R v Ram

[2007] NZCA 166

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PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA230/06

CA231/06 [2007] NZCA 166

THE QUEEN

v

KIRTI RAM MANISH KUMAR TYAGI

Hearing:         20 March 2007

Court:            William Young P, Hammond and Wilson JJ Counsel:           J R Rapley for Appellant Ram

S J Shamy for Appellant Tyagi
B J Horsley and M F Laracy for Crown

Judgment:      2 May 2007 at 11 am

JUDGMENT OF THE COURT

A        The  appeals  are  allowed,  and  the  convictions  in  respect  of  both

appellants are quashed.

R V RAM And Anor CA CA230/06 [2 May 2007]

BWe order a re-trial of both appellants on the counts which went to the jury at the first trial.

CAn  order  is  made  prohibiting  publication  of  the  judgment  and  the reasons therefor in the news media or on the internet or in any other publicly accessible database until final disposition of the re-trials. Publication in a law report or law digest is, however, permitted.

REASONS OF THE COURT

(Given by Hammond J)

Table of Contents

Para No

Introduction  [1] Background  [3] Mr Ram’s video interview is ruled inadmissible  [10] Mr Ram proposes to give evidence inconsistent with the video

statement  [14]

The trial Judge rules that cross-examination would be permitted         [18] Mr Ram does not give evidence  [20] The trial Judge’s reasons for the impugned trial ruling  [22] The particular appeal point  [27] Counsel’s submissions  [28] The authorities

(i)   Introduction  [30]

(ii)  England  [31] (iii) The United States of America  [39] (iv) Canada  [46] (v)  Australia  [50] (vi) New Zealand  [54]

The Evidence Act 2006

(i)    Introduction  [60]

(ii)  The law relating to cross-examination arising out of voir dire

evidence will change in the new Act  [61]

(iii) The law relating to cross-examination arising out of

inadmissible prior statements will be settled by the new Act           [64] (iv) The overall result under the new Act  [70] (v)  What should the position be until the new Act comes into force?      [71]

Conclusion with respect to Mr Ram  [79] Conclusion with respect to Mr Tyagi  [81] The other appeal points  [84] Conclusion  [85]

Introduction

[1]      The  central  issue  on  this  appeal  is  whether  the  Crown  may  utilise  an inadmissible out-of-court statement to impeach the evidence of a defendant who elects to give evidence at his or her trial.

[2]      This issue has not been squarely resolved in New Zealand.  It is one which has attracted considerable controversy, and differing responses, in other common law jurisdictions.

Background

[3]      Mr Ram and Mr Tyagi were jointly charged with a number of counts of indecencies and sexual violation against the complainant, whom we will designate as “X”.  They were convicted by a jury in the District Court at Christchurch at a trial presided  over  by Judge Abbott.    Subsequently they were  sentenced  to  10  years imprisonment.

[4]      At the time of the events complained of, X was 17 years old.   She had travelled  to  Christchurch  from  another  city  in  the  South  Island,  following  an argument with her family.

[5]      Mr Ram and Mr Tyagi were both chefs at a restaurant in Christchurch called

Two Fat Indians.  This restaurant is situated on an inner city street.

[6]      On 2 January 2005 there was a function for employees of the restaurant. Alcohol was consumed.   After that function, Mr Ram was walking towards a bus exchange when he encountered X.  She agreed to accompany Mr Ram back to the restaurant.  Mr Tyagi and certain other men were also at the restaurant.  Eventually, X, Mr Ram, and Mr Tyagi were left in the restaurant by themselves.

[7]      X complained that, without her consent, Mr Ram and Mr Tyagi inflicted a range  of  sexual  activities  on  her  including digital  penetration,  oral  sex,  vaginal intercourse, and attempted anal intercourse.

[8]      X was eventually able to effect an escape.  She encountered a security guard outside a KFC restaurant on another city street, at which time she said that “two Indian guys had done something bad to her”.

[9]      It was Mr Ram and Mr Tyagi’s case that X had agreed to their solicitations. They contended that, having found herself far away from home, X needed money to get back there, money which the appellants offered in return for sexual favours.  It was argued that X later approached the authorities after becoming angry at her lack of  payment.    The  appellants  accepted  that  limited  sexual  activity  had  in  fact occurred, but argued that its nature was quite different from that which had been asserted by X.

Mr Ram’s video interview is ruled inadmissible

[10]     Both Mr Ram and Mr Tyagi made statements to the police.

