Criminal Law

Criminal Law Hannigan v R

06 October 2017 - By Chris Macklin

This article was supposed to be about a legal development. I therefore begin with a meek apology, because I write on an area arguably lacking recent development: prior inconsistent statements offered by the party calling the witness.

Use of previous inconsistent statements, by the party calling the witness, seemingly allows a party to “patch up” disappointing testimony. This is a departure from tradition. A major development came in 2013, with the Supreme Court’s decision in Hannigan v R [2013] NZSC 41, [2013] 2 NZLR 612, at [91]. Since Hannigan, witnesses have forgotten or even disavowed statements, only to have those statements offered in evidence (for example, McGlaughlin v Police [2014] NZCA 547). Where does that leave trial lawyers, who often rely on faults in witness recall to highlight important credibility issues?

I have not had time to research journal articles (nor any commentary beyond Adams on Criminal Law; and The Evidence Act 2006: Act & Analysis). This limits any academic value. I am coming more from the perspective of a trial lawyer.

For context, in Hannigan a witness had given a statement suggesting the defendant had gone inside a house. At trial, the witness did not testify that the defendant went inside. This was an important point in this case. The witness was not declared hostile. Nevertheless, leading questions were permitted. The prosecutor took the witness through their earlier statement. The witness was asked to comment on apparent inconsistencies.

 

CHRIS O'CONNOR
PARTNER