Hearsay confessions: probative value and prejudicial effect

Transcription

1 Hearsay confessions: probative value and prejudicial effect Don Mathias Barrister, Auckland Hearsay confessions In order to raise a reasonable doubt about the accused s guilt, the defence may seek to call a witness, W, to say that someone else, X, not available to give evidence at the trial, had told W that the accused was innocent because X had committed the crime. This confession by X would be hearsay evidence at the accused s trial. Plainly, such evidence would be of critical importance at that trial. What precautions does the law of evidence put in place to prevent improper acquittals being brought about by this sort of hearsay? R v Shortland: the disputed evidence A case illustrating an approach to the admissibility of a hearsay confession is the decision of the New Zealand Court of Appeal, R v Shortland 2/3/07, CA314/06. A man had died after being assaulted outdoors at night by one of two others. Those two left the scene with two other men. The accused was charged with murder and particularly important against him was the evidence of two eyewitness. W, who was X s girlfriend, claimed that within 24 hours of the assault, X told her that he was the one who had done the killing, not the accused. X in turn died of a drug overdose not many hours after he allegedly confessed to W. W did not tell the police what she claimed X had said until after the accused had been arrested and some 12 days had passed since the assault victim had died. W, who was illiterate and had a history of mental illness, gave two different versions of X s confession when she was questioned three times by the police, and the prosecution did not call her at the accused s trial. The defence had her interviewed by a private investigator, and she adhered to her second version of X s statement, so the defence sought to call her to give that hearsay evidence. Her first version of X s statement would not have helped the accused, and she explained having given this by alleging police misconduct in relation to her. The judge, while rejecting her allegation of misconduct, ruled that the hearsay evidence could be used, and the Solicitor-General appealed against that decision to the Court of Appeal. Hearsay: admissibility and discretionary exclusion As I am going to respectfully disagree with the reasoning of the Court of Appeal in Shortland, I should first mention the critical legal distinction that was obscured by the Court. The distinction is between the decision as to the admissibility of hearsay evidence, and the decision as to whether evidence that would otherwise be admissible should nevertheless be excluded. The relevant law, applicable to Shortland, is in the Evidence Amendment Act (No 2) The admissibility decision is governed by ss 8 and 9. The discretionary exclusion decision is governed by s 18 (these provisions are quoted in full

2 later in this paper). The relevant provisions that will apply once the Evidence Act 2006 comes into force are, respectively, s 18 and s 8 (s 8 is quoted in full later in this paper). That is, the same fundamental distinction, between the decision as to admissibility, and the decision as to discretionary exclusion of otherwise admissible evidence, is maintained under the new legislation. Different criteria apply to each decision. The critical requirements for admissibility of oral hearsay evidence are, under the No 2 Amendment of 1980, that X had personal knowledge of the matter dealt with in his statement, that he is unavailable to give evidence, and that at the time he made the statement he believed it was against his interest to make it. On the other hand, in relation to the exclusion of otherwise admissible evidence, the criteria are that the prejudicial effect of admission of the statement would outweigh its probative value, or that for any other reason the court is satisfied that it is not necessary or expedient in the interests of justice to admit the statement. Under the Evidence Act 2006, the relevant criteria in relation to admissibility are whether the circumstances relating to the statement provide reasonable assurance that it is reliable, and that X is unavailable as a witness. The relevant criteria for exclusion of a statement that is otherwise admissible are that its probative value is outweighed by, either, the risk that it will have an unfairly prejudicial effect on the proceeding, or, the risk that it will needlessly prolong the proceeding. The right of the defendant to offer an effective defence must be taken into account in assessing the probative value against the prejudicial effect. The Court s approach to the law in Shortland Instead of keeping these two decisions separate, the Court in Shortland used probative value as an admission criterion, instead of as an exclusion criterion. This involved taking what it called an holistic approach to the assessment of the probative value of X s statement: [36] As to the relevance of [W s] reliability, the starting point must be that the reliability of a witness of fact is for the jury. Indeed, as will become apparent, the Evidence Act 2006 proceeds on the basis that the veracity and accuracy of a witness who gives evidence of a hearsay statement is irrelevant to its admissibility. On the other hand, it is trite that one of the primary dangers associated with the admissibility of hearsay is the double source of error (including the risk of fabrication) identified in the 1967 report [of the New Zealand Torts and General Law Reform Committee, Hearsay Evidence, upon which the Evidence Amendment Act (No 2) 1980 was based]. That report led to the statutory provisions in issue in this case. Given that, it would be odd if a Court exercising the s 18 jurisdiction could not take into account double source of error considerations. [37] We are accordingly of the view that the Judge should have assessed the probative value of the evidence in question on a holistic basis in which

