R v Austen
[2017] NZHC 2633
•27 October 2017
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 warrant was issued by the High Court on 29 September 2016 to intercept the private communications of Ms Austen.
[7] Ms Austen was arrested on 7 October 2016. She was located in her vehicle with an elderly friend in the course of dividing pentobarbitone into individual plastic bags.
[8] When interviewed, Ms Austen confirmed she was involved with VES and EXIT but otherwise declined to answer questions relating to the death of Mrs Treadwell. Ms Austen accepted that pentobarbitone was talked about at meetings of EXIT and referred to the publication of the Peaceful Pill handbook written by Philip Nitschke,4 which she said contained information as to obtaining pentobarbitone via the internet. Ms Austen accepted she had been in possession of pentobarbitone on the morning of her arrest but otherwise declined to discuss any involvement with pentobarbitone.
[9] The defence accepts Mrs Treadwell committed suicide, that she was a member of EXIT and VES and that some, at least, of Mrs Treadwell’s diary entries relating to “Suzy” refer to Ms Austen. The fact of contact between Ms Austen and Mrs Treadwell is established by telephone records and email communications, and that they both attended EXIT meetings is not denied.
[10]The issue is whether Ms Austen aided Mrs Treadwell in her suicide.
4 Former physician, founder and director of EXIT International and the first doctor in the world to administer a legal, voluntary lethal injection in Australia’s Northern Territory (law subsequently repealed).
Admissibility of hearsay
[11] The admission of hearsay evidence is governed by ss 16 to 22 of the Evidence Act 2006 (the Act). A hearsay statement is defined in the Act as:5
hearsay statement means a statement that—
(a)was made by a person other than a witness; and
(b)is offered in evidence at the proceeding to prove the truth of its contents.
[12] If the relevance of the statement depends on the truth of the contents of the utterance (rather than the inferences drawn from what was said or written), then it is a statement and hearsay if the maker will not be a witness.
[13] A hearsay statement may be admitted only pursuant to the Act or some other Act.6 The admissibility of statements of persons not called as a witness is governed by the general admissibility provision which reads:
18 General admissibility of hearsay
(1)A hearsay statement is admissible in any proceeding if—
(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b)either—
(i)the maker of the statement is unavailable as a witness; or
(ii)the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
[14]A witness is unavailable if dead.7
[15] Section 16(1) provides a non-exhaustive list of the circumstances of the statement:
5 Evidence Act 2006, s 4(1).
6 Section 17.
7 Section 16(2)(a).
circumstances, in relation to a statement by a person who is not a witness, include—
(a)the nature of the statement; and
(b)the contents of the statement; and
(c)the circumstances that relate to the making of the statement; and
(d)any circumstances that relate to the veracity of the person; and
(e)any circumstances that relate to the accuracy of the observation of the person
[16] In considering s 18, the Supreme Court in R v Gwaze noted the importance of considering all the s 16(1) circumstances in a hearsay assessment:8
[45] … the definition of “circumstances” for the purpose of hearsay evidence makes it clear that the inquiry into reliability must include not only accuracy of the record of what is said and the veracity of the person making the statement, but also the nature and contents of the statement, and the circumstances relating to its making. ...
[17] The Court of Appeal has addressed the question of whether there is reasonable assurance the statement is reliable in the following way:9
The issue of reliability is ultimately a jury matter. A court, when considering admissibility under s 18(1), does not have to assess the reliability of the hearsay statement against the criminal standard of proof. What is instead required is a scrutiny of the circumstances surrounding the statement and an assessment, in that context, that there is a “reasonable assurance” the statement is reliable. If admitted, the function of weighing up the surrounding circumstances of the hearsay evidence and assessing its overall reliability passes to the jury.
[18]More recently, the Court has stated:10
The role of the trial judge considering an application to admit hearsay evidence is that of gatekeeper. Ajudge must first consider, under s 18, whether the proposed hearsay statement has sufficient reliability to be admitted into evidence at all. What weight is accorded the evidence is then a matter for the finder of fact.
8 R v Gwaze [2010] NZSC 52, [2010] 3 NZLR 734.
9 TK v R [2012] NZCA 185 at [23]; reaffirmed in Preston v R [2016] NZCA 586, [2017] 2 NZLR 358 at [41]. See also Adams v R [2012] NZCA 386 at [26]–[28]; and Orji v R [2013] NZCA 629 at [56].
10 Angus v R [2017] NZCA 454 at [7].
[19] Even if the two requirements of s 18 are met, the statement must still be assessed for admissibility under ss 7 and 8 of the Act.11 That is, the Court must consider whether the probative value of the evidence is outweighed by the risk it will have an unfairly prejudicial effect on the proceeding.
