HURITU v NEW ZEALAND POLICE [2021] NZCA 15

HURITU v NEW ZEALAND POLICE [2021] NZCA 15 [16 February 2021]NOTE: PURSUANT TO S 125 OF THE DOMESTIC VIOLENCE ACT 1995,ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11CAND 11D OF THE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA640/2019[2021] NZCA 15BETWEEN CODY HURITUAppellantAND NEW ZEALAND POLICERespondentHearing: 16 September 2020Court: Cooper, Courtney and Collins JJCounsel: N P Chisnall and N T C Batts for AppellantE Hoskin for RespondentJudgment: 16 February 2021 at 3.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Cooper J)Introduction[1] The appellant, Mr Huritu, was charged with assaulting his partner, breachinga protection order and breaching his prison release conditions.1 He pleaded guilty tothe charge of breaching his prison release conditions but went to trial before a Judge1 Crimes Act 1961, s 194A; Domestic Violence Act 1995, ss 19(1)(a) or (b) and 49(1)(b) and (3);and Sentencing Act 2002, s 96(1).alone on the other two charges. He was found guilty on both by Judge Cooper on1 August 2019.2[2] Mr Huritu appealed to the High Court against the convictions claiming thatthe Judge had wrongly admitted a written statement made by the complainant,his partner, after she failed to appear at the trial in the District Court. On 8 October2019, the appeal was dismissed by Jagose J.3[3] Mr Huritu then applied for leave to bring a further appeal to this Court. Leavewas granted by a Divisional Court on 2 June 2020.4 The Court did not specifythe reasons for granting leave, but the principal issue raised by the appeal is whetherin the circumstances of this case it was appropriate for the trial Judge to decide thatthe complainant was a person who was "unavailable as a witness" in the proceeding,on the basis that she could not "with reasonable diligence be found"as contemplated by s 16(2)(d) of the Evidence Act 2006 (the Act).[4] It is also claimed that the Courts below should not have determined thatthe circumstances relating to the complainant's written statement provided reasonableassurance that the statement was reliable, and that the risk of unfair prejudice toMr Huritu outweighed the statement's probative value. Further the appellant claimsthat the statement should not have been admitted in the absence of the prosecutiongiving a notice of hearsay in accordance with the requirements of s 22 of the Act.Background[5] Mr Huritu had been in an on and off relationship with the complainant for some20 years. They have two children. Jagose J referred to an extensive history of familyviolence between them, the complainant having been a victim in more than one thirdof 21 violent offences for which Mr Huritu had been convicted.52 Police v Huritu [2019] NZDC 15221.3 Huritu v Police [2019] NZHC 2560 [High Court judgment].4 Huritu v Police [2020] NZCA 208.5 High Court judgment, above n 3, at [3].[6] The complainant and Mr Huritu had an argument on 10 December 2018 at theirhome. As the argument developed Mr Huritu stood over the complainant and yelledat her as she sat on the couch. According to the formal written statement she latermade, Mr Huritu then began assaulting her.[7] Mr Huritu's trial was scheduled for 18 July 2019. The complainant had beensummonsed to give evidence on that day. When she did not appear, she was arrestedpursuant to a warrant and released on bail to appear on 1 August 2019 forthe re-scheduled trial. She again failed to appear. The Judge then heard argument asto whether her formal written statement to the police should be admitted in herabsence. After the argument had taken place, another warrant for her arrest was issued.The police attempted to locate her by visiting her house and that of her friend, as wellas calling her. They were unable to locate her.The admissibility ruling[8] Later that day, the Judge granted an application by the prosecution to admitthe complainant's statement.6 After setting out the relevant provisions of s 18 ofthe Act he addressed the question of whether the complainant was unavailable as awitness. He referred to a defence submission that she was not unavailable inthe ordinary meaning of the word: rather, she was simply unwilling to be a witness.7The Judge agreed that she was apparently "deliberately making herself scarce".8Nevertheless he was satisfied she was unavailable, observing:9She has not answered to the summons which required her to be here and effortsto locate her have been unsuccessful. She cannot with reasonable diligencebe found and I find that she is unavailable.