Pensees d’escalier

An illustration of how the principle of finality in litigation can prevent a superior court of record from correcting its errors after the necessary formal administrative step has been taken by the registry to complete (“perfect”) the proceedings, is Burrell v R [2008] HCA 34 (31 July 2008).

The High Court unanimously held that the Court of Criminal Appeal (NSW) could not correct the facts it had relied on in its lengthy judgment which dismissed the appellant’s appeal against convictions for murder and kidnapping. The facts had been erroneously summarised in a document which had been included with the appellant’s submissions. The appellate court as a result had a false understanding of some of the evidence. An official in the registry had taken the steps necessary to finalise the appellate court’s order, but this had been done with what Kirby J, in a separate concurring judgment, considered to be arguably “needless speed” (83). Had this not been done so quickly, counsel would have had an opportunity, of the sort that commonly arises when appeal judgments are delivered ex tempore, to offer the court an opportunity to correct and, if necessary, reconsider.

The principle of finality has the purposes of (16) protection of the parties from attempts to re-litigate decided matters, of spurring the court and the parties to get it right the first time, and to spare the parties and the court of the time and expense of a revisiting of the issues. There is additionally (20) the need to be able to be certain about what the result of a case is. (A subsequent amendment to the Rules here allows error correction within 14 days: para 30.)

Kirby J remembered the pressures under which the Court of Appeal conducts its business (78-80), and pointed to the difficulties that may be faced in correcting errors on appeal, where the proviso may be applied (81-82, 89-90) and the attitude of the prosecution to error correction may not be as co-operative as it should be (91-92). Criminal cases have become more complex, submissions more detailed, and decisions longer (84-85) than had been the case when appeals were more commonly disposed of in oral decisions. The difficulty in this case would not have arisen if the official in the registry had not acted so quickly.

We are not told here what the errors of fact had been, and to what extent they may have prejudiced the appellant. The High Court was dealing simply with the jurisdictional point concerning the power to correct error, and the case was remitted to the Court of Appeal for rehearing.

Enticed co-operation and its rewards

When does giving a defendant information as to the possible consequences of his co-operation with the prosecution amount to an abuse of process? Probably never, unless threats of unlawful action are made: Mckinnon v United States of America [2008] UKHL 59 (30 July 2008).

Lord Brown, with whom all the Law Lords agreed, concluded (at 41):

“…It is difficult, indeed, to think of anything other than the threat of unlawful action which could fairly be said so to imperil the integrity of the extradition process as to require the accused, notwithstanding his having resisted the undue pressure, to be discharged irrespective of the strength of the case against him.”

Here, the appellant faced extradition on charges arising from his alleged interference, from his home in London, with military computers in the USA. The US authorities indicated to his lawyer that if he did not oppose extradition his co-operation would very likely result in a significantly lower sentence and in repatriation after a minimum time to serve the balance of the sentence in the UK. He resisted that inducement and argued that it amounted to an abuse of process to such an extent that the proceedings against him should be stayed.

Lord Brown observed (at 34) that plea bargaining is not unknown in the UK:

“…it is as well to recognise that the difference between the American system and our own is not perhaps so stark as the appellant’s argument suggests. In this country too there is a clearly recognised discount for a plea of guilty: a basic discount of one-third for saving the cost of the trial, more if a guilty plea introduces other mitigating factors, and more still (usually one half to two thirds but exceptionally three-quarters or even beyond that) in the particular circumstances provided for by sections 71-75 of the Serious Organised Crime and Police Act 2005—see R v P; R v Blackburn [2007] EWCA Crim 2290. No less importantly, it is accepted practice in this country for the parties to hold off-the-record discussions whereby the prosecutor will accept pleas of guilty to lesser charges (or on a lesser factual basis) in return for a defendant’s timely guilty plea. Indeed the entire premise of the principle established in Goodyear [2005] 1 WLR 2532 is that the parties will have reached an agreed basis of plea in private before the judge is approached. What, it must be appreciated, Goodyear forbids are judicial, not prosecutorial, indications of sentence. Indeed, Goodyear goes further than would be permitted in the United States by allowing the judge in certain circumstances to indicate what sentence he would pass.”

