R v T HC Auckland CRI-2003-092-26865

[2007] NZHC 712

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2003-092-26865

THE QUEEN

v

T

Counsel:         B H Dickey and J M Jelas for Crown

R M Mansfield for Accused

Date:              26 July 2007

RULING (NO.1) OF BARAGWANATH J

Solicitors:

Crown Solicitor, Auckland

Counsel:

R Mansfield, Auckland

R V T HC AK CRI-2003-092-26865  26 July 2007

[1]      The Crown has applied for an order declaring the witness to be hostile so that he   may   be   cross-examined   to   destroy   what   is   effectively   evidence   of non-commission of the crime.   The purpose of such cross-examination is not to establish by means of cross-examination that the Crown case is correct.   It is a destructive exercise and must be constrained accordingly.

[2]      I  cannot  think  of  a  logical  reason  for  the  disparity  between  the  present evidence where there is a withholding of an account of what must have been a very graphic episode compared with the two earlier occasions when sworn evidence was given to which the Crown has referred, leaving depositions aside. What has not been mentioned is that on each evidence of participation, to some extent at least, in swinging the piece of wood, was described.  For those reasons and in the absence of any option able to be suggested by Mr Mansfield I draw the inference of hostility and rule that there may be cross-examination to demolish the exculpatory account.

[Afternoon adjournment]

[3]      I revisit the ruling before the adjournment.  I have now considered Phipson on Evidence (16th ed) p 353 para 12-70:

In  criminal  proceedings  the  position  is  governed  by  the  common  law. The earlier statement does not become evidence of the facts stated in it and the inconsistency is relevant to the credibility of the witness.  The law was stated by the Court of Criminal Appeal in R v Golder (1960 45 Cr App R 5) to be this:

When a witness is shown to have made previous statements inconsistent with the evidence given by that witness at the trial, the jury should not merely be directed that the evidence given at the trial should be regarded as unreliable; they should also be directed that the   previous  statements,   whether   sworn   or   unsworn,   do   not constitute evidence upon which they can act.”

There can be no possible quarrel with the second proposition in that statement.

However, the first proposition (that the jury should be directed that the evidence given at the trial should be regarded as unreliable) has been criticised by the High Court of Australia.  In Driscoll v The Queen (1977)

51 ALJR 731 at 740 the court said that “it cannot be accepted that in cases where a witness has made a previous inconsistent statement there is an inflexible rule of law or practice that the jury should be directed that the

evidence should be regarded as unreliable”.   It is submitted that if for no other reason than common sense, the view of the High Court of Australia is to be preferred.  Indeed, in a later case the Court of Appeal said that it was for the jury to consider what weight to give to that part of the witness’s evidence relied on by the Crown at the trial, subject to a warning from the judge.  Where, for example, a witness treated as hostile gives reasons for the making of an earlier untrue statement or, on being cross-examined, confirms that the statement was true and gives reasons for the initial change, it would appear  unobjectionable  in  principle  to  direct  the  jury  to  approach  the evidence with caution but that if they accept the witness’s explanation, they may act on his testimony…

[4]      The later part is in my view consistent with what is said in R v Allen (1989)

5 CRNZ 316, 319-320.   So we have our Court of Appeal marching in step with

Phipson and the High Court of Australia.  I rule accordingly.

W D Baragwanath J