R v Vagaia HC Auckland CRI 2006-092-16228
[2008] NZHC 2681
•13 March 2008
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2006-092-16228
THE QUEEN
v
MOE JIM VAGAIA AND SING PIU ATI
Hearing: 6 March 2008
Appearances: R Marchant and D Hauer for Crown
K Brosnahan and C Wilkinson-Smith for Accused Moe Vagaia
S Tait, D Niven and I Jayanadan for Accused Sing Piu Ati
Judgment: 6 March 2008
Reasons: 13 March 2008
REASONS FOR JUDGMENT OF ASHER J
This judgment was delivered by me on 13 March 2008 at 4:30 pm pursuant to Rule 540(4) of the High Court Rules
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Registrar/Deputy Registrar
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Date
Solicitors:
Meredith Connell, PO Box 2213 Auckland
KP Brosnahan, Barrister, PO Box 3320 Shortland Street, Auckland
CB Wilkinson-Smith, Barrister, PO Box 276167 Manukau, AucklandS Tait, Barrister, PO Box 76538 Manukau City, Auckland
D Niven, Barrister, PO Box 109227 Newmarket, Auckland
I Jayanadan, Barrister, PO Box 76538 Manukau City, Auckland
R V VAGAIA & ATI HC AK CRI 2006-092-16228 [6 March 2008]
Introduction
[1] The present application arose in the course of the Crown calling evidence in this case on 6 March 2008. Mr Brosnahan, counsel for one of the two accused, Mr Moe Vagaia, objected to the Crown calling a witness, Mr John Vagaia, who is the brother of the accused whom Mr Brosnahan represents. Mr Brosnahan sought an order directing the Crown not to call John Vagaia. As his submissions developed he asked in the alternative for me to give an indication that it was not appropriate for the Crown to call this witness. The Crown and counsel for Mr Vagaia’s co-accused, Mr Sing Piu Ati, opposed the application. I ruled against the request at the time. Time pressures required me to reserve my reasons. This is my detailed judgment.
[2] In making this application Mr Brosnahan relied on a line of authority in which in the leading case of R v O’Brien [2001] 2 NZLR 145 it was stated by the Court of Appeal that the Crown should not call a witness if that witness is known to be intractably hostile or likely to give false evidence.
[3] While the Crown accepted that John Vagaia could properly be defined as a hostile witness because he was indicating that he would decline to answer questions if called, it submitted that it was nevertheless entitled to call him and that any intervention by the Court was inappropriate. Mr Niven, who presented the submissions on this matter on behalf of the accused Mr Ati, supported the Crown position and submitted further that it would be unfair to his client if John Vagaia was not called. Mr Niven presumably took this position because John Vagaia’s evidence could be seen as unhelpful to the case of Moe Vagaia but helpful to Mr Ati’s case.
The evidence
[4] John Vagaia gave a statement to the police four days after the homicide. He did not witness the incident in which the victim, Mr Tolo Magele-Palenise, died. However, he saw his brother before the incident and then after the incident when he found his brother asleep in his house the next morning. He had a conversation with his brother on that occasion, which he recounted to the police as follows:
I woke the defendant Vagaia up because I was going to drop him off home. He sat up and he said to me “I have done something stupid”. He went on to say to me “I stabbed someone”. He paused and said “life in prison”.
He was still a bit drunk because I could smell the alcohol. I didn’t believe him because when he drinks he says some lies.
[5] The statement was unhelpful to Moe Vagaia because although not charged with murder, he was charged with wounding or injuring with intent to cause grievous bodily harm and there was an issue both as to the extent of any injuries he inflicted on the deceased and as to his intent. The evidence was helpful for Mr Ati because it supported the theme being pursued on his behalf that the Crown could not prove beyond reasonable doubt that the fatal wound was inflicted by Mr Ati with a knife, and that the wound could well have been caused by Mr Vagaia when he stabbed the accused with a broken beer bottle.
