Hart v R

Case [2010] NZSC 91 23 July 2010

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IN THE SUPREME COURT OF NEW ZEALAND
SC 74/2009
[2010] NZSC 91
PHILLIP WAYNE HART
v
THE QUEEN
Hearing:18 November 2009

Court:Elias CJ, Blanchard, Tipping, McGrath and Wilson JJ
Counsel:S J Shamy for Appellant
M D Downs and T Epati for Crown

Judgment:23 July 2010

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS

Para No

Elias CJ [1]
Blanchard, Tipping, McGrath and Wilson JJ [23]

ELIAS CJ
[1]     The Evidence Act 2006 is significant legislation which restates the principles upon which evidence is admitted in court proceedings and substantially reforms the pre-existing law. It is the first stop when questions of admissibility arise. And in many cases it will be the last stop. In interpretation of the Act and where the Act is silent on a question of admissibility, ss 10 and 12 permit recourse to the common law, provided the common law is consistent with the purpose and principles of the Act. In this case, turning on the admissibility of a previous consistent statement under s 35(2) of the Act, a topic of conceptually unsatisfactory case law at common law, care needs to be taken not to stray from the text and principles of the new Act.
[2]     The complainant in a case of sexual offending was cross-examined in order to provide a basis for the defence case that she had invented the story in order to qualify for a lump sum ACC payment. Having ascertained that the defence intended to close on invention with this suggested motive, the trial Judge permitted the prosecutor in re-examination to lead from the complainant evidence of when she first became aware of her potential eligibility for an ACC lump sum payment and her disclosure of the sexual offending to a family friend before that time. The Crown was also permitted to call the family friend who gave evidence that the complainant had told him about the offending in an apparently spontaneous response to unrelated family stress and confirmed the timing of the disclosure as being some months before the time at which the complainant had said she knew of her eligibility for compensation.
[3]     The issue on the appeal is whether the statement made to the family friend should have been excluded in application of s 35(1) of the Act or whether it was admissible within the exception in s 35(2) as an answer to an attack on the complainant’s veracity based on recent invention of the account of the incident given in her evidence to the court.
The text, legislative history, and purpose of s 35
[4]     Section 35(1) of the Act provides that:
(1)A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

[5] Exceptions to the general rule are contained in s 35(2) and (3). Only s 35(2) is of direct relevance to the present appeal. It provides:
(2)A previous statement…

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 Hart v R

Details

AGLC: Hart v R [2010] NZSC 91
Case: [2010] NZSC 91
Decision Date: 23 July 2010

CaseChat Overview and Summary

Phillip Wayne Hart appealed against his conviction on charges of sexual offending involving a complainant. The appeal was dismissed by the Court of Appeal. Hart's counsel, Shamy, submitted that the complainant's previous consistent statement should not have been admitted as it did not amount to putting forward a claim of recent invention. The Crown argued that the consistent statement did not have to predate the claimed recent invention. The court considered three issues: the admissibility of the complainant's statement, the use to which that evidence could be put if it was admissible, and how the answers to those two issues affect the validity of the appellant's convictions. The court held that the complainant's previous consistent statement was correctly admitted under s 35(2) of the Evidence Act 2006 and that the trial judge did not correctly direct the jury on the use to be made of that statement, but his misdirection was favourable to the appellant and no miscarriage of justice thereby arose. The appeal was dismissed.

Orders