[11]     Mr Ram’s  statement  was  recorded  on  video  by  Detective  Farrant  on

4 January  2005.    In  this  statement,  Mr Ram  claimed  that  X  was  the  one  who instigated any sexual activity.  He claimed to have overheard X talking to Mr Tyagi about money.   He said that he sat down on a sofa in the restaurant because of a headache.  A little later X came over to him, and took his clothes off.  She had a condom in her hand, and she put it on him.   Mr Ram claimed that he was not comfortable with this occurring in front of Mr Tyagi, and that X had then taken him to a bathroom.  At that stage the condom was still on his penis.  X tried to initiate sexual conduct but Mr Ram said he did not want it, and he took the condom off when he was inside the bathroom.  Mr Ram said he offered to take X home and give her money for the bus fare in the morning.   Mr Ram denied ejaculating in the condom.  He claimed that any semen found at the restaurant would not be his.  In this interview Mr Ram did not acknowledge engaging in sexual intercourse, or oral sex, with X.

[12]     Prior to this interview, Mr Ram was advised by the Detective of his rights pursuant to the New Zealand Bill of Rights Act 1990 (the Bill of Rights).   This advice came by way of interpretation into Hindi from a Mrs Rama.  As it transpired,

the interpretation was faulty in significant respects.   Further, when Mr Ram asked Mrs Rama where he could get a lawyer, she replied that answering that question was not her role and that her only function was to interpret what Detective Farrant said. Mr Ram’s concern was not relayed to Detective Farrant.

[13]     The admissibility of that statement was challenged.   There was a two-day hearing on 28 and 29 November 2005.   On 10 March 2006, in a fully reasoned judgment,  Judge Abbott  ruled  the  video  statement  of  Mr Ram  inadmissible  in evidence at the forthcoming trial, because the Bill of Rights had not been observed.

Mr Ram proposes to give evidence inconsistent with the video statement

[14]     Mr Ram intended to give evidence at the trial.   To this end, a brief of his evidence was prepared, and cross-examination of X proceeded on the basis of this brief.   In particular, it was put to X that having failed to complete intercourse, Mr Ram got up and wiped himself with the complainant’s underwear (leaving a condom  by  the  couch),  proceeded  to  the  toilet,  and  cleaned  himself  up.    On Mr Ram’s account, while he was there X also spat into the toilet.   In her cross- examination X said that it was possible that Mr Ram had used her garments to clean himself, but she denied the other assertions which Mr Ram had made.

[15]     Shortly before Mr Ram gave evidence, the Crown proposed that it would cross-examine him on the contents of the inadmissible video statement, because his proposed evidence at trial had been indicated as being likely to be different from what had been said in that interview.

[16]     In summary, there were the following principal areas of difference between the video statement and the brief of evidence:

•    The issue of a conversation between X and Mr Ram personally regarding payment.

•    Whether Mr Ram ejaculated or not.

•   Whether a condom was discarded by the couch, or in the bathroom.

•   Whether and how Mr Ram had cleaned himself.

•   Whether X spat on the floor in the restaurant, or in the toilet.

[17]     It seems likely that the change in account by Mr Ram had something to do with the analysis of several semen stains on X’s undergarments, on the couch, in a condom discovered by the couch, in the bathroom of the restaurant, and on an anal swab of X.  On the DNA evidence, the semen almost certainly came from Mr Ram. Mr Ram was going to have to account for these facts, if they were accepted as such by the jury.

The trial Judge rules that cross-examination would be permitted

[18]     At the request of counsel, on 26 May 2006 – that is, two days into the trial, but before Mr Ram could give evidence – Judge Abbott ruled that “subject to the nature and degree of any inconsistency between Mr Ram’s evidence-in-chief and what he said in the video interview, the Crown may apply to cross-examine Mr Ram on any such inconsistency” (at [3]).

[19]     The Judge said (at [4]):

In particular, I indicate that, if Mr Ram was to give evidence in terms of the factual propositions relating to the toilet which Mr Rapley has put to the complainant, [X,] … it is likely that I would allow the Crown to cross- examine Mr Ram in respect of that issue by reference to the video interview.

Mr Ram does not give evidence

[20]     Somewhat unsurprisingly, given the Judge’s ruling, Mr Ram then elected not to give evidence.

[21]     There had been some skirmishing between counsel during the trial and prior to the Judge summing up as to other events which had occurred in the trial.  These matters have given rise to other grounds of appeal.   There were some successful

applications under s 347 of the Crimes Act 1961 prior to the case going to the jury. But in the end, the Judge summed up on 1 June 2006, and convictions were returned by the jury on the counts which it had been asked to consider against both of the defendants.

The trial Judge’s reasons for the impugned trial ruling

[22]     Several months later, on 12 February 2007, of his own motion Judge Abbott gave extensive reasons for his ruling in [18] above, after he became aware of this impending appeal.

[23]     The Judge correctly noted (at [12]) that the issue which had arisen before him during the trial “has not  been  authoritatively determined”  in  New Zealand.    He referred in that respect to R v Agraval CA297/92 17 December 1992; R v Paparahi (1993)  10 CRNZ  293  (CA);  and  R  v  King  CA227/03  15 December  2003.    In Paparahi this Court noted that this issue is “of considerable importance” (at 299).