[9] The Judge then set out the circumstances in which the complainant's statementwas made:[10] In this case, Constable Vedder gave evidence that on Sunday9 December 2018, she attended to [a] report of a family harm incident and shespoke to [the complainant]. At that stage, the constable was told that there hadbeen an argument and that that was an argument between herself and her6 Police v Huritu [2019] NZDC 15660 [District Court judgment].7 At [6].8 At [7].9 At [8].brother. Constable Vedder noted that the complainant had no injuries and sheleft and wrote up a family harm report. The next day, 10 December 2018, atabout 2.40 pm, Constable Vedder returned to the address. That was simplya follow-up inquiry. There was no further call out as such. She said that asshe was walking up the driveway, she saw the defendant, Mr Huritu, walkingdown the driveway. The constable went to the front door and spoke to[the complainant] and she noted injuries to her eye and bruising.[The complainant] said to her that Mr Huritu had hit her. She seemed scaredand upset. She appeared to be sober. She said that the argument the day beforewas not between her and her brother, it was in fact between her and Mr Huritu.[11] [The complainant] agreed to make a formal statement and later thatday at the police station, she made a formal written statement in which shesaid that on 10 December, a police officer had turned up to serve a protectionorder on the defendant. She had told the police that the defendant was notpresent, but he was, and after the officer left, the defendant became aggressiveand later there was an incident over a burnt pot and following that, the incidentescalated to the defendant punching the complainant around the head andarms. [10] The Judge quoted the complainant's description of the assault in her writtenstatement, which was as follows:[Mr Huritu] began punching me about the head and arms. I put my arms upto block my face and ended up on my side trying to avoid the blows. Hepunched me about 4-6 times. [Mr Huritu] stopped punching me long enoughfor me to sit up. I started yelling back at him, telling him to leave.While I was still sitting on the couch yelling at him, he smacked me in the righteye with the palm of his hand. I started screaming which made him then grabme around the eye. I think he was trying to go for my mouth to shut me up.As I tried to pull away from him, I could feel his finger nails going across myface.[11] The statement ended with the usual acknowledgement:I confirm the truth and accuracy of this statement. I make the statement withthe knowledge that it is to be used in court proceedings. I am aware that it isan offence to make a statement that is known by me to be false or intended tomislead.It was witnessed by the constable who took it.[12] Addressing the circumstances in which the statement was made, the Judgenoted first that the statement had been given in the circumstances of "some formality"at the police station.10 The complainant had signed it and made an attestation as to its10 At [13].truthfulness and correctness which had been witnessed by the constable,an independent person. The statement contained an explicit description of what shesaid happened to her. There was a considerable level of detail and it was generallyconsistent with the oral statement she had made to the constable at the house prior togoing to the police station. For these reasons the Judge was satisfied that thecircumstances provided a reasonable assurance the statement was reliable so as tosatisfy the threshold requirement of s 18(1)(a) of the Act.11[13] The Judge then addressed the question of whether there was a risk that thestatement, if admitted, would have an unfairly prejudicial effect on the proceeding.12In assessing that issue, he took into account not only the content of the statement andthe circumstances in which it had been made but also the fact that the statement wassupported by other evidence, in particular photographic evidence.13 He referred to aphotograph taken on 10 December 2018 showing injuries the complainant hadsustained around the eye and the top of her nose. He found the photograph wasconsistent with the description the complainant had given of the nature of the assaultand the manner in which it had been carried out.[14] The Judge noted the concern of counsel for Mr Huritu that he was unable tocross-examine the complainant and put to her the fact that she had lied about what hadhappened the day before, when claiming it was her brother with whom she hadargued.14 However, the Judge did not consider the inability to cross-examine thecomplainant precluded Mr Huritu from offering an effective defence. Mr Huritu wasable to give evidence himself and offer other evidence if he wished to do so.For example, he could call evidence from the complainant's brother. The fact that hemight be in a position where it was "tactically appropriate" for him to give evidencedid not mean that he was precluded from offering an effective defence.15[15] The Judge concluded that the probative value of the evidence, which wasstrong, was not outweighed by any prejudice and that it would not be unfairly11 At [14].12 Evidence Act 2006, s 8(1)(a).13 District Court judgment, above n 6, at [17].14 At [18].15 At [19].prejudicial for the evidence to be admitted.16 He therefore granted the prosecution'sapplication.17The appeal to the High Court[16] On appeal to the High Court Mr Huritu argued that the complainant had notbeen unavailable as a witness, claiming that a higher threshold of diligence shouldhave been applied to locate her in circumstances "where without the statementthe defendant had no case to answer".18 It was further contended that the reliabilitythreshold had not been met, as the complainant's statement had been given against"a background of deceit" and her "proven untruthfulness".19 It was also submitted thatthe probative value of the statement did not outweigh the prejudicial effect ofprecluding the complainant's cross-examination.