The circumstances of USA v Cobb [2001] 1 SCR 587 were distinguished, and it could not be said that here the prosecuting authority had attempted to interfere with the due process of the court, nor had it put undue pressure on the appellant to forego due legal process, and extradition here would not violate the fundamental principles of justice that underlie the community’s sense of fair play and decency, and neither would the appellant have paid an unconscionable price for insisting on his rights under English law (para 33 and 38).

We have become so accustomed to procedures like plea bargaining that it is difficult to see what is wrong with reducing a person’s sentence in exchange for a plea of guilty. Economic efficiency has become the dominant concern. It would be interesting to know how many people are adversely affected by this policy: how many convictions are obtained in this way, that could not be lawfully secured otherwise? What is the social cost of such “pragmatic” convictions, compared with the benefits of savings in court time and reduced expenditure on punishment?

[Update:] For a feet-on-the-ground appraisal of this case, see the comment by the English playwright Alan Bennett in Keeping On Keeping On (Faber & Faber, London, 2016), reproducing his diary entry for 31 July 2008, which reads: “A depressing judgement in the House of Lords. This is the not unexpected rejection of the appeal against extradition to the USA of Gary McKinnon, the computer programmer who, for no other reason than that it was there, hacked into the Pentagon computer. Unless the European Court has more courage and more sense than the Law Lords he faces an American prison. And for what? Cheek.”

Subsequently, in what the Guardian described as “a victory for common sense” on 16 October 2012 Teresa May blocked the extradition.

Appeals on moot questions

It is a relief to see that the Supreme Court did not need to refer again to the balance of probabilities (see last blog) when it granted leave to appeal in Gordon-Smith v R [2008] NZSC 56 (25 July 2008).

The leave granted here opens the door for an appeal against the ruling in R v King and Stevens [2008] NZCA 79 (blogged 14 April 2008). The case name has changed because this appellant, a co-defendant at trial, had standing to seek leave to appeal. Her standing arose from the fact that she was convicted, and that the Court of Appeal decision on the point of law reserved at the request of the prosecution went against her. But, because the trial judge’s ruling had been in her favour, there is no possibility that a successful appeal here will affect her conviction or sentence. The Crown too wished to appeal against an aspect of the Court of Appeal’s ruling, but again at trial a procedure favoured by the Crown had been followed.

The questions of law for determination in this case are therefore, as far as the parties are concerned, moot. They are:

(1) Can the police supply so-called “vetted jury lists” to the Crown to assist the Crown in deciding whether or not to challenge a prospective juror? If yes:
(2) Should a vetted jury list that is supplied to the Crown also be made available to the accused?
(3) Can the Crown peremptorily challenge a prospective juror on the basis of information obtained from a vetted jury list?

The Supreme Court discussed the question of when it should hear cases where there is no longer an issue that could affect the parties. Following the Supreme Court of Canada in Borowski v Attorney-General [1989] 1 SCR 342 at 358-363, the relevant considerations, once a question qualifies for consideration as a matter of public or general importance, and once a person with standing is applying for leave, are the importance of the adversarial process (which might not be invoked properly in the absence of a live issue between the parties), the need for economic use of judicial time, and the sensitivity of the courts to their proper role (advisory opinions being undesirable, especially where the legislature should determine the matter). The approach being properly cautious, particularly so where (but not in this case) an appeal might call into question the propriety of an acquittal (para 26 – 28), the Court concluded that here the questions were not ones that should be left to the legislature. The same questions of procedure were likely to arise in another case and it was desirable to review the correctness of the Court of Appeal’s decision promptly.