[24]     The Judge traversed the trial evidence to which we have already referred, and noted how it was inconsistent in some important respects with the video statement of Mr Ram.   He noted that the video interview had not been obtained by threats or coercion; there was therefore no issue of unreliability.  The Judge said that there was an  issue  with  the  translation,  but,  “the  availability  of  a  verified  transcript significantly reduced” the risk that this would lead to unreliability (at [44]).

[25]     In the Judge’s view, the credibility of X had been seriously impugned by counsel for Mr Ram.   Counsel had cross-examined X on the basis that she was a vindictive teenager who approached the police when her prostitution deal went awry. In relation to the accused, the Judge drew a distinction between impeaching credit and implicating guilt.  So, for instance, he said, in Agraval the accused should not have been cross-examined on a confessional statement that was ruled inadmissible. In the current case, Mr Ram’s video interview, while inconsistent with the forensic evidence, was still exculpatory.

[26]     The Judge was particularly concerned to avoid a situation where Mr Ram could  provide  any explanation  he  cared  to  advance  in  order  to  fit  the  forensic evidence, without the backdrop of an inconsistent and voluntary video interview. The Judge said (at [47]):

[I]f Mr Ram had elected to give evidence, in circumstances where he would thereby have put his own credibility in issue, to require the jury to make that assessment solely on the basis of his evidence, in circumstances where he had given a video interview which was inconsistent with his evidence in several crucial respects, would have resulted in that assessment being made on a totally artificial and sanitised basis, in particular in circumstances where [X] had been subject to a searching attack on her own credibility.

And further (at [39]), “As a matter of fairness, issues of credibility should be determined on a level playing field.”

The particular appeal point

[27]     The appeal point under this head is expressed to be that the trial Judge “ruled that   the   Crown   could   use   the   inadmissible   statement   Mr Ram   gave   to Detective Farrant on 4 January 2005,  to  cross-examine  him  if  he  gave  evidence inconsistent with it”.

Counsel’s submissions

[28]     In his written submissions, Mr Rapley enlarged on this appeal point under four heads:

•   He said there were significant issues of reliability in relation to the video evidence;

•   He said it is artificial to believe that cross-examination on the contents of the video could be limited in such a way as to mean the jury did not need to see the full interview (as the Judge had suggested);

•   The Judge’s reasoning that the credibility debate would become “artificial and sanitised” was said to be at odds with the daily exclusion of evidence (for various reasons) in the courts; and

•   It  was  suggested  there  is  no  real  distinction  between  impeaching credibility and implicating guilt; in this instance they were one and the same.

[29]    Mr Horsley accepted that the distinct appeal point has not been finally determined in this Court.  He said, “ultimately [the legal] issue [before this Court] is a policy decision”.  He suggested that the Court is required to determine where, after balancing  all  relevant  considerations,  the  overall  interests  of  justice  lie.     He supported the decision of Judge Abbott as being “an admirable compromise and balancing of these interests”.   After a review of a number of authorities in other jurisdictions, he said such an approach is supported by the jurisprudence in the Supreme Court of the United States, and by a “persistent minority” in the Supreme Court of Canada.

The authorities

(i)       Introduction

[30]     It is convenient to turn next to the state of the authorities in the various common law jurisdictions, and then to the present position in New Zealand.  Because it is accepted that there is not presently a definitive answer in this country to the specific issue raised in this case, we begin with those jurisdictions in which there has been a distinct response.

(ii)      England

[31]     The starting point is the well known case of R v Thomas Michael Treacy [1944] 2 All ER 229 (CA), which would be familiar to most criminal law barristers. Mr Treacy was charged with the murder of a young woman. Amongst other things he was cross-examined at his trial upon answers he had made in an inadmissible

statement, and those answers were then contrasted with certain answers he had made in the witness box.

[32]     The  Court  of  Criminal  Appeal  (Viscount Caldecote  CJ,  Humphreys  and

Asquith JJ) held that this was quite wrong.  Humphreys J for the Court stated at 236:

In our view, a statement made by a prisoner under arrest is either admissible or it is not admissible.   If it is admissible, the proper course for the prosecution is to prove it, give it in evidence, let the statement if it is in writing  be  made  an  exhibit,  so  that  everybody  knows  what  it  is  and everybody can inquire into it and do what they think right about it.  If it is not admissible, nothing more ought to be heard of it, and it is quite a mistake to think that a document  can  be  made  admissible  in  evidence  which is otherwise inadmissible simply because it is put to a person in cross- examination.

