Criminal / Evidence / Law / Study by subject

NZLJ Student Companion March 2017: Evidence

The following Student Companion by Bernard Robertson is from the March 2017 edition of the New Zealand Law Journal: 

Handsome lawyer in the law library


Preston v R [2016] NZCA 568

Several hearsay issues were raised in this case and the judgment gives a short recent history of hearsay in New Zealand, although without dealing with R v Manase [2001] 2 NZLR 197, (2001) 18 CRNZ 378 which essentially incorporated the reform proposals in the Law Commission Report leading to the Evidence Act 2006 into the common law.

The Court deals in detail with various text messages sent and statements made by the deceased in a murder case and how and why they were admissible. These will not be examined in detail in this note. This note will pick up on some comments of general application in the judgment.

The first is a comment related to alleged “limited use” of evidence before 2006, coupled with the comment by Tipping J from Hart v R [2010] NZSC 91, [2011] 1 NZLR 1 at [54] that evidence admissible under the 2006 Act is admissible for all purposes. This comment was made in the context of prior consistent statements and has been questioned in that context. It does not seem useful here. As the judgment itself says, there is no hearsay evidence, only hearsay uses (at [64]). It is perfectly conceivable that evidence will be produced even today which takes relevance merely from the fact that it was uttered, for example to show that someone was present or alive, or believed something to be the case while admission of its contents as proof of their truth might not be permitted. This is not a matter of “limited use” but simply of definition and admissibility.

After reviewing cases pre- and post-2006, the Court says (at [67]):

To sum up at this point, the Evidence Act’s approach to the admissibility of hearsay evidence is both simpler and more permissive than under the common law. If the evidence is hearsay, the first inquiry is as to the matters provided in s 18. If that admissibility threshold is met, the evidence must still pass through the gateway provisions of ss 7 and 8. Evidence of a victim’s statements expressing fear of a defendant, which is utilised for a hearsay purpose, will be admissible if it passes through the gateways of ss 18, 7 and 8. It is not in some special category of evidence which has to pass a higher threshold for admissibility.

The first and last sentences of this paragraph are, with respect, entirely supported. The bulk of the paragraph, however, appears not to follow the scheme of the Act or logic. It begins “[i]f the evidence is hearsay” but that is a matter which has to be decided by reference to s 17. Section 17 is an exclusionary rule which creates an exception to s 7. It regulates the admission of evidence which is relevant and would otherwise be admissible. Section 18 then creates exceptions to the exception. The logical order of questions is surely first “is the evidence relevant to an issue in the case?” (that is, s 7). If so, the next question is whether it falls within the definition of hearsay in s 17? If so, does it fall within an exception in s 18 or under another Act? And finally is it to be excluded under s 8?

The judgment is to be noted for two other matters. One is the express approval of the Court at [43] of the holding of Simon France J in R v Holtham [2008] 2 NZLR 758 (HC) at [44] that an “assertion” requires an intention to assert.

The second is the Court’s determination not to allow the privilege potentially accorded to statements made to ministers of religion to be relaxed or widened. Historically any such privilege applied only to formal confessions in the Roman Catholic Church, and to Anglo-Catholic priests, and applied because confession is a sacrament in which one communicates with God with the priest as an intermediary. The priest can then grant absolution. A priest is under an almost total prohibition on revealing what was confessed. The only consequence of making such evidence admissible and compellable would be that Roman Catholic and Anglo-Catholic priests would go to prison. Protestant denominations do not believe in the need for an intermediary in confessing one’s sins to God. The evidence in this case was of comments made by the defendant in the bathroom of a Salvation Army citadel after he had walked out of a service and was clearly distressed. The Court held that the defendant had the onus of showing that the comments had been made for the purpose of obtaining “religious or spiritual advice, benefit or comfort” as required by s 58(1)(b) of the Evidence Act. The defendant had not given evidence at trial and there was no other evidence apart from the place and time. Importantly, in view of the above history, the Court saw it as significant that the Salvation Army Officer concerned was prepared to give evidence. The Court refused to apply the privilege, correctly, it is submitted. Claims that confidentiality confers a privilege against admission are to be resisted. All confidential conversations are subject to the caveat that the other party may be required by law to reveal their contents. The statutory definition of this privilege is already wider than necessary and the Court of Appeal has shown that it is not be relaxed.