[20] While the right to cross-examine a witness is important, the absence of the witness needs to create a risk of unfairness in the proceeding.12 Neither the Act nor the Bill of Rights Act 1990 provides that the opportunity to cross-examine is an absolute right. Rather, that inability needs to be considered in the context of prejudice to the defence.
[21]In R v Baker, Cooke P, while recognising evidence as hearsay, said:13
If the evidence is admitted the Judge may and where the facts so require should advise the jury to consider carefully both whether they are satisfied that the witness can be relied on as accurately reporting the statement and whether the maker of the statement may have exaggerated or spoken loosely or in some cases even lied. The fact that they have not had the advantage of seeing that person in the witness box and that he or she has not been tested on oath and in cross-examination can likewise be underlined by the Judge as far as necessary.
[22] This requirement is now encapsulated in the Act. If the Judge presiding over a jury trial is of the opinion any evidence which is admissible may nevertheless be unreliable, the Judge may warn the jury of the need for caution in deciding whether to accept the evidence and the weight to be given to it. The Judge must consider whether to give such a warning in a case of hearsay evidence.14
[23] In summary, for a hearsay statement to be admissible, the Court must be satisfied:
(a)the notice requirement of s 22 of the Act is met;
(b)the witness is unavailable;
11 Preston v R, above n 9, at [42].
12 Bishop v Police HC Gisborne CRI-2008-416-003, 28 February 2008 at [33].
13 R v Baker [1989] 1 NZLR 738 (CA) at 741.
14 Evidence Act 2006, 122(1) and (2).
(c)the circumstances relating to the making of the statement provide reasonable assurance it is reliable; and
(d)the probative value of the evidence is not outweighed by the risk it will have an unfairly prejudicial effect on or needlessly prolong a proceeding.
Implied assertions
[24] A further issue in this case is the application of the hearsay rule to implied statements. The Act defines “statement” as including a “spoken or written assertion by any person of any matter”.15 An essential characteristic of an assertion is that the person asserting is intending to make a statement, or assert a fact or opinion. The Court of Appeal has explained:16
If the speaker intended to convey the meaning relied upon, the statement falls within the definition. If the speaker did not so intend but reliance is nevertheless sought to be placed upon the inferences sought to be drawn from the statement, the statement will fall outside the definition.
[25]The learned authors of The Evidence Act 2006: Act & Analysis say:17
It is only when an (intended) assertion is clearly indicated by the words spoken that the utterance amounts to a statement for the purposes of the hearsay rule. Or to put this another way, if the relevance of the words or conduct arises entirely from the inferences which can be logically drawn from the words or conduct and the surrounding circumstances, then it is not an assertion and is outside the definition of “hearsay statement”.
[26] Implied assertions are not caught by the hearsay rule. Rather they are pieces of circumstantial evidence from which the fact finder may draw inferences.
[27] This is of relevance in this case given the somewhat cryptic comments in some of the entries in Mrs Treadwell’s diary and the inferences the Crown proposes to ask the jury to draw.
15 Section 4(1).
16 Preston, above n 9, at [43].
17 Richard Mahoney and others The Evidence Act 2006 Act & Analysis (3rd ed, Wellington, Brookers Limited, 2014) at [EV4.20.02] (citations omitted).
[28] Whether words are hearsay or an implied assertion can be determined by first identifying the relevance of the words. Then, if the relevance of the words arises entirely from the inferences which can logically be drawn from them or surrounding circumstances, the words constitute an implied or unintended assertion, not a statement and are outside the definition of hearsay.
[29] For example, in R v Holtham, unanswered text messages to an alleged drug supplier in which the senders used jargon when seeking to buy methamphetamine were classified as outside of the definition of hearsay.18 The messages were relevant as circumstantial evidence from which it could be inferred the accused was a drug dealer, but the messages themselves did not amount to assertions by the senders that he was. Admissibility was considered by reference only to ss 7 and 8.
Issues
[30] The Crown’s hearsay notice initially referred to the whole of Mrs Treadwell’s diary. Ms Feltham for the Crown confirmed there were selected passages only on which the Crown proposed to rely but, in fairness to the defence, the Crown considered the whole of the diary should be available to provide the jury with context.
[31] Counsel and I discussed the need to identify each entry to be led, the purpose for leading the entry, and whether the various entries were hearsay or not, including the need to address the issue of implied assertions. The Crown then provided a table of the diary entries on which it proposed to rely.