[17] Jagose J rejected those arguments. He found that reasonable diligence hadbeen exercised to secure the complainant's attendance at the trial.20 He noted the trialhad previously been adjourned to secure her attendance and that she had been arrestedand released on bail. There had also been significant effort to locate her on the secondoccasion, before the Judge ruled that she was unavailable as a witness. The police hadmade the enquiries that could reasonably be expected in the circumstances.The trial Judge's decision that reasonable diligence had been exercised wasreasonable.[18] Jagose J also held that the Judge had not erred in his assessment ofthe circumstances in which the statement had been made.21 The statement had beenmade within five hours after the assault, which the statement recorded in specificdetail. The complainant had signed the statement, attesting to its truth and accuracyand knowing it could be used in court proceedings. Although counsel had been criticalof the absence of corroboration, the statement was consistent with Mr Huritu's historyof offending against the complainant, the earlier reports of family harm, the existence16 At [20].17 At [21].18 High Court judgment, above n 3, at [10(a)].19 At [10(b)].20 At [15].21 At [20].of protection orders against Mr Huritu, the complainant's concern about his responseto the police's intended service of the final protection order, her oral statement atthe house and the photographic evidence of her injuries. There was no error inthe Judge's conclusion that the circumstances relating to the statement providedreasonable assurance that it was reliable.22[19] Jagose J was also satisfied that, on balance, the Judge correctly concluded thatthe probative value of the statement outweighed any unfairly prejudicial effect on theproceeding.23The appeal to this Court[20] The principal argument on appeal is that the District Court Judge should nothave found that the complainant was unavailable as a witness. Mr Chisnall, counselfor Mr Huritu, noted that efforts to locate the complainant had been initiated only aftershe failed to answer her summons. At that point the Judge had given the police untilthe afternoon on the day of the trial to attempt to locate the complainant, a period ofapproximately three hours following the morning adjournment. This confinedtimeframe took on even greater significance because the police had not made anyeffort to locate and secure the attendance of the complainant between her arrest andrelease on bail for failure to attend at the first trial and the morning of the second trial.Mr Chisnall submitted that given the complainant's history, efforts to locate her andensure her attendance prior to the second trial date should have been made.[21] Based on a number of judgments of the Court of Appeal of England and Wales,Mr Chisnall invited this Court to adopt the following principles concerningthe requirements for witness unavailability under s 16(2)(d) of the Act:(a) The police should be expected to maintain contact and communicationwith witnesses following the commencement of proceedings andshould know from an early stage if there are likely to be difficulties insecuring a witness's attendance. Witness engagement and contact22 At [21].23 At [26].should generally be such that any necessary formal application can bemade within a reasonable period prior to trial. That would have theassociated effect of making observance of the notice requirements ins 22 of the Act straightforward. The late discovery by police thata witness is missing and/or unwilling to attend trial would generallyindicate that police efforts to engage with that witness have not beenreasonably diligent. That would especially be the case whenthe discovery is made on the morning of the trial.(b) Where a witness is clearly attempting to avoid appearing in person ata trial or hearing, police enquiries as to the location of the witness andtheir willingness to appear should be such as to put the prosecutionin a position, prior to trial, to make a successful application for awarrant to obtain the attendance of the witness under s 161 ofthe Criminal Procedure Act 2011.24 Such an application should bemade with sufficient time prior to trial to ensure the police have anadequate period within which to locate the witness and executethe warrant. Failure to pursue this option where reasonably availablewould likely be fatal to a claim that a witness cannot with reasonablediligence be found.