[33]     Because  of  that  error,  amongst  others,  the  trial  was  thought  to  be unsatisfactory, and the verdict was set aside and an acquittal entered.

[34]     Subsequently, in Wong Kam-Ming v R [1980] AC 247, a Hong Kong murder appeal, the Judicial Committee of the Privy Council was of the view that if a confession was held to be inadmissible on a voir dire, then no later use could be made of admissions given by the accused during that voir dire where the admissions were relevant to the issue of the voir dire itself. For himself and Lords Diplock, Salmon, and Keith of Kinkel, Lord Edmund-Davies said, “Rex v. Treacy was undoubtedly  correct   in   prohibiting   cross-examination   as   to   the   contents   of confessions which the court has ruled inadmissible” (at 259; emphasis in original). Lord Hailsham of St Marylebone, who dissented on certain other points, did not dissent on that point.

[35]     In R v Brophy [1982] AC 476 the House of Lords supported the proposition that voir dire evidence cannot be used to impeach a defendant’s later evidence. Lord Fraser of Tullybelton, for Their Lordships, said (at 481):

If such evidence, being relevant, were admissible at the substantive trial, an accused person would not enjoy the complete freedom that he ought to have at the voir dire to contest the admissibility of his previous statements.  It is of the first importance for the administration of justice that an accused person should feel completely free to give evidence at the voir dire of any improper methods by which a confession or admission has been extracted from him, for he can almost never make an effective challenge of its admissibility

without giving evidence himself.   He is thus virtually compelled to give evidence at the voir dire, and if his evidence were admissible at the substantive trial, the result might be a significant impairment of his so-called “right to silence” at the trial.

[36]     There  has  been  considerable  discussion  about  the  precise  effect  of  the decisions in Wong Kam-Ming and, in particular, Brophy. See, for instance, Harris “Truth of Confession on the Voir Dire” (2002) 21 U Tas L Rev 64 at 67; Mirfield, “Two Side-Effects of Sections 34 to 37 of the Criminal Justice and Public Order Act

1994” [1995] Crim LR 612 at 619 – 621. In New Zealand, the authors of Garrow & Casey’s Principles of the Law of Evidence (8ed 1996) have commented on these two cases, at 55:

In R v Brophy … the House of Lords … in effect held that all evidence given by the accused at the voir dire relevant to the issue there could not be referred to in the trial.  They rejected the view that the exercise of judicial discretion to control cross-examination afforded sufficient protection of the accused’s freedom to contest the statement’s admissibility.

[37]     The authors of Phipson on Evidence (16ed 2005) at [35-25] regard the rulings in Wong Kam-Ming and Brophy as “illogical”, for reasons which are similar to those taken by American federal jurisprudence, to which we will shortly turn:

[I]t is submitted that these two cases strengthen the criticism levelled at the English rules of evidence in criminal cases that they are more suited to a game than to an enquiry designed to arrive at the truth.  It is difficult to see why on any ethical principle a jury should be precluded from knowing that a defendant has freely and on oath confessed his guilt, or a judge without a jury should be prohibited from acting on such a confession made before him. Law should be the handmaid of justice, not its mistress.

[38]     The position in England is now affected by the provisions of s 76 of the Police and Criminal Evidence Act 1984.  There continues to be some debate as to the precise ambit of the law in that jurisdiction.  See Cross and Tapper on Evidence (8ed

1995) at 184 and following.   The authors of that treatise suggest that whilst such inadmissible material may now “as a matter of ordinary statutory interpretation be [resorted to]”, there “is nothing in the policy of the new Act which justifies … a departure from the existing position” (at 186).

(iii)     The United States of America

[39]     In Harris v New York 401 US 222 (1971) the Supreme Court of the United States held admissible for impeachment purposes a statement obtained from Harris during custodial interrogation conducted without warning Harris of his right to appointed counsel as required by Miranda v Arizona 384 US 436 (1969).

[40]     The Supreme Court referred with approval to its previous observations in Walder v United States 347 US 62 (1954), in which Frankfurter J had said at 65, for the Court, that a defendant:

[M]ust be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it … .  Beyond that, however, there is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government’s disability to challenge his credibility.

[41]     In addition to repeating this rationale, in Harris v New York the majority also defended the ruling in  terms  of  what  has  come to  be,  in  United  States  federal jurisprudence at least, a traditional exclusionary rule analysis: any increase in deterrence accomplished by excluding testimony offered to impeach  a testifying defendant would be outweighed by the loss of reliable evidence bearing upon an accused’s credibility.  By way of response to the argument that the possible use of evidence  to  impeach  a  defendant  who  testifies  (or  to  deter  a  defendant  from testifying on his own behalf) would encourage officers to violate the underlying legal constitutional requirements, the Supreme Court stated that this was no more than a “speculative possibility” (at 224 – 225).

