R v Hamer

[2003] NZCA 423

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA196/03

THE QUEEN

v

IAN HAMER

Hearing:         22 July 2003

Coram:          Blanchard J Laurenson J Doogue J

Appearances: R M Adams for Appellant

G C Hollister-Jones for Crown

Judgment:      7 August 2003

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]      This is an application for leave to appeal against a pre-trial ruling in the High Court at Auckland on 5 June 2003 given under s344A of the Crimes Act 1961.  The appellant, Ian Hamer, is facing trial on a charge that between 8 and 9 February 2002 he murdered a woman known as Hasnah Hamer who was living with him as his wife.  The deceased, who was a Malaysian national, had arrived in this country on a

visitor’s permit in June 2001 and went through a form of marriage with Mr Hamer

R V IAN HAMER CA CA196/03 [7 August 2003]

on 10 September 2001.  But there is now reason to believe that she was still the wife of a man whom she had married in Thailand in September 2000.

[2]      Mr Hamer was on a methadone programme to combat his drug addiction.  On the night of 8 February 2002, after the two had been arguing as a result of her disclosures to him of certain prior sexual relationships, Mrs Hamer (as she was known) swallowed a quantity of Mr Hamer’s methadone.  She became unconscious but Mr Hamer, who was a trained nurse, took no steps to summon medical assistance until the evening of 9 February when she was taken by ambulance to Tauranga hospital.  (Mr Hamer is also charged, in the alternative, with manslaughter by failing to provide her with the necessaries of life without legal excuse and in breach of his legal duty.)  It was over a week before she regained consciousness.

[3]      On  19  February  2002  she  was  interviewed  by  Detective  Sergeant  Todd Pearce who recorded the conversation in his notebook.  He spoke to her in English but found her too weak to pronounce some of the words entirely correctly.  She said that she did not remember taking the methadone willingly nor did she want to kill herself.  She referred to the argument.  She said that she was declaring her love for Mr Hamer during the argument, which occurred while they were in bed at about

8pm.  She said that Mr Hamer had said to her that “if you love me you will take this”.   He had then handed her a medicine bottle which contained liquid.   She believed it might be something that would help her but did not think at the time that it was his methadone.  She would not have taken it if she knew it was his medicine. She had become dizzy straight away after drinking the liquid.

[4]      Later on 19 February Mrs Hamer was transferred to Waikato Hospital so that she could receive treatment for kidney failure.  Her condition appeared to improve. On the same day Mr Hamer was interviewed by the police, arrested and charged with attempted murder and with failing to provide the necessaries of life.

[5]      The next day, 20 February, Mrs Hamer was interviewed at Waikato Hospital by Constable Rebecca Stevenson of the Tauranga Police.  Over a four hour period Constable Stevenson wrote out a 10 page statement.  Each page of it was afterwards signed by Mrs Hamer who wrote at the bottom of the last page “I have read this

statement is a true and correct” [sic].   She signed below that statement and her signature was witnessed by the constable.

[6]      In the statement Mrs Hamer gave an account of her life in Malaysia, her marriage in Thailand and how she had come to New Zealand with a group of people from Malaysia.  She described meeting Mr Hamer and forming a relationship with him.  She described how she took charge of his methadone, keeping the bottles for him so that he would not have too much.  She referred to the marriage “on 4 October

2001”.  After the marriage, she said, she had filed for divorce in Thailand.  She said she had told Mr Hamer prior to marrying him that she was married to “Abdul” in Thailand.  He had also known about her first husband in Malaysia and her daughter by that husband.  The daughter had in fact come to stay with them for about three weeks in December 2001.

[7]      In her statement Mrs Hamer said that she and Mr Hamer had been happy together and had never had arguments, but one or two days before she “took the medicine” she had seen three Bangladeshi men at a supermarket, one of them being known to her.  Mr Hamer had noticed her looking at them.  That made Mr Hamer unhappy and “a bit angry”.  Mr Hamer had also seen a gold Malaysian credit card in her purse and had  asked where she had  got it from.   She had told him that a Chinaman had given her the credit card to use when she was having a lengthy affair with him.  That had been before she had met her second husband.