(c) Where a witness's non-attendance or failure to answer a summons isdiscovered only shortly before or at the commencement of the trialthe police will be able to satisfy the reasonable diligence requirementonly if they can establish reasonable grounds for believing thatthe witness would answer their summons or attend the trial, andthe length of the trial allows sufficient time for the police todemonstrate that they have exhausted all reasonably available optionsfor locating and securing the witness's attendance.24 Section 161(1)(b) of the Criminal Procedure Act 2011 enables a judicial officer to issue a warrantto arrest a person if satisfied that the person's evidence is required at the hearing and the personwill not attend to give evidence without being compelled to do so.(d) If an adjournment of the fixture (particularly a judge alone trial) is arealistic possibility, a prosecution contention that a witness cannot withreasonable diligence be found must establish why an adjournment toallow further efforts by police to locate and secure the witness will notbe successful.[22] Mr Chisnall also submitted that the Courts below erred in determining thatthe circumstances relating to the statement provided reasonable assurance thatthe statement was reliable under s 18(1)(a) of the Act, and that the Courts erred infinding that the probative value of the statement outweighed any prejudicial effect itwould have on the proceeding under s 8.[23] Finally, Mr Chisnall pointed out, for the first time in this Court, that there hadbeen no notice of an intention to rely on the complainant's hearsay statement forthe purposes of s 22 of the Act. Mr Chisnall submitted that in the absence of a waiverof the requirements in subss (2)–(4) of that section, the trial Judge was obliged todispense with those requirements if the hearsay statement was to be introduced.[24] For the Crown, Ms Hoskin submitted that the purpose of the "reasonablediligence" enquiry in s 16(2)(d) of the Act is to establish that there is a need to resortto hearsay evidence, because the whereabouts of a witness is unknown despitereasonable and diligent enquiry. What is reasonable and diligent will necessarily varyaccording to the circumstances of the case. This would involve consideration of whatwas feasible and practicable: it should not be necessary for everything possible tohave been done. The question of whether the requisite standard has been reachedcould usefully be informed by considering what more could have been done and thenquestioning whether the omission to take the additional steps was reasonable inthe circumstances.[25] Ms Hoskin submitted that the principles which Mr Chisnall suggested wouldplace unnecessary burdens upon the prosecution and witnesses. She argued it couldnot be right to suggest that police must maintain ongoing contact and communicationswith all witnesses from the time proceedings commence. That would be unrealistic.Nor was it appropriate to suggest that courts should not accept that a witness "cannotwith reasonable diligence be found" unless there has been an application made inadvance for a warrant to secure attendance at trial under s 161(1) of the CriminalProcedure Act. Ms Hoskin submitted it was inappropriate to add caveats andadditional requirements to the statutory test in s 16(2)(d) of the Act, which isstraightforward and clear in its terms.[26] Ms Hoskin further submitted that the statutory test is focused onthe circumstances and not on who the witness is. She emphasised that the legislationmakes no distinction between witnesses depending on the nature of their intendedevidence, nor its significance to a Crown case. In this respect, complainants were nodifferent from any other kind of witness and the requisite standard of diligence shouldnot vary according to the perceived reasons for unavailability. "Reasonable diligence"is the test for unavailability in all circumstances.[27] Other considerations, such as who the witness is and the significance of theirevidence, whether their absence is willing or unwilling, issues about corroboration andthe relative importance of cross-examination of the witness can be taken into accountat subsequent stages of the enquiry. That could be, for example, when the courtconsidered threshold reliability under s 18(1)(a) of the Act or whether the evidenceshould be excluded under the general exclusion rules of s 8.Analysis[28] A hearsay statement is a statement that was made by a person other than awitness and is offered in evidence at a proceeding to prove the truth of its contents.25Section 17(a) of the Act provides that a hearsay statement is not admissible except asprovided under the Act (or another Act).