness.

Orders