R v Pearce

[2007] NZCA 40

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA453/06 [2007] NZCA 40

THE QUEEN

v

RICHARD STEVEN PEARCE

Hearing:         21 February 2007

Court:            O’Regan, Chisholm and Rodney Hansen  JJ Counsel:  P V Paino for Appellant

G J Burston and D R La Hood for Crown

Judgment:      2 March 2007         at 4.00 pm

JUDGMENT OF THE COURT

ALeave to appeal is granted and the appeal is allowed.   Mr Edgarton’s statement is not admissible against the appellant.

B        Order prohibiting  publication  of  the judgment in  news  media  or on

Internet or other publicly accessible database until final disposition of the trial.  Publication in Law Report or Law Digest permitted.

R V RICHARD STEVEN PEARCE CA CA453/06  2 March 2007

REASONS OF THE COURT

(Given by Chisholm J)

[1]      During the early hours of 3 September 2005 a woman died in a fire at an Upper Hutt residence.  It is alleged by the Crown that the house fire was caused by Molotov cocktails thrown into the house by the appellant and one of his co-accused, Nicholas Edgarton.   While the appellant and Mr Edgarton have pleaded guilty to arson, they have both denied a charge of murder laid pursuant to s 167(d) of the Crimes Act 1961.

[2]      After most of the Crown’s evidence had been presented to a jury late last year it became necessary for Ronald Young J to discharge the jury.  The new trial is to commence next week.   During the aborted trial an issue arose about the extent to which observations made by Mr Edgarton in his video interview with the police could be used in the Crown case against Mr Pearce, and after the trial was aborted the Crown sought a ruling pursuant to s 344A of the Act.

[3]      In a reserved judgment delivered on 23 November 2006 Ronald Young J ruled that part of the out of Court statement made by Mr Edgarton could be used by the Crown against the appellant.   The appellant seeks leave to appeal against that ruling on the broad  basis  that  it  is  contrary to  the  rule that,  subject  to  limited exceptions, an out of Court admission by one accused is not admissible against a co- accused.

Background

[4]      The Crown alleges that Carol Clayton (who is jointly charged with the other two accused of murdering the deceased) was jealous of two women (neither of whom  was  the  deceased)  who  lived  at  50A  Thackeray Street,  Upper  Hutt,  and wanted to kill them.  It is alleged that during the early hours of 3 September 2005

Mrs Clayton drove the other two accused to a location close to that property, that the appellant and Mr Edgarton then ran to the property and threw two Molotov cocktails through the front window of the house, following which they returned to the car and

were driven away by Mrs Clayton.  An elderly occupant of the property died in the fire which ensued.

[5]      Both the appellant and Mr Edgarton were subsequently interviewed by the police on video.  Ultimately they acknowledged that they had each thrown a Molotov cocktail through a window of the house.  But they claimed that they believed no-one would be home and that if they had been aware that anyone was in the house they would not have thrown the Molotov cocktails.   One of the issues at trial will be whether the Crown can prove that the appellant knew that the act of throwing the Molotov cocktail was likely to cause death in terms of s 167(d).   The Crown will seek to establish that the television in the house was going at the time and that the appellant and Mr Edgarton could see that it was going, indicating that they were aware the house was occupied.

[6]      During the initial police interview of Mr Edgarton the following exchange occurred between the interviewing officer (CM) and Mr Edgarton:

CMAlright and do you, do you un, understand, or do you, did he tell you where in the house he [Pearce] threw it?

NEYeah he said, like, he said where he threw it was a big, big window, I think, I think he said it was the lounge or something, well he’s, could, he could see the TV, see the, you could see a TV going on, you know.

[7]      The Crown considers this to be part of an exculpatory statement in which Mr Edgarton is denying that he was involved and attempting to place the blame on Mr Pearce.  The Crown says he was, in effect, outlining his own experience of events on the night but transferring it to the appellant.  For this reason the Crown does not intend to lead the statement.

[8]      Later the same day Mr Edgarton indicated that he wished to speak to the police again.   When the interview resumed Mr Edgarton said that Mrs Clayton wanted the house burnt down, that when she said she was going to do it herself the appellant  said  that  he  would  do  it,  and  that  the  appellant  asked  him  to  help. Mr Edgarton continued:

… so we went down on Friday night about 2 o’clock and with two molotov cocktails that where, he’d already pre-made and um went down there, all the lights were off, you could see the TV on.

