R v M HC Auckland CRI 2003-004-37161
[2006] NZHC 1264
•19 October 2006
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2003-004-37161
THE QUEEN
v
M
Hearing: 19 October 2006
Appearances: K Glubb and K Stoikoff for the Crown
B Hart, A Shaw and A Naseri for the accused
Judgment: 19 October 2006
(ORAL) JUDGMENT OF POTTER J
re Evidence of Ying Tang
Solicitors: Crown Solicitor, P.O. Box 2213, Auckland
B J Hart, P.O. Box 47016, Ponsonby, Auckland
A Shaw, 29A Grass Street, Oriental Bay, Wellington
E F Geiringer, Chapman Tripp, P.O. Box 993, Wellington
R V M HC AK CRI 2003-004-37161 19 October 2006
Introduction
[1] The defence makes an oral application under s 3 of the Evidence Amendment
Act (No 2) 1980 for the admission into evidence of a statement of Ying Tang dated
16 September 2003. Rather surprisingly, the application is extended to a photocopy letter that appears to be under the signature of that person dated 18 October 2006 faxed on that date at 6.32 p.m. to the Chambers of Mr Hart.
Section 3 Evidence Amendment Act (No 2) 1980
[2] Section 3 of the Evidence Amendment Act relevantly provides:
Admissibility of documentary hearsay evidence
(1)Subject to subsection (2) of this section, and to sections 4 and 5 of this Act, 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 shall be admissible as evidence of that fact or opinion shall be admissible as evidence of that fact or opinion if-
(a)The maker of the statement had personal knowledge of the matters dealt with in the statement, and is unavailable to give evidence; or …
(2)Nothing in subsection (1) of this section shall render inadmissible in any criminal proceeding any statement in a document that -
(a)Records the oral statement of any person made when the criminal proceeding was, or should reasonably have been, known by him to be contemplated; and
(b) Is otherwise inadmissible in the proceeding.
[3] Section 2(2) provides:
For the purposes of sections 3 to 8 of this Act, a person is unavailable to give evidence in any proceeding if, but only if, he –
(a) Is dead; or
(b)Is outside New Zealand and it is not reasonably practicable to obtain his evidence; or
(c)Is unfit by reason of old age or his bodily or mental condition to attend; or
(d) Cannot with reasonable diligence be found.
Unavailable to give evidence
[4] I shall deal first with the requirement under s 2(2) that the maker of the statement must be outside New Zealand and it is not reasonably practicable to obtain his evidence.
[5] In R v M [1996] 2 NZLR 659 at 662 the Court stated:
To come within the relevant definition of unavailability in s 2(2) it must be established that the witness is outside New Zealand and it is not reasonably practicable to obtain his or her evidence. There must be a sufficient factual foundation to warrant that conclusion. In Union Steam Ship Co of New Zealand Ltd v Wenlock [1959] NZLR 173, the Court considered a similar expression under s 3(1)(b) of the Evidence Amendment Act 1945, “not reasonably practicable to secure his attendance”. North J considered at p
196 that the requirement would be satisfied if the witness refused to travel though offered his or her expenses and that in other cases practicability
would depend on “the nature of the suit, the importance of the evidence
contained in the statement, financial and other relevant considerations. …
Whether it is “not reasonably practicable to obtain [the] evidence” turns on the nature of the case, the nature and significance of the evidence of the witness could give, what measures were taken and could have been taken to obtain the evidence, and time, effort and cost involved.
[6] The situation in this case is that it is only in the last two days that any approach has been made by the defence to Ms Tang to endeavour to secure her attendance as a witness in the case. Various explanations for the lateness of the approach were proffered. They included that it was unclear until this late stage whether Ms Tang would be required, it was a condition of the accused’s bail that he was not to approach directly or indirectly Ms Tang, and that the defence simply did not know that Ms Tang was travelling out of New Zealand. Of course, the defence did not know because they did not ask. But they have had for many months the statement which they now apply to have admitted to evidence, and they have had ample opportunity to take appropriate steps to secure the availability of this witness should their assessment of the case as the trial proceeded, mean that it would be necessary or desirable to call her.