[42]     In short, from a legal policy point of view, the Supreme Court of the United States has clearly been influenced by what it has regarded as the exceptionally high cost to the administration of justice of permitting possibly perjurious testimony to go uncontradicted.

[43]     In a strong dissent in Harris v New York, Brennan J (with whom Douglas and

Marshall JJ agreed) suggested (at 231 – 232) that:

The object of deterring improper police conduct is only part of the larger objective of safeguarding the integrity of our adversary system.   The “essential mainstay” of that system … is the privilege against self- incrimination, which for that reason has occupied a central place in our jurisprudence since before the nation’s birth … .  All these policies point to one   overriding   thought:   the   constitutional   foundation   underlying   the privilege is the respect a government … must accord to the dignity and integrity of its citizens … .   These values are plainly jeopardized if an exception against admission of tainted statements is made for those used for impeachment purposes.  Moreover, it is monstrous that courts should aid or abet the law-breaking police officer … . The Court today tells the police that they may freely interrogate an accused incommunicado and without counsel and know that although any statement they obtain in violation of Miranda cannot  be  used  on  the  State’s  direct  case,  it  may  be  introduced  if  the defendant has the temerity to testify in his own defense.   This goes far toward undoing much of the progress made in conforming police methods to the Constitution.

[44]     The approach of the Supreme Court of the United States has been hotly debated, and there are volumes of law review literature.   But as McCormack on Evidence (3ed 1984) at 514 rightly notes, “the critical issue posed by the [Supreme] Court’s model is whether the possibility that evidence obtained would be relevant to and admissible for impeachment use would provide a significant incentive for law enforcement officers to violate requirements with which they would otherwise comply”.  The authors of that standard treatise suggest that the views of the majority in Harris v New York “can only be characterised as based upon intuition” (at 514).

[45]     Some states have not  followed  the American  federal  jurisprudence.    For instance, McCormack notes at 514 that the Alaska Rules of Criminal Procedure specifically provide that,  “evidence illegally obtained  shall  not  be used  for  any purpose including the impeachment of a witness”.

(iv)      Canada

[46]     In  Canada  the  leading  cases  are  the  decisions  of  the  Supreme  Court  of

Canada in R v Calder [1996] 1 SCR 660 and R v Cook [1998] 2 SCR 597.

[47]     In these cases, the Supreme Court of Canada held (by a majority in both) that the use of an inadmissible statement for the limited purpose of cross-examination as to credibility is an impermissible “admission” of the evidence within the meaning of s 24(2) of the Canadian Charter of Rights and Freedoms (the Charter).  The majority

Judges left open the possibility that there may be “special circumstances” which might warrant a departure from the rule as so stated, but the Court did not specify what those circumstances might be.  It accepted that any such circumstances would be very rare (La Forest J in Calder expressly doubting whether such circumstances could ever exist (at [1])).

[48]     In Calder, for the majority, Sopinka J considered that the “reasonable, well- informed member of the community” would in all likelihood not understand a distinction between incrimination and impeachment. In any event, he was of the view that this member of the community would consider the use of the statement obtained in breach of the accused’s rights to be equally unfair, even if only used “to destroy credibility” (at [34]).

[49]     McLachlan J, who dissented in both Calder and Cook, based her reasoning on the premise that s 24(2) of the Charter permits evidence which has been excluded for one purpose to be admitted for another purpose.  The test in each case is whether the  admission  of  the  evidence  would  bring  the  administration  of  justice  into disrepute.  Her Honour noted two fundamental concerns which underlie the criminal process: “getting at the truth and protecting the accused’s right to a fair trial” (Calder at [44]). She continued by stating that these concerns “may play out differently in the two situations” of adducing evidence for the truth of its contents and using evidence in cross-examination to impeach credibility (Calder at [43] – [44]).

(v)      Australia

[50]     Counsel said they could not locate Australian authority.  On our researches, the position in that jurisdiction appears to be unsettled.

[51]     Discussing confessions, in the Australian edition of Cross on Evidence (7ed

2004) at [33595], J D Heydon  cites  the  English  decision  in  R v Treacy for the proposition that an accused may not be cross-examined by the prosecution on an inadmissible confession (even though the cross-examination is relevant only to credibility).  The author, however, argues that this prohibition should not extend to

the use of purely exculpatory statements.  The use of such statements is contrasted with the position in R v Treacy:

The  difference  is,  however,  that  in  such  a  case  [as  R  v  Treacy]  the prosecution does not reject the truth of the statement it is tendering, indeed by tendering it on the voir dire it has affirmed its truth in the very same proceedings, and by tendering it at the trial it is seeking a verdict in accordance with the truth of what it asserts.

