Hearsay, defendants’ statements and co-defendants’ statements
3.36This part of our report considers the following issues that have been raised in relation to defendants’ statements:
- The treatment of defendants’ statements that contain both inculpatory and exculpatory parts;
- the status of allegations that are “put” to a defendant; and
- reliability under s 28.
Introduction and background
3.37 A defendant’s out of court statement is a hearsay statement. Historically, confessions were treated by the law as a special category of evidence, governed by particular rules of admissibility. This reflected concerns about the reliability of confessions and the need to protect people from coerced self-incrimination. These concerns are now dealt with under ss 27–30 of the Act, considered below.
3.38The applicable rules that determine whether a defendant’s statement is admissible depend on who is seeking to adduce the statement: the defendant, the prosecution, or a co-defendant.
Defendant adducing evidence
3.39Section 21 is the operative provision:
21 Defendant who does not give evidence in criminal proceeding may not offer own statement
(1) If a defendant in a criminal proceeding does not give evidence, the defendant may not offer his or her own hearsay statement in evidence in the proceeding.
(2) To avoid any doubt, this section does not limit the previous consistent statement rule.
3.40This provision differs from the Law Commission’s original recommendation that a defendant could adduce a prior statement if it passed the reliability test in s 18(1). However, s 21 was included in the Evidence Bill as introduced to ensure that a defendant could not tell his or her version of events through another witness, and thus get their story across without being subject to cross-examination. If the defendant takes the stand, their out of court statement is no longer hearsay, and they may offer evidence of this statement if it is not inadmissible by virtue of another rule, such as s 35.
Prosecution adducing statement
3.41Section 27 governs the admissibility of a defendant’s statement when offered by the prosecution:
27 Defendants’ statements offered by prosecution
(1) Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding.
(2) However, evidence offered under subsection (1) is not admissible against that defendant if it is excluded under section 28, 29, or 30.
(3) Subpart 1 (hearsay evidence), subpart 2 (opinion evidence and expert evidence), and section 35 (previous consistent statements rule) do not apply to evidence offered under subsection (1).
3.42The prosecution may offer a defendant’s out of court statement if it is not excluded under ss 28–30 because it is unreliable, obtained improperly or by oppression. Sections 28 and 29 are rules of automatic exclusion that apply only to defendants’ statements: if certain conditions are satisfied, the judge must exclude the evidence. Section 30 provides a discretionary rule of exclusion based on a balancing of relevant factors and applies to all evidence, not merely defendants’ statements. These sections represent a reform of the previous law of confessions, including the voluntariness rule (and the exception in s 20 of the Evidence Act 1908), and the common law discretion to exclude evidence on the grounds of unfairness or breach of the New Zealand Bill of Rights Act 1990.
3.43The common law and s 20 had a two-fold purpose: ensuring the reliability of incriminating admissions and controlling the methods used to obtain such admissions. This two-fold purpose was reflected in the Law Commission’s recommendations in the Evidence Code. What became s 28 was primarily concerned with reliability. What became ss 29–30 were concerned with the conduct of enforcement officers in obtaining defendants’ statements, and whether it was obtained through oppression (s 29) or unfairly (s 30).
Co-defendant adducing evidence
3.44If a co-defendant offers a defendant’s statement in evidence, admissibility will be determined by the general admissibility rules in the Act (for example, the hearsay and previous consistent statement rule), rather than ss 27–30. The issue of what use, if any, a co-defendant may make of another defendant’s statement (in a joint trial) that has already been admitted under s 27(1) is considered in the section relating to co-defendants’ statements, along with the preservation of the common law in s 12A.
Mixed inculpatory and exculpatory statements
3.45Submitters have raised two concerns in relation to defendants’ statements which contain both inculpatory and exculpatory parts. The first relates to the relationship between s 27, which provides that a defendant’s out of court statement that is offered by the prosecution is admissible “against” the defendant, and s 21, which prevents a defendant from offering his or her out of court statement where he or she does not take the stand. There is concern that these provisions, taken together, may require or permit the prosecution to excise the exculpatory parts of a defendant’s mixed statement.