The application of R v O’Brien
[6] When the matter first arose Mr Marchant for the Crown advised the Court that if the line of authority culminating in R v O’Brien still applied, the Crown would not have called John Vagaia because he was likely to be a hostile witness. He submitted, however, that there had been a change in the law following the enactment of the Evidence Act 2006 and that the rationale underpinning R v O’Brien no longer applied.
[7] In R v O’Brien it was stated by the Court of Appeal at [21]:
Having reviewed the authorities and the submissions of counsel, we consider the following general guidance can be given on how the Crown should exercise its discretion and its responsibilities in this area. The Crown should not call any witness if that witness is known to be intractably hostile or likely to give false evidence. Special caution should always be exercised when deciding whether to call an accomplice or a co-offender. If such a witness is known to be unlikely to give evidence favourable to the Crown’s case, the witness should not be called.
The Court of Appeal pointed out that the approach was not in conflict with the Crown’s ordinary duty to call all material witnesses. That duty is not absolute. However, if the Crown does decide not to call a witness the defence should be informed of this and as to the reasons why the decision not to call has been made.
[8] The decision in R v O’Brien reflected an established common law principle that the Crown should not call an intractably hostile witness or are likely to give false evidence for the purpose of getting otherwise inadmissible hearsay before the Court, referred to in R v Schriek [1997] 2 NZLR 139, following a number of earlier English authorities.
[9] Mr Brosnahan in his submissions suggested that there are a number of policy reasons behind the principle, including the general desirability that a party not impeach its own witness. I consider on the basis of R v O’Brien, however, that the central reason for the principle is the undesirability of the Crown calling a Crown witness known to be hostile with the intention of using him or her as a conduit through which to introduce a prior statement which would be otherwise inadmissible evidence. Under the common law a previous witness’s statement was hearsay, and admissible only as to credibility and not as to fact. However, it was widely accepted that the distinction between admitting a statement for credibility purposes but not for the truth of its contents was not easily comprehended by juries, and that it was therefore generally undesirable to allow such evidence to be adduced.
[10] The emphasis on intractability and the likelihood of false evidence in R v O’Brien indicates that the Court was also concerned to protect the integrity of the Court process. That integrity could be damaged if a witness who was hostile and likely to give untrue evidence was called. If as in R v O’Brien an intended witness has given various conflicting statements and appears to be hopelessly unreliable, there must be a question as to whether there is any probative value in calling him or her.
The effect of the Evidence Act 2006 on the principle in R v O’Brien
[11] The Evidence Act 2006 now contains a specific provision relating to hostile witnesses in s 94 and a definition of “hostile” is s 4(1). Those sections, while intended to refine the law, do not fundamentally change it: New Zealand Law Commission Evidence: Reform of the Law (NZLC R55 vol 1 1999) at para 412. Rather, the Crown focused its submission on s 4(1) of the new Act, which sets out a new definition of hearsay. It defines “hearsay statement” as follows:
4 Interpretation
(1) In this Act, unless the context otherwise requires,—
hearsay statement means a statement that—
(a) was made by a person other than a witness; and
(b)is offered in evidence at the proceeding to prove the truth of its contents
[emphasis added]
Section 4(1) effects a significant change to the law which applied when R v O’Brien and the decisions it relied on were decided. The change is that previous statements of a testifying witness will not now be hearsay. They do not fall into the new definition as they are not made by a person “other than a witness”. Their admissibility will be subject only to the guiding principle in s 7 that relevant evidence is admissible and the general principle in s 8 that evidence can be excluded if its probative value is outweighed by its unfairly prejudicial effect or because it will needlessly prolong the proceeding. The previous statements of a testifying witness will therefore be admissible to prove their contents. As Glazebrook J observed in R v Mahutoto HC AK T00515 10 August 2000, under the proposed Act prior inconsistent statements of a witness would in many circumstances be admissible to prove the truth of their contents as long as they were not deemed inadmissible under ordinary principles: at [18].
