Law Commission’s 2010 advice to the Minister of Justice
6.36 Consistent with the proposal in its 2008 report, the Law Commission provided further advice to the Minister of Justice on 1 April 2010 about the operation of the veracity and propensity provisions in the Act. Its overall conclusion was that the picture was “very largely a positive one”, although it did note some instances of pre-Evidence Act practice creeping through.
6.37The majority of issues addressed in that advice related to the propensity evidence provisions of the Act and noted that there had, at that point, “not been many cases” decided under ss 37 to 39. The Law Commission noted some issues with the veracity and propensity provisions (discussed further below), but were of the view that they were not pressing enough to require urgent action in the absence of other problems.
Evidence of veracity
6.38The one veracity issue discussed in detail related to two Court of Appeal decisions that held that in determining the scope of the veracity rule, judges need to look at the principal purpose for which the evidence is being adduced; that is, whether to establish a disposition to lie or refrain from lying, or for some other collateral purpose.
6.39In R v Davidson a complainant’s earlier videotaped statement denying any sexual offending occurred was held to be admissible on the basis it was not veracity evidence as the predominant purpose for the defence seeking to introduce it was to establish the truth of its contents. The Court of Appeal took a similar approach in R v Tepu and held that an initial false statement to the police by the defendant to the effect that he had never met the complainant was admissible as the primary purpose for the prosecution seeking to introduce the statement was not to attack the defendant’s veracity.
6.40 The Law Commission outlined differing academic views as to the correctness of this line of reasoning. Whereas Scott Optican and Peter Sankoff took the view that the result reached by the Court of Appeal in Tepu was the correct one (although they took issue with some of the analysis), Richard Mahoney disagreed, taking a narrower statutory interpretation approach. On his analysis, s 37 applies to any evidence about a person’s veracity, and therefore the Court in Tepu was wrong to frame its decision around the absence of any attack on veracity.
6.41The Law Commission took the view that the outcome achieved by the Court of Appeal was the right one and reflected parliamentary intentions about the scope of the veracity provisions. It did note, however, that if Richard Mahoney’s view as to the correct interpretation of the Act was to prevail, the disputed evidence in Tepu would have been excluded, a result that the Law Commission took issue with as, in its view, evidence of lies about the current offending ought to be admissible. The Law Commission considered that this matter should continue to be monitored.
6.42The Law Commission noted that propensity evidence cases decided under the Act could be divided into two categories: those where the courts effectively “side-stepped” the provisions of the propensity provisions, notwithstanding their prima facie applicability, and those where sections 40–43 were applied.
6.43In terms of those cases that “side-stepped” the Act, the Law Commission considered a line of Court of Appeal decisions which applied a number of “theoretical distinctions” with respect to the definition of “propensity evidence” in s 40. In particular, the Court held in a number of cases that where the evidence is merely “part of the narrative” or “directly relevant” the propensity provisions did not apply and its admissibility was to be determined via ss 7 and 8.
6.44The Law Commission, along with academic commentators, considered that this approach was erroneous, and that while no miscarriage of justice appeared to have resulted to date, there was a risk for future cases. However, it took the view that since the error was one of interpretation rather than an inherent problem with the drafting of the propensity provisions themselves, the law should be allowed to develop further before any decision to intervene was made.
6.45The Law Commission also discussed the Supreme Court decision in Wi v R. The Court in that case held that a defendant’s lack of previous convictions could be admitted as such evidence has a tendency, if only slight, to prove that the defendant, on account of the lack of previous convictions, is less likely to have committed the offence with which he or she is charged.
6.46The Court in Wi also held that, beyond evidence of a lack of convictions, the defence may be able to introduce a broader range of good character evidence, although not all will meet the necessary threshold of relevance.
6.47The Law Commission went on to discuss the aspects of Wi that were of concern to the Crown Law Office, namely that:
- if such good character evidence is adduced, it may open the door to rebuttal evidence from the prosecution (although, evidence of lack of previous convictions without more will not do so); and
- the trial judge may give a direction about the proper use of such evidence, but this is not mandatory.
6.48Crown Law was concerned about these aspects of the Supreme Court’s decision creating uncertainty about when a direction should be given, and that precluding the Crown from responding, albeit to the very narrow class of good character evidence, is not consistent with the party-neutral thrust of the Act.
6.49The Law Commission concluded that it was comfortable with the Court’s approach and considered it reflected what was intended. It recommended that Crown Law’s concerns be “taken under advisement” and developments continue to be monitored.
6.50The Law Commission also discussed the Court of Appeal decision in R v Moffatt where the Court held that if the requirements of s 42 (propensity evidence offered against co-defendants) were met, a defendant should not be prevented from adducing any evidence that would support his or her case. It held that the High Court should not have invoked s 8 of the Act to exclude the evidence on the basis of collateral damage to a co-defendant. Instead, the Court considered that where prejudice to another defendant would be undue, the appropriate remedy would be severance, as opposed to exclusion of the evidence from the first defendant’s defence.
6.51Academic commentators have criticised the Court effectively holding that s 8 will not operate to prevent undue prejudice to co-defendants on the basis that such an approach is “looser” than would be justified by a proper reading of the Act.
6.52The Law Commission noted that there was no potential for miscarriage of justice arising from the Court’s decision given that severance would be ordered in the event of undue prejudice to a co-defendant, although that might give rise to other problems in terms of resourcing or for witnesses. It took the view that this, along with the Court of Appeal’s approach to the scope of propensity evidence under s 40, was the most significant issue arising in relation to the propensity provisions. However, the Law Commission again was of the view that the problem does not lie with the drafting of the Act but rather with the way it has been applied. It recommended no action be taken, with ongoing monitoring of the situation.
6.53The Law Commission noted that in terms of the cases where the courts were applying s 43, the approach being taken “is very much a case by case fact-specific balancing exercise” and that the provisions are “working”.
6.54Finally, it also noted that its approach to directions from its 2008 report (namely that a more detailed approach than had been applied prior to the Act was required) had been adopted by the Court of Appeal in R v Stewart  NZCA 429.