[32] Following that being produced, the issues to be determined were clarified. These are:
(a)Are the entries hearsay?19 If so:
18 R v Holtham [2008] 2 NZLR 758 (HC) at [44]. While this case has not been specifically endorsed by appellate courts, the approach is endorsed in Preston, above n 9 at [43]. It has been referred to without criticism in Charlton v R [2016] NZCA 212; and McKenzie v R [2013] NZSC 109 (an application for leave decision).
19 Mrs Treadwell is clearly unavailable given her death. The Crown’s hearsay notice meets the notice requirement of s 22 of the Act.
(i)Do the circumstances relating to their making provide reasonable assurance they are reliable?
(ii)Is the probative value of the evidence outweighed by the risk it will have an unfairly prejudicial effect on the proceeding?
(b)If the entry is an implied assertion, then is its probative value outweighed by the risk it will have an unfairly prejudicial effect on the proceeding?
[33] In saying that, the defence objects to the admissibility of the entries in the diary principally on the grounds there cannot be reasonable assurance they are reliable and that the defence will be unfairly prejudiced given Mrs Treadwell’s unavailability for cross-examination. In Dr Stevens’ submission, this affects all the entries the Crown seeks to have admitted, whether hearsay or implied assertions, because reliability and ability to cross-examine is also relevant to prejudice.
[34] In many ways, it is entirely artificial in a case like this to attempt to separate any one diary entry into what is hearsay and what is an implied assertion. The Court of Appeal, in the context of a text message of less than four full lines, said the text must be read as a whole because it was one composite statement with one overall intended purpose, and any attempt to compartmentalise it between express or implied assertions was artificial.20
[35] The Crown has separated each extract from the diary into hearsay and implied assertions. There is, of course, more scope to do this in the context of a diary rather than a text message. Due to their length, there is a possibility of more than one purpose to each diary entry. In identifying specific extracts, the Crown has sufficiently reduced the length to avoid multiplicity of purposes. I am satisfied that to the extent the extracts involve a mixture of both hearsay and implied assertion, they are sufficiently intertwined such that compartmentalising them would be artificial and unhelpful. Admissibility therefore falls to be considered under the higher threshold of hearsay.
20 Dyer v R [2014] NZCA 34 at [8].
Do the circumstances relating to the making of the statements provide reasonable assurance they are reliable?
(a)Nature of the statements
[36] In submitting the circumstances relating to the statements provide reasonable assurance of their reliability, the Crown referred first to the “nature” of the statements being in the personal journal of Mrs Treadwell. Mrs Treadwell’s daughter confirmed her mother had completed a daily diary for some years. The diary is a handwritten first-person account detailing Mrs Treadwell’s daily activities, thoughts and plans. For example, in the entry dated 30 December 2015, Mrs Treadwell noted the diary contained “all about my deepest thoughts, longings, regrets and joyful occasions”.
[37] In Dr Stevens’ submission, a diary by its very nature cannot necessarily be expected to be accurate. Because it is a private journal, the thoughts recorded in it may not be intended to be a true record, he said, and some of the entries may be accurate, others may not be. In Dr Stevens’ submission, the author would never have anticipated the diary would later be relied upon for its accuracy and used as evidence.
(b)Contents of the statements
[38] The Crown then referred to what Ms Feltham said was the probative quality of the various entries in respect of the charge of aiding suicide, as set out in the following paragraphs.
[39] The entries record Mrs Treadwell’s commitment to EXIT, her concern about the effect of what can be taken to be reference to her suicide on her daughter, the sorting out of her practical affairs and donations to charity. Ms Feltham submitted the jury can be satisfied this is true. The entries are supported by other evidence, including that of Mrs Treadwell’s daughter.
[40] Ms Feltham submitted the diary entries from late 2015 show instances of Mrs Treadwell confiding in Ms Austen about what can be inferred to be the timing of her suicide and seeking Ms Austen’s guidance and support. She said it was clear that references to “Suzy” are to Ms Austen given Ms Austen acknowledged in her police interview that was how she was addressed and she accepted her longstanding contact
with Mrs Treadwell and that they discussed matters of a personal nature. References in some of the entries to “Mike”, the name of Ms Austen’s husband, provide further support for this interpretation.
[41] A Crown witness will produce as an exhibit a booklet containing “EXIT workshop disclaimers” wherein there are a large number of documents each with an EXIT logo and a signed and witnessed statement recording:
I acknowledge that none of the information provided in this workshop will be used in anyway [sic] to advise, counsel, assist in the act of suicide, either my own, or any other person.
