Briefing on R v Barlien  NZCA 180 and section 35 of the Evidence Act 2006
8 July 2009
MINISTER OF JUSTICE
R v Barlien  NZCA 180 and section 35 of the Evidence Act 2006
1. In R v Barlien  NZCA 180, the Court of Appeal drew attention to what it regarded as significant deficiencies in the present formulation of section 35 of the Evidence Act 2006, and referred the matter to the Law Commission and the Ministry of Justice for consideration.
2. Since then, the Law Commission in consultation with the Ministry has been considering how the section should be amended. We have had extensive discussions with the judiciary, prosecutors and members of the defence bar. We have also had a number of meetings and other communications with Rt Hon Justice Ted Thomas, who has taken a particular interest in the matter and is keen to see an amendment passed into law urgently.
3. Justice Thomas is meeting with you and the Attorney-General on Monday, 13th July to discuss the matter.
4. This briefing sets out the problems with the existing section 35 and proposes how it should be amended. If you find the proposal acceptable, it is recommended that there be further consultation with the judiciary before the proposal is taken to Cabinet.
The current section
5. Section 35 of the Evidence Act 2006 provides:
35 Previous consistent statement rule
(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.
(2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.
(3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if –
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) the statement provides the court with information that the witness is unable to recall.
6. The Select Committee which settled on the wording of section 35 thought that it was codifying the existing law. This was incorrect.
7. In particular, the wording it adopted excluded two types of previous consistent statements that had been generally admissible prior to the Evidence Act 2006:
a. a complaint of a sexual offence relatively soon after its occurrence (a “recent complaint”);
b. a statement that was sufficiently close to the offence to be regarded as part of the surrounding circumstances (known as the “res gestae”).
Problems with section 35
8. The exclusion of statements in these two categories has provoked criticism. More generally, the restrictive nature of the requirements that must be met before a statement is admissible under section 35(2) has produced a number of practical problems and anomalies.
9. In summary, these problems and anomalies are:
a. The requirement that there be a challenge to truthfulness and accuracy based on a previous inconsistent statement or a claim of recent invention has led to the exclusion of some highly relevant and reliable previous consistent statements (such as the content of 111 calls). This is contrary to the Act’s fundamental principles.
b. The Act has different rules for determining the admissibility of consistent and inconsistent statements, but there are often real difficulties in determining whether a statement is consistent or inconsistent (or an inseparable mix of the two).
c. Neither party may know in advance of a witness’ evidence whether a previous statement will be consistent or inconsistent with that evidence. This has significant implications for victims and witnesses, who may need to remain on standby in case they are required to give evidence of a previous statement.
d. If there is a perceived inconsistency between the evidence of a witness (including the complainant) and a previous statement, defence counsel is faced with a dilemma in knowing whether to cross-examine on that inconsistency (since it will open the door to the admission of other previous consistent statements).
e. If they do not do so, this does not stop them from challenging the credibility of the witness in some other way without opening the door to the admission of such statements. This seems an arbitrary and untenable distinction.
f. Trial judges have sometimes been excluding evidence of not only the substance of a complaint of an offence, but also the fact that it was made. This has meant that juries have not been told, for example, why the police were called. (However, the Court of Appeal two weeks ago in R v Rongonui  NZCA 279 clarified that the fact that a complaint was made is admissible).
10. While these problems have been real and significant, and have been drawn to our attention by judges, prosecutors and defence counsel alike, we have no evidence that they are producing wrong trial outcomes. Nevertheless, they are causing significant practical problems in the conduct and administration of trials, and in our view need to be addressed as a matter of high priority.
Justice Thomas’ Solution
11. In a letter to Dr Young dated 5 April 2009, Justice Thomas said:
“Indeed, I remain convinced that the best format for s 35 is a general exclusion subject to the established exceptions, including a specific provision relating to sexual cases. Outside the impact of s 35 on evidence which is part of the res gestae and sexual cases there has been no complaint about that format.”
