R v G HC Auckland CRI 2006 092 14165
[2007] NZHC 2126
•25 September 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006 092 14165
REGINA
v
G
R
G
Hearing: 20 and 24 September 2007
Counsel:Aaron Perkins and Kristin Cato for Crown Gary Gotlieb and Jonathan Krebs for G Denise Wallwork for R
Jane Northwood for De G
Judgment: 25 September 2007
JUDGMENT OF WILLIAMS J
[Re: admissiblity of evidence of Mrs Sandra de G and Aaron de G ]
Issue
[1] Setting the scene broadly, this case involves altercations between a number of persons in a carpark adjacent to the Pakuranga Highway in Auckland on the early morning of 8 October 2006, the passage of a number of those persons through the forecourt of an adjacent service station, and the spilling out of a large number of those persons onto Pakuranga Highway. Assaults are said to have taken place in the carpark and on Pakuranga Highway. The principal accused, Mr G , is said to
have run from Pakuranga Highway to his car which was parked relatively nearby and
R V G AND ORS HC AK CRI 2006 092 14165 25 September 2007
driven it at speed on two runs through the crowd of up to 50 people congregating on the highway, injuring a number and killing two in so doing. His principal defence is that he was acting in defence of his co-accused, Mr de G , who had been beaten by members of the crowd and was lying on Pakuranga Highway, probably near the kerbside opposite the service station.
[2] The evidence is that Mr G then drove to Mr de G ’s nearby home and roused the occupants. Mr de G ’s brother, Aaron, at their mother’s instigation, then drove his work van to the area where Mr G and his other co- accused, Mr R , uplifted Mr Anton de G and drove him to the de G home.
[3] On Thursday, 20 September 2007, as the Crown case was nearing its end, Mr Krebs, junior counsel for Mr G , gave notice of his intention to call Mr de G ’s mother and brother to give evidence about what they said Mr G said to them about the incident when he first returned to the house and raised the occupants and what was said to Mrs de G after the trio returned to the house. Mr Krebs particularly relied on passages in the Police statements given by Mrs de G and Mr Aaron de G in the early afternoon of 8 October. Mr Krebs was especially concerned to secure the admission of statements she heard Mr G make to Mr Aaron de G to rouse him out of bed because “They’re killing him”, Mr G being crying and hysterical at the time. The statement was said to have been repeated in different permutations.
[4] Mr Krebs also sought the admission of a similar statement said to have been made by Mr G to Mr Aaron de G .
[5] Mrs de G ’s statement also included an observation said to have been made to her by Mr R after the trio’s return from Pakuranga Highway that he, Mr R , had heard the group of assailants chanting “Kill him, kill him” just before they assaulted Mr de G .
[6] An opportunity was taken to peruse the Police statements and, after discussion, leave was granted to call the two proposed witnesses to give evidence,
significantly reduced from the matters to which they referred in their statements but including the passages just recounted.
[7] It is of some significance that the Crown case had not then formally closed, none of the accused had made their elections as to whether to call or give evidence, and, so far as the notes made at the time reveal, no counsel referred to the Evidence Act 2006 s 21(1) which reads:
If a defendant in a criminal proceeding does not give evidence, the defendant may not offer his or her own hearsay statement in evidence in the proceeding.
[8] The Crown case was formally closed when the court reconvened on Monday,
24 September 2007, Mr G elected to call evidence, and, after Mr Krebs had opened, Mrs de G and Mr Aaron de G both gave evidence, essentially in accordance with the leave given. Mrs de G said she heard Mr G exhorting the occupants to get up because “they’re killing him” and on an inquiry being made, Mr G said there were “20 or 30 niggers killing my son Anton”.
[9] Mr Aaron De G similarly said he was awoken by Mr G calling to him that “Your brother is getting killed” and that “There is 20 big black niggers down at Highland Park beating him up”. Mrs de G also said that, after the trio returned, Mr R told her that he had “seen a whole lot of niggers, 20, 30, swarming around Anton and were kicking him to death”, and he heard that “they were chanting ‘kill him, kill him’”.
[10] After the trial was adjourned to 25 September for final addresses, further investigations were undertaken by the Court and s 21 came to notice.