The Crown seeks to use Mr Edgarton’s statement that “you could see the TV on” as part of its case against the appellant for the purpose of establishing that the appellant must also have been able to see that  the television was on.   Such evidence, if accepted by the jury would, of course, be relevant to the question of the appellant’s state of mind.

[9]      In his video interview the appellant said that he could not see or hear a TV. He said that if he had heard a TV he “would have just turned around and walked away” and later that there was no way that he would have thrown a Molotov cocktail at the house if he knew there was someone in it.  Mr Edgarton’s statements about the TV were not put to the appellant.

[10]     Evidence will be given for the Crown by Brian Betti that on the night in question he slept in the lounge beside the television set at 50A Thackeray Street and that he had left the television set on.  Letitia Owens, the other person sleeping in the lounge that night, could not remember whether the television set was on or not when she went to sleep.  Judy Betti, another resident of the house, claimed that she had turned the television off as she left the lounge and went to her bedroom, although that appears to have been before Mr Betti fell asleep.

[11]     The police attempted to recreate and photograph the scene as it would have been observed by the appellant and Mr Edgarton that night.   In a separate ruling, which is not challenged, Ronald Young J allowed evidence of this reconstruction to be presented to the jury.  According to this evidence the light from the television can be seen from the position near to where it is alleged that the appellant was standing when he threw the Molotov cocktail.  Thus the Crown contends that the appellant must have seen that the television was going when he threw the Molotov cocktail. This reconstruction is, however, criticised by the appellant on the basis that it is not sufficiently similar to help the jury.

High Court ruling

[12]     It was argued by the Crown that admission of the evidence would not infringe the  co-accused  rule  because  it  was  an  observation  by  Mr  Edgarton  and  not  a statement about Mr Pearce or about what he had done or said.   The Crown also argued that in view of R v Manase [2001] 2 NZLR 197 (CA) the evidence should be admitted notwithstanding that it was technically hearsay. In the Crown’s submission it was for the jury to assess whether a logical inference could be drawn that if Mr Edgarton could see the light from the television then Mr Pearce must also have been able to see it.

[13]     Ronald Young J rejected the Crown’s argument that the evidence did not infringe the co-accused rule.  His view was that it was the way in which the Crown wished to use the evidence (as part of its case against the appellant) that created a breach of the rule.  He reasoned:

[25]      … The statement by Mr Edgarton that he could see the television light is admissible against Mr Edgarton because it is a “confession” in the sense that it is a statement against his interest.  The fact the television light can be seen is relevant to the likelihood of the presence of people in the house which is relevant to the likelihood of death in the fire (see s167(d)). This  inference  is  legitimately  available,  as  against  the  maker  of  the statement, Mr Edgarton.

[26]      The Crown case is that Mr Edgarton’s statement of what he could see that night can also be used in the case against Mr Pearce. The Crown say the jury are entitled to infer, if Mr Edgarton saw the television light, then Mr Pearce must also have done so.  If this is a conclusion the jury make, then this evidence is relevant to the likelihood that persons were present in the house that night as far as the case against Mr Pearce.  And so the statement by Mr Edgarton, if admitted in the case against Mr Pearce, goes to the heart of the case against Mr Pearce.  This inference, invited by the Crown, relies upon the jury accepting the truth of what Mr Edgarton said and using the truth of what he said in the case against Mr Pearce.  Expressed in this way, the breach of the co-offender’s rule is clearly illustrated.

There is no challenge in this Court to the Judge’s conclusion that the co-accused rule applies.

[14]     The Judge went on to say that in R v Hayter [2005] 2 All ER 209 the House of Lords had identified what could be suggested as a new limited exception to the rule. In that case the Crown had alleged that one accused arranged for the killing of

her husband through another accused (the middle man, Hayter) who, in turn, hired the third accused to shoot the victim.  The only evidence against the third accused was his confession.  The Court upheld the Judge’s direction to the jury that if jurors found the third accused was the killer, they could use that finding in considering the case against the middle man.  Having referred to the speech of Lord Brown of Eaton- Under-Heywood, Ronald Young J indicated that although Hayter “is not on all fours with the present situation, by analogy this case also comes within that exception to the rule”.