[52]     The subsequent use of admissions made at the voir dire has given rise to a number of cases and different views in Australia.  The issue has most often arisen in the context of questions posed to the accused, at the voir dire, as to the truth of an impugned confession and whether the answer given can be adduced at the trial before the jury.  Later in this judgment we will discuss how the law in New Zealand as to cross-examination on the basis of evidence given at a voir dire will change (and be settled by) the coming into force of the Evidence Act 2006.  We do not therefore find it necessary to traverse the Australian authorities under this head, other than to note that, in general, they canvass the same issues which have troubled courts elsewhere in the common law world.  We record that we have noted R v Gray [1965] Qd R 373; R v Wright [1969] SASR 256 (SC) (which contains the most extensive discussion of the problems arising out of voir dire evidence); R v Toomey [1969] Tas SR 99 (SC); and MacPherson v The Queen (1981) 147 CLR 512 in which the High Court of Australia said (per Gibbs CJ and Wilson J at 523 – 524) that it “remained to be decided” whether an accused could be cross-examined, at trial, on any inconsistent statements given at a voir dire. See also Neasey “Cross-Examination of the Accused on the Voir Dire” (1960) 34 ALJ 110.

[53]     Finally, we note that, in at least one case, the New South Wales Court of Appeal did not comment adversely on the assumption made by both the Crown and the accused that evidence given in a Notice of Motion to suppress certain evidence and stay a prosecution could not be relied upon by the Crown at a subsequent trial, should the Notice of Motion be unsuccessful (see R v Bozatsis and Spanakakis (1997) 97 A Crim R 296 at 300, citing Wong Kam-Ming, Brophy, and MacPherson).

(vi)      New Zealand

[54]     We have noted three occasions on which – almost in passing – the issue raised in this case has been before this Court (see [23] above), but it has not been definitively resolved.

[55]     In Agraval this Court said (at [8]):

It is not in dispute that the Crown prosecutor was cross-examining the appellant on admissions he had made to the constable which the Judge had ruled to be inadmissible.  There can be no doubt that the Crown prosecutor erred in doing so.

[56]     In Paparahi, the appellant was convicted following a trial at which he elected not to give evidence.  One of the grounds of his appeal against conviction was that he had made that decision on the basis of advice from his counsel that he could be at risk  of  being  cross-examined  on  a  statement  he  had  made  to  the  police.    The statement had, however, been ruled inadmissible because of a breach of the Bill of Rights.   The appellant contended that the advice which he had been given was wrong. This Court rejected Mr Paparahi’s contention that the law in respect of the issue was clear beyond doubt.  It said (at 299):

[W]e note that nothing said above is intended to express this Court's support for the proposition that a statement ruled inadmissible for breach of s 23

New Zealand Bill of Rights Act 1990, or for any other reason, is admissible for the purposes of cross-examination.   Indeed, it is our view that if prosecuting counsel has in mind seeking so to use a confessional statement

in respect of which he has notice of a Bill of Rights objection, he should raise the further question of the admissibility of the statement in  cross-

examination for consideration and determination at the same time as the question of the admissibility of the statement for evidence-in-chief is being

considered.

[57]     In R v King, one of the grounds of appeal against conviction was that the Judge should not have allowed the prosecutor to cross-examine Ms Ruru on her video interview.   However, this Court held that the ground had no merit, because Mr King did not have standing to rely on the breach of Ms Ruru’s rights.  She was, in effect, in no different position to that of any other witness in respect of cross- examination on a previous statement.  The Court said (at [49]):

We are prepared to accept, for the purposes of this case, that where a statement made by an accused person to the police is held to be inadmissible, the  Crown  may  not  generally  use  that  statement  to  cross-examine  the accused should he or she later give evidence.  The authorities on this issue (which should not be regarded as completely settled) are reviewed in [Paparahi].   There is no point in us discussing this question in any detail because, by the time Ms Ruru was cross-examined on her statement, she was no longer a defendant.

[58]     The New Zealand, and other, authorities are discussed by Richard Mahoney in  “Using  Improperly Obtained  Evidence to  Impeach  the Accused’s  Testimony: Should We Let the Phoenix Fly?” (1994) 16 NZULR 46.

[59]     The principles in Wong Kam-Ming and Brophy were also recently discussed by Winkelmann J in R v Darwish [2006] 1 NZLR 688 (HC) in relation to evidence given at a bail hearing. In that case, the Judge considered that affidavit evidence provided at a bail hearing by the accused could not be adduced by the Crown at trial, but it could be used in cross-examination, if contradictory evidence was given by the accused. Winkelmann J was of the view that such a compromise prevented potentially bringing the administration of justice into disrepute (at [129]).