[12] The enactment of s 4(1), especially when considered with the general purpose provision in s 7 and the general principles as to admissibility and exclusion in s 8 of the new Act, has changed the evidential assumption upon which R v O’Brien was based. The old distinction between evidence admissible as to credit and evidence admissible as to fact is not iterated in the Evidence Act. Indeed, it is a theme of the Act, as referred to in para 23 of the Law Commission Report containing the draft Bill (New Zealand Law Commission Evidence: Reform of the Law (NZLC R55 vol 1
1999)) that all logically relevant evidence is admissible unless there is some policy reason to exclude it. It was stated at para 24 that the general approach of the Act was to allow the fact-finder “to take into account all admissible evidence (with very few exceptions).”
[13] Indeed, the Law Commission Report addressed the issue of the application of the principle of R v O’Brien directly. It was stated in Evidence: Evidence Code and Commentary (NZLC R55 vol 2 1999) at para 412:
Current case law indicates that the prosecution should not call a witness known to be hostile for the sole purpose of introducing a previous inconsistent statement that is inadmissible as evidence of the truth of the facts stated, or for the purpose of introducing otherwise inadmissible hearsay. Under the Code, previous statements of a testifying witness will be admissible to prove the truth of their contents and reliable hearsay evidence will usually be admissible. Thus one of the justifications for restricting the cross-examination of prosecution witnesses who are known to be hostile will no longer be valid. Section 94 does, however, preserve judicial control over the questioning of hostile witnesses – for example, to limit other forms of inappropriate questioning of witnesses who have shown hostility pre-trial.
It was further stated in the first volume of the Law Commission report at para 340:
The Code’s treatment of hearsay and witnesses’ previous statements will to a considerable extent eliminate the objection to the prosecution calling a witness known to be hostile, since under the Code both reliable hearsay and a witness’s previous inconsistent statement will be admissible to prove the truth of the content.
Thus, those who drafted the Bill which led to the Act intended that it would change the way in which R v O’Brien applied.
[14] The learned authors of Adams on Criminal Law at para EA94.02 express the view that the rationale for the common law rule in R v O’Brien may be seen as gone and that “it may not be improper for a party to call a witness who is known to be hostile.” The learned authors of Mahoney et al The Evidence Act 2006: Act and Analysis (2007) at para EV94.04 similarly suggest that the Act’s description of hearsay removes a principal justification for restricting the cross-examination of prosecution witnesses known to be hostile before trial.
[15] I conclude that the primary rationale for the principle set out in R v O’Brien, being the undesirability of calling a hostile witness to introduce a previous inconsistent statement that is not admissible as evidence of the truth of the facts stated, no longer exists. The effect of the new definition of hearsay is that such a statement can now be evidence of the truth of the facts stated. I would not, however, go so far as to say that R v O’Brien no longer has any application. There may still be
circumstances where because of a witness’s intractability or history of hostility or dishonesty, the Crown should not call that witness providing that appropriate notice and details of the witness are given to the defence. To call such a witness might be to adduce blatantly unreliable evidence of little probative value but considerable prejudicial effect.
[16] There is, of course, some circularity in reasoning that because the intended witness is to be called, the prior statement will not be hearsay, therefore the witness should be called. A “witness” is defined in s 4(1) as “a person who gives evidence and is able to be cross-examined in a proceeding”. At the point in the trial when this was raised the Crown had not yet called John Vagaia to give evidence, so his evidence was technically at that moment hearsay and consequently inadmissible. It was the Crown’s intended future act of calling him as a witness, which would make his earlier statement admissible under s 4(1), and which the Crown invoked to give itself permission to bypass R v O’Brien and call him as a witness.
[17] However, the change in the Act is not simply technical, and I do not consider that the Crown should be seen as exploiting a new loophole provided by the new definition of “hearsay”. Rather, the wider definition of hearsay in s 4(1) reflects the concern of those who drafted the Evidence Act 2006 that all relevant evidence be placed before the decision-maker unless it is expressly inadmissible or excluded. It reflects the principle in s 7 that all relevant evidence is admissible unless expressly stated to be inadmissible or excluded. Rather than there being strict rules as to exclusion, the emphasis now in s 8 is on the need to exclude non-hearsay evidence only if its probative value is outweighed by the risk that it will be unfairly prejudicial or necessarily prolong the proceeding. The fact is that, applying s 4(1), there is no longer any reason not to call a hostile witness based solely on the potential presentation to the jury of an earlier inadmissible statement.