[15]     Again it is appropriate to quote the Judge’s reasoning which is pivotal to his conclusion that Mr Edgarton’s statement could be used against the appellant:

[29]     … In this case the relevant admission by the accused Mr Edgarton, that he could see the television light from outside 50a Thackeray Street before he threw the molotov cocktail, is vital evidence, if believed, of murderous intent.   It is relevant to the jury’s assessment of whether the accused had an actual or conscious appreciation of a real and substantial risk that someone would die as a result of throwing the molotov cocktail through the lounge window.  This statement by Mr Edgarton is entirely about what he could see.  It does not, on the face of it, refer to the accused Mr Pearce at all.  It is clearly a statement by Mr Edgarton against his interest.  Its inherent reliability is therefore high.  In those circumstances, much of the basis for objection to the admissibility of the statement with respect to Mr Pearce disappears.   It is not a statement that implicates Mr Pearce at all.   Prima facie, it is relevant only to Mr Edgarton’s guilt.  If, however, following R v Hayter the jury are convinced that what Mr Edgarton said about seeing the television light was true, then I am satisfied the Crown are entitled to invite the jury to infer Mr Pearce must also have seen the light.

[30]     There   are   legitimate   criticisms   that   can   be   made   of   the appropriateness of the inference the Crown will invite of the jury.  However, these criticisms go not to the inherent reliability of what Mr Edgarton said he could see, but whether the Crown’s invitation is a logical inference and inevitably drives the jury to believe that Mr Pearce must also have seen what Mr Edgarton saw.  It is the inherent reliability of Mr Edgarton’s account of what he could see which removes much of the concern around using what Mr Edgarton said in the case against Mr Pearce.

[31]      Mr Pearce has said in his video interview with the police that he did not  see  any  lights  on  that  night  at  the  house,  and  so  he  has  had  the opportunity to effectively respond to Mr Edgarton’s evidence.  Finally, the loss of Mr Pearce’s opportunity to cross-examine Mr Edgarton about what he said he saw seems less significant in this case.  What could be made of such cross-examination?   Mr Pearce would be reduced to putting to Mr Edgarton that when he  said  he  saw the television  light  on (a statement against interest) he was lying.   Mr Pearce’s real attack on the evidence is preserved because Mr Pearce’s opportunity to attack the reliability of this

evidence arises from the Crown’s invitation to the jury to infer that if Mr

Edgarton could see the television light then Mr Pearce must have.

The Judge said that he was satisfied the evidence was admissible and granted the

Crown’s s 344A application accordingly.  There was no reference to R v Manase.

Appellant’s argument

[16]     Mr Paino submitted that there is no justification for any relaxation of the co- accused rule in this case.  He noted that if the evidence is admitted the Crown would use it not only to provide a foundation for the inference that because Mr Edgarton could  see  the  TV  so  could  Mr  Pearce,  but  also  to  support  an  allegation  that Mr Pearce was lying in his video interview when he said that he did not see any TV operating in the house.

[17]     Counsel contended that admission of Mr Edgarton’s statement against the appellant would be particularly unfair in this case because the appellant had not been asked during his interview about the statements made by Mr Edgarton.  He provided examples of responses that might have been provided by the appellant and disputed the  Judge’s  conclusion  that  the  absence  of  any  opportunity  to  cross-examine Mr Edgarton would be insignificant.  Mr Paino put it on the basis that as an advocate he should be able to use all available resources.

[18]     Mr Paino questioned whether a distinction could be drawn between the use of statements of observation by one accused against another accused, on the one hand, and the use of other statements by one accused against another accused, on the other. In his submission the underlying reasons for the co-accused rule remained the same: the co-accused was not present and had no opportunity to respond to the allegation; and the statement was not on oath.

[19]     To  the  extent  that  Ronald  Young J  relied  on  R  v  Hayter  to  provide  an exception to the co-accused rule, Mr Paino submitted the Judge had gone too far and well beyond the ratio of that decision.  He noted that whereas in Hayter’s case the only evidence against the killer was his confession, in this case the statement by Mr Edgarton was just one of a number of pieces of evidence that could be used by

the jury against Pearce.  Mr Paino also noted that it was the fact of guilt that was important in Hayter, which could be contrasted with this case where it was not the fact of guilt of Mr Edgarton that was being used against Pearce, but the truth or otherwise of what Mr Edgarton said.

