Aficianados of television or big-screen courtroom dramas will
be familiar with the term "hearsay evidence" and so will
close observers of real crime and the New Zealand justice
system.
In two high-profile cases in recent months this legal nicety
has been perceived, in one instance by members of the public
and in another by the highest court in the land, possibly to
have played a conspicuous role in the outcome of trials.
Just this week, the Supreme Court has given leave for an
appeal to be heard by the Crown against the acquittal of
George Evans Gwaze on two counts of sexual violation and one
of murder.
Mr Gwaze had been found not guilty in May 2008 in the High
Court at Christchurch following a defence case in which
hearsay evidence was allowed to be presented.
The Crown appealed the conviction in the Court of Appeal in
July this year, essentially on an admissibility of evidence
issue.
The court dismissed it in a majority two-to-one decision in
September, following which the Crown sought leave from the
Supreme Court.
Its success means that the prosecution will now put its
appeal to the full bench of the Supreme Court in late
February next year, as a result of which the original
acquittal will be upheld or a retrial directed.
Earlier this year, in the retrial of David Bain (following a
Privy Council ruling) for the murder of the five members of
his family - of which crimes he was acquitted - the jury
heard his father Robin Bain was having an incestuous affair
with his daughter Laniet.
Because the affair was about to come out, the court heard, he
had a motive to kill his family.
Some time after the end of the trial, Robin Bain's brother
Michael spoke out about the ruin of his sibling's reputation,
stating that the allegations of incest were not based on
fact, but were "hearsay".
Other observers, less concerned about Robin Bain's reputation
and more interested in the larger question of whether justice
had been served in the retrial, wondered if the judge at the
original Bain trial had not got it right when he ruled out
admissibility of the hearsay "incest testimony" on the basis
that it was unreliable.
Since the Crown has not pursued that point and there has been
no suggestion that the presiding judge, Justice Graham
Panckhurst, erred in law in this matter, it remains a moot
point.
The Gwaze case, however, in at least allowing for the
possibility of a retrial for a person already acquitted on
the charges for which he could now be retried, appears to
break new, or at least rarely tilled, ground.
Broadly speaking, hearsay evidence is evidence that has been
reported to a witness by another, or others, rather than
evidence that he or she has personally observed or heard.
For example, in relation to the Bain case, the witness Dean
Cottle alleged in statements - made to the police in 1994 and
1995 and read to the retrial jury by Justice Panckhurst -
that Laniet Bain had told him her father was having an
incestuous relationship with her.
It was not something he knew of personally from having
witnessed it.
As Michael Bain said, neither his brother Robin nor Laniet
were around to contradict such evidence or to offer
alternative explanations.
In the case of Mr Gwaze, evidence was allowed to be admitted
to the trial when one expert witness spoke to a colleague
with expertise in the condition of the deceased, an
HIV-positive niece of Mr Gwaze whom, the Crown contended, had
been raped and suffocated.
The expert witness thought that the evidence, albeit hearsay,
was sufficiently pertinent to bring to the attention of the
police, and it was subsequently revealed to the defence and
to the trial judge.
After complex arguments canvassing its admissibility, the
evidence was heard.
Following the acquittal and at appeal, the Court of Appeal
considered the trial judge had not erred in law and, with
consideration of the "double jeopardy" rule whereby the
general disposition of the law has been that those acquitted
of a crime should not be retried for it, dismissed the
Crown's application.
It would be premature to draw inferences from the fact that
the Supreme Court has now given leave for the appeal to
proceed, beyond the matter hanging upon a complex set of
finely balanced legal nuances.
One possibility, should the Supreme Court find in favour of
the Crown, is however a very real dent in the "double
jeopardy" principle, with the prospect - an unsettling echo
of the constant "retrying" of controversial cases in the
media today - of never truly arriving at a final verdict.
On the other hand, without wishing to prejudge the matter,
some clarification or firmer rulings on hearsay evidence, and
on the precise circumstances in which it can be admitted to
the court, might be considered likely to bolster public
confidence in the New Zealand legal system.