[8]      She had told Mr Hamer all this and he was not happy.  He had shouted at her “I’ve married a whore”.  He had told her he was going to send her back to Malaysia. She had said she did not wish to go back.

[9]      This argument had, according to her statement, gone on for one or two days until the night of Friday 8 February.  She then described the two of them going to bed still arguing “about the Bangladeshi”:

At about 9pm Ian said to me if you want to sleep well you can have this.  He reached over and got a small brown plastic bottle from his bedside cabinet.

I said “I don’t want to take that”.

He said “you can have, you can sleep well”.

I said I don’t want.

Then he opened my mouth.  He pushed my cheeks together with one hand. He did it so hard it made my mouth open.

He already had the top off the bottle.  I knew it was the methadone.  I don’t know what methadone is, I just remembered he said it was strong.

He tipped some of the bottle into my mouth, it wasn’t the whole bottle.

After she had taken the medicine she felt dizzy.  When she woke up she found she was in Tauranga Hospital.

[10]     The next day, 21 February, Mrs Hamer spoke to Mr John Denne, a social worker at Waikato Hospital.  She made the comment that she and her husband had had an argument and that he had told her to take the methadone as it would help her to sleep well.   On 22 February she told a medical registrar at Waikato Hospital, Dr Dickson, that her husband had told her to take the methadone.

[11]     Mr Hamer had been released on bail with conditions which included non- association with Mrs Hamer.  But on 23 February she telephoned him from Waikato Hospital.   Over the next four days she telephoned him a total of 11 times and he telephoned her twice.  The content of those calls is unknown.

[12]     On 27 February 2001 Constable Stevenson returned to Waikato Hospital with a view to having Mrs Hamer sign a brief of evidence which was substantially the same as the earlier written statement.  After Mrs Hamer had read through the entire brief Constable Stevenson asked her to sign the last page and initial each of the other pages.  Mrs Hamer signed at the bottom of the last page and then proceeded to sign the preceding pages but stopped at page two saying that she wanted to change her statement.  When the constable asked why, Mrs Hamer said that she wanted to be with Mr Hamer and that she wanted to change her statement so that she could see him.  She refused to sign the remainder, i.e. the first two pages, of her statement.

[13]     Later that day, 27 February, a Hamilton solicitor, Mr Douglas Cherry, of Norris Ward McKinnon, was contacted by Mr Hamer who told him that his wife needed  a  lawyer to  speak  with  her  at  Waikato  Hospital  concerning changing  a statement she had made to the police.   Mr Cherry said that he would need to be

instructed by Mrs Hamer directly, given that it was a criminal matter.  He spoke to Mrs Hamer by telephone and, upon her confirming that she wished to speak with a lawyer about changing a statement she had made to the police, he attended upon her at Waikato Hospital.  Mr Hamer was not present.  Mrs Hamer advised Mr Cherry that she had been visited by the police that day in order for her to sign a statement, and that she had signed some of the pages but had refused to sign some other pages. It was Mr Cherry’s understanding, as a result of what he was told by Mrs Hamer, that she had refused to sign two pages of the document containing allegations that she had been forced to drink methadone by her husband.  (That was incorrect.  She had signed the pages which dealt with that matter.)   He questioned her about methadone and the allegations contained in the document (which he did not see at any time) and was instructed that she wished to change her statement to one which reflected the fact that she had taken the methadone herself and she had done it voluntarily.   Mr Cherry questioned Mrs Hamer about the methadone, in particular asking why she took it if she knew it was medicine for a sickness and, as she had told him, she did not know what effect it would have.  She gave what he described as “confused explanations” stating both that she did not want to hurt herself and also that she did wish to hurt herself.  Further, she told Mr Cherry that her statement had recorded that she and Mr Hamer had argued because he had discovered that she was still married to another man in Malaysia at the time she and he were married in New Zealand; and that he had threatened to send her back to Malaysia as a result of this deception.   There was discussion about, inter alia, her immigration status in New Zealand.  She said that during her stay in hospital she had constantly been ringing and talking to her husband about matters, and that he had not told her to change her story or threatened her about changing that story.  She said that she did not want to go back to Malaysia and that she wanted to be with her husband.