The Evidence Act 2006

(i)       Introduction

[60]     Doubtless because the Evidence Act 2006 is not yet in force, counsel did not refer to it.   The statute was assented to on 4 December 2006, and will come into force, as we apprehend it, later this year.  The appellants are entitled to – indeed the Court is required to apply – the law as it presently stands, whatever that might be. However, any views taken by the Law Commission (on whose reports the statute is based) and – very recently – by Parliament could well be relevant to a resolution of what the legal policy in this area of the law should be, even as it presently stands, given that the law is not completely settled.

(ii)     The law relating to cross-examination arising out of voir dire evidence will change in the new Act

[61]     Although it is not the precise issue we have to determine, in order to follow the course which the Law Commission and Parliament took, it is convenient to dispose of this issue first.

[62]     The decision in Wong Kam-Ming will be displaced by s 15 of the Evidence

Act 2006, which provides as follows:

15       Evidence given to establish admissibility

Evidence  given  by  a  witness  to  prove  the  facts  necessary  for  deciding whether some other evidence should be admitted in a proceeding—

(a)       is admissible in the proceeding if the evidence given by the witness is inconsistent with the witness’s subsequent testimony in the proceeding (whether or not the other evidence is admitted):

(b)       is not otherwise admissible in the proceeding.

[63]     The Law Commission commentary on that section is as follows:

This section changes the law as it applies to defendants.  The existing law is that a defendant may be cross-examined on his or her voir dire evidence that is inconsistent with his or her testimony in the proceeding only if the statement that is the subject of the voir dire is ruled admissible.   If the statement is ruled inadmissible, the defendant may not be cross-examined on his  or  her  voir  dire  evidence  (Wong  Kam-Ming  v R [1980] AC 247). Section 15 makes inconsistent evidence given in an admissibility hearing admissible in the proceeding, irrespective of the fate of the statement that is the subject of the admissibility hearing.

(New Zealand Law Commission Evidence: Evidence Code and Commentary

(NZLC 55 Vol 2 1999) at 43.)

(iii)    The law relating to cross-examination arising out of inadmissible prior statements will be settled by the new Act

[64]     The Law Commission recognised that this has been a contentious area and came to the view that the difficulties would be better dealt with “in the context of the Commission’s proposals on trial process rules”.  (Evidence Law and Credibility: A Discussion Paper (NZLC PP27 1997) at 38).

[65]     Ultimately, the view which the Commission took is now reflected in ss 90(1)

and 90(2) of the Evidence Act 2006:

90       Use of documents in questioning witness or refreshing memory

(1)      A party must not, for the purpose of questioning a witness in a proceeding, use a document that has been excluded under section 29 or 30.

(2)      A witness must not consult a document that has been excluded under section 29 or 30 while giving evidence.

[66]     Section 29 of the Act is directed to statements obtained by “oppression”. Section 30  is  directed  to  “improperly  obtained  evidence”.     Section 30  is  the legislative embodiment of the decision of this Court in R v Shaheed [2002] 2 NZLR

377.

[67]     The term “document” in s 90(1) is very widely defined in s 4(1) and would clearly capture the video statement in Mr Ram’s case.  In the instant case, Mr Ram’s statement would have been excluded under s 30.

[68]     The Law Commission commentary to the Act could not be plainer: “This provision [s 90] prevents the use of inadmissible statements during the examination of a witness” (Evidence: Evidence Code and Commentary (NZLC 55 Vol 2 1999) at

215).

[69]     It follows that, under the Evidence Act 2006, the course taken in Mr Ram’s case would have been objectionable.

(iv)      The overall result under the new Act

[70]     Whatever the arguments are for and against the policy matters behind these issues, the net result appears to us to be that for the future in New Zealand, an accused who gives evidence at a voir dire is at risk of being cross-examined on any prior inconsistencies, should he or she give evidence at their trial.  But the accused cannot be cross-examined on a statement which is excluded under ss 29 or 30.  This has the benefit that the law is at least certain.  Counsel will have to be very careful to

advise their clients accordingly.  The change to the rule relating to evidence on a voir dire has real implications for criminal law practitioners.

(v)      What should the position be until the new Act comes into force?

[71]     It is now necessary to determine what the position should be for the purpose of the instant case.

[72]     The substantial weight of authority in the law which is currently in force in the British Commonwealth is in favour of the Treacy rule.  The only appellate Court to have broken that line is the Supreme Court of Canada, and then only in a very narrow (and unspecified) exception of the “never say never” variety.

[73]     There is considerable moral force behind the concerns of those Judges who have been motivated by an unwillingness to sit by in face of an abrupt change of evidence by an accused to suit the circumstances of their case.  As Mahoney rightly put it, “An accused smugly testifying to facts which a trial Judge knows could quickly be illustrated, by means of the excluded evidence, to be false is undoubtedly a disturbing spectacle” (at 61).   That concern was a compelling one for the trial Judge in this case when, X having been given a very hard time of it at trial, the accused was apparently seeking to give evidence entirely unconstrained by what he had earlier said (although not on oath).