[11] As a result, a conference with counsel – unfortunately not with the accused present as Messrs de G and R were on bail and Mr G was unavailable
– was convened and the views of counsel solicited as to whether the evidence from Mrs de G and Mr Aaron de G should have been ruled inadmissible having regard to the provisions of s 21(1) and the definition of “hearsay statement” in s 4 of the Evidence Act 2006. That definition reads:
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] Mr Krebs submitted that the admission of the evidence of Mrs Sandra and Mr Aaron de G did not infringe s 21(1) because, although he accepted that the jury should be directed that the statements made to the witnesses were not evidence of what was in fact said or being done on Pakuranga Highway at the time Messrs G and R spoke as they were said to have done, s 21(1) was not engaged because the evidence was not offered as truth of its contents.
[13] For the Crown, Mr Perkins, its leading counsel, said the Crown had considered the s 21 position before the initial discussion with counsel on 20
September and, whilst having reservations about the admissibility of the statements, took the view that the statements were not too far removed from the res gestae, so that the Crown finally decided not to oppose the giving of the evidence because of what he termed the “possibility of repercussions later”, that is to say that the Court of Appeal, should convictions and appeals follow, might take the view that if the jury did not hear the evidence, the accused’s ability to counter the Crown case was thereby diminished.
Discussion
[14] Before the Evidence Act 2006 came into force, it appears that the statements made by Mr G to Mrs Sandra and Mr Aaron de G may have been admissible. The position would appear to be similar to that discussed by the Court of Appeal in R v Baker [1989] 1 NZLR 738 where, in a murder trial, one of the matters in issue under s 344A was the admissibility of statements made by the deceased to other persons in the weeks leading up to her death, indicating her hostility to, and fear of, the accused. The Court of Appeal held such evidence was admissible. As it was put by Cooke P, at 740-1:
The main authority cited by Gallen J and the leading modern English case is
R v Blastland [1986] AC 41, where on a trial for buggery and murder the
accused, who maintained that another man had committed the crimes, was not allowed to call witnesses to testify that before the discovery of the body that other man had said that a boy had been killed and had revealed some knowledge of the circumstances. Although the House of Lords unanimously affirmed unanimous decisions in the Courts below, Blastland has attracted considerable criticism from academic writers in England. See for instance PB Carter in (1987) 103 LQR 106; DJ Birch in [1985] Crim LR 727; AAS Zuckerman in All ER Rev [1985] 155, 158; TRS Allan in [1985] CLJ 345 (the latter writer directs his comments to the harshness of the hearsay rule rather than the logic of the decision). It is difficult not to share the view that justice and fairness to the accused would seem to point towards the admission of such evidence, particularly as there appears to have been some other admissible evidence capable of suggesting that the other man may have been the criminal. The difficulty is of course not diminished by the fact that the Crown case against the accused was described by Lord Bridge in delivering the reasons for the House of Lords decision as extremely cogent.
Blastland was a case of the ruling out of evidence desired to be adduced for the accused, not for the Crown, but in itself that difference could hardly justify distinguishing the decision for present purposes. Lord Bridge's speech contains two statements of principle requiring consideration in the present case:
"It is, of course, elementary that statements made to a witness by a third party are not excluded by the hearsay rule when they are put in evidence solely to prove the state of mind either of the maker of the statement or of the person to whom it was made. What a person said or heard said may well be the best and most direct evidence of that person's state of mind. This principle can only apply, however, when the state of mind evidenced by the statement is either itself directly in issue at the trial or of direct and immediate relevance to an issue which arises at the trial.
". . . I do not think it would be appropriate to go further, by way of generalisation, than to say that the admissibility of a statement tendered in evidence as proof of the maker's knowledge or other state of mind must always depend on the degree of relevance of the state of mind sought to be proved to the issue in relation to which the evidence is tendered."
It is not in doubt and has been recognised in New Zealand (a case coming to mind is Police v Machirus [1977] 1 NZLR 288, 294) that when a person's state of mind at a given time is in issue his contemporaneous declaration is admissible as evidence, albeit not necessarily conclusive, of that state of mind. This must apply to a person's knowledge, understanding, intention or feelings. With regard to the second of the statements of principle just quoted, there is obviously no difficulty in treating relevance to an issue as a matter of degree. With regard to the first, however, the tests "directly" and "direct and immediate" seem, with great respect, less easy to apply and, if applied literally, might perhaps exclude a good deal of evidence which in common sense and justice most people would think ought to be admitted.
…
At least in a case such as the present it may be more helpful to go straight to basics and ask whether in the particular circumstances it is reasonably safe and of sufficient relevance to admit the evidence notwithstanding the dangers against which the hearsay rule guards. Essentially the whole question is one of degree, which indeed is partly what Lord Bridge said in his second statement of principle. 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.