3 he allowed for both the reliability and credibility issues directly associated with [W] and, as well, the implausibility of the contention that [X] had a direct role in the death of [the victim]. Consequently, the statement alleged to have been made by X was held to have very little probative value. That assessment, appears, on the basis of the circumstances outlined in the judgment, to be reasonable. Nevertheless, it would normally be for the jury to assess the probative value of the admissible hearsay in the context of all the other evidence. The judge s function would ordinarily be to determine whether the hearsay evidence had sufficient apparent reliability as distinct from probative value to meet the threshold for admission of such evidence. As a threshold requirement, apparent reliability would not be assessed in an holistic way. The Court s use of the weighing exercise, comparing probative value to prejudicial effect, as a determinant of admissibility, required it to also consider prejudicial effect. As far as this was concerned, the Court said: [39] If the evidence is led, it will result in the jury being required to hear evidence about the various statements which [W] has made. This could be a lengthy process given her illiteracy and complaints of police misconduct and it may well be that all police officers who interviewed her and the private investigator would have to give evidence. There may well also be an inquiry into [X s] character (including an alleged propensity for violence). All of this would undoubtedly be distracting for the jury. Further, there is necessarily some subtlety to an assessment of the overall reliability of the evidence. Critical to that assessment is how [X s] alleged role in the relevant events fits in with the evidence as a whole. As well, the reliability of [W s] evidence is distinctly in issue and, in the background, so too is the reliability of [X]. The layered nature of the exercise will not be easy for a jury to grasp and this itself carries the risk of further distraction. We consider that all of this carries the risk of appreciable prejudice to the Crown. We recognise that this conclusion is a matter of impression but we draw comfort and support from the 1967 report of the Committee and the cases referred to in Wilding [CA104/05 19 May 2005] which recognise that hearsay evidence of third party confessions carries the real risk of confounding the criminal trial process. In our view Judges have a responsibility to address this risk. Important here is consideration of the following matters: the difficulty of fitting X s account in with the evidence as a whole, and the reliability of W as a witness. The Court was conscious that under the Evidence Act 2006 these will not be relevant to assessment of prejudicial effect: [43] In its draft of the Code (New Zealand Law Commission Evidence (NZLC R 55, Vol 2, 1999) at 44 46), the Law Commission defined circumstances in a broadly similar way and the commentary to this

4 definition (New Zealand Law Commission Evidence (NZLC R 55, Vol 2, 1999) at [C75]) notes that the circumstances of the statement do not include the truthfulness of the witness who relates the statement in Court; this on the basis that the truthfulness of the witness can be tested before, and assessed by, the fact-finder. In light of this, it may be doubtful whether it would be right to rely on the general power to exclude evidence (see s 8) for reasons which relate to the accuracy of the evidence of the witness. In the same commentary, the Law Commission also observes that where the circumstances directly referable to the making of the statement suggest that it is reliable, the statement: should not be held inadmissible because it contradicts other evidence. [44] We have reservations as to whether, in practice, it will prove practicable to segment reliability assessments so as to exclude from consideration the accuracy and truthfulness of the witness who gives evidence of the statement and background externalities. But, be that as it may, the present case falls to be determined under the current law. The Court took as its view of the current law its perception that in two cases on hearsay an holistic approach to reliability had been taken, and that the same should apply to the assessment of probative value in the weighing exercise: [35] in the broader context provided by Manase and Baker (ie in terms of the admissibility of hearsay at common law), it seems clear that a trial Judge s assessment of reliability is to be made on a holistic basis and that all factors which logically go to reliability are material. As a matter of logic it is difficult to see why that approach is not appropriate to the similar issue (ie lack of probative value). There is, however, little indication in the cited cases that an holistic approach was taken to the assessment of reliability. In each of those cases the Court used reliability, correctly, as an admissibility criterion, and did not use the weighing of probative value against prejudicial effect for that purpose. In R v Manase [2001] 2 NZLR 197, (2000) 18 CRNZ 378 (CA) D was charged with sexual violation of his niece, then aged 3 ½, aged 5 at time of trial. She had a sexually transmitted disease, and at a family meeting D said she may have got it from him, via a lollipop he had shared with her. The contested hearsay statements were made by her to her mother, and to a receptionist at a specialist sexual abuse centre. These latter included drawings, which the court treated as implied assertions that she had seen D s erect penis. At the time of trial she had forgotten making the statements and drawings. D did not have the disease that he thought he had given her. The court was left with a sense of real unease about what she meant in what she said to the receptionist and in her drawings. D s admission of having given her his lollipop didn t carry the significance that the Crown sought to place on it. Also, her account to the receptionist could have been contaminated over a 7 week period by what she had heard members of the family discussing. Further, her language and cognitive skills were

