Gallavin on Litigation: Hostility, veracity and propensity

By Chris Gallavin

This month I would like to discuss a rather specific aspect of the law of evidence – giving tips on how issues of hostility and veracity may be approached in the context of trial preparation and ultimately the hearing itself.

The issue of the relationship between hostility and veracity has recently been brought to our attention in the Supreme Court decision in Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612.

In his appeal against conviction for arson, Mr Hannigan argued there had been a substantial miscarriage of justice as a result of leading questions put by the Crown to their own witness (his wife) without first seeking and receiving a determination of hostility.

At its heart the case concerned an apparent prior inconsistent statement after Mrs Hannigan gave her testimony at the trial.

In order to clarify whether or not there was indeed an inconsistency between her evidence and the prior statement the court of first instance allowed leading questions to be put to her.

On positively determining there to be, in fact, an inconsistency the judge did not then make an order of hostility but allowed the questioning to proceed along its suggestive lines. On appeal it was argued that this was, in effect, cross-examination of the Crown’s own witness that, in the absence of a determination of hostility, ought not to have been allowed.

The application (or not) of the veracity rules related to s 37(4) paragraphs (a) and (b) of the Evidence Act 2006. Paragraph (b) envisions limited challenge to one’s own witness by other evidence whereas paragraph (a) requires a determination of hostility to be made in the context of an attack on the credibility of your own witness.

The Supreme Court held that the questioning was acceptable. The dividing line between acceptable questioning for the purpose of clarification (s 89) and hostility (s 94) was a combination of a clearly hostile witness (Mrs Hannigan appeared otherwise co-operative and open) and a clear intention to impeach the witness through the style and manner of the questioning itself. The Court emphasised that if the purpose of the questioning was not to challenge veracity then it need not jump the hurdle of s 37.

There are a number of issues within the judgment that are open for discussion and debate, but for the time being I want to limit our thoughts to the consequential approach of litigators to the issue of hostility and veracity.

Although logically sound, the decision does raise some issues of concern.

First, my worry is that in determining hostility the decision places too much emphasis on the demeanour of a witness.

Demeanour

The subject of one of my earlier columns, demeanour is, unfortunately, of extremely limited value, if not of no value at all in determining the truthfulness of a witness. In fact, it can be said that the best liars are the most convincing liars.

The essential problem is that, much like identification evidence, we all presume that our ability to detect lying is particularly strong if not full proof. Alas, that is simply not the case for any of us.

In this context the identification of a “hostile” witness purely on the basis of a manifest lack of co-operation is problematic. A much more nuanced approach is needed to hostility, one that recognises apparent co-operation as equally strong grounds for hostility as blatant aggression.

Purpose

The second point I raise relates to purpose.

Of course, if you as counsel are not seeking to impeach the truthfulness of a witness then the veracity provisions ought not to apply. However, this allows room for those clever counsel among you who artificially construct your factual assertions to avoid the purpose of arguing.

Much the same as clever lawyers can often avoid hearsay by pronouncing the value of the evidence to be the mindset of the hearer or maker, so too there exists the possibility to avoid veracity by constructing arguments and, in turn, asking questions in such a way as to not impeach the credibility of a witness.

While logically sound, this might act to inappropriately circumvent the application of the veracity provisions.

The clear limitation to this ability of counsel to construct arguments in such a way is the clearly aggressive and unco-operative witness. But that is not to say that significant room does not exist for clever lawyers to challenge their own witness on other evidence in the hearing now that such “other evidence” can include prior statements of the same witness.

Overall for me what Hannigan emphasises is that litigators must be absolutely clear on what it is that they seek to establish. Too often arguments over the admissibility of character evidence (propensity and veracity) are lost due to a mis-appreciation of the purpose for which the evidence is tendered – character or directly relevant.

If, of course, the evidence is directly relevant then there is no requirement for the character provisions to be relied upon to admit the evidence.

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence (LexisNexis, Wellington, 2008). 

This was first published in LawTalk 855, 21 November 2014.