12. We understand from this that he wants evidence of the res gestae to be admissible as previously, and specific provision for the admissibility of previous consistent statements only in alleged sexual offending cases (not constrained by the “recency” aspect, which has been discredited).
13. We do not support this approach for two reasons. First, it would retain the concept of “res gestae” as a ground for admissibility. This previously caused considerable uncertainty and inconsistency. It has been described as “an unmeaning term” (Cross on Evidence), and “certainly a slippery term, which may mean different things in different contexts” (R v H (CA429/06)  NZCA 218).
14. Secondly, it would continue to confine the general admissibility of complaint evidence to sexual cases. Justice Thomas argues that this is justified because the credibility of the complainant is almost always in issue in defended sex offence trials and that complaint evidence is relevant to that assessment. We agree. However, the credibility of the complainant is frequently in issue in other trials as well (including many assaults) and complaint evidence is potentially equally relevant there. We therefore see no merit in confining the provision (however it is framed) to sex offences alone.
The objectives of our proposal
15. In developing reform proposals, our objectives have been:
a. to ensure that relevant evidence is available to the fact finder whenever it will be of significant value in enabling a determination of guilty or not guilty;
b. to prevent repetitive evidence that needlessly prolongs proceedings (in line with the general principle in section 8);
c. to provide some principles that would enable the courts to develop rules about the greater use of previous statements of witness as primary evidence; and
d. to eliminate the uneasy and problematic distinction between consistent and inconsistent statements.
16. In order to achieve these objectives, we propose that all previous statements (both consistent and inconsistent) will be admissible on the following conditions:
a. it must be the statement of a witness (who is then available to be cross-examined on it);
b. it must be relevant and not be unduly prejudicial or needlessly prolong proceedings (the general principles set out in sections 7 and 8 of the Act);
c. it must in addition be substantially helpful in proving or disproving anything that is of consequence to the proceedings;
d. it will be inadmissible if the judge is satisfied that the evidence of the statement is likely not to be an accurate account of what was said.
17. We also propose that, if prosecution or defence intend to lead evidence of the previous statement of a witness, they will be required to give notice of that intention. In the absence of such notice, the evidence will only be admissible with the leave of the judge.
18. Some have expressed concern that this expansion of s35 will result in a large number of applications to admit previous statements, an increase in the number of pre-trial hearings and the prolongation of trials. We think that there needs to be further consultation on this point. However, while we acknowledge that there will be a settling down period as the Courts develop more detailed guidance as to the circumstances in which previous statements are substantially helpful, we think that the risk of an increase in hearings and length of trial in the longer term is small. Unless previous statements are being used as the primary evidence, they will only be substantially helpful when the witness’ credibility is in question, and even then only in some circumstances. Otherwise there will be little reason for the party to call such evidence, and indeed it might be counterproductive to do so.
19. Section 127 provides that if, in a sexual case tried before a jury, a question is asked or a comment made that tends to suggest that the person against whom the offence was allegedly committed either delayed making or failed to make a complaint, the judge may tell the jury there can be good reasons for such victims to delay or fail to complain.
20. Section 35 should similarly make clear that in assessing the admissibility of a complaint in sexual cases, delay in the making of the complaint, or the making of other previous inconsistent statements, should not in itself render the complaint inadmissible because in such cases there may be good reasons for the delay or inconsistency.
Purpose of adducing previous statements
21. The Act is silent on whether any previous consistent statement that is admitted under section 35 is admissible to prove truth of the contents of the statement, or relevant only to the witness’ credibility. This has now been resolved by the Court of Appeal. In R v Barlien  NZCA 180 and R v Stewart  NZCA 429, the Court held that statements admitted under section 35 are admissible to prove their truth. This approach is consistent with the Law Commission’s original recommendations. We are inclined to the view that it should be confirmed by legislation.
22. We have talked to a number of judges at all levels. Some have expressed support for our approach and disagreed with the proposals of Rt Hon Ted Thomas; others have expressed reservations. We therefore think that formal consultation with the judiciary on the proposal would be desirable.
23. We recommend that you agree that we and the Ministry of Justice formally consult with the judiciary on the proposals set out in this paper.