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R v Austen

R v Austen

Case [2017] NZHC 2633 27 October 2017

Admissibility of Evidence

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE

CRI-2016-085-2833

[2017] NZHC 2633

THE QUEEN

v

SUSAN DALE AUSTEN

Hearing: 9 and 20 October 2017

Counsel:

P K Feltham for Crown

D L Stevens QC for Defendant

Judgment:

27 October 2017

JUDGMENT OF THOMAS J

Table of Contents

Introduction............................................................................................................. [1]
Background.............................................................................................................. [3]

Admissibility of hearsay........................................................................................ [11]

Implied assertions................................................................................................ [24]
Issues....................................................................................................................... [30]

Do the circumstances relating to the making of the statements provide reasonable assurance they are reliable?.................................................................................................... [36]

(a)Nature of the statements.............................................................................. [36]

R v AUSTEN [2017] NZHC 2633 [27 October 2017]

(b)Contents of the statements........................................................................... [38]
(c)Circumstances relating to the making of the statements.............................. [57]
(d)Circumstances relating to the veracity of the person.................................. [62]
(e)Circumstances relating to the accuracy of the observation of the person .. [63]

Consideration...................................................................................................... [69] Implied assertions............................................................................................................. [86]

Is the probative value of the evidence outweighed by the risk it will have an unfairly prejudicial effect on or needlessly prolong a proceeding?..................................................... [89]

Result...................................................................................................................... [99]

Introduction

[1] The defendant, Susan Austen, awaits trial on two charges of importing a Class C controlled drug,1 one representative, and one charge of aiding Annemarie Treadwell to commit suicide.2

[2] This decision deals with the Crown’s notice of intention to offer a hearsay statement in respect of entries in Mrs Treadwell’s diary. This is opposed by the defence.3

Background

[3] Mrs Treadwell was 77 years old and lived in the Rita Angus Retirement Village in Kilbirnie, Wellington. On 7 June 2016, she was found dead in her bedroom. She left a suicide note addressed to her daughter, which was located in the drawer of the bedside table. Mrs Treadwell’s diary was on top of the bedside table. The last entry in the diary was dated 5 June 2016.

[4] The post-mortem examination determined the cause of death was pentobarbitone toxicity. The toxicology analysis reported the presence of pentobarbitone in the blood at a level (approximately 15 mg/L) quoted to be within the range associated with overdose fatalities (>10 mg/L).

1      Misuse of Drugs Act 1975, s 6(1)(a).
2      Crimes Act 1961, s 179(1)(b).
3      The Crown’s application for an order as to the admissibility of evidence intercepted pursuant to a surveillance device warrant does not require consideration given Ms Austen’s confirmation she no longer pursues her challenge. The defence application for a discharge pursuant to s 147 of the Criminal Procedure Act 2011 was withdrawn following the filing of further written statements and the Crown exhibit list.

[5] Police inquiries revealed Mrs Treadwell was a supporter of the Voluntary Euthanasia Society (VES) and EXIT International (EXIT), organisations advocating legislation of euthanasia. Ms Austen is the coordinator of the Wellington chapter of EXIT and involved in VES.

[6] A surveillance device…

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 R v Austen

Details

AGLC: R v Austen [2017] NZHC 2633
Case: [2017] NZHC 2633
Decision Date: 27 October 2017

CaseChat Overview and Summary

The defendant, Susan Austen, is awaiting trial for two charges of importing a Class C controlled drug and one charge of aiding Annemarie Treadwell to commit suicide. The High Court of New Zealand considered the Crown’s application to admit hearsay statements from Mrs Treadwell’s diary. The court identified three issues: whether the diary entries are hearsay, whether the circumstances provide reasonable assurance of reliability, and whether the probative value of the evidence is outweighed by the risk of unfairly prejudicial effect. The court concluded that the diary entries are hearsay, and the circumstances surrounding their making provide reasonable assurance of their reliability. The court found that the probative value of the evidence is not outweighed by the risk of unfairly prejudicial effect. The court granted the Crown’s application to admit the diary entries as evidence in the trial.

Orders