3.46 The Court of Appeal in R v Green has clarified that a statement offered under s 21 need not solely be inculpatory. The Court made the obiter statement that “against” in the context of s 27 means “the evidence will be proffered by the prosecution and that it will be taken into account by the jury in considering the Crown case against the defendant”. This allows the exculpatory parts of a defendant’s statement to be offered alongside the inculpatory parts, allowing the statement to be adduced in its entirety. This has since been applied in Kendall v R and is a sensible approach to the section. We understand that general practice is for the prosecution to put in the whole of a defendant’s statement, rather than simply the inculpatory parts.
3.47 The second concern is that R v King and R v Felise may have confused the prohibition in s 21. In R v King and R v Felise (No 3) the prosecution opted not to adduce evidence of a defendant’s statement. In R v King, the Court of Appeal stated that:
Sections 21 and 27 suggest that the admissibility of a defendant’s statement depends on who tenders the statement, so that it is admissible if offered by the prosecution and inadmissible if offered by the defence. If so, this implies that the admissibility of such a statement turns on the exercise of the prosecutor’s discretion.
3.48The Court suggested that this discretion is not unfettered, and that the court could use its power under s 368(2) of the Crimes Act 1961 (which allows the court to require the prosecution to call a witness it believes ought to be called) to require a prosecutor to lead particular evidence from a witness. Alternatively, the Court suggested that such a power may be implicit in s 25 of the New Zealand Bill of Rights Act 1990.
3.49The High Court reached a similar conclusion in a multi-defendant trial in R v Felise (No 3). Lang J held that issues of fairness and balance arise where the prosecution chooses to lead parts of a discussion before the jury, but not other parts that may be helpful to the defence. Accordingly, he allowed counsel for the defendants to cross-examine the witness on the full discussions (notwithstanding the prohibition in s 21(1)) to allow the jury to place the statements elicited by the prosecution in the context of the discussions generally:
In reaching that conclusion I did not underestimate the force of the prohibition contained in s 21(1) of the Evidence Act 2006. Like all legislation, however, it must be applied consistently with the rights guaranteed by the New Zealand Bill of Rights Act 1990. These include the right of an accused person to be treated fairly. I took the view that it would be unfair for counsel or the accused not to be able to explore what was said at the meetings.
3.50Submitters have questioned whether the approach in R v King and R v Felise (No 3) is consistent with the Act being the primary source for the law of evidence, and undermines the clear intention in s 21.
3.51The fair trial rights enshrined in the New Zealand Bill of Rights Act 1990 are referred to in s 6 of the Act, which relevantly provides:
The purpose of this Act is to help secure the just determination of proceedings by—
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990; and
(c) promoting fairness to parties and witnesses;
3.52While the Act should be the first port of call in determining admissibility issues, it is not the only relevant port of call. As stated in R v King, provisions such as s 368(2) in the Crimes Act 1961 continue to apply. Likewise, trial judges retain their powers to control the criminal trial process. These powers are explicitly preserved in s 11 of the Act. Finally, the principle that legislation, where possible, should be interpreted consistently with the rights and freedoms contained in the New Zealand Bill of Rights Act 1990 is well established.
3.53We recognise that the approaches suggested in R v King and applied in R v Felise (No 3) will only be appropriate in rare circumstances where the resulting unfairness to the defendant impacts on his or her right to a fair trial. We also note the obligations on prosecutors contained in both the Prosecution Guidelines and the Rules of Conduct and Client Care for lawyers. While submitters have expressed concern about the approach in R v King and R v Felise (No 3), the heart of these concerns is not about the drafting of s 21, but the use of s 368 of the Crimes Act and the court’s inherent powers. Accordingly, we recommend no amendment to s 21.
Allegations put to a defendant
3.54Victims, victims’ families and police may confront a defendant about alleged offending. An issue that has been raised with us is the approach the courts have taken to the admissibility of these allegations and the defendant’s response to them.
Pre-Act common law
3.55 Under the pre-Act common law, admissibility was determined by whether the defendant had accepted the statement by their words or actions. The basis for admissibility was that the defendant, by accepting the statement, adopted it as his or her own.
3.56 The general principles arising from the pre-Act case law are:
- A statement made in the presence of a defendant is admissible against him or her to the extent that they have accepted the statement.
- A defendant may accept a statement through words, conduct, action or demeanour. The court must consider all the circumstances in which the defendant is alleged to have accepted the statement in determining whether acceptance occurred.
- Silence will only constitute acceptance in exceptional circumstances. Factors supporting acceptance are where the statement is made spontaneously and by someone on “equal terms” with the defendant.