[42] There are at least two such forms signed by Mrs Treadwell and witnessed by Ms Austen.
[43] In particular, the Crown relied on a diary entry dated 10 November 2015 which in relation to “Suzy” reads:21
Yesterday 9/11/15 Suzy came to visit at my request. …
Thank God I didn’t have to overcome any obstacles from her; she accepted my view of my “case” and we’ve agreed to wait till end of Nov to see if the other woman’s powder will be coming thru.
[44]The relevant part of the entry went on to say:
She spends lots of her time visiting “prospects” like me. Supporting them in making the decision & getting the necessary info for them.
[45] The Crown seeks to rely on this as proof it is true. That is, that Ms Austen visited Mrs Treadwell, accepted Mrs Treadwell’s desire to commit suicide, and together they agreed to wait until the end of November to see whether an importation of pentobarbitone by another person successfully arrived.
[46] In the Crown’s submission, the diary entries show Ms Austen actively assisted Mrs Treadwell over many months by providing her with the email address Mrs Treadwell used in her attempt to import pentobarbitone. An entry on 21 December 2015 reads in respect of Suzy:
21 Ellipses in original.
She gave me a new procedure – in fact an email address which I have not yet used as (a) I cannot afford to spend any energy on as (b) it’ll take some serious
acceptance in my brain and heart that this is what I’ll be doing.
[47] The Crown relies on this to prove that Ms Austen in fact provided Mrs Treadwell with an email address for the purpose of importing pentobarbitone. This would supplement the other evidence that Ms Austen used that address in the past, as established by Ms Austen’s emails which will be in evidence. Furthermore, it was that same email address which the Crown says Mrs Treadwell used in her attempt to import pentobarbitone.
[48] On 1 February 2016, Mrs Treadwell recorded she had written to Suzy that the cargo had been sent and that she had emailed Suzy asking how long she would have to wait.
[49] On 5 February 2016 Mrs Treadwell recorded in respect of what can be inferred to be her attempt to import pentobarbitone from China:
The “big disappointment” has been dealt with and with Suzy’s help I will try again.
[50] This, the Crown says, is supported by the evidence that the package containing pentobarbitone Mrs Treadwell attempted to import was seized by Customs in January 2016.
[51] The Crown says Mrs Treadwell discussed this with Ms Austen who took steps to assist. Mrs Treadwell’s diary entry of 8 February 2016 referred to a suggestion from Suzy of asking her Chinese friend to write a letter in Chinese to “Johnson O Johnson” in respect of another package. Other evidence suggests Johnson O Johnson was the supplier of the pentobarbitone.
[52] The Crown says the truth of this entry is supported by the evidence of the two emails Ms Austen sent to “johnsonO” on 4 March 2013, the first of which said:
I wrote to you a couple of weeks ago about an order to New Zealand that had not arrived.
It said that customs in Auckland had taken it.
Is it possible please to send your product in different packages so that they might not spot them and take them.
The lady would like another order please.
How much will it be for her, and where will she send the money?
[53]Ms Austen’s bank account shows a payment to “Josn”.
[54] On 8 March 2016 Mrs Treadwell’s diary entry referred to an EXIT meeting where Suzy spoke about the fate of Mrs Treadwell’s “cargo”, and:
Afterwds I said should I ask if any people have a spare double portion. So she said very firmly she’d been emailing “J&J” last week which of course I didn’t know abt. Anyway after that she took my arm + said firmly “A I’ve got it in hand. Trust me.” So that was a relief! I also told her privately my date 31 May.
[55] On 16 March 2016 Mrs Treadwell noted that Suzy had telephoned her to say the product was now ready for collection/delivery.
But she and Mike are going to [?] Taupō – Hawkes’ Bay for 5 days. In case of her falling under a bus, Lorna will help me.
[56] In support of the submission that was true, the Crown refers to the DHL tracking information showing a package had been sent to L Lovegrove from China on 8 March 2016. Ms Feltham says this was sent to Lorna Lovegrove, a member of EXIT as shown by Ms Lovegrove’s signature on the EXIT waiver document.
(c)Circumstances relating to the making of the statements
[57] In Ms Feltham’s submission, the circumstances provide support for the reliability of the hearsay statements because they were voluntary and unprompted, and clearly written at or close to the date of the events they document. Furthermore, it cannot plausibly be contended that Mrs Treadwell acted out of self-interest or made self-serving disclosures.