[14]     On  Friday  1  March  2002  Mrs  Hamer  discharged  herself  from  Waikato Hospital and was collected by Mr Hamer.  They returned together to Tauranga and resumed living together.  Over the next weekend, however, her condition began to deteriorate.    She  was  noticeably  unwell,  having  to  be  physically  supported  by Mr Hamer, when they went to the Tauranga District Court on Monday 4 March to try to arrange for his bail conditions to be varied to permit them to live together.  When they left the courthouse he was carrying her.  She was seen to fall and land on the

back of her head on the roadway but it is not believed that this contributed to her death.

[15]     Mrs Hamer was readmitted to Tauranga Hospital the same day.  Following that admission, her state of health deteriorated rapidly.  From that point on she was unresponsive and unable to communicate.  She had been diagnosed as suffering from progressive and severe brain damage as a result of oxygen deprivation as a consequence of the original methadone ingestion.  On 13 May 2002 Mrs Hamer was transferred to a hospital in Malaysia where she died on 1 June 2002.

The application

[16]     The Crown’s s344A application was directed to the statement of 20 February

2002 taken down by Constable Stevenson and signed by the deceased, but it encompassed also the other statements on the basis that the Crown accepted that, if the statement of 20 February were to be put before the jury, it was only fair that they should also know of the deceased’s oral statements to Detective Pearce, Mr Denne, Mr Dickson and Mr Cherry.

[17]     The   Crown   also   sought   admission   of   “similar   fact”   evidence   from Mr Hamer’s  former  wife  concerning  treatment  of  her  said  to  bear  a  striking similarity to his behaviour to the deceased.  According to the former wife, when she was married to Mr Hamer, he injected her with illegal drugs against her will and on one  occasion  forced  her  at  knife-point  to  take  30  Panadeine  tablets.    But,  as admission of that evidence would depend in the first place on the admission of the statements, we now concentrate upon them, and particularly on the written statement of 20 February 2002.

The statute

[18]     Section 3(1) of the Evidence Amendment Act (No. 2) 1980 provides that in any proceeding where direct oral evidence of a fact or an opinion would be admissible, any statement made by a person in a document and tending to establish

that fact or opinion is admissible as evidence of that fact or opinion if the maker of the statement had personal knowledge of the matters dealt with in the statement and is unavailable to give evidence.  It is accepted that that applies to the statement of

20 February 2002.  However, s18 of the same Act provides that, notwithstanding s3, where the proceeding is with a jury, the Court may, in its discretion, reject any statement that would be so admissible “if the prejudicial effect of the admission of the statement would outweigh its probative value, or if, for any other reason, the Court is satisfied that it is not necessary or expedient in the interests of justice to admit the statement”.   Section 19 empowers a Court hearing an appeal from a determination under s18 to draw its own inferences and to substitute its own discretion for that exercised below.

[19]     It is for the party opposing admission (here the appellant) to show that the prejudice to that party outweighs the probative value of the statement: R v Preston (1999) 17 CRNZ 558 at para [47].

The High Court judgment

[20]     The High Court Judge was of the view that if the 20 February statement had stood alone it would undoubtedly be highly probative and seemingly reliable.  There appeared to be no dispute about the accuracy of the first eight pages of the statement. Their reliability, the Judge said, was a pointer to the reliability of the balance. Secondly, it was surely very significant that Mr Hamer did not take any steps to seek emergency help  until  the  evening  following  the  ingesting  of  the  methadone  by Mrs Hamer, notwithstanding that he is by profession a nurse.  The Judge said that his extraordinary delay in seeking help for her was strongly probative of her account that he was involved in her ingestion of the methadone.  Thirdly, there was the “sheer improbability” of the alternative explanation, namely that suddenly out of the blue Mrs Hamer, who was not herself a drug user, decided to take a swig of Mr Hamer’s methadone as a way of proving her love for him.  The Judge said that that would surely be a bizarre and irrational act and there was no evidence that she had been acting irrationally prior to the evening in question.   The fourth piece of evidence

supporting  her  account  was  the  evidence  of  the  former  wife.    There  was  no suggestion of collusion between the two women.