[29] Section 18(1) provides that a hearsay statement is admissible ifthe circumstances relating to the statement provide "reasonable assurance thatthe statement is reliable" and either the maker of the statement is unavailable asa witness or the judge considers that undue expense or delay would be caused if25 See the definition of "hearsay statement" in s 4(1) of the Evidence Act.the maker of the statement were required to be a witness. In this case there is no issueabout undue expense or delay: the focus is on the issue of unavailability.[30] Section 16(1) and (2) of the Act contains definitions of terms used in s 18(1).Relevant in this case are the definitions of "circumstances" and "unavailable as awitness". These provide as follows:circumstances, in relation to a statement by a person who is not a witness,include—(a) the nature of the statement; and(b) the contents of the statement; and(c) the circumstances that relate to the making of the statement; and(d) any circumstances that relate to the veracity of the person; and(e) any circumstances that relate to the accuracy of the observation ofthe person a person is unavailable as a witness in a proceeding if the person—(a) is dead; or(b) is outside New Zealand and it is not reasonably practicable for him orher to be a witness; or(c) is unfit to be a witness because of age or physical or mental condition;or(d) cannot with reasonable diligence be identified or found; or(e) is not compellable to give evidence.Unavailability and reasonable diligence[31] The terms of the definition of "unavailable as a witness" in s 16(2)(d) requirethe court to be satisfied that, as a matter of fact, the person cannot be found, and thatreasonable diligence has been applied in an attempt to find them.[32] The provision was recently applied by this Court in Rameka v R.26 In that casethe Crown was permitted to rely on the written statement of a person who had beensummonsed to attend trial as a witness but failed to do so. She expressed herunwillingness to attend and a fear of retaliation if she gave evidence. This Courtassessed the steps that had been taken by the police to ascertain her whereabouts26 Rameka v R [2019] NZCA 105.during the trial,27 deciding that the police had been reasonably diligent in attemptingto locate her and that they had made "every enquiry that could reasonably be expected"by the third day of the trial when her written statement was read.28[33] Each case must of course be determined on its own facts and we refer to thatcase not because it contains any statement of principle but because it approachesthe unavailability issue by simply applying the statutory language.[34] There is no doubt in the present case that the complainant was not present atthe Court and could not be found when it was necessary she be available to giveevidence. The question of whether there had been reasonable diligence involvesconsideration of a number of matters. Despite Mr Chisnall's submission to thecontrary we consider the relevant circumstances here include the fact that thecomplainant had failed to appear on the initial trial date and had been located, arrestedand released on bail to appear on the new trial date. There was justification in thecircumstances for the Judge to conclude that the complainant had deliberately failedto appear on the second occasion. The Judge then issued a warrant for thecomplainant's arrest and stood the matter down for further efforts to be made to findher and bring her to the Court. The issue of whether the steps then taken werereasonably diligent must be assessed in that context.[35] Constable Vedder gave evidence about what had been done since the warrantwas issued on the day of the second trial. She said she had gone to the complainant'shome address but was unable to locate her there. She then went to the address ofthe complainant's friend, but the complainant was not there either. Prior to returningto the Court she went again to the complainant's home as well as trying to contact herby phone. The phone calls were not answered.[36] We accept Ms Hoskin's submission that on a straightforward reading ofthe statutory test, the unavailability requirement had been met. The complainant'swhereabouts were unknown. Reasonable efforts were made to locate her, all of whichproved unsuccessful. The question of whether there was reasonable diligence was27 At [37]–[42].28 At [42].properly to be assessed on the basis not only of what took place on the day but also onthe basis of the steps previously taken in connection with the first trial date. Further,in the overall circumstances, we do not consider it was necessary for there to bea further adjournment so that more time could be spent endeavouring to locatethe complainant.[37] We do not consider it either necessary or desirable for this Court to establish aset of principles such as those suggested by Mr Chisnall to guide trial judges in theapplication of the straightforward statutory language in s 16(2)(d) of the Act.The question of whether a witness is or is not able to be found is a simple question offact.