(See also Malek et al, Phipson on Evidence (16th ed, 2005 para 28-19, p 785, para
31.30, p 894-5.)
[15] The position would appear to be otherwise for statements that come within the definition of “hearsay statement” under the 2006 Act. As Mr Illingworth QC and Dr Mathias, the authors of the chapter on the admissibility of hearsay statement in the New Zealand Law Society Seminar on the Evidence Act 2006, say (p 49) “The implications of s 21 are serious”, a comment on which they then elaborate by reference to a number of factual situations different from the present.
[16] Though from a different vantage point, the implications and effect of s 21 were recently discussed by Priestley J in R v Cui (HC AK CRI 2006-4-18412 19
September 2007). There, the learned Judge distilled some of the principles discussed by the learned authors of the New Zealand Law Society Seminar, in the following passage (p 7, para [22]):
• When a defendant does not give evidence, s 21 prevents him offering – obviously through another witness – his own hearsay statement of his evidence.
• When the Law Commission revised the draft Evidence Code the equivalent of s 21 was included and was revised subsequently to include s 21(2).
• Section 21 was an attempt to simplify the common law particularly in the area of directing juries about the reduced weight to be given to out of court statements not subject to cross-examination, and the care with which self-serving statements should be treated.
• That arguably s 21 redresses a bias in favour of the accused who was able to rely on helpful exculpatory statements without running the risks of giving evidence.
• That there are risks that an unrestricted application of s 21 might prevent an accused from presenting his case and impact on an accused’s rights to a fair hearing and not to be compelled to give evidence.
[17] In this case, Mr G ’s defences include that the deaths of the two persons killed by his driving and the injuries to the others were accidental; that they occurred in his defence of Mr Anton de G ; and that they occurred through provocation by the group to him and that, acting under that provocation, he killed the two persons named in the murder counts by accident.
[18] It is accordingly plain, as put to counsel during discussions on 24 September, that the state of Mr G ’s knowledge and his mind and intentions are likely to be crucial to the jury’s consideration of the main charges he faces, particularly the murder counts.
[19] The statements said to be have been made by Messrs G and R to Mrs de G and Mr Anton de G would plainly be hearsay were they offered as truth of the facts that a number of persons on Pakuranga Highway had been chanting “kill him” before assaulting Mr Anton de G and were killing him at the time they were uttered. But Mr Krebs argues that they do not qualify as “hearsay statements” because they are not offered as truth of that aspect of the matter.
[20] That is undoubtedly correct but, given the primacy of proof as to Mr G ’s state of mind and his intentions at the time he was said to have uttered the statements, as put to counsel, the evidence must have been offered on the basis that Mr G wishes the jury to take inferences from that evidence as to the state of his knowledge and intention. They are, therefore, offered, if not as truth, then as evidence from which the jury make take inferences concerning critical issues in the case.
[21] However, given that leave was granted to call the evidence (though without s 21 being drawn to attention) and given that, as was said in Baker, the question is ultimately one of degree, the Court proposes in summing up to direct the jury as to
the hearsay nature of the statement and as to their questionable reliability given the manner in which they have been placed before the jury but, as a matter of fairness, to direct the jury that it can take the statements made before the party went to bring Mr Anton de G back to the house as evidence of Mr G ’s state of mind relevant to the defences raised if they consider the statement sufficiently reliable to be utilised in that regard.
[22] The statement said to have been made by Mr R to Mrs de G after the trio returned is, however, in a different situation. It cannot be accepted as truth of its contents. It was plainly sought to be utilised to avoid the possibility that Mr R might elect to give that evidence and expose himself to cross-examination. It can be no more than words said to have been uttered to a witness by a third person who can give evidence that the words were uttered, but the jury must be instructed that their provenance means that the jury should place little, if any, reliability that the words are truth of what they say and that the statement said to have been made by Mr R to Mrs de G is, in all probability, inadmissible and should never have been given in evidence.
…………………………………..
WILLIAMS J.
Solicitors/Counsel:
Crown Solicitor, Auckland
Email: aaron[email protected]
Email: kristin[email protected]
Gary Gotlieb, Auckland Email: [email protected] Denise Wallwork, Auckland Email: d[email protected] Jane Northwood, Auckland Email; jane[email protected]
Criminal Registry, High Court Auckland Email: Rach[email protected]
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