[21]     The Judge then considered the reliability of the statement of 20 February in light of Mrs Hamer’s oral statements.  The Judge noted that a central feature of the

20 February statement, namely that Mrs Hamer was forced to take the methadone, was  missing from  the  three  oral  accounts  which  she  gave  to  Detective  Pearce, Mr Denne and Mr Dixon.  The statement made to Mr Cherry was in conflict with all the earlier statements and did throw doubt on the reliability of the 20 February statement.  But the Judge said there were concerns about the circumstances that led to the making of the statement to Mr Cherry.  He referred to the discussions which had taken place between the deceased and Mr Hamer and said that the change of story might well have reflected pressure from Mr Hamer.   Or it might be that the change of story came from her, in the hope that the Crown would drop the charge against Mr Hamer.  It was clear from Mr Cherry’s account that a primary concern of the deceased was her ability to remain in New Zealand.   The sole basis of her application for residency was her marriage to Mr Hamer and he now had the means of exposing that as a sham.

[22]     Without  a  doubt,  the  Judge  said,  Mrs  Hamer’s  account  to  Mr  Cherry weakened the probative value of the 20 February statement.  It was a serious concern if  Mr  Hamer  were  to  face  insurmountable  and  unacceptable  prejudice  if  the statement  was  admitted,  because  of  his  counsel’s  inability  to  cross-examine Mrs Hamer on her inconsistent statements.  But in the end the Judge was persuaded that if all the statements were before the Court the defence would be able to highlight to the jury the differences in them and in this way the fairness of the trial could be preserved.  “One of the very unusual features of this case is that it is the presence of the other statements,  with  their  inconsistencies  with  the  20  February statement, which renders the absence of cross-examination less important than it would otherwise be.”

[23]     Subject to the discretion of the trial Judge, the Judge admitted all of the statements but on the basis that the Crown, as a matter of fairness, should limit its case to that supported by the 20 February statement.   The oral statements were

admitted “in fairness to Mr Hamer because they may be perceived as qualifying the reliability of the crucial statement, the 20 February statement”.

Submissions

[24]     The Court had been greatly assisted by comprehensive written submissions from both counsel who then addressed us orally in a manner which was both clear and succinct.

[25]     For the appellant, Ms Adams, directing herself to the Court’s discretion under s18, emphasised the fundamental importance of the right to cross-examine the maker of a statement.   She said that the Judge had underestimated the importance and potential effect which cross-examination of Mrs Hamer could have had in the circumstances of this case and had therefore underestimated the prejudice and unfairness to him in his inability to cross-examine on the deceased’s statements.  He had given insufficient weight to the material which contradicted the statement of

20 February and to the degree to which its probative value has been undermined. Material which significantly detracted from the reliability of that statement was a compelling reason to refuse to admit it, not the converse.   The Judge was said to have also erred in drawing from other material only those inferences adverse to the accused where more favourable or neutral inferences were also available.

[26]     The pivotal question for the Court, Ms Adams submitted, was whether the opportunity to have cross-examined the deceased on the statement of 20 February could  have  made  a  real  difference  or  could  have  detracted  from  the  apparent accuracy or veracity of that statement.  Counsel submitted that, on the basis of what she had said to others, particularly to Mr Cherry, she may well have retracted her statement.  In fact, in speaking to Mr Cherry she had been attempting to do just that. Even if she did not recant her statement that Mr Hamer had forced her to drink the methadone, there was real scope in the inconsistent statements and in the other evidence, particularly that relating to the circumstances in which she came into New Zealand and went through a ceremony of marriage with Mr Hamer, to impeach her credibility or  integrity.    She  could  be  shown  to  be  deceitful,  manipulative  and capable of duplicity.  Whilst these points could be made by way of submissions to

the jury, that would be no substitute for the presence of the witness and her exposure to well directed cross-examination.  The jury was not going to have the opportunity of seeing Mrs Hamer in person and assessing her character, particularly whether she was a woman capable of the dramatic gesture, which Mr Hamer says she made, of swallowing the methadone to prove her love for him.