[20]     Mr Paino also argued that there was no need for the co-accused rule to be relaxed on policy grounds.  He said that the historical reasons for the co-accused rule remain and should not be eroded in this case.  He noted that a relaxation of the rule would run contrary to s 27 of the Evidence Act 2006 which has expressly preserved the co-accused rule.

Crown’s response

[21]     Mr Burston submitted that the Judge correctly found the decision in R v Hayter created an available exception to the co-accused rule in circumstances where an accused’s admissions against interest that directly implicate another accused are, on the face of it, inherently reliable.  He argued that, for the reasons given by Ronald Young J, Mr Edgarton’s statement had inherent reliability and evidential significance on the issue of murderous intent.  He said there were only slight concerns about the ability to challenge it.

[22]     According to Mr Burston the difference between Mr Edgarton’s statements of observation, on the one hand, and any report of what the accused said or did, on the other, is encapsulated in Lord Brown’s speech in R v Hayter.  He claimed that this reflects the difference between statements which are admissions against interest which, on their face, do not attempt to directly implicate another accused, and those specifically designed to shift blame.  The former are highly reliable while the latter are highly unreliable.

[23]     It was submitted that, contrary to the submission on behalf of the appellant, R v Hayter justified a relaxation of the co-accused rule in this case.   Mr Burston rejected Mr Paino’s proposition that R v Hayter was distinguishable.  He accepted that in Hayter the jury had been told that it could use the killer’s out of Court confession against the middle man only if the killer were convicted, i.e. the jury

accepted  that  the  confession  was  true.    But  he  said  that  was  not  a  reason  to distinguish Hayter and that Ronald Young J rightly focused on the jury’s acceptance of the truthfulness of the admission made by Mr Edgarton rather than on a finding of guilt.

[24]     It was also submitted on behalf of the Crown that R v Manase provided an alternative basis upon which the hearsay evidence could be admitted, because it met the  tests  of  “relevance,  inability  and  reliability”  mentioned  in  that  decision. Mr Burston submitted that the hearsay rule had been relaxed in R v Manase and had now been relaxed in the Evidence Act 2006.   Given that the House of Lords had specifically relaxed the hearsay rule in a co-accused situation, Mr Burston submitted that it was appropriate for Mr Edgarton’s statement to be admitted against the appellant in this case.   After the hearing had concluded Mr La Hood submitted a memorandum   drawing   our   attention   to   R   v   Fenton   CA223/00,   CA299/00

14 September 2000.

Discussion

[25]     As conceded by the Crown, Ronald Young J was entitled to conclude that any attempt by the Crown to use Mr Edgarton’s out of Court admission against the appellant would infringe the co-accused rule as that rule has been traditionally applied.  The appellant was not present when Mr Edgarton made his admission and, as the Judge found, it did not fall within any of the recognised exceptions to the rule (where the co-accused accepts the truth of the statement;   things said and done in furtherance of a common design in a case where conspiracy is alleged;  and things said and done in furtherance of a common design where the accused are alleged to have engaged in a common enterprise).

[26]     The co-accused rule reflects that notwithstanding that a confession is against the interest of the maker of the statement and is thereby likely to be true, in a co- accused situation the maker of the statement may have other motives, such as endeavouring to transfer blame to the other co-accused, that are capable of undermining the reliability of the statement.   The rule also reflects that the out of

Court admission has not been made on oath and that the co-accused will not have had an opportunity to cross-examine the maker of the statement.

[27]     Despite  those  considerations  the  Crown  contends  that  Mr  Edgarton’s admission should be admissible against the appellant on the strength of this Court’s observations in R v Manase and its earlier observations in R v Fenton.  As mentioned earlier, R v Manase was cited to Ronald Young J but it does not appear to have featured in his decision to admit the evidence.  As far as we are aware R v Fenton was not cited to His Honour.

[28]     We begin with R v Fenton in which a full Bench of this Court considered an appeal by two sisters who had been convicted of murder.  The appellants contended that there had been a miscarriage of justice arising from the failure to sever their trial from that of a third offender who had made a very damaging statement to the effect that all three had planned to kill the deceased.  This statement was at odds with the explanation both appellants had given to the police.  It was common ground that the statement of the third offender was not admissible against the two appellants, and the trial Judge directed accordingly.   But both appellants claimed that the jury might have failed to implement the Judge’s direction.