[58] Dr Stevens accepted the diary entries relating to some events can be independently corroborated. However, in his submission this overlooks the important distinction between events and conversations. He said there was no evidence from any person party to any of the conversations referred to in the entries in order to
confirm the accuracy of Mrs Treadwell’s recall. Even if there were, one person’s recall can be quite different from another’s. This issue is exacerbated, in his submission, given the very emotional topic of suicide with, he suggested, substantial scope for inaccurate or delusional recall.
[59] Furthermore, in his submission, there was a very real prospect that a person contemplating suicide may not be in a fit mental state accurately to recall details of conversations. In support of that he referred to a diary entry where Mrs Treadwell described herself as being in a “dark place”, as well as other evidence she was suffering from depression and receiving counselling.
[60] Dr Stevens then suggested there were indications Mrs Treadwell may have been over-medicating on the medication prescribed for treatment of her depression, noting she had had an excessive level of venlafaxine in her blood. She also suffered from chronic pain.
[61] In all the circumstances, it was, in Dr Stevens’ submission, unsound to suggest that the corroboration of description of events can be relied upon to establish the reliability of the recall of detail or nuances of conversations. This point is expanded upon at [63]–[68] below.
(d)Circumstances relating to the veracity of the person
[62] The Crown is not aware of any circumstances relating to the veracity of Mrs Treadwell which would meet the substantial helpfulness threshold of s 37 and lessen the probative value of the hearsay.
(e)Circumstances relating to the accuracy of the observation of the person
[63] Dr Stevens referred to the discrepancy between Mrs Treadwell’s diary entry of 26 November 2015 relating to her consultation with Dr Macann and Dr Macann’s notes and recollection of the same consultation. He said the discrepancy was of such importance as to undermine the reliability and probative value of the diary entirely and render its admission fundamentally unfair to the defence. Given the importance of
this entry, I set out the relevant parts of Mrs Treadwell’s diary entry and Dr Macann’s written statement in full.
[64]Mrs Treadwell’s diary entry reads:22
After I had enumerated my symptoms – like sleeping all the time, lack of concentration, loss of joy, loss of hope she asked, “Is it bad enough for you to take your own life?” (She blushed when she said it). So I said not immediately but I’ve told my daughter “Not another winter and “I belong to EXIT”!!! (But you probably shouldn’t know this and you can just erase it from your memory). And she said Yes I know (about EXIT). She didn’t bat an eyelash when I said the above … So I’m taking that as an acknowledgement of my plans.? “Approval”? Can’t go that far but I regard this interchange with her
IMPORTANT.
[65] Dr Macann says that in preparing her formal statement for the case she had not had access to all the previous medical notes about Mrs Treadwell but she had access to all her own consultation notes and letters of significance. She says:
28.I last saw her on 24 November 2015 when she reported feeling more fatigued and miserable.
29.I suggested increasing the dose of her antidepressant to see if that would help.
30.Mrs Treadwell’s medical history included depression, chronic pain and Post-menopausal symptoms.
…
51.My notes record that she was asked about suicidal thoughts in 2010 and again in 2013 and on both occasions it is noted that she denied any plans for suicide.
…
86.Mrs Treadwell never spoke to me about euthanasia or suicide.
87.Had she done so, I would have recorded such a significant conversation in her notes.
…
103.I have no recollection of Mrs Treadwell ever having spoken to me about how she would end her life.
104.On the only occasions when she was directly asked about suicide, she denied having any thoughts of this.
22 Ellipses in original.
105.Despite her written note letting me know that she was a member of the Voluntary Euthanasia Society, she never discussed euthanasia or suicide with me and I was unaware that she had obtained information on the subject.
106.I do not recall Mrs Treadwell ever asking or talking to me about methods of death.
110. I never discussed the group EXIT with Mrs Treadwell.
[66] In Dr Stevens’ submission, it is clear the conversation Mrs Treadwell described in her diary never took place and the only conclusion which can be drawn is that Mrs Treadwell imagined or invented the discussion. It is implausible, Dr Stevens says, that if a doctor were told a patient was contemplating suicide, he or she would fail to note it and furthermore do nothing about it, for example by arranging counselling. On that basis, he submits the diary is demonstrably unreliable.
[67] Dr Stevens used this discrepancy to suggest, if Mrs Treadwell misrecorded and misinterpreted the conversation with her doctor, she could have done the same in relation to her interactions with Ms Austen.
[68] In Ms Feltham’s submission, there are no credible concerns as to the accuracy of Mrs Treadwell’s diary, noting that the diary entries relating to various events can be independently corroborated. Diary entries relating to Mrs Treadwell’s conduct with Ms Austen can be corroborated by records of phonecalls and emails, and there is nothing in the surrounding evidence or circumstances to cast doubt on the trustworthiness of the hearsay statements, she said.