[27]     For the Crown, Mr Hollister-Jones said that the Judge had been correct to concentrate on whether the deceased’s statement of 20 February was apparently reliable, using the similar fact evidence of the former wife for that purpose.  Counsel said that juries routinely are called upon to make character assessments of a deceased in a murder trial.  In this case, as well as the statement of 20 February, there will be the inconsistent oral statements which can effectively be made use of by defence counsel.    Overall  fairness  can  be  preserved  by  letting  the  jury  decide  whether Mrs Hamer’s statement  to  Constable  Stevenson  is  reliable.    The  various  factors which will have to be taken into account can be determined from the rest of the material available as evidence, and the statement itself can be judged both in its own terms and in light of that other material.

[28]     Counsel pointed out that the “interests  of  justice”  referred  to  in  s18  are concerned with the administration of justice in the round; the discretion must be exercised  so  as  to  strike  a  just  balance  between  the  interests  of  all  the  parties involved, including the interests of the general public: R v L [1994] 2 NZLR 54 at

60.  The same case was authority for the proposition that the opportunity to cross- examine was not an absolute right: p61.   Mr Hollister-Jones suggested that, as a result of this Court’s decision in R v Manase [2001] 2 NZLR 197, the position ought now to be that the requirements for relevance and reliability identified in that case are also necessary preconditions in respect of which the Court needs to be satisfied when exercising its s18 discretion in respect of oral hearsay evidence, whether it does so on the basis of the probative/prejudicial balance or on the basis that it is not necessary or expedient in the interests of justice to admit the statement. Counsel suggested that there should now be a merging of the jurisprudence on oral and documentary hearsay which, he said, would mean that the inability to cross-examine would not be the primary consideration but would be part of the balancing exercise

once the necessary preconditions were established, which was the approach taken by the Judge in this case.

[29]     It was further submitted that the 20 February statement provided a credible narrative in some detail and that there was nothing from the circumstances in which it was taken to cast doubt on its veracity.   Much of it was supported by other evidence.  Mrs Hamer’s alternative explanation that she had voluntarily ingested the methadone was correctly described by the Judge as a sheer improbability.

Discussion

[30]     It  is  apparent  from  the  authorities  on  s18  that  this  Court  has  adopted  a cautious approach to the admission of hearsay evidence in a written statement of a witness who is unavailable to give evidence.  A similar caution is apparent in this Court’s observations concerning the admission of oral hearsay in the residual category discussed in R v Manase where it was said (at para [30]) that the hearsay evidence, in order to be admitted, must have sufficient apparent reliability, either inherent or circumstantial, or both, to justify its admission in spite of the dangers against which the hearsay rule is designed to guard. The exception to s3 of the Evidence Amendment Act (No.2) in s18 raises a similar concern, and a similar balancing exercise is required in relation to the discretion which it gives to reject unduly prejudicial evidence or evidence that it is not necessary or expedient in the interests of justice to admit. The “interests of justice” is concerned with the administration of justice in the round, striking a just balance between the interests of all parties concerned, including the interests of the general public: R v L at p60.  But, as this Court also said in R v L (at p62), where there are substantial issues of credibility, the admission of testimony without any opportunity at any stage to test the witness by cross-examination must affect the fairness of trial.  The Court said in Manase that if a sufficient threshold level of apparent reliability is not reached, the hearsay evidence should not be admitted.  The inability of a primary witness to give evidence is not good reason to admit unreliable hearsay evidence (para [30]).

[31]     In considering whether a hearsay statement is sufficiently reliable that its probative value outweighs the prejudice which must nearly always arise, to some

degree, from the absence of the ability to cross-examine its maker, the Court necessarily must make an assessment of the likely impact if it were possible to cross- examine the maker.  In doing so it considers the content of the statement itself, the circumstances in which it was made and any indications of reliability or unreliability which emerge from a consideration of the other evidence.   The credibility of the unavailable witness in relation to the statement is the central concern.  Classically, credibility is tested by cross-examination.  The Court must ask itself whether, in the particular case, cross-examination of the maker of the statement might make a real difference.  This Court said in R v Mataa CA282/99, 28 October 1999 at para 12:

...the balance to be struck between the public interest and the interests of the accused must start with a recognition of the general importance of the right to cross-examine.   Only if the absence of that right in the particular case would be unlikely to make any relevant difference to the fairness of the trial should a documentary statement, whose maker is unavailable, be admitted. If the absence of the right to cross-examine is likely to make a relevant difference it will not be expedient in the interests of justice (in terms of s18) to admit the statement.  The apparent quality of the evidence to be admitted via the statement must be assessed.   The presence or absence of other evidence supporting or conflicting with the statement will be relevant to that enquiry.  The nature of the defence will often be crucial, together with the Court's  assessment  of  the  bona  fides  of  that  defence.    These  are  but examples.  Any matter bearing one way or the other on whether the absence of cross-examination is likely to make a relevant difference requires consideration.   In the end the Court should not admit the documentary evidence if there is a real risk that doing so will deprive the accused of a fair trial.

