Eliminating floppiness?

Vagueness in the criteria for the admission of evidence may allow a judge to take account of the accused’s right to a fair trial. This sort of justification for vagueness was advanced in Ahern v R (1988) 165 CLR 87, at para 17:

“The aim in limiting the use which might be made of a co-conspirator’s acts or declarations is to exclude such evidence when its admission might operate unfairly against an accused. For this purpose, the element of discretion implicit in the terms ‘reasonable evidence’ is desirable.”


That threshold of reasonable evidence refers to the non-hearsay evidence of the existence of a common intention and of the accused’s participation in the carrying out of that intention, in one of the more complicated of the common law exceptions to the rule against hearsay.

This exception to the hearsay rule (known variously as the co-conspirators exception, the preconcert exception, or the common enterprise exception) has a number of components. The hearsay component is a statement made by a person, not available as a witness, about what the accused would be doing in furtherance of the relevant common purpose. If the other requirements of this exception are met, this is the statement that becomes admissible evidence. As with all hearsay evidence, the law imposes a requirement of reliability on such a statement before it can be admissible. In addition, the co-conspirators rule has a precondition concerning the non-hearsay evidence in the case, which also applies before the hearsay statement can be admitted in evidence. This is, proof (to a degree which was the subject of today’s decision in Jiang, discussed below) that there was a common purpose and that the accused was a party to it. A further limitation imposed by the co-conspirators rule is that only hearsay evidence which demonstrates the accused’s participation in the furtherance of the common purpose is admissible; narratives of what the accused did in the past do not usually satisfy this “in furtherance” requirement.

There has been a difference of judicial opinion over whether the threshold applicable to the non-hearsay evidence in this exception should be reasonable evidence, or proof on the balance of probabilities. The difference has usually been acknowledged to be of little practical significance in the cases where this point has arisen, but, nonetheless, some judges have supported the balance of probabilities formulation. Indeed, until today, the threshold in New Zealand was the balance of probabilities. Canada uses the balance of probabilities: R v Carter (1982) DLR (3d) 385 (SCC) and R v Mapara [2005] SCC 23 (blogged here 4 May 2005).

Today, the Supreme Court in Jiang v R [2007] NZSC 51 (also called Qiu v R) held that the threshold applicable to the co-conspirators’ exception is reasonable evidence. The Court noted that this criterion is in “harmony” with the provisions concerning the admissibility in the Evidence Act 2006 (enacted, but not yet in effect). Section 18(1)(a) of that Act requires, as one of the conditions of the general exception to the exclusion of hearsay statements, that “the circumstances relating to the statement provide reasonable assurance that the statement is reliable”. This, of course, is a reference to the reliability of the hearsay statement.

This “harmony” point is an agreeable consistency, but it is not compelling, because harmony between the reliability of the hearsay statement and the non-hearsay threshold is not strictly necessary. They are quite distinct requirements.

Under the original form of the Act (see below for reference to new s 12A) it would have been necessary to ask what is “reasonable assurance” of reliability of the hearsay statement. That could be indicated by non-hearsay proof on the balance of probabilities of the existence of the common intention, plus the other requirement of the common law exception, namely that the statement was made in furtherance of the common design. Or it could, as the Court held, be indicated by reasonable non-hearsay evidence of the common purpose. I use the word “indicated” here, because it is possible that a hearsay statement concerning the accused’s participation in the joint enterprise could carry reasonable assurance of reliability for reasons other than that the non-hearsay evidence reaches a threshold. It may be that, if that is the position, then the co-conspirators exception does not need to be relied on to achieve admission of the hearsay statement.

In any event, the Evidence Act 2006 is to be changed from the way it was when the Supreme Court decided Jiang. A new section, 12A is to be inserted, providing that the common law rules concerning co-conspirators statements are not to be affected by anything in the Act. Of course, one view is that the common law may be evolved to bring it into line with the general hearsay exception in the Act, but it is also possible to infer a legislative expression of confidence in the common law rules in their form as at the date of this (now, future) amendment.

Another point which is unclear is whether reasonable evidence means the same thing all the time, or whether it is variable, sometimes being more than proof on the balance of probabilities and sometimes less.

In argument in Jiang (SC41/2006, 15 February 2007) Tipping J raised the question whether reasonable evidence is more or less than the balance of probabilities (p 32 of the transcript):

“… [the trial judge] then talks about balance of probabilities as if that was the higher standard. I think she takes the view that reasonable evidence is a lower threshold than balance of probabilities which is a debatable point.”

Blanchard J added (p 33):

“… I wasn’t sure which is higher than the other. I actually think I prefer reasonable evidence which is safe to admit because it’s a more direct expression. It tells you what to look at whereas balance of probabilities is a bit floppy in this context.”

These concerns were not addressed in the Court’s judgment in Jiang. It seems that, where appropriate, the requirement of reasonable evidence will be higher than the balance of probabilities.

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