3.57 In addition to this, the Court of Appeal enunciated the following principle in R v Halligan in relation to police questioning:
… police officers cannot be allowed to introduce evidence for the Crown by making accusations to a suspect, and, when they receive no damaging admission in reply, retailing to the jury what they said as if it were relevant evidence.
Section 27 and current case law
3.58Section 27 reformed the law relating to defendants’ statements and provided a general rule for all statements, not merely admissions or confessions. As set out above, such statements are admissible unless excluded under ss 28–30. The hearsay, opinion and expert evidence provisions and previous consistent statements rule do not apply to statements offered under s 27(1). Section 27 therefore allows in statements that would otherwise be inadmissible.
3.59A threshold issue for s 27 is whether the statement is “made by a defendant”. The definition of “statement” is contained in s 4:
(a) a spoken or written assertion by a person of any matter; or
(b) non-verbal conduct of a person that is intended by that person as an assertion of any matter
3.60Obviously any statement that a defendant says or writes in response to an allegation or confrontation will be captured by s 27(1). A defendant’s non-verbal response to an allegation will also be captured by s 27(1), so long as the defendant intended to assert something by it. However, while the defendant’s response is covered by s 27(1), it is not clear that the allegations to which they are responding are also covered.
3.61 The applicability of s 27(1) to an allegation put to a defendant was considered by the Court of Appeal in R v Barlien. That case involved the complainant’s mother confronting the defendant about alleged sexual offending against her daughters. She asked the defendant what he had done to her girls and put to him that he had touched them and also kissed one of the girls. He responded “[d]o you think I would still be here if I’d done anything wrong”. The Court of Appeal held that:
Mr Barlien’s statements in reaction to the allegations put to him by Mrs S were clearly admissible (see s 27(1) of the Act…). His reaction is so tied up with the allegations (being effectively an answer to those allegations) that what Mrs S put to Mr Barlien must be seen as part of Mr Barlien’s statements and therefore admissible, in the same way that the allegations put to an accused in a police interview (as required by the Chief Justice’s Practice Note – Police Questioning …  3 NZLR 297 at ) would be admissible.
3.62 Although this approach has been criticised, it has subsequently been applied by the Court of Appeal in R v H. R v Saunokonoko extended this approach to situations where the defendant is silent in response to allegations.
3.63 The approach in R v Saunokonoko has been questioned in another Court of Appeal judgment Hitchinson v R:
If the complainant made [an assertion] and the defendant did not respond, evidence of the defendant’s silence and the accusation to which it relates are admissible, not under s 27 (because the defendant has made no “statement”10) but under s 7.
3.64In the footnote to this statement, the Court said:
We do not accept that a defendant’s silence constitutes “a statement” for the purposes of s 27, given the definition of “statement” in s 4: contrast R v Saunokonoko  NZCA 393 at . In support of our view, see Richard Mahoney “Evidence”  NZ L Rev 127 at 130.
3.65A similar approach was taken in L v R where the police put substantial portions of the complainant’s allegations to the defendant during an interview. The Court of Appeal held that s 27 did not apply as the defendant was not given an opportunity to respond. The Court also found that, even if the defendant was given an opportunity to respond, the material was too extensive to be regarded as part of the defendant’s statement. As s 27 did not apply, the evidence was therefore inadmissible under s 35.
Law Commission’s view
3.66We agree with Richard Mahoney’s concerns that an allegation that has been refuted by a defendant can be considered to be part of their statement. The concept that a defendant’s denial of an allegation somehow transforms that allegation into their own statement is counter-intuitive. It is also inconsistent with the definition of “statement” in s 4 which involves a written or spoken statement, or non-verbal conduct intended by a person (in this case, the defendant) as an assertion of any matter.
3.67However, the defendant’s response is clearly admissible under s 27(1). The defendant’s response would be unintelligible without the context in which the response was made. An alternative approach would therefore be to admit the allegation on the basis that it is necessary for the defendant’s statement to be intelligible. This avoids a strained interpretation to the phrase “statement by a defendant”.
3.68There is support for this approach in the cases set out above. For instance, Winkelmann J in L v R described s 27(3) as “legislative recognition that a statement by a defendant might contain otherwise inadmissible material, the receipt of which is necessary to understand the effect of the answers”. Likewise, in G v R the Court of Appeal held that “[t]he letter, as much as his response to it, was admissible to give full sense to his statement”.
