On co-defendants’ statements and admissibility

Five co-defendants in the early 2000s explain the nature of their statements vis-a-vis each other.


(Initial disclaimer: the groundwork for this piece draws substantially on the Law Commission’s Report on its Second Review of the Evidence Act, and Palmer J’s decision in R v Wellington [2018] NZHC 2080.  The point of the piece is respectful (and probably incorrect disagreement with the conclusions in those sources, but it is proper to acknowledge the extent to which I’ve drawn on them.)


The right problem

Right now, a co-defendant’s statement is only really admissible by the prosecution if you want to tender it for the truth of its contents.

Look at s 27(1) of the Evidence Act 2006:

Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, and is admissible against a co-defendant in the proceeding only if it is admitted under section 22A.

So the only way a co-defendant’s statement is admitted is through s 22A.  But s 22A doesn’t let you admit co-defendant statements generally.  It only lets you admit “hearsay statements”.  That is, a statement:

  1. By a co-defendant who is not a witness (remember, it’s up to a defendant whether they choose to give evidence); and
  2. That is tendered to prove the truth of its contents.

Next, look at s 22A:

22A Admissibility of hearsay statement against defendant

In a criminal proceeding, a hearsay statement is admissible against a defendant if—

(a) there is reasonable evidence of a conspiracy or joint enterprise; and

(b) there is reasonable evidence that the defendant was a member of the conspiracy or joint enterprise; and

(c) the hearsay statement was made in furtherance of the conspiracy or joint enterprise.

Section 22A is only a route to admit hearsay statements.  It doesn’t let you admit co-defendant statements that are not hearsay.  And there’s no other route to admissibility in the Act.

There’s a bunch of reasons why you need to be able to admit non-hearsay co-defendant statements.  For example, to prove that something was said because it goes to a person’s state of mind.  Or, when a co-defendant chooses to give evidence their statements are no longer hearsay.  In that case, there has to be a way to admit them.

The difficulty is, the Evidence Act doesn’t let you.  Not on its face.

To understand the problem, you’ve got to go back to the beginning.

Fundamentally, co-defendant statements are hearsay if they’re tendered for the truth of their contents.  They’re out of court statements by a person who is unavailable as a witness.  That’s the Evidence Act idea of hearsay, but they were hearsay under the pre-Evidence Act position as well (see R v Fenton CA 223/00, 14 September 2000 at [31]).

Importantly, though, under the old law of evidence, if the Crown didn’t want to tender a co-defendant’s statement for the truth of its contents, then it was admissible (see generally Law Commission’s Second Review of the Evidence Act (NZLC R142, 2019) at [15.10]).

Sure, the common law recognised that co-defendant hearsay wasn’t just plain old hearsay.  Co-defendant statements carry with them particular risks.  Apparently when defendants get caught they have a tendency to blame each other in a bid to exculpate themselves (no honour among thieves and all that).  It makes the statements awfully difficult to rely upon, and the normal tests for admitting hearsay statements weren’t up to the task.  This impediment to admission was called the co-accused rule (see R v Pearce [2007] NZCA 40 at [26]).

The common law offered a couple of solutions to the co-accused rule.  The main one was the co-conspirator’s exception.  If the Crown could prove the statements were made as part of the defendants committing their crimes – made in the heat of the moment if you will – then they were likely to be reliable enough to be admitted to prove the truth of their contents (see R v Pearce [2007] NZCA 40 at [25]).

But remember, all of that was just a kind of special policy overlay for what was fundamentally an issue of hearsay.  Co-defendant statements were just a type of hearsay when they were tendered to prove the truth of their contents.  If they weren’t, then they could be admitted.

The Evidence Act 2006 carried over the common law co-conspirator exception in the common law through what used to be s 12A.  (As a side note we really don’t have time for, the whole idea of the Evidence Act was to codify the law of evidence but that failed because everyone forgot about ways to admit co-defendant statements using the co-conspirator exception.  Section 12A was an emergency patch expressly importing back in the common law in order.  No big deal.)

Now, the co-conspirator exception is properly codified in s 22A, and we’ve ditched s 12A.