John Vagaia’s evidence
[18] The Crown’s concession of hostility and its assertion that R v O’Brien applies may have been premature in that there was at that point no indication of intractability or dishonesty on the part of John Vagaia. While there may be occasions such as in R
v O’Brien where the Crown could reach a firm conclusion as to the usefulness or propriety of calling a witness, there was a question whether John Vagaia’s position falls into this category. While some witnesses may be clearly hostile, there are different degrees of hostility, and different of degrees of certainty as to whether it will be necessary to declare a witness hostile under s 94 once that witness’s evidence commences. Here the exact nature of John Vagaia’s position was not to be known until he actually gave evidence. In this regard I directed a lawyer to be appointed to advise John Vagaia of his position, and particularly on the implications of his not giving evidence. As it transpired, John Vagaia did not in the end decline to give evidence, and he answered the questions put to him.
Should a Court prohibit the Crown from calling a witness on the grounds of hostility only?
[19] While accepting that R v O’Brien may still have some application following the enactment of the Evidence Act 2006, I am not satisfied that the case was ever intended to stand for the general proposition that the Court should intervene to prevent the Crown from calling a witness on the grounds of hostility only. It was the Crown’s actions in calling the witness in R v O’Brien that was the focus of the Court of Appeal’s criticism. However, there was no suggestion by the Court of Appeal that the trial Judge should have intervened to prohibit the Crown from doing so. Similarly, in R v Schriek the Court of Appeal considered there was a duty on the Crown not to call an intractable witness rather than a duty on the Court to intervene. Indeed, counsel have been unable to cite any case to me where a Judge has intervened in a trial and directed the Crown not call a witness, or where an appellate Court has thought that a Judge should have done so.
[20] Such an intervention by the Court would run contrary to the general principle that the Courts are reluctant to intervene in matters of prosecutorial discretion: R v Edwards (1848) 3 Cox CC 82 at 83. The Court will not interfere with the exercise of a prosecutorial discretion to call a witness where the issue is whether the Court should call the witness unless, perhaps, the prosecutor can be shown to be influenced by some improper motive: R v Fuller [1966] NZLR 865 at 868; McGinty v Attorney General [2001] NZAR 449 at 454. Those cases dealt with the Court calling a witness, but the principle applies equally to a situation where a Court is asked to
prohibit the calling of a witness. A Court is not well placed to assess whether a witness should or should not be called. Further, the effect of a Court so intervening would also be to render the witness the subject of the order not compellable. This would have the effect that the witness would be unavailable as that term is defined in s 16 of the Evidence Act, and any statement made by the witness therefore admissible subject to the qualifications in s 18.
[21] If a Court was persuaded that the calling of a Crown witness was problematic because of hostility, it could make some comment to the Crown, and might take some steps to neutralise such evidence by comments to the jury in summing up. It should be most reluctant, however, to put itself in a position where it tells the Crown that it cannot call a witness.
Summary
[22] In summary, I do not consider that following the enactment of s 4(1) of the Evidence Act 2006, a Court should decline to allow the Crown to call a hostile witness where the Crown’s purpose is to produce a previous statement should the witness not properly answer questions. While the principle set out in R v O’Brien that the Crown should not call a witness who is intractably hostile or likely to give false evidence may still have some application, where, as here, the only real objection is based on the likely future reference to a prior statement, the concern expressed in R v O’Brien no longer applies.
[23] I also consider that the Crown’s decision as to hostility here may have been premature. In any event, a Court will be most reluctant to intervene with the prosecutorial discretion and order that a witness not be called. R v O’Brien is directed at the Crown’s obligation to not call a hostile witness, rather than whether the Court should itself intervene and prohibit the calling of such a witness.
Conclusion
[24] Mr Moe Vagaia’s application is declined. I do not accept either that the Court should intervene to stop the Crown calling John Vagaia, or that this is a case where the Court should be critical of the prosecutor’s decision to call him.
[25] The application is dismissed.
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Asher J
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