The view of the majority

[32]     In the application of these principles to the unusual facts of the case, the Court is divided, but consistently with s398 of the Crimes Act delivers a single judgment.  A majority of the members of the Court is not satisfied that the statement of 20 February is sufficiently reliable, judged by its content and by the circumstances in which it came to be made to Constable Stevenson, that it can be said that, if it is admitted, there will be no significant prejudice to the appellant arising from his counsel’s inability to cross-examine the deceased upon that content.  The majority is not persuaded that the availability of the oral statements and other evidence would sufficiently remove the possibility of real prejudice outweighing the apparent probative value of the statement.

[33]     It is clear that Mrs Hamer herself expressed a wish to withdraw the crucial portion of the statement concerning how she came to ingest the methadone.   She went to the lengths of having a solicitor, Mr Cherry, come to the hospital where she instructed him accordingly.  There may be suspicions that she wanted to withdraw her statement that Mr Hamer had forced her to drink methadone for reasons other than the falsity of that assertion, possibly because of pressure from him or because of a wish to preserve the relationship of an apparent marriage with him so as to be able to retain her immigration status and remain in New Zealand.   But it is also a possibility which cannot simply be dismissed that her recantation to the solicitor was not motivated by any desire to conceal the truth about what had happened.  It is to be remembered that in her first oral statement, to Detective Pearce, she had not accused Mr Hamer of forcing her to take the drug.  It is to be observed  also that, if she had lived  and  had  given  evidence in  a  trial  for,  say,  attempted  murder,  saying,  for example, that she had voluntarily taken the methadone despite being aware of its properties, that would have become her evidence notwithstanding concerns arising from her prior inconsistent statements, which would not be admissible unless the Crown were successful in having her declared a hostile witness.  And, as Ms Adams stressed, even if Mrs Hamer were in such circumstances to have given evidence affirming the content of her statement of 20 February in its crucial respect, a skilled cross-examiner could surely have utilised her other statements and the circumstances in which she came to be living with Mr Hamer as a means of impeaching her evidence to raise a reasonable doubt.  Whilst that could still be done up to a point, by way of the use of such matters to impeach her statement of 20 February, we agree with Ms Adams that a cross-examination of Mrs Hamer as a witness might well have been much more effective.

[34]     The majority has therefore reached the view that the High Court Judge erred in the exercise of his discretion by failing to give sufficient weight to the potential for cross-examination in the unusual circumstances of this case.   In its view, the prejudicial effect of the admission of the statement, which is crucial to the Crown’s case, and the reliability of which is far from clear, would outweigh its probative value and it therefore ought not to be admitted.  As a consequence, both the various oral statements and the evidence of the former wife should also be inadmissible, the former because it was accepted in the High Court that they were admissible only to

provide balance to the statement of 20 February; and the latter because it can no longer be probative of any similar fact now that the account given by Mrs Hamer, to which it is said there was similarity, will not be before the Court.

The view of the minority

[35]     The minority of the Court favours the admission of the statement because the subsequent events, which caused the majority to find it did not have a sufficient apparent reliability, required separate consideration.   If so, then there would be evidence to show that those events were both explicable in the particular circumstances and consistent with the inherent reliability of the statement at the time it was made.   Furthermore, the extent of the evidence available to examine these issues was such that the accused would not be unduly prejudiced by the absence of the deceased for cross-examination.

Result

[36]     In accordance with the view of the majority, the application for leave to appeal is granted, the appeal is allowed and the evidence ruled inadmissible.

Solicitors:

Adams & Horsley, Tauranga

Crown Law Office, Wellington