Consideration
[69] The purpose of the extracts is to support the Crown case that Ms Austen actively assisted Mrs Treadwell’s suicide. The Crown seeks to offer the evidence to prove that what Mrs Treadwell wrote about things Ms Austen said and did were true. The defence position is that Ms Austen either did not make the comments attributed to her or, if she did, Mrs Treadwell misconstrued them.
[70] “Reasonable assurance” of reliability means that the evidence is reliable enough for the fact finder to consider it and draw conclusions as to weight. This is also referred to as “threshold reliability” as opposed to “ultimate reliability”.23
[71] The circumstances giving assurance the diary entries are reliable are the fact the diary is the personal recollection of Mrs Treadwell and written by her as the handwriting analysis confirms. It can safely be inferred the entries were written very close to the events in question.
[72] Because these are diary entries, this case can be distinguished from many others concerning hearsay when comments are reported by another person.24 In those instances the potential for misreporting, imperfect recollection and embellishment are much enhanced. In this case, we know exactly what Mrs Treadwell actually said in her diary entries. Whether what she said was true, and the correct interpretation of some of her conversations with others is another matter.
[73]The entries are plainly relevant and go to the very issue in the case.
[74] In her entry dated 30 December 2015 when discussing her diary, Mrs Treadwell says, “Will it go into a skip??? And if so what has my life ‘meant’?”. This adds support to the proposition Mrs Treadwell intended to record the truth, from her perspective at least.
[75] The diary represents Mrs Treadwell’s perspective. It is reliable in the same way as any person’s recall of a conversation will be from their perspective. Any recall of a conversation is subject to issues of accuracy and misinterpretation.
[76] Mrs Treadwell’s depression does not detract from the reliability of her diary. The entries are lucid, showing a spirited, independent and lively woman. Mrs Treadwell obviously confided in her daughter, who will be available for cross-examination regarding Mrs Treadwell’s state of mind and whether her
23 R v Khelawon [2006] SCC 57, [2006] 2 SCR 787. This is supported by New Zealand authorities which refer to the concept of a threshold or gateway test: see for example Preston, above n 9, at [67]; and Angus, above n 10, at [7].
24 In relation to conversations relayed through a third party see for example R v Liu [2015] NZHC 1125; and R v Gwaze, above n 8.
depression and pain were to the extent as to cast doubt on the reliability of her diary records.
[77] The discrepancy in respect of the accounts of Mrs Treadwell’s visit to her doctor is important in the context of this trial. Many of the entries on which the Crown seeks to rely will be used by the Crown to support the Crown case that Mrs Treadwell’s plans were discussed with Ms Austen, who encouraged her and assisted her. Mrs Treadwell took her discussion with Dr Macann as an acknowledgement and even potentially approval of her plans. Dr Macann, however, clearly made no reference in her consultation notes to any such discussion, and says she regards a discussion about euthanasia or suicide as significant and would have recorded it.
[78] Of course, Dr Macann will be available for cross-examination and it is not known at this stage whether there will be any concession from her that her notes of the consultation in November 2015 were incomplete or inaccurate. It is noteworthy, however, that her notes record asking Mrs Treadwell about suicidal thoughts in 2010 and 2013 and it can be inferred that there was no such record in her notes from November 2015. Dr Macann’s statement is unequivocal in saying Mrs Treadwell never spoke to her about euthanasia or suicide and had she done so she would have recorded such a significant conversation in her notes.
[79] It is perhaps going a little far to say that the conversation between Mrs Treadwell and Dr Macann described in her diary never took place. The evidence of Dr Macann casts doubt on it occurring, perhaps considerable doubt, which might either be strengthened or reduced as a result of Dr Macann’s evidence at the trial. It is fair to say it would seem unlikely for Dr Macann to have misheard or been distracted during such a conversation. I also note Mrs Treadwell’s comment she told Dr Macann to erase the conversation from her memory.
[80] Does one misreported or misinterpreted conversation mean all entries are unreliable? Mrs Treadwell’s record of the conversation with her doctor was in respect of one encounter. Other than the entry relating to the doctor, Dr Stevens pointed to nothing which raises concern about any other entries. Indeed, they are supported by the cross-checking undertaken by the police of whether the events as recorded did in
fact occur. The entries on which the Crown seeks to rely involving interaction between Mrs Treadwell and Ms Austen took place on a number of occasions. Aspects of them are able to be verified by other information, for example the fact Mrs Treadwell’s importation was intercepted by Customs, dates of telephone calls and emails and attendance at meetings of EXIT.