[29]     Although the appeals were dismissed the Court concluded its judgment by making some observations about hearsay evidence.  It said:

[31]     As noted earlier, it is the hearsay rule which makes an out of Court statement by accused A inadmissible against accused B unless made in B’s presence.   The rule itself was not the subject of any submissions in the present case.   It is, however, in a state of evolution at common law and proposals have been made by the Law Commission for major statutory reform.  In its report on Evidence, Number 55 Volume I published in August

1999, the Commission (see para 60) has proposed that in both civil and criminal proceedings hearsay evidence should be admitted if it is sufficiently

reliable, and the maker of the statement is unavailable as a witness.   The proposed Evidence Code deals discretely with the concept of unavailability.

The Courts have been moving in much the same direction, see R v Baker

[1989] 1 NZLR 738 (CA) and R v Bain [1996] 1 NZLR 129 (CA).

The Court then went on to discuss the Evidence Code proposed by the Law Commission.   It expressed the view that hearsay reform as part of the wider legislative reform of the law of evidence was desirable and some aspects of the Code

were discussed.   The Court recorded, however, that nothing that it had said about hearsay in the concluding section of its judgment had influenced its thinking on the disposition of the appeals before it.

[30]     The following year another Full Court of this Court delivered judgment in R v Manase.  In that case the appellant was charged with sexual offences against a child who was three and a half years of age at the time of the alleged offending.  By the time the matter came before the High Court she was five years old but it was not contemplated that she would give evidence.   Instead the Crown sought to adduce evidence from her mother about comments the child had made to her (but which did not qualify as prompt complaints) and evidence from a receptionist at a specialist sexual abuse unit about the child’s comments and a drawing that had been completed by the child in her presence.   The High Court’s ruling that the evidence was admissible was overturned by this Court.

[31]     In its judgment this Court considered the basis on which exceptions to the hearsay rule might be approached.  It observed at [18] that the only sound method involved identifying and confining the law to categories or types of circumstances in which “there is sufficient circumstantial reliability in the hearsay statement to justify its admission".  Later the Court said that its purpose was to state the common law in a  way  which  was  not  intended  to  cut  across  what  the  Law  Commission  had proposed, nor to make any substantial changes of a conceptual kind to the position reached in the earlier decisions.

[32]     At [30] the Court formulated the following threefold test for determining the admissibility of hearsay evidence:

(a)       Relevance.    This  is  not  strictly  a  requirement  directed  to  this exception to the hearsay rule.  Rather it is an affirmation and a reminder of the overriding criterion for the admissibility of all and any evidence.  It is a self-contained issue. The evidence in question either has sufficient relevance or it does not.  The same test applies as would have applied to the primary (ie non-hearsay) evidence.

(b)       Inability.    This  requirement  will  be  satisfied  when  the  primary witness is unable for some reason to be called to give the primary evidence. If the primary witness is personally able to give that evidence, it will seldom, if ever, be appropriate to admit hearsay evidence simply because the witness would prefer not to face the ordeal of giving evidence or would find it

difficult to do so.  To adopt that approach would be to tilt the balance too far against the accused or opposite party who is thereby deprived of the ability to cross-examine.

(c)       Reliability.   The hearsay evidence 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. We use the expression “apparent reliability” to signify that the Judge is the gatekeeper and decides whether to admit the evidence or not.  If the evidence is admitted, the jury or Judge, as trier of fact, must decide how reliable the evidence is and therefore what weight should be placed on it.  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.

The Court went on to say that as a final check it was necessary to consider whether hearsay evidence which otherwise might qualify for admission should nevertheless be excluded because its probative value is outweighed by its illegitimate prejudicial effect.

[33]     We are unable to accept that the observations of this Court in Fenton or Manase justify admission of Mr Edgarton’s statement as part of the Crown case against the appellant.  Our reasons can be stated relatively briefly.

[34]     First, the situation has changed since those decisions were delivered.  When they were delivered the Law Commission’s suggested Code of Evidence was on the table and in both cases the comments focused on those proposals.   Recently Parliament enshrined the co-accused rule in s 27(1) of the Evidence Act 2006 which provides:

(1)       Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.

Significantly subs (3) provides that Subpart 1, which relates to hearsay evidence, does not apply to evidence offered under subs (1).  We acknowledge, of course, that the Act is not yet in force.  But given the statutory endorsement of the rule we do not consider that it would be appropriate for this Court, particularly a divisional Court, to effectively erode the rule at this time.