[7] In terms of the observations in Union Steam Ship Co no measures have been taken to secure the availability of Ms Tang to the defence until this week, and it is quite clear that steps could have been taken. She could not only have been approached by members of the defence team, but she could have been issued with a summons.
[8] Furthermore, her letter of 18 October 2006 states:
To do that (come back to New Zealand to give evidence) would cost me lot of money which I simply cannot afford.
That indicates that no offer has been made to meet her expenses of travelling back to New Zealand, which was an aspect that the Court in Union Steam Ship Co considered relevant in determining whether the requirement under s 2(2) is satisfied.
[9] As to the importance of the evidence contained in the document, the defence appears to be concerned to have before the jury the statement:
Michael never lived in Yee Place though he would just stay there maybe one or two nights.
The Crown has led evidence that links the accused with 1/15 Yee Place (particularly a letter from Ms Tang which refers to him as her “tenant”). I would have thought that the link is the important evidence, rather than the precise nature and extent of any occupation. On the other hand, the document includes references to several facts which on their face, seem unhelpful to the defence (an aspect I queried with counsel). I accept that the Crown would wish to have the opportunity to cross- examine Ms Tang on these relevant matters.
[10] I am not satisfied that the circumstances under s 2(2) are satisfied.
Maker of the statement
[11] However, it is unnecessary that my decision turn on that point alone. Section
3(1) requires there to be a “statement made by a person in a document”, tending to establish that fact or opinion. The document in issue is a brief of evidence prepared
by Detective Webb who gave evidence yesterday. He interviewed Ms Tang on 16
September 2003. The document is part narrative, part question and answer. It starts at 1030 hours and concludes at 1215 hours. At 1215 hours Detective Webb recorded
Statement terminates. Tang wishes to seek legal advice before signing statement.
[12] Detective Webb gave evidence that Ms Tang did not sign the statement and did not at any time return to complete it.
[13] In R v Hovell [1986] 1 NZLR 500, to which both Mr Shaw and Mr Glubb referred in submissions, McMullin J (one of the two Judges in the majority on the Court of Appeal), said at p 508:
A statement becomes the statement of the person interviewed when he or she signifies its adoption as an authentic record, either by signing or initialling it or signifying its adoption in some other manner.
In relation to the statement there in issue, he continued:
Palpably, Mrs B was the maker of the statement in the document and she had personal knowledge of the matters dealt with in it.
[14] In that case Mrs B had signed the document and, as is said at p 510 of the judgment, “made it her own”.
[15] Quite the contrary, is the situation here. Not only has Ms Tang not signed the document, but she has expressly reserved her adoption of the statement, as is recorded at the end of the document prepared by Detective Webb. She has never authenticated it, confirmed or adopted it in any way whatsoever. She has not “made it her own”. There cannot therefore, in my view, be a statement made by her in a document within the meaning of s 3(1).
[16] Mr Shaw in submissions referred me to the very wide definitions of “statement” and “document” which are set forth and discussed at p 507 of the judgment of McMullin J in R v Hovell. He emphasised particularly that a document by definition does not need to be signed or initialled or otherwise authenticated. But to qualify for admissibility in terms of s 3 of the Evidence Amendment Act there has
to be a statement made by a person in a document. The authority of the Court of Appeal in that case is clear that there needs to be authentication and adoption by the maker of the statement before the document can be admitted in evidence.
[17] The other relevant provision is s 18, which provides the Court with a discretion to reject unduly prejudicial evidence. That section does not have any application given my decision that the application must fail in respect of the statement for the reasons I have set forth.
[18] The application is declined.
Addendum
My oral judgment did not include the reasons for declining the application in respect of the letter dated 18 October 2006. It is completely irrelevant to the issues before the Court. In response to my question as to the respect or respects in which it was relevant, Mr Hart could offer no suggestions, beyond that the defence “might want to make use of it”. That does not render the evidence relevant or admissible.
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