[38] The question of whether reasonable diligence has been applied in attemptingto find a witness requires an assessment of what has been done in the overallcircumstances. There is no difficulty in the statutory language. What is required issimply an assessment as to whether what has been done amounts to reasonablediligence. We consider Ms Hoskin was correct to submit that issue is to be determinedby looking at the steps taken to find the witness and ought not to be influenced by aconsideration of what role the witness will play in the trial if he or she is located andgives evidence.[39] The determination that a person is unavailable as a witness does not mean thatthe hearsay statement of that person will for that reason be admissible. Other issueswill first need to be resolved in favour of admissibility. They include whether there isreasonable assurance that the statement is reliable for the purposes of s 18(1)(a) andwhether the probative value of the statement is outweighed by the risk thatthe statement would have an unfairly prejudicial effect on the proceeding.29 The latterissue is to be assessed taking into account the right of the defendant to offer aneffective defence.30 But none of those matters has an impact on the factual enquiry asto whether due diligence has been applied in attempting to find a witness.29 Evidence Act, s 8(1)(a).30 Section 8(2).[40] In a case such as the present, where a witness fails to appear after having beenarrested and released on bail to appear at a new trial date, it seems unrealistic to suggestthat there should be some general rule that the police maintain regular contact andcommunication to ascertain whether a further application should be made for an arrestwarrant on the basis that the witness will not attend unless compelled to do so. We donot see any compelling reason for adopting such an approach, which might have verysignificant implications in terms of the time and resources that would be necessary toimplement it. In our view the requirement that there be reasonable diligence,combined with the other statutory considerations relevant to the admissibility ofhearsay statements, is sufficient.[41] We add that we see the facts of this case as different from Greaves v Police,on which Mr Chisnall sought to rely.31 In that case the defendant had pleadednot guilty to two charges of breaching a protection order, threatening to kill and assaultwith intent to injure. The complainant failed to appear at the original trial date and attwo subsequent adjournments. The day before the second adjournment, the policespoke to the complainant at her home address to obtain her assurance that she wouldattend on the next day. However, when the police went to her home at 8 am on the dayof the trial she was not present, and her cell phone was apparently switched off. 32[42] The trial Judge considered that the police had "done their utmost" to obtainthe attendance of the complainant, who had been endeavouring to make herselfunavailable, but that the complainant was not in a position where she could not withreasonable diligence be identified or found.33 However, the Judge considered thatundue expense or delay would be caused if the complainant were required to attend asa witness,34 even though she was not "unavailable".35 Because he consideredthe circumstances of the complainant's statement provided reasonable assurance of itsreliability the Judge held her written statement to be admissible.3631 Greaves v Police [2019] NZHC 3003.32 At [6].33 Police v Greaves [2019] NZDC 1380 at [17].34 Evidence Act, s 18(1)(b)(ii).35 Police v Greaves, above n 33, at [20].36 At [19]–[20].[43] On appeal, the High Court reached a different conclusion. Jagose J consideredit was unclear what undue expense or delay might have been caused by enforcingthe complainant's attendance.37 He also considered the complainant could not beconsidered unavailable as a witness in circumstances where the police had gone nofurther than requiring her attendance on summons.38 He described that as a formalrequirement, the disregard of which in the circumstances "anticipated at least issueand unsuccessful enforcement of an arrest warrant before the complainant's continuedabsence may constitute her unavailability".39 The facts of that case may properly bedistinguished from the present facts on that basis.Reasonable assurance of reliability[44] The next issue raised on appeal challenges the determinations of boththe District Court and the High Court that the circumstances relating to the statementprovided reasonable assurance of its reliability. Mr Chisnall acknowledged thatthe timing, form, context and detail of the complainant's statement provided someassurance of its reliability. However, he argued that lies the complainant admittedtelling police in relation to events immediately preceding the alleged assault were suchthat the Courts could not have been reasonably assured of the statement's overallreliability. In addition, the admitted lies would have provided fertile ground forcross-examination.