[35]     Second, we have strong reservations about the Judge’s conclusion that the inherent reliability of the statement is high because it is a statement by Mr Edgarton against  his  interest.     Immediately  after  saying  “you  could  see  the  TV  on” Mr Edgarton went on to say in his video interview:

“He lit his first threw it, I hesitated cause I didn’t want to throw it and he reached over with the lighter and lit mine and I wasn’t exactly gonna hold it and let it blow up in my face so I threw it through the window …”.

These statements could be construed as an indication that Mr Edgarton was attempting to minimise his criminality and, at least to some extent, endeavouring to pass responsibility to the appellant.   As we have already mentioned, one of the factors underlying the co-accused rule is the risk that the maker of the statement has motives of his or her own and is not simply clearing his or her conscience.

[36]     Third, and this is a continuation of the same theme, we understand that the Crown does not intend to lead Mr Edgarton’s initial statement about being able to see the television in the house, nor further references later in the statement to the television being on.  Thus if the admission under consideration is admitted against the appellant the jury will have to assess its veracity with an incomplete picture. Given the inability to cross-examine Mr Edgarton this is a matter of considerable concern.

[37]     Fourth, as we have already mentioned, part of the underlying rationale for admitting confessions as an exception to the rule against hearsay is that confessions against interest are likely to be reliable.  However, on the face of the record in this case  it  is  debatable  whether  Mr  Edgarton  realised  the  significance,  in  terms  of s 167(d) of the Crimes Act, of his admission about the television being on.  If he did not appreciate its significance then there might be added reason to question whether the inherent reliability of his “admission” is in fact very high at all.  In this respect Mr Edgarton’s admission can be contrasted  with  what  might  be  described  as  a “straight out” confession that an offence had been committed.

[38]     Fifth,  we  are  also  conscious  that  in  this  case  the  statements  under consideration were made on 29 October 2005 which was nearly two months after the house was attacked.  This lapse of time justifies Mr Paino’s concern that there might

have been contamination from some outside source between the time of the alleged offending and the time that the statements were made.

[39]     Sixth, we need to take into account the purpose for which the evidence would be led, namely, to prove the appellant’s subjective intent.  If accepted by the jury the evidence  would  probably  also  have  the  effect  of  discrediting  the  appellant’s statement that he had not seen or heard the television and may well discredit his statement in a wider sense.  In other words, the evidence goes to the very heart of the contentious part of the Crown’s case against the appellant.    Under those circumstances the inability of defence counsel to cross-examine the maker of the statement  must  assume  considerable  importance.    With  respect  we  believe  that Ronald Young J under-estimated this factor.   Given that there is other evidence available  to  the  Crown  in  relation  to  whether  the  television  was  going,  not  to mention other indicators that there were people in the house, we consider that the illegitimate  prejudicial  effect  of  allowing  the  evidence  to  be  used  against  the appellant outweighs any probative value that it would have.

[40]     Finally, we take into account the danger of the jury becoming confused if the evidence was admitted against the appellant.  The jury would have to be directed that although they were only entitled to use a very small part of Mr Edgarton’s statement against the appellant, they could nevertheless consider the whole statement when assessing whether that part was credible and reliable.

[41]     Now we turn to the alternative proposition that it was appropriate to admit the statement by analogy with R v Hayter.  In our view that decision turned on its own facts and its ratio is relatively narrow, as we will now endeavour to explain.

[42]     The prosecution case in R v Hayter was that there had been a contract killing. It was alleged that Ms Bristow, the wife of the deceased, had arranged through Hayter for Ryan to kill her husband, Hayter having engaged and paid Ryan.   The evidence against Ryan was based solely on a confession which he had allegedly made to his girlfriend.  The Judge directed the jury that only if they found both the actual gunman and the woman who arranged the killing guilty of murder would it be open  to  them,  taking  into  account  those  findings  of  guilt,  together  with  other

evidence against the middleman (Hayter), to convict Hayter.  He cautioned the jury not to allow anything said in the confession to Ryan’s girlfriend to play a part in their consideration of the case against Hayter (or against Bristow).  All three were convicted of murder.