Proof and consequences

Cynical barristers – few though they may be – probably think that judges fudge the standard of proof so that they can decide issues as they wish.

The European Court of Human Rights appears to take a hard line against such fudging: in Saadi v Italy [2008] ECHR 179 (noted in blog for In re B, 12 June 2008) the Grand Chamber rejected an argument that consequences should influence the strength of the evidence required on an issue the court had to decide (para 140, 142). That was in the context of the consequences of allowing a person to remain in Italy (allegedly he was a risk to public safety, especially in the United Kingdom, which intervened in these proceedings) as against the risk that if extradited he would be subject to breach of his absolute right not to be subjected to inhumane treatment (a risk he alleged would arise in Tunisia). The United Kingdom argued that because of the risk he posed to public safety, Mr Saadi should have to adduce stronger evidence than would otherwise be required of the risk to him of ill-treatment. But this (para 140)

“…amounts to asserting that, in the absence of evidence meeting a higher standard, protection of national security justifies accepting more readily a risk of ill-treatment for the individual. The Court … sees no reason to modify the relevant standard of proof, as suggested by the third-party intervener, by requiring in cases like the present that it be proved that subjection to ill-treatment is “more likely than not”. On the contrary, it reaffirms that for a planned forcible expulsion to be in breach of the Convention it is necessary – and sufficient – for substantial grounds to have been shown for believing that there is a real risk that the person concerned will be subjected in the receiving country to treatment prohibited by Article 3 …”

Mr Saadi did not have to go so far as proving on the balance of probabilities that he faced ill-treatment in Tunisia: it was sufficient for him to show “substantial grounds for believing there is a real risk” of such a breach of Art 3. And the risk he might pose to the safety of people in the UK had nothing to do with the likelihood of his being subjected to ill treatment if extradited to Tunisia (139):

“… Either the evidence adduced before the Court reveals that there is a substantial risk if the person is sent back or it does not. The prospect that he may pose a serious threat to the community if not returned does not reduce in any way the degree of risk of ill treatment that the person may be subject to on return. For that reason it would be incorrect to require a higher standard of proof, as submitted by the intervener, where the person is considered to represent a serious danger to the community, since assessment of the level of risk is independent of such a test.”

However, the consequences of the decision (risk of ill-treatment) do make the court sit up and pay attention:

“142 … the Court has always been very cautious, examining carefully the material placed before it in the light of the requisite standard of proof …”

I mention all this because today it looks as though consequences are permitted to affect the strength of evidence that is required to meet a fixed standard of proof: Z v Dental Complaints Assessment Committee [2008] NZSC 55 (25 July 2008).

Here Supreme Court decided that the criminal standard of proof does not apply to disciplinary proceedings, but that the standard of proof is the civil standard, the balance of probabilities (the sole dissenter on this point was Elias CJ). That aspect of the decision is not particularly surprising, although it was certainly not inevitable. The point of interest here is whether stronger evidence is needed to meet the civil standard when criminal misconduct is alleged.

Saadi v Italy was not cited, but In re B (blogged here 12 June 2008) was. Sharma v DPP (Trinidad and Tobago) (blogged here 11 December 2006) was not.

The majority of the Court, in a joint judgment (Blanchard, Tipping and McGrath JJ) with which Anderson J largely agreed, recognised that the standard – the balance of probabilities – does not change, but that the nature and consequences of the facts to be proved are relevant to the assessment of the evidence. The the standard of proof on the balance of probabilities is accordingly described as flexible. This follows (para 98) Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362 and purports to follow (at para 105) Baroness Hale in re B at 63 and 64. She, you will recall (blog 12 June 2008), administered the quietus to a misunderstanding of what Lord Nicholls had meant in an oft-quoted dictum. And yet, the joint judgment in Z adds, para 114:

“It is sometimes suggested that the law could, at the discretion of the relevant tribunal, require the criminal standard, but only in respect of the most serious of allegations in disciplinary proceedings, being those which would also found serious criminal charges…. Little guidance has been given, however, on when it will be appropriate to require the criminal standard. No coherent principles have been suggested. Conversely, the flexible approach avoids the difficulties of having different standards in the same type of proceeding and having to decide where to draw the line…. In this respect, the flexibly applied civil standard is not only a more straightforward one to apply to disciplinary proceedings. It is also a standard which has conceptual integrity.” [footnotes omitted]

This appears to make the balance of probabilities perform the function of proof beyond reasonable doubt where the consequences warrant that. In place of the uncertainty over when the criminal standard should apply, the majority substitute uncertainty over when consequences will be deemed sufficiently serious to trigger flexibility. The joint judgment purports to deny that requiring stronger evidence in some situations is a matter of law (para 105), whatever that means; are submissions prohibited as to the implications of the seriousness of the consequences for the strength of evidence needed in a given case?

It is tempting to view the majority decision in Z as a choice of the wrong standard of proof for disciplinary tribunals. Generally, it is unpleasant to think of judges as being distracted by the consequences of a decision when they determine whether evidence is sufficiently strong to meet the burden of proof. For example, it would be wrong for a judge to bear in mind that the consequence of finding that the defendant’s rights had been breached could be exclusion of important evidence against him, when deciding whether there had been such a breach.

Anderson J applied a logical approach in largely agreeing with the joint judgment. He criticised (para 143) the Chief Justice’s dissent:

“I have difficulty with the Chief Justice’s proposition that consistency is promoted by applying the criminal standard. It is not the choice of standard which promotes consistency but the consistent application of the same standard, whatever it might be.”

But will regard for the consequences of a decision promote consistency? Why wouldn’t uniform application of the criminal standard to disciplinary proceedings promote consistency? Anderson J says (145) that the choice of the civil standard is supported by the community risks relevant to professional misconduct, but serious crime can also involve community risk – often of a greater degree – yet no one suggests that in such cases the civil standard should apply. True, as the joint judgment points out at 117, some other jurisdictions use the civil standard in disciplinary proceedings, although in the UK it is likely that the criminal standard will apply to such proceedings concerning barristers (110), and perhaps to health professionals (111). The joint judgment preference is for experience over logic (107).

The weakness of the majority’s analysis in Z arises from a misuse of the word “flexible”. This is more appropriately descriptive of the ease or difficulty with which evidence on an issue might be obtained. It is not a description of the level or standard of proof needed to satisfy the court on the issue. The House of Lords has corrected its over-analysis of the balance of probabilities, and the Strasbourg Court has refrained from embarking on such a discussion, so Elias CJ, although being the minority in Z, is in good company.

A different aspect of Z concerns abuse of process and whether matters that had been the subject of criminal charges on which the defendant was acquitted could be considered subsequently by a disciplinary tribunal. They could, although Anderson J disagreed as to one of the incidents. He, with the majority, saw no difficulty in tribunals having regard to such matters, because of the different context of their proceedings (156), but on the one matter on which they differed the majority (134-136) pointed to jurisdictional reasons for preventing the tribunal from considering it.

Probative value and prejudicial effect

In M v R [2008] NZSC 52 the Supreme Court refused leave to appeal in a case where the Court of Appeal ([2008] NZCA 112) had been split over whether the trial had been fair. The issue was whether there had been a substantial miscarriage of justice (an unfair trial), so this was not the occasion for an examination of one of the most intractable problems in the law of evidence.

That problem is how to decide whether the probative value of proposed evidence is outweighed by the prejudicial effect of ruling it admissible. In New Zealand the statutory formulation of this decision is in s 8 Evidence Act 2006. It has some common ground with the substantial miscarriage of justice issue, in that the fairness of the trial governs each decision.