[81] The diary is accurate in a number of very significant respects, not only in relation to events. Mrs Treadwell’s reported conversations can also be corroborated, for example her statement Ms Austen would provide her with an email address is supported by the evidence Mrs Treadwell then used an email address which Ms Austen had previously used. Mrs Treadwell’s reported conversation that Ms Austen would get a friend of hers to write an email in Chinese is supported by the evidence of such an email and the evidence of Ms Austen’s friend who said she was asked by Ms Austen to write it.
[82] The circumstances relating to Mrs Treadwell’s record of events provide assurance that those events occurred and her diary entries are reliable in that respect. In the same way, there can be a reasonable assurance that her diary entries to the effect a conversation took place are also reliable. What was said by her and others is reliable to the extent of it being her recollection and interpretation of it, but also, as referred to in the preceding paragraph, there is independent support for aspects of Mrs Treadwell’s record of conversations.
[83] There is no doubt that the diary entries record Mrs Treadwell’s thoughts and her recollection and interpretation of events and conversations. It is reliable in that context. The entry relating to the visit to the doctor means, at this stage and without having had the doctor’s evidence tested, it must be accepted there is a distinct possibility Mrs Treadwell’s recall of at least one conversation or nuances of it might be inaccurate.
[84] What the jury will not have is Mrs Treadwell’s response to how she would deal with any challenges to her recollection or interpretation of events and conversations. That is a matter considered below under prejudice.
[85] I am satisfied the circumstances surrounding the statements provide a reasonable assurance they are reliable and that the threshold for admissibility has been met.
Implied assertions
[86] Dr Stevens’ approach was to say all the entries characterised as implied assertions should be excluded as hearsay because even those identified by the Crown as implied admissions provide context for the hearsay or “completeness”. He said much of what the Crown characterises as Mrs Treadwell’s musings are irrelevant.
[87] Many of the implied assertions should be admitted, in the Crown’s submission, to provide context. For example, the entry on 10 November 2015 discussing a visit from Ms Austen is followed by what Ms Feltham characterised as an implied assertion where Mrs Treadwell recorded facing her last six to seven months on this earth and being grateful for her existence. It is important, said Ms Feltham, because that entry is in the context of recording a visit from Ms Austen.
[88] As noted above, I consider the implied assertions and hearsay elements of the entries to be intertwined to a degree that separating them would be artificial. As a result, they are all to be considered under the test for hearsay. To address the irrelevancy point raised by Dr Stevens, I agree with Ms Feltham. When read alone, some of what the Crown has categorised as implied assertions might be considered irrelevant. However, those elements of the diary entries are inextricably linked with the hearsay elements. They provide context relevant to interpretation of the entries and, in some instances, to Mrs Treadwell’s intentions in writing her diary. Moreover, they are unprejudicial. In circumstances where what appears to be irrelevant material is inextricably linked to highly relevant material, provides context for interpreting that relevant material and is not unfairly prejudicial, that material is admissible.
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] Dr Stevens stressed that, if the diary is admitted, Mrs Treadwell will effectively become the main witness and will not be able to be cross-examined. He said some of
the entries go to the critical issue in the case and are so significant that it would be unfairly prejudicial for the defence to have no opportunity for cross-examination.
[90] In his submission, it would be vital to be able to reveal through cross-examination faults in Mrs Treadwell’s perception and memory, her comments to her doctor being a good example. Dr Stevens said it was not a case where cross-examination would make no difference, referring to what he described as several vague and ambiguous statements where cross-examination would be essential to clarify meaning. For example:
(a)In her 9 November 2015 entry, Mrs Treadwell recorded “Suzy accepted my view of ‘my’ case”. Cross-examination would be required as to what Mrs Treadwell’s view of her case was, the terms in which she communicated it to Ms Austen, and what Ms Austen said which enabled Mrs Treadwell to conclude she accepted her view of the case.
(b)The diary also recorded Ms Austen “spends lots of her time visiting ‘prospects’ like me. Supporting them in making the decision & getting the necessary information for them”. Similar clarity from cross- examination would be required.
(c)The 21 December 2015 entry refers to “the process” and Mrs Treadwell being given a “new procedure”.
(d)The 3 February 2016 entry presumably concerned Customs’ seizure of the package Mrs Treadwell imported. Mrs Treadwell said she was waiting for Ms Austen’s phone call “to explain her instructions”. Two days later Mrs Treadwell referred to trying again “with Suzy’s help”.