[43]     The principal argument on behalf of Hayter before Their Lordships was that the rule, that an out of Court confession by one defendant could not be used by the prosecution against a co-defendant, had been breached by the way in which the Judge had directed the jury.   By a 3:2 majority the House of Lords dismissed the appeal.  For the majority Lord Steyn and Lord Brown delivered detailed judgments and Lord Bingham of Cornhill agreed with the reasons given by Lord Brown which he said were “substantially those of Lord Steyn”.

[44]     Lord Steyn rejected the proposition that there had been any direct or indirect infringement of the co-accused rule.  He said (at [19]):

In clear terms the judge directed the jury not to take into account the words or content of Ryan’s confession in the case against Hayter.  Subject to the jury being satisfied of the guilt of Ryan and Bristow, he directed the jury that they could take into account those findings, together with other evidence, in the  case  against  Hayter.     There  is,  therefore,  no  direct  or  indirect infringement of the rule.  This becomes even clearer when one bears in mind that the mischief at which the rule is directed is to prevent the content or words of a confession to be used against anybody but the maker.  The judge, of course, directed the jury that they could not use the content or words of any part of the confession of Ryan against Hayter.

Later Lord Steyn said that even if his approach were wrong he would have been prepared to make a “modest adjustment” to the rule about out of Court confessions in joint trials to sanction “the sensible and just procedure” adopted by the trial Judge.

[45]     Lord Brown also concluded that there had been no breach of the rule:

[86]      With these thoughts in mind let me return to the certified questions. It is important in addressing them to recognise that the effect of the judgment below is distinctly limited.   It is not proposed to admit A’s confession as evidence against B for all purposes, but only subject to two conditions:  first, that the jury are sufficiently sure of its truthfulness to decide that on that basis alone they can safely convict A [Ryan];  and second, that the jury are expressly directed that when deciding the case against B [Hayter] they must disregard entirely everything said out of court by A which might otherwise be thought to incriminate B.   I acknowledge, of course, that the jury in

deciding at the first stage to convict A on the basis of his own out of court admissions, will already have had regard to the evidence for that purpose when they then come to use A’s conviction as itself a building block in the case against B.  But by that second stage of the jury’s deliberations A’s out of court admissions will have been in effect subsumed within their finding of guilt against A.

He then went on to ask what objection there could be to using a co-defendant’s admission in this “carefully and narrowly circumscribed way”.   Obviously those additional remarks are obiter.

[46]     In  our  view  R  v  Hayter  is  distinguishable  from  the  situation  under consideration.  The House of Lords confirmed that the jury was entitled to use the finding of Ryan’s guilt when considering the Crown case against Hayter notwithstanding that the only evidence against Ryan was his confession.   This reflected that Hayter could only be found guilty if the other two accused had been found guilty.  On the facts of that case we do not see anything surprising about the outcome.  We note in passing that this interpretation of R v Hayter is consistent with the analysis of that case in Cross on Evidence  (looseleaf ed) at  [18.20] and in Archbold (2007 ed) at 9-85.

[47]     The factual situation under consideration is quite different.  A finding of guilt against the appellant would not hinge on the jury having first found Mr Edgarton guilty, or vice versa.  And whereas the jury in Hayter was directed that it could rely on the finding of guilt but not on the confession when it was considering the case against the co-accused, the whole purpose of admitting Mr Edgarton’s admission would be so that it could be used against a co-accused, the appellant.  We therefore conclude that there is no analogy between Hayter and this case.

Outcome

[48]     Leave to appeal is granted and the appeal is allowed.   The evidence from Mr Edgarton’s  statement  that  the  Crown  seeks  to  lead  against  the  appellant  is inadmissible as evidence against the appellant.

[49]     Given that a trial is pending, there will be an order prohibiting publication of this judgment in news media or on internet or on any other publicly accessible

database until final disposition of the trial.  Publication in a Law Report or a Law

Digest is permitted.

Postscript

[50] Mr Burston asked us to note that s 27 of the Evidence Act preserves the co- accused rule but does not provide for the current exceptions set out in [25]. This might be an oversight, although s 12 might be able to be called in aid. If not, an amendment would be required to preserve the pre-existing law, which appears to be Parliament’s intention.

[51]     This is not, of course, an issue before us.  But we have recorded Mr Burston’s summary of the  issue  so  that  if  remedial  steps  are  required  they can  be  taken promptly.

Solicitors:

Paino & Robinson, Upper Hutt, for Appellant

Crown Law Office, Wellington