The three Court of Appeal Judges in M delivered a joint decision which mentioned that a member of the Court, who it did not identify, disagreed with the other two on the fairness issue. The question was, what was the effect of the admission of inadmissible evidence: the accused had been charged with sexual offending and when he was questioned by the police he was asked whether he himself had been abused when he was young, and he said he didn’t know. Under cross-examination the officer who had interviewed the accused said he had asked that question as a way of leading to asking the accused how it might affect his own parenting. The officer denied he was suggesting that if the accused had been abused he would be more likely to be an abuser, and added that he understood that only around 20% of such people went on to become abusers.

The majority view is expressed in the judgment in this way:

“13 A majority of the Court are of the view that although the evidence should not have been led, it appeared to be the subject of cross-examination to use it rather than to overcome it. That is consistent with how the case was advanced with its focus on the complainant’s credibility. Reflecting the sustained attack on her when she gave evidence, the defence stance in closing was that this case involved a very unequal and unfair contrast between a young, intelligent, highly articulate and venal woman, at the height of her powers who had prepared carefully, and an elderly man, no longer in command of his mind or memory, who could only react. In their view there is no risk of miscarriage of justice arising from the admission of this evidence.

“14 The ‘statistic’ drawn out in cross-examination …, that a proportion of around 20 per cent of those who are abused then go on to commit abuse, is not a particularly significant statistic. Further, the appellant was acquitted on one count of indecent assault on a girl under 12. The complainant’s recollection of the facts giving rise to that count (incidents of oral sex) was not clear but the differing verdicts suggest the jury had been able to discriminate (consistent with the Judge’s directions on the burden and onus of proof) and was not simply applying propensity reasoning.”

This does not, of course, address the terms of s 8, but the relationship with the substantial miscarriage of justice question is apparent in that the evidence, being inadmissible, had no probative value, so the real question was whether there was an unacceptable risk of illegitimate prejudicial effect from its admission, bearing in mind the accused’s right to a fair trial, which is the same as the s 8 right to offer an effective defence viewed in the context of s 6(b) of the Evidence Act 2006 which requires recognition of the accused’s rights that are affirmed in the Bill of Rights.

Was there an unacceptable risk that the jury would, as a result of hearing the inadmissible evidence, have given more weight to the complainant’s evidence than it should, or less weight to the defence case? Even if the majority correctly reasoned that the difference in verdicts was attributable to impartial judgment rather than simply to a failure of probative value on the part of the complainant’s evidence on one count, does it follow that the jury were impartial on counts where the complainant’s evidence was detailed?

The judgment reports the minority Judge in these terms:

“16 The third member of the Court is of a different opinion. That member considers that the jury may well have improperly viewed the disputed evidence as predisposing the appellant to act in the manner alleged by the Crown. Acquittal on one of eight counts is no evidence to the contrary. It is quite likely that cross- examination on the topic was out of necessity, by way of attempt to meet what had been admitted, rather than a desired part of the defence case. There is however an outside chance that defence counsel received instructions to allow the evidence to be admitted in support of a sympathy plea. There was a suggestion at the hearing that there may have been a waiver of privilege by the appellant but no evidence resulted. That is a matter which should be explored by an invitation to the appellant focused on the present point, to consider whether to waive privilege so that the Crown may obtain from trial counsel an affidavit as to his instructions. But in the absence of any such instructions the appellant’s absolute right to a fair trial has been infringed by evidence which was highly prejudicial and should never have been admitted.”

This amounts to recognition of a high risk of bias against the accused arising from the wrongful admission of the evidence.

Three Justices of the Supreme Court declined leave to appeal from the Court of Appeal’s dismissal of the accused’s appeal, saying at para 2:

“…The Court [of Appeal] was divided on whether the admission of the evidence resulted in an unfair trial. That is not a question of law or fact of public or general importance as it is entirely dependent upon the facts of the particular case. And, importantly, overall there does appear to have been a fair trial and there is no appearance of any miscarriage of justice.”