3.69In relation to allegations where the defendant remains silent, we agree with the view expressed in Hitchinson v R and L v R that a defendant’s silence when confronted with an allegation, without more, does not engage s 27. We note that there may be some limited situations where a defendant’s silence may be admissible under s 27(1). For instance, a defendant, when confronted by a complainant, may nod or shake their head in response to the allegations. Whether this is admissible as a “statement made by a defendant” under s 27(1) will ultimately turn on whether the defendant intended to assert something as per the definition of “statement” under s 4. If this conduct is admissible, as provided above, the allegations will also be admissible to place the statement in context.
3.70The concerns raised about the admissibility of allegations do not seem to relate to the drafting of s 27 or the definition of “statement” in s 4, but with how they have been interpreted. Ultimately, we agree with the final position reached by the courts whereby allegations put to a defendant are admissible where it is necessary to provide the context for the defendant’s (admissible) statement in response. As such, we see no compelling case for change and recommend no specific amendment to s 27 to deal with this issue.
3.71The extent to which the allegations are admissible is likely to depend on the facts. As the Court of Appeal noted in R v Edmonds “[t]he appellant’s statement should not be a vehicle for extensive repetition of inadmissible co-offenders’ statements.” Editing of the allegation will be necessary in some cases to ensure that the allegation is only admissible to the extent necessary to make the defendant’s response intelligible.
3.72 The continued relevance of the principle in R v Halligan remains a little unclear. The High Court applied this principle in R v Jamieson, stating that where a defendant has provided no meaningful response in response to an allegation, the allegation itself is inadmissible. In R v Bain, the Court of Appeal noted the Halligan principle, but did not expressly consider its continued relevance in light of the interpretation taken to s 27(1). Our view is that the principle has now been overtaken by ss 27(1) and 32(1) of the Act.
Reliability under section 28
3.73As discussed above, s 28 provides that a defendant’s statement is not admissible if the defendant, co-defendant, or judge raises the issue of the statement’s reliability. If the issue is raised, the test for admission is whether the “circumstances in which the statement was made” affected its reliability. Submitters have suggested that s 28 should be clear about whether the actual reliability, or truth, of a statement is relevant, or whether it is merely the circumstances of its making. Section 28 currently provides:
28 Exclusion of unreliable statements
(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if—
(a) the defendant or, if applicable, a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of the reliability of the statement and informs the Judge and the prosecution of the grounds for raising the issue; or
(b) the Judge raises the issue of the reliability of the statement and informs the prosecution of the grounds for raising the issue.
(2) The Judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.
(3) However, subsection (2) does not have effect to exclude a statement made by a defendant if the statement is offered only as evidence of the physical, mental, or psychological condition of the defendant at the time the statement was made or as evidence of whether the statement was made.
(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:
(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):
(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):
(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put:
(d) the nature of any threat, promise, or representation made to the defendant or any other person.
3.74The Law Commission has previously set out its view that the truth of a defendant’s statement was irrelevant under each of ss 28–30:
The rules are concerned with admissibility. So far as reliability is concerned, therefore, the focus should be on whether the circumstances surrounding the making of the statement “were likely to have adversely affected its reliability”. To require truth to be established at this preliminary stage would usurp the function of the jury. The position is essentially the same as under s 20 of the Evidence Act 1908, which requires the prosecution to prove that the means by which a confession was obtained “were not in fact likely to cause an untrue admission of guilt to be made”. The actual truth of the admission is not part of this enquiry (R v Fatu  3 NZLR 419, 429-430).
3.75Section 31 of the Law Commission’s Evidence Code (an independent section that applied to the reliability, oppression and unfairly obtained evidence provisions) therefore expressly provided that the truth of a defendant’s statement was to be disregarded when determining whether to exclude the defendant’s statement under the reliability, oppression or unfairly obtained evidence rules. Consistent with this approach, the reliability test focuses on the “circumstances in which the statement was made” rather than the truthfulness of the statement itself. This was similar to the “means by which the confession was obtained” focus under the previous provision that dealt with reliability, s 20 of the Evidence Act 1908.
3.76However, the Evidence Bill 2005 (256-1) as introduced deliberately departed from the Law Commission’s Code. The relevant clause provided that, where the reliability of a statement has been raised as an issue:
The Judge must exclude the statement unless satisfied on the balance of probabilities–
(a) that the circumstances in which the statement was made were not likely to have adversely affected its reliability; or
(b) that the statement is true.