[74]     That said, both under the present law of evidence in New Zealand and as we have  noted, under  the  new  Act,  a  statement  is  excluded  only after  a  searching examination of all relevant factors, including its importance to the Crown case.  To then  turn  around  and  say,  “Oh  yes,  but  the  Crown  can  now  use  the  excluded evidence for the narrower (but different) purpose of exposing the accused’s untruths” would be considered by many to be nothing less than perverse.   Under what for convenience we will call the Shaheed rubric a Court has already evaluated the costs to society of exclusion.  Exclusion of evidence (when granted) effectively recognises the right of a defendant not to be prosecuted upon the basis of unlawfully or unreasonably obtained evidence (see R v Anderson (2005) 21 CRNZ 393 at [43] (CA)).  The defendant is to be restored to a pre-breach position.  This suggests that –

at the most fundamental level – what is at issue here is a right to present a defence free from tainted evidence.  In any event, whatever reasoning is adopted, that is the result which Parliament arrived at in the new Act, and it would be wrong for us not to accord the greatest weight to that recognition.

[75]     Finally, at a pragmatic level, it would lack all common sense to have one “new” common law rule now, until the Evidence Act 2006 comes into force, and then a different rule under that statute.

[76]     In the result, what for convenience we will call the Treacy rule should obtain until the Evidence Act 2006 comes into force.

[77]     One clarification is perhaps called for, in the unlikely event that there should be another case in which the issue arises prior to the coming into force of the Evidence Act 2006.  It has been suggested from time to time (see Heydon, above at [51]) that the Treacy rule should not apply to exculpatory statements.   The trial Judge in this case seems to have had that concern.  However, the Supreme Court of Canada in Piche v R (1970) 11 DLR (3d) 700 was of a contrary view, as was Warren CJ in Miranda v Arizona 384 US 436 at 476 – 477 (1969), in the Supreme Court of the United States.

[78]     In our view, the Treacy rule is not to be deflected by further refinement of the character of the statement in issue.  The nature of the statement is irrelevant.  Even the term “confession” does not here have its common law meaning.  See Lord Reid in Commissioners of Customs & Excise v Harz & Anor [1967] 1 AC 760 at 818 (HL) and the Law Commission on what is now the new Act: “the rules [under ss 28 – 30 of the Evidence Act 2006 apply to] all statements made by the defendants, not just admissions or confessions” (Evidence Code: Reform of the Law NZLC 55 Vol 1

1999 at 29).

Conclusion with respect to Mr Ram

[79]     The net result in the present case with respect to Mr Ram is that there has been a substantial irregularity in the way in which the prosecution was allowed to

proceed, and one, moreover, which inevitably had a bearing on the decision of the accused to not give evidence at his trial.  There has been a traditional reluctance to disallow constraints on that right.

[80]     On this ground alone, therefore, the verdicts against Mr Ram must be set aside.  It is not a case for an acquittal, as was the position in some of the English authorities to which we have referred, where the Crown was left with no evidence. There will be an order for a new trial with respect to Mr Ram, on the counts which were left to the jury.

Conclusion with respect to Mr Tyagi

[81]     Mr Tyagi was Mr Ram’s co-accused.  He originally stood trial on 11 counts. He was discharged on some counts under s 347 of the Crimes Act, but was convicted on the several counts which went to the jury.

[82]     A number of grounds of appeal were advanced on Mr Tyagi’s behalf.   It was submitted that the ruling with respect to Mr Ram, permitting cross-examination on his prior statement, has also caused a miscarriage of justice in respect of Mr Tyagi. This is because Mr Ram’s evidence was in support of Mr Tyagi’s defence that the complainant was a prostitute and that she only became unhappy when she was not paid.    If  Mr Ram  had  given  evidence  this  may  well  have  affected  the  jury’s consideration in respect of the identical case of this appellant.

[83]     In our view, Mr Tyagi’s position was inextricably affected by the Judge’s ruling.  The convictions against him must also be set aside and a new trial ordered on the counts which went to the jury.

The other appeal points

[84]     Having reached this point we do not find it necessary to deal with the other points on appeal.   None raised any new or difficult points on which it might be useful or appropriate for this Court to give its views.  All involved the application of well-settled principles to the facts of this case.   And none, in our view, led to a

miscarriage of justice.   We think it inappropriate therefore to burden an already relatively lengthy judgment by further reference to those matters, in view of the fact that there is to be a re-trial.

Conclusion

[85]     For the reasons we have given we direct that the convictions which were entered are to be set aside.  We order a re-trial of each of the appellants on the counts which went to the jury in this case.

Solicitors:

Crown Law Office, Wellington