So we will have to wait for any assistance the Supreme Court may wish to give on how the risk of an unfair trial is to be identified and dealt with. The basic question in M v R was, when do imputations against an accused’s character amount to illegitimate prejudice? That is one of the hot topics in the law of evidence. There has been a recent Report on it from the New Zealand Law Commission: (NZLC R 103) “Disclosure to Court of Defendants’ Previous Convictions, Similar Offending and Bad Character” (May 2008). This details the complexity of the issues as perceived by those who have discussed them. The appropriate risk of unfairness is treated like this:

“1.22 …The determination of what is “appropriate” can raise a complex mix of considerations. Amongst these are society’s interest in conviction of the guilty and acquittal of the innocent; and also matters of practicability within jury trial process, and of human abilities. In the end, and within such constraints, the question of acceptable degree of risk and fairness involves a value judgement.”

This seems to suggest that the accused’s right to a fair trial must be adjusted to accommodate society’s interest in a true verdict, which contradicts the position mentioned later, para 8.15, to the effect that the accused’s right to a fair trial is primary:

“In the end, the Commission’s view is that in a contest of values, the need for a fair trial should continue to have primacy. The admissibility of evidence for the prosecution can and should go up to the limit which that permits, but not beyond. Policies governing the admissibility of evidence in criminal cases, including within that evidence of previous convictions, past misconduct, and bad character, should be shaped accordingly.”

The Commission thinks predictability will remain elusive:

“7.59 The weighing exercise, like all value judgements, will never produce entirely uniform and predictable outcomes across all judges on all occasions. Views on a particular case may, at times, vary quite sharply, even at the highest levels…[footnote omitted] However, this is unavoidable: any precise formula that did not involve the exercise of judgment would produce undue rigidity and therefore injustice.”

Nevertheless, in my view the exercise of judgment is worthy of study. It is important that it should be predictable and not arbitrary. Judges should not simply state their conclusions; they should give reasons.

The accused’s right to a fair trial is fundamental and absolute, so judicial difficulties in upholding it must be of great concern.

I could go on; in fact I do, here.

Recent invention afterthoughts …

I should add to my comments on R v Barlien, last blog (8 July 2008) a reference to the Court of Appeal’s decision of 6 June 2008 in R v S (CA592/07) [2008] NZCA 152. This has just come to my attention, and it is consistent with what I said about the meaning of “recent invention” when I considered R v Barlien.

In R v S the Court held that under s 35 of the Evidence Act 2006, recent invention means an invention made after the event spoken of, and invention includes something reconstructed without conscious dishonesty (para 16).

It seems that the Court was wrong in Barlien to conclude that the defence stance there did not amount to an allegation of recent invention (para 51). In Barlien which was decided on 24 June 2008, R v S was not cited. Both are decisions of the Divisional Court (meaning that a Permanent Member of the Court of Appeal sits with two Justices of the next lower court, the High Court), and one High Court Justice sat on both cases.