5 insufficiently developed for what a registered psychologist considered to be an evidentially reliable interview: it was difficult to confirm the source of the information. The court held that it could not be concluded that cross-examination would not make a relevant difference, and the statements and drawings were ruled inadmissible. The approach to reliability here is a focus on what the hearsay statement was, and whether it was made by a person (the child) who was reliable, in view of the risks of ambiguity and contamination by suggestion. In R v Baker [1989] 1 NZLR 738, (1989) 4 CRNZ 282 (CA) in relation to hearsay statements by the deceased (in our terminology, X) that she was afraid of the accused, her estranged husband, Cook P held: [These] statements have considerable relevance and cogency as to her apparent attitude to the accused. The risk of fabrication by the deceased, an intention by her to mislead the persons to whom she was speaking, does not seem high. The statements reported to have been made during the day immediately preceding her death are particularly striking, but the very consistency of her remarks over a period of weeks has its own weight. I would admit all the substantial evidence of this nature. The trial Judge will of course consider what warnings he should give to the jury in the light of the evidence actually given at the trial. Here the focus is on X s reliability, her lack of any motive to fabricate, and her consistency. Again, this is not an holistic approach that permitted consideration of matters such as the reliability of the witnesses who would report these hearsay statements to the court, or the fit of the hearsay with the other evidence in the case. Those matters could be assessed by the jury. So, too, could the significance in Shortland of the variations in W s accounts of X s statement, and of X s claims of police misconduct as an explanation for those variations. The illegitimately prejudicial effect of evidence, for the purposes of balancing against probative value, has traditionally been seen as arising from the risk that the jury will not, because of the nature of the evidence, use it correctly in its reasoning. Frequent examples occur in the areas of evidence of the accused s prior misconduct, and joinder or severance of counts. Authorities on the meaning of illegitimate prejudice in the context of this weighing exercise against probative value are R v M [1999] 1 NZLR 315 (CA) also reported as R v Accused (CA461/97) (1998) 15 CRNZ 674 (CA), R v Bull 17/11/03, CA313/03 at para 8, R v Howse [2003] 3 NZLR 767, (2003) 20 CRNZ 826 (CA) at para 21, R v Holtz [2003] 1 NZLR 667 (CA) at para 47, R v Zhang [2005] NSWCCA 437 (2005) 227 ALR 311, at paras See also my article Probative value, illegitimate prejudice and the accused s right to a fair trial (2005) 29 Crim LJ 8. Wrong use of such evidence, resulting in a distortion of the evaluation of the probative value of other evidence, can thereby result in an unfair trial. This is not meaning given by the Court in Shortland to prejudicial effect. What the Court considered to amount to illegitimate prejudicial effect was in reality a number of matters that were properly within the jury s domain. They were matters concerning probative value, not prejudicial effect. The same