3.77The import of s 31 of the Evidence Code was relocated to the oppression rule in cl 25 (now s 29). These changes meant that, in the Bill as introduced, a statement’s truth was expressly irrelevant in applying the oppression rule (cl 25, now s 29), expressly relevant in applying the reliability rule (cl 24, now s 28) and relevant under the balancing process in the improperly obtained evidence rule under the “nature and quality of the improperly obtained evidence” factor (cl 26, now s 30).
3.78The Select Committee subsequently reverted back to the Law Commission’s recommendation on the irrelevance of truth when applying the reliability rule:
We recommend that clause 24(2) be amended to provide that the truth of a statement is not a relevant consideration when determining whether to admit a statement where the issue of its reliability has been raised. We consider that the truth of a statement should not be used to justify its admissibility, and that the truth of a statement should be determined when the guilt or innocence of the defendant, not the admissibility of evidence, is considered.
3.79The Select Committee’s report is therefore clear that truth should be irrelevant under the reliability rule, and its recommendation was to remove paragraph (b) above (“that the statement is true”). However, the Select Committee’s recommended drafting did not insert a provision equivalent to (what is now) s 28(3) stating categorically that the truth of a statement is irrelevant in assessing admissibility.
3.80 There is some inconsistency in the courts’ approach as to whether truth is relevant under s 28. The Court of Appeal in a pre-trial ruling in R v Cameron accepted that s 28 focuses on the circumstances in which the statement is made, rather than the truthfulness of the statement itself. This was reaffirmed by the Court of Appeal in R v Edmonds in an obiter statement regarding the similar phrase “the circumstances in which the identification was made have produced a reliable identification” in s 45(2):
The emphasis in s 45(2) (and indeed in s 45(1) also) is on whether the evidence is such that it would be legitimate for the jury to rely on it. This is a threshold question and it was not intended that the judge usurp the function of the jury by determining whether the identification was in fact accurate.
As submitted by the Crown, the test specified in s 45(2) is not dissimilar to the test for determining the admissibility of challenged statements of a defendant under s 28(2). This Court, in R v Cameron  NZCA 564 at , stated that it is not the truth of the statement being assessed, but the impact of the surrounding circumstances on its reliability.
3.81This approach has also been applied by the High Court.
3.82A second line of cases appear to suggest that a statement’s truth is relevant under s 28. In the same R v Cameron case discussed above, counsel for Mr Cameron raised similar issues on appeal from the subsequent conviction. A different composition of the Court of Appeal stated that “[r]eliability is concerned with whether what was said was sound”. The Court also referred to corroborating evidence to assess reliability under s 28.
3.83The Supreme Court tangentially referred to this issue in obiter in Bain v R. The Court ultimately determined admissibility with reference to ss 7 and 8, but also referred to the exclusionary rule in s 28. In doing so, the Court emphasised the “circumstances” in which the disputed admission is made.
3.84A mix of the two approaches is applied in Davies v Ministry of Health:
For my part I consider that the two, accuracy and fairness, are inextricably linked. I consider that s 28 brings into focus not only the accuracy and soundness of the statement itself, but also the circumstances in which it was made.
3.85We remain of the view that truth should be irrelevant to the admissibility of defendants’ statements under s 28. A final determination as to whether a statement is true should not be made at the threshold admissibility stage, but during the determination as to guilt. To do so would usurp the function of the jury and risks diverting the court’s attention from questions of improper police conduct to large volumes of corroborating evidence.
3.86This can be demonstrated through consideration of an example where the statement at issue is “I killed Mr Smith”. If truth was relevant in determining admissibility, the judge would need to consider the central jury question. It would also risk a mini-trial in which the Crown and defence adduce extrinsic evidence demonstrating each party’s view as to why this statement is or is not true.
3.87We believe that s 28 should be clarified to make it clear that the truth of the statement is irrelevant, consistent with s 29(3). This would be consistent with the Select Committee’s recommendation “to provide that the truth of a statement is not a relevant consideration when determining whether to admit a statement where the issue of its reliability has been raised”. It also recognises the overlap between s 28 and s 29, given that one of the factors that must be considered under s 28(4)(d) is “the nature of any threat, promise or representation made to the defendant or any other person”.
R5 We recommend inserting a subsection into s 28 that provides that the truth of the statement is irrelevant to the application of that section.