Prior consistent statements

In R v Barlien [2008] NZCA 180 (24 June 2008) the Court made some important criticisms of s 35 of the Evidence Act 2006. The Court ordered that these criticisms be brought to the attention of the Minister of Justice and the Law Commission.The essence of the criticisms is that under s 35 a complainant’s prior consistent statement alleging the accused’s sexual misconduct cannot be admissible unless the defence claim that the complainant’s evidence is a “recent invention”. There are other circumstances where the prior consistent statement may be admissible, spelled out in s 35, but that is the one relevant to this case.At common law there was no such need for a defence claim that the testimony was recently invented if the statement qualified for admission as a fresh or recent complaint. Perhaps – just speculation here – s 35 made this change intentionally as part of a delicate balancing of competing interests. The section does have the effect of making the prior statements, when admissible, proof of their truth (this was held in Barlien para 20); the common law had only allowed them as evidence of consistency.In assessing the Court’s criticisms of s 35 one should bear in mind how counsel will usually approach the issue. In some cases, counsel for each side can sort out between them, before the trial, whether it is likely the Court will be asked to rule on the admissibility of a prior consistent statement. Disclosure of the complainant’s statements will have been made to the defence, and defence counsel will, in these rare cases, know whether he will be alleging that the complainant’s evidence – assuming the complainant comes up to brief – is a recent invention. That is, an invention made at some point where a motive for invention operated. It would be unusual for a case to be prepared for trial with a conflict between the complainant’s statements. More usually, a conflict will only emerge when the complainant gives evidence. The difference between what the complainant says in court and what the complainant previously told someone will give the previous statements its status as a prior inconsistent statement. But inconsistent statements are not the concern of s 35.There is no statutory definition of “recent invention” but it is obvious that it means an allegation that what the complainant is saying in court is an invention that was made after the events with which it purports to be concerned. The “recency” refers to the time since those events. The invention in court could be a result of an intention to lie, or it could be an innocent mistake. Most cases, in which the defence either deny the occurrence of the events or dispute the allegation of absence of consent, will be cases where recent invention is alleged.The Court’s concerns in are of questionable merit.Here is the Court’s postscript to its judgment in Barlien, setting out its concerns. I have inserted my comments in italics and square brackets:Postscript[64] This case has highlighted some issues with s 35 of the Evidence Act and the changes to the Law Commission draft code made at Select Committee stage. The changes were made because the Select Committee considered the original Law Commission section “unworkable and too broad”.[65] Some might even argue that the Law Commission draft code was too restrictive in that it perpetuated what some might see as an illogical distinction between conduct and statements. This is particularly the case where words are inextricably intertwined with conduct …. In addition, it excluded potentially relevant evidence. This was on the basis that parties should not, without good reason, inundate the court with voluminous repetitive material. However, s 8(1)(b) already gives judges control over this. [Yes, but: in the absence of a defence allegation that the complainant made a prior inconsistent statement – told another story out of court – the jury is likely to think that the testimony they have heard is what the complainant said all along, and the evidence of the complainant’s conduct at the relevant time – when the complaint was made – will make this thought inevitable.][66] Further, the Law Commission draft code required a challenge to be made to veracity or accuracy before previous consistent statements became admissible. A jury is still, however, able to reject evidence that has not been challenged given that they are the fact finders – see R v Munro [2008] 2 NZLR 87 at [25] (CA) and R v E [2007] NZCA 404 at [134]. Limiting admissibility to evidence that has been challenged could deprive a jury of potentially relevant material upon which to base their decision. Further, limiting admissibility to cases where there has been a challenge to the evidence means that it can usually only be admitted after such a challenge. This might interrupt the orderly conduct of trials and could inconvenience witnesses who might have to remain on standby, uncertain if they would be called (or recalled). It may also mean that, where words were inextricably tied in with conduct, a disconnection between the evidence as to conduct and the words that accompanied them might arise. There is also the difficulty in assessing admissibility if a witness is yet to testify ….

[67] All of these problems remain, however, with s 35 as enacted and further problems have been introduced. We identify a number below but there may be others.

[68] While the Select Committee said that it was restricting admissibility to those situations where previous consistent statements would have been admissible under current law this is not the case – see above at [35]. The disinterested observer might well think it odd when evidence that would have been admissible under the more restrictive common law rules is no longer admissible under the more expansive Evidence Act provisions.