And now, ackkkk, it’s broken.  Section 27(1) keeps out all co-defendant statements unless you can bring them under the co-conspirator exception in s 22A.  Which means the Act (purportedly a code) doesn’t give you a means of admitting co-defendant statements when they’re not hearsay.

Well, it *would* be broken if anyone actually followed the Evidence Act.  Because the courts pretend this problem doesn’t exist.  They have no problem admitting in non-hearsay co-defendant statements, even though the route to doing so is far from clear.  Go take a look at a Court of Appeal decision this month called Dheil v R [2019] NZCA 416 at [29]-[30].  Non-hearsay co-defendant statements were admitted no problem.

Right now, you’ve got an Act that doesn’t let you do things, and most courts either (charitably) don’t realise or (less charitably) dodge the issue.  In practice, though, if a co-defendant statement is not hearsay, then in it comes say the courts.

The wrong answers

Now, the Law Commission has noticed the issue with how the Act presently doesn’t seem to let you admit co-defendant statements when they’re not hearsay.

It’s not going too far to say though that the Law Commission has concluded that’s a feature, not a flaw.

In the Commission’s Second Review of the Evidence Act the Commission stated (Law Commission’s Second Review of the Evidence Act (NZLC R142, 2019) at [15.20]):

[15.20] The concerns associated with hearsay statements are unlikely to apply to the same degree to defendants’ statements that are not hearsay.

If a defendant’s statement is not hearsay because the defendant elects to give evidence at trial, the co-defendant will be able to test the reliability of the statement by cross-examining the defendant.

If the statement is not hearsay because the prosecution intends to rely on it for a purpose other than proving the truth of its contents, unreliability is less likely to be a significant concern … [there is an important clause in brackets here I’ve removed for now but the point is addressed substantively below].

At least that far, we’re on the same page.

But the Law Commission’s proposed solution to the problem of s 27(1) is that (at [15.21]):

the admissibility rule in section 22A should provide an independent basis for admitting a defendant’s statement against a co-defendant, regardless of whether the statement is hearsay.

That is, even statements that are not hearsay will only be admissible if they fall under the co-conspirator exception.  That high threshold of admissibility will follow, even when some non-hearsay co-defendant statements don’t warrant that high standard because they don’t prompt the same admissibility concerns.  Instead, the bar is raised universally.

One of the few cases in which this whole schemozzle was discussed, broadly endorsed the Law Commission’s proposed solution as well: see R v Wellington [2018] NZHC 2080 at [69].  (Definitely worth reading it for the scholarship behind it and clarity of analysis, even though I don’t agree with all of it.  Importantly, Palmer J suggests a way in which s 27 might be read in a way that works, although recognises it faces a “stiff interpretive challenge” (at [68]).)

Wait, don’t go!  I mean, yes it looks bad if I’m disagreeing with the Law Commission.  But hear me out.

The difference in approach is that the Law Commission treats co-defendant statements as evidence sui generis.  But I don’t think they are (and I suspect this is the key point of disagreement).  Co-defendant statements are a species of hearsay, both under the old law, and especially under the Evidence Act as they literally meet the definition (when tendered for the truth of their contents).  They prompt special reliability concerns, but if you want to rely on them for the truth of their contents, well, that’s what the co-conspirator exception is for.  Otherwise, there’s no need to treat them differently.  When they’re not hearsay, they should be admissible.

And think about these things.

First, the Law Commission’s proposed position imposes a higher standard on non-hearsay co-defendants for no good normative reason. If you acknowledge that there are lesser reliability concerns with non-hearsay statements (which the Law Commission does), then changing the law to impose a uniform but higher standard on non-hearsay statements does not follow logically from the problem you have identified.  Remember it is the Law Commission essentially proposing a change from the common law position which treated co-defendant statements as straightforwardly admissible when they were not relied on for the truth of their contents.  I do not read the Law Commission proposal as giving any explanation as to why traditionally non-hearsay statements by co-defendants should have to jump through the requirements of the co-conspirator rule before they can be admitted.  This is a significant change that renders prima facie inadmissible a large class of evidence that was admissible under the old law and practically is admissible now (eg. when you get the Dheil v Rs of this world and the courts just wave it on in).  There is no particular harm that needs to be guarded against through a law change.

