L (SC 80/2023) AND THE KING - [2024] NZSC 153

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF ANY COMPLAINANT UNDER THE AGE OF 18 YEARS WHO APPEARED AS A WITNESS PROHIBITED BY S 204 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

NOTE: ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 OF THE CRIMINAL PROCEDURE ACT 2011 REMAINS IN FORCE. SEE

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 80/2023
[2024] NZSC 153

BETWEEN	L (SC 80/2023) Appellant
AND	THE KING Respondent

Hearing:	19 March 2024
Court:	Glazebrook, Ellen France, Williams, Kós and Miller JJ
Counsel:	H G de Groot and M J McKillop for Appellant E J Hoskin and R K Thomson for Respondent
Judgment:	11 November 2024

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS

Para No
Ellen France, Williams and Miller JJ	[1]
Kós J	[122]
Glazebrook J	[148]

ELLEN FRANCE, WILLIAMS AND MILLER JJ
(Given by Ellen France J)

Table of Contents

Para No
Introduction	[1]
Background	[8]
Narrative of events	[10]
The hearsay evidence ground of appeal	[16]
The trial	[21]
The Court of Appeal judgment	[25]
The statutory scheme	[28]
The current Act	[40]
The New Zealand jurisprudence	[46]
The United Kingdom authorities	[59]
The approach to s 16(2)(b)	[68]
An unwilling proposed witness	[83]
Application of the relevant factors to this case	[107]
Result	[121]

Introduction

At his trial on a number of charges of sexual offending, the appellant was not permitted to offer evidence of a statement from a proposed witness, C, who was in Australia at the time of the trial and unwilling to give her evidence via audiovisual link.[1] Because the statement would have been put before the Court by someone other than C to prove the truth of its contents, the proposed evidence came within the definition of hearsay evidence in the Evidence Act 2006 (the 2006 Act).[2] Hearsay evidence is not admissible except as provided for in the 2006 Act, or by other statutory provisions.[3]
[1]R v [L] [2021] NZDC 13278 (Judge Bergseng) [DC reasons judgment].
[2]A “hearsay statement” is defined in the Evidence Act 2006 as one “made by a person other than a witness” which “is offered in evidence at the proceeding to prove the truth of its contents”; and a “statement” is defined as “(a) a spoken or written assertion by a person of any matter; or (b) non‑verbal conduct of a person that is intended by that person as an assertion of any matter”: s 4(1).
[3]Evidence Act, s 17.
Section 18(1) of the 2006 Act provides that a hearsay statement is admissible if “the circumstances relating to the statement provide reasonable assurance that the statement is reliable” and, either, the person who made the statement is “unavailable” as a witness, or the court finds that requiring the maker of the 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.

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Details

Case: [2024] NZSC 153
Decision Date: 11 November 2024

CaseChat Overview and Summary

The appellant, L, was convicted on multiple charges of sexual offending and appealed against his conviction. One ground of appeal was that the District Court was wrong to refuse to admit a hearsay statement from a proposed witness, C, who was in Australia and unwilling to give evidence. The Court of Appeal rejected the appeal. The appellant now appeals to this Court. The Court granted leave to appeal on the question of whether the Court of Appeal was correct to dismiss the appeal. The principal issue is whether C was “unavailable” as a witness under s 16(2)(b) of the Evidence Act 2006 because, although arrangements could be made for her to give evidence remotely, and steps had been taken to facilitate that, C nonetheless remained unwilling to give evidence. The Court held that the inquiry under s 16(2)(b) is a contextual one, primarily directed to the logistics or practicalities of obtaining the evidence because the proposed witness is overseas. Several factors will be relevant in determining whether the proposed witness is unavailable, including the steps taken to obtain evidence from the proposed witness, the effort and cost involved in the proposed witness giving evidence, any resulting inconvenience to the proposed witness, the nature of the case, and the importance of the evidence to the case. The primary focus of the inquiry is on the logistics or practicalities of obtaining the evidence. In this case, the Court held that all reasonable efforts had been made to secure C’s attendance. C was unwilling to give evidence, and it was not reasonably practicable for her to be a witness. The appeal is dismissed.

Orders