[69] There appears to have been a mistake in not including, in the exceptions to s 35(1), the res gestae exception – see above at [37] – [39]. [Not necessarily: s 12 may govern this situation.] In addition, the rules relating to recent complaints were not retained – see above at [36]. Such evidence has previously been regarded as being of probative value [Yes, only as going to credibility; now it goes to truth on those occasions when it is admissible]. While the omission of provision for recent complaint evidence may well have been deliberate (although unexplained), it does deprive juries of relevant information – see our comments at [47] – [49] above [Yes, but in the absence of a challenge from the defence the jury will assume that the complainant was always consistent. The Court’s point is that the complainant may forget some of the complaint, but why depart from the usual rules as to forgetful witnesses – s 90(5) ?]. It also deprives [again, might deprive, but the assumption of consistency makes it not very likely to do so] them of evidence which they appear to find helpful – see Dr S Blackwell Child Sexual Abuse on Trial (Thesis submitted for Doctor of Philosophy in Psychology, University of Auckland, 2007) at 216. There is also a possible difficulty with the admission of previous descriptions of the accused, in that s 22A of the Evidence Act 1908 was not brought forward into the new Act – see above at [33] [It is likely that an allegation that an eyewitness is mistaken will count as a claim of recent invention, so the prior consistent description will be admissible, and for its truth, not just as supporting present credibility].

[70] In addition, even more than under the Law Commission version, the admissibility or otherwise of relevant evidence in the form of previous consistent statements depends on how the accused decides to run his or her case. [Not much of a choice, in reality.] The Right Honourable Ted Thomas has recently commented that in his view this is unfair to victims of sexual offending – see “The Evidence Act 2006 and women” [2008] NZLJ 169 at 170. We note that, even if defence counsel does not raise the issue of recent invention, this does not prevent the jury from surmising as to why the complaint is delayed and perhaps considering the prospect of recent invention [Defence counsel cannot suggest that the complaint is a recent invention if it is known not to be; the usual defence position will be that all the complainant’s statements on the material point are inventions.]. Dr Blackwell’s thesis suggests that juries’ decision-making usually involves the “story construction” model whereby personal knowledge or experience about similar events is used, along with evidence at trial, to create a complete story of events – see Dr Blackwell’s thesis at 56 – 57. [See also: Bennett and Feldman, “Reconstructing Reality in the Courtroom” (1981) for the same point.]

[71] Section 35(2) also creates a dilemma for defence counsel. The Law Society seminar on the Evidence Act, pointed out that s 35 makes cross-examination based on previous inconsistent statement or recent invention a difficult and delicate exercise – see Hon Justice William Young and Hon Justice Chambers (Chairs) Evidence Act 2006 (NZLS Intensive June 2007) at 117. Inroads made on certain aspects of the evidence may be countered and indeed marginalised by re-examination on this and on the production of a prior consistent statement. Moreover, evidence given after a challenge may assume more importance than if elicited in the normal course of the evidence. Failure to cross-examine on those aspects could, however, be equally fatal to the defence. [I agree with the authors of the paper referred to where they say, at the same page, “Potentially s 35(2) could greatly widen the opportunity to produce prior written statements of a witness once the witness has been challenged in cross examination.”]

[72] Finally, there are issues with the interface of ss 35 and 45 in relation to identification evidence generally. In [one commentary], it is noted that the better view is that s 35 will apply even where the requirements of s 45 are met. The authors state that a witness will only be able to support the identification of the defendant by way of a previous consistent assertion identifying the defendant where there is a challenge to the witness’ accuracy or veracity (for example on the basis of poor eyesight). However, this comment must have been based on the old version of s 35 because the prior consistent identification would only be admissible under s 35(2) if the challenge was on the basis of a prior inconsistent statement or recent fabrication [No, the word is not “fabrication” – which suggests deliberate falsehood – but “invention” – which could occur by innocent reconstruction of events] (and poor eyesight would not come within those exceptions) [but it could cause invention].

[73] The Registry should refer this judgment to the Ministry of Justice and the Law Commission, drawing their attention in particular to this postscript.

If “recent invention” has the wide meaning of an invention made after the alleged events, or really just an invention, then the focus will be on whether the prior consistent statement is necessary to rebut the defence suggestion of invention. It seems that such necessity will be easy to establish, and that s 35 will have a wide operation.

Update: For the Supreme Court’s disapproval of much of Barlien, see Hart v R and Rongonui v R, both delivered on 23 July 2010 and discussed here and here.