Second, the Law Commission’s approach is motivated by its assessment that all co-defendant statements have a much greater potential to be false or self-serving.  But the s 22A approach already lets you look to non-hearsay co-defendant statements as part of the evidential matrix to determine whether a joint enterprise exists (see R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [13] and R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1 at [14]).  In other words you are allowed to look at the very evidence that the Law Commission has just increased the admissibility threshold for.  It makes more sense to stick to the traditional route.  We can be discerning about the reliability of co-defendant statements.  If they are not relied on for the truth of their contents, then they don’t have the same reliability concerns. That lets us place weight on them when trying to figure out whether a joint enterprise existed. If, in combination with other evidence, we decide there is, and the other limbs of the s 22A test are met, then we can begin to admit that evidence for the truth of its contents.

Third, the Law Commission’s approach will drive the Crown into advancing the types of arguments all right-thinking people should run a mile from.  That’s the R v Holtham [2008] 2 NZLR 758 (HC) and Preston v R [2016] NZCA 568, [2017] 2 NZLR 358 type arguments about how something is not really a “statement” in a bid to get around these provisions.

The reasoning in R v Holtham and Preston v R.  Save us.

The contortions parties will go to arguing over whether something is a “statement” will be to the overall detriment of the state of evidence law generally (and see R v Wellington at [64]: “These are the sort of linguistic distinctions which can give legal analysis a bad name.”)  The battleground should be hearsay/non-hearsay, not statement/non-statement.

Fourth, and last, why this change?  The idea that a co-defendant’s non-hearsay statement is admissible is how everyone thought the Evidence Act did and should work for large periods of its existence.  Goffe v R [2011] NZCA 186, [2011] 2 NZLR 711 and R v Messenger  and Dheil v R are examples of that. For years before s 22A, the system worked perfectly well in practice with the assumption that a non-hearsay co-defendant statement would be admissible.  No particular instance of injustice has been identified.  All that is identified (correctly, mind) is that the wording of the Evidence Act doesn’t let the legal system take an approach to the law that they thought was permitted.  The solution to that is changing the Evidence Act to the way we think it works right now.  That could be done by amending s 27(1) to say a co-defendant’s hearsay statement is inadmissible except through s 22A.  That’s all we’d need to fix the problem the Law Commission identifies in the Act’s drafting, and bring the Act in line with present day practice.

Concluding thoughts

Imagine if the Law Commission’s proposed change goes ahead.  Under that scheme, if a defendant gives evidence in a trial – all of their statements (both in court and out of court) still aren’t admissible against a co-defendant unless they pass through the co-conspirator exception.  But why?  Why should they have to?  They are available for cross-examination.  The safeguards are there to prevent shifting the blame.  The co-defendant can cross-examine that defendant all they like.  The defendant is in the same position as any other witness.  Even the Law Commission in its own words agrees the reliability concerns are considerably lessened.  Why, then, should the Crown have to clear the high bar of s 22A to have that non-hearsay statement admitted?

Finally, on this topic, bear in mind the Supreme Court’s drive-by comments in Winter v R [2019] NZSC 98 this month.  It included a very pass-agg comment on the Law Commission’s proposed change, simply restricting itself to saying that (at [63]) “on the face of it, however, [the proposed amendment] would still not replicate the common law as explained in Messenger.”  Now, whether that’s the judicial equivalent of an “Every day we stray further from God’s light” meme, I don’t know.  But it serves to make the point, that the Law Commission’s solution seems to walk us further and further away from the common law position that is still being applied practically today.  In the absence of a compelling reason not to, normalising the position on an understanding of current, seemingly effective practice makes more sense to me.

So, please, think carefully about the Law Commission’s recommendation on this one.  My preferred amendment is that s 27(1) should say a co-defendant’s hearsay statement is inadmissible except through s 22A.  That means that a non-hearsay co-defendant statement will be prima facie admissible, subject to any other section of the Evidence Act.

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