6 kinds of things are routinely part of prosecution cases and are not thought to be improperly prejudicial to the defence. Was the decision in Shortland wrong? It is respectfully suggested that the first matter for decision was the admissibility of X s statement under ss 8 and 9 of the Evidence Amendment Act (No 2) These provisions have been referred to above, and read as follows: 8 Conditions for admissibility of oral hearsay evidence In any criminal proceeding where direct oral evidence of a fact would be admissible, any oral statement made by a person and tending to establish that fact shall be admissible as evidence of that fact, if (a) The maker of the statement had personal knowledge of the matters dealt with in the statement, and is unavailable to give evidence; and (b) The statement qualifies for admission under any of ss 9 to 14 of this Act. 9 Statement against interest (1) Subject to s 8 of this Act, a statement qualifies under this section for admission if the maker of the statement knew or believed, or may reasonably be supposed by the Court to have known or believed, that the statement was, in whole or in part, against his interest at the time he made it. (2) In subsection (1) of this section, interest means any pecuniary or proprietary interest, and any interest in any proceeding pending or anticipated by the maker of the statement. The key point here is that the statement by X was not against interest, as he had no reason to expect that his girlfriend, W, would report it to the police or to anyone else. This point was not overlooked by the Court, but the case was complicated (indeed, one might say it was put off course) by a Crown concession that the alleged statement was against interest: see para 24 of the judgment. Whether the Court should regard itself as bound by an ill-advised concession is doubtful. In reality, the hearsay statement was inadmissible for that reason. All the defence could then rely on was the residual common law power to admit the evidence where fairness so required. This discretion, a recognition of the overriding requirements of fairness to the accused, is still at an early stage of its development, illustrative cases being concerned with exculpatory parts of statements by the accused, or a co-accused, to the police: R v Adams 28/4/05, CA26/05, Bannon v R (1995) 70 ALJR 25 (HCA), R v Finta (1994) 112 DLR (4th) 513, R. v Williams 1985 CanLII 113 (ON C.A.), (1985), 18 C.C.C. (3d) 356. As the Court in Shortland allowed the Solicitor-General s appeal and held that the hearsay evidence was inadmissible, the question whether the result was wrong depends on considerations of fairness.

7 The accused s right to a fair trial In R v Bain (New Zealand) [2007] UKPC 33 (10 May 2007) Lord Bingham, for the Board, summarised the jurisprudence on the accused s right to a fair trial: [115] a fair trial ordinarily requires that the jury hears the evidence it ought to hear before returning its verdict, and should not act on evidence which is, or may be, false or misleading. Even a guilty defendant is entitled to such a trial. Thus, the fact that the proposed hearsay evidence conflicts with other evidence in the case should not be relevant: it doesn t matter how guilty the accused appears to be. Fairness here requires an assessment of whether the hearsay evidence could be taken by a jury to undermine the probative value of the evidence that suggests guilt. It is important, as Bain illustrates, that the Court should not substitute its own view, of the likelihood of such undermining, for that of the jury. Probative value, prejudicial effect, and fairness Fairness to the accused casts a gloss over the weighing of probative value against prejudicial effect. This is so even under the relevant provision in Shortland, s 18 of the Evidence Amendment Act (No 2) 1980: 18 Court may reject unduly prejudicial evidence Notwithstanding sections 3 to 8 of this Act, where the proceeding is with a jury, the Court may, in its discretion, reject any statement that would be admissible in the proceeding under any of those sections, if the prejudicial effect of the admission of the statement would outweigh its probative value, or if, for any other reason, the Court is satisfied that it is not necessary or expedient in the interests of justice to admit the statement. The reference to the interests of justice can be understood as a reference to the accused s right to a fair trial, as it was in relation to character evidence in DS v HM Advocate [2007] UKPC D1 (22 May 2007), per Lord Hope at para 49. The place of fairness is clearer in s 8 of the Evidence Act 2006: 8 General exclusion (1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will - (a) have an unfairly prejudicial effect on the proceeding; or (b) needlessly prolong the proceeding. (2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial

8 effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence. This should be read in the light of the purposes of the Evidence Act 2006, set out in s 6, which include (b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act Section 25(a) of the Bill of Rights is the right to a fair and public hearing by an independent and impartial court. This means, in the context of decisions on the exclusion of otherwise admissible evidence, that matters that affect the accused s right to a fair trial must not be qualified by being weighed against, and thereby being made to yield to, the apparently limited probative value of that evidence. If the statement allegedly made by X in Shortland had been admissible (and in my view it was not because of s 9, above), then it would not have been appropriate to exclude it on the grounds of its supposed prejudicial effect. The Court made the errors of taking the wrong things into account when assessing prejudicial effect, and failing to acknowledge the primacy of the accused s right to a fair trial. Inadmissibility under s 9 would have left the defence to resort to an argument that fairness required admission. This would not have been complicated by weighing considerations, but would simply have focused on whether, without the hearsay, the jury could have assessed the strength of the evidence against the accused inappropriately. That comes down to the weight that the hearsay could have, and, since s 9 is a reflection of that (reliability being inferred from the fact that the statement was against interest), the question would be whether, in the circumstances, the s 9 criteria could be viewed more flexibly: could X have been intending that his statement be passed on to the police? Without evidence supporting such a speculation, there would be no reason to suppose that the hearsay acceptance of responsibility for the murder had sufficient weight to affect the assessment of the other evidence in the case. The evidence was correctly ruled inadmissible, but for the wrong reasons.