(e)On 8 March 2016, Mrs Treadwell said Ms Austen “wasn’t too thrilled” to talk about the fate of Mrs Treadwell’s “cargo”. Mrs Treadwell said she had told Ms Austen privately about her “date 31 May”. Dr Stevens said cross-examination would challenge the assertion on the basis it was in the same category as the discussion about suicide Mrs Treadwell
describes as having with Dr Macann which, in his submission, never took place.
(f)On 16 March 2016, Mrs Treadwell recorded “the product is now ready for collection/delivery”.
(g)In the 1 February 2016 entry, Mrs Treadwell wrote Suzy “seemed reluctant to be involved – since I wrote her the ‘cargo’ had been sent”.
(h)On 8 March 2016, Mrs Treadwell’s entry suggests Ms Austen had “just rung and explained again about implicating people at EXIT by which she meant her of course – in case I told eg VE, a helpful lady helped me get the stuff”’.
(i)On 25 May 2016 (apparently erroneously recorded as 25 January 2015) Mrs Treadwell recorded her thanks for “Suzy’s visit and loving words”.
[91] In Dr Stevens’ submission, inability to cross-examine on all of the above examples would deprive Ms Austen of the opportunity to expose faults in Mrs Treadwell’s perception and memory. It would therefore prejudice the defence. A trial without the opportunity to challenge a critical part of the prosecution case in this way would be unfair and deprive Ms Austen the opportunity to offer an effective defence.
[92] Of course, whether Ms Austen wishes to give evidence at trial is a decision for her. Her police interview made her position clear, that is, information about ways to commit suicide is freely available on the internet and she supported people, no matter what their decision, in respect of ending life.
[93] Dr Stevens acknowledged Mrs Treadwell was involved with VES and EXIT, was committed to the cause each pursues and had contacts in those organisations. The issue for cross-examination would concern with whom in those organisations Mrs Treadwell might have been involved in preparation for her own death. This is an example of where the diary can, in fact, be helpful to the defence.
[94] There are analogies with other cases involving the contention a defendant has been “condemned from the grave” by a statement from a deceased person. The Court of Appeal has viewed such statements as admissible and not unfairly prejudicial.25 Those cases include circumstances where the accusation was reported second hand and thus susceptible to misinterpretation, which is not a factor in the present case.
[95] The prejudice in respect of the diary entries comes from the fact Mrs Treadwell will not be available to be challenged in respect of her recollection and interpretation of events. The defence will, however, be able effectively to challenge her evidence by reference to identified discrepancies, the conversation with Dr Macann being an obvious example. Much can be made about the circumstances of the diary in the way Dr Stevens did at the pre-trial hearing and Mrs Treadwell will not be in a position to answer those submissions.
[96] As with the evidence of any witness, the jury can accept all, part or none of the diary entries. The trial Judge will have to consider giving the jury a hearsay warning.
[97] I am not satisfied the inability to cross-examination Mrs Treadwell is to the extent the probative value of the evidence is outweighed by the unfairly prejudicial effect. That assessment takes into account Ms Austen’s right to offer an effective defence. Indeed, the way in which the defence has objected to the admissibility of the diary demonstrates the ability effectively to defend the proceedings.
[98] Overall, I accept the Crown’s submission that the probative value of the diary entries outweighs the risk of any unfairly prejudicial effect. They provide important narrative and context, first-hand evidence which has a high degree of consistency with other evidence and, while prejudicial to the defendant, the prejudice is legitimate. The extracts are admissible.
25 See for example discussion in Preston v R, above n 9; Witana v R [2016] NZCA 587; Reid v R [2015] NZCA 175; K (CA322/2014) v R [2014] NZCA 393; Clark v R [2011] NZCA 516; Mills v R [2010] NZCA 286. See also R v Baker, above n 13; and R v Dahlberg CA119/92, 19 December 1992, which were decided prior to the Evidence Act 2006, under what was described in Preston as less permissive common law rules.
Result
[99] The application is granted in respect of the entries identified by the Crown. The hearsay evidence crosses the reliability threshold so that it can properly be considered by the jury. Its probative value is not outweighed by the risk it will have an unfairly prejudicial effect.
[100] It may now be that the defence will seek to admit other diary entries into evidence. For the same reasons which underpin this decision, it is difficult to see why those entries should be inadmissible, the record of the visit to Dr Macann being an obvious example. I am not attracted to the suggestion the whole of the diary should be admitted given it is relatively lengthy and includes a great deal of irrelevant material. Counsel should address this issue at an early date.
Thomas J
Solicitors:
Crown Solicitors’ Office, Wellington
Strachan O’Connor, Upper Hutt for Defendant
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