This Student Companion by Bernard Robertson appeared in the March 2015 edition of the New Zealand Law Journal  NZLJ 72.
STUDENT COMPANION: EVIDENCE
CT v R  NZSC 155
This case concerned allegations of sexual abuse by the defendant against the complainant, then aged 10, in the 1970s. The defendant applied for a stay of the proceeding on the ground of delay. He also argued that he could not have a fair trial due to his inability to contact potential witnesses or prove disputed matters such as whether a house had had a basement. Nor could he produce diaries which might have shown that he was away working at times when the offences were alleged to have occurred. The defendant also argued that the trial Judge’s warning under s 122 of the Evidence Act 2006 was inadequate. The Court laid down guidelines for judges faced with an application for a stay on the grounds of delay, including that the effluxion of time could not itself be a ground for a stay as that would create a limitation period, which was a matter for Parliament, not the courts.
The defendant actually made two unsuccessful applications for a stay: one at the beginning of the trial and one at the close of the prosecution case. The Supreme Court held that the trial Judge had been right to refuse the first application as the Crown case had not been weak and the prejudice had not gone beyond what was inherent in a prosecution for historical cases of sexual offending. When the complainant gave evidence, however, she failed to come up to proof on some issues and referred to some incidents that she had not previously referred to. The prosecution had then been permitted to amend the indictment. The combination of these factors meant that the trial could not have been fair even though the jury had acquitted the defendant on the new charges and convicted on others. A stay should have been granted.
The Supreme Court then considered the s 122 argument. This section lays down occasions when a Judge may give (or must consider giving) a warning about evidence which may be unreliable. When summing up to the jury, the Judge referred to the delay and said that there might be good reasons for delay in complaint. He also said that the Evidence Act obliged him to give a general caution regarding all evidence about the conduct of the defendant that was alleged to have occurred over 10 years before (s 122(2)(e)). The first logical question was whether the Judge had been obliged to give a direction although s 122(2) merely instructs that the Judge had to consider doing so.
The Supreme Court was unanimous that a direction had been required. The majority (Elias CJ, McGrath and William Young JJ) held that when considering whether evidence might be unreliable, a judge was entitled to take into account the ability or otherwise of the defendant to check and challenge the evidence. Glazebrook and Arnold JJ disagreed with this reasoning. Whether a defendant was able to examine evidence effectively could not affect the reliability or otherwise of the evidence. The need for a direction arose from the need to ensure a fair trial and not from s 122. This view seems logical, but what makes it difficult to comment on is the compendious nature of the word “unreliable”. This can have numerous meanings. The important practical point, however, is that despite the apparently discretionary nature of s 122 warnings, the Supreme Court is willing to rule that a warning should have been given in a particular case.
The Court was unanimous on the inadequacy of the wording of the trial Judge’s warning. The Judge had failed to address the sort of prejudice that almost always accompanies long delays between alleged offending and trial. The Judge had failed to: mention the effect of time on memory of the complainant, despite the deviations in the complainant’s evidence; indicate a need for particular concern about the new count of rape; or refer to the prejudice to the defendant from changed physical characteristics of the places concerned or the deaths of potential witnesses. The fact that those risks had not been seen as sufficiently specific and cogent to warrant a stay did not mean that they were negligible. The Judge had also failed to take personal responsibility for the warning and to avoid the impression that he was giving the warning only because he was bound to by the Evidence Act (see -,  and ).
The judgment therefore puts some meaty flesh on the bones of s 122. Also, at least two Judges (and the majority did not specifically contradict this) considered that s 122 was not a comprehensive statement of when the requirements of a fair trial might make a warning comparable to a s 122 warning necessary.
The full March 2015 edition of the New Zealand Law Journal is available on the LexisNexis research database.