[45] Mr Chisnall submitted the High Court was speculating when it referred tothe complainant's lies as bolstering the reliability of the statement,40 and there was noevidence before the Court upon which it could reasonably infer a motive forthe complainant's lies. He also contended that the complainant's intentionalunavailability was an indication of her unreliability and that the High Court was wrongto rely on Mr Huritu's previous history of offending against the complainant andearlier reports of family harm. Mr Chisnall further argued it was also wrong to findthat the complainant's statement was corroborated by her oral statement at the house.37 Greaves v Police, above n 31, at [12].38 At [11(b)].39 At [11(b)].40 High Court judgment, above n 3, at [19].[46] We have earlier set out the definition of "circumstances" from s 16(1) ofthe Act.41 Both the District Court and High Court Judges addressed the issues relevantto the definition for the purposes of their assessment under s 18(1)(a).42 The statementwas made in reasonable proximity to the alleged assault; it was made to an independentperson, a constable; it was made in circumstances of some formality, at a policestation; the complainant gave a narrative recording her allegations in some detail andwithout ambiguity; and she then signed it, attesting to its truthfulness and accuracybefore the constable who witnessed it.[47] There was also corroboration because the statement was consistent with whatshe said prior to going to the police station, a protection order had been made againstMr Huritu who had been responsible for previous acts of violence against her andwhen police arrived to speak to the complainant she had clearly been injured and wasupset and scared. There was photographic evidence of her injuries.[48] We have not been persuaded that there was any error in the factual analysiscarried out in the Courts below and see no reason to reach a different view on theseissues in the context of a second appeal.Probative value and risk of unfair prejudice[49] Mr Chisnall submitted that the probative value of the statement wasoutweighed by the risk it would have an unfairly prejudicial effect andthe District Court Judge had undervalued the role of cross-examination in enablingMr Huritu to offer an effective defence. This was important because the sole trial issuewas the identity of the person who had assaulted the complainant.In the circumstances, Mr Chisnall submitted that s 8 of the Act required thatthe statement be excluded.[50] We do not consider that the statement should have been excluded in applyings 8. The statement was significant for the Crown's case and the prosecution could nothave proceeded without it. The statement was detailed, provided a step by step41 At [30] above.42 District Court judgment, above n 6, at [12]–[13]; and High Court judgment, above n 3, at [17]–[20].account of the assault and was made the day the offending was said to have occurred.Its probative value was high. While we accept Mr Chisnall's argument that there wasa degree of speculation in suggesting that the complainant's reluctance to appear togive evidence at the trial could be attributed to fear of the consequences, it is equallyspeculative to suggest that her failure to appear could properly be attributed to aconcern that under cross-examination her account would be shown to be untrue.[51] As to the reliance which was placed on the fact that she had originally toldthe police that she had been in a conflict with her brother, we see nothing wrong withthe way that issue was dealt with by the District Court Judge.43 It did not precludeMr Huritu offering an effective defence. The fact that the complainant had originallygiven a false account was before the Judge. Any inconsistencies between her accountand the photographed injuries could be highlighted by the defence, as could the failureby the police to interview other possible suspects.[52] We note also from the subsequent judgment in which the Judge gave hisreasons for finding the charges against Mr Huritu proven beyond reasonable doubt thatMr Huritu originally told Constable Vedder that he did not hit the complainant andsuggested she had had a fight with a cousin a few days before, claiming that she oftenwent to parties and came home "looking like that" for which he would be blamed.44Those were assertions which Mr Huritu could have made the subject of evidencewhether given by himself or by others. He elected not to do so, which meant he hadto rely on what was said to the constable in his interview. But this does not mean thatadmission of the complainant's statement meant he could not offer an effectivedefence.[53] We are satisfied that the probative value of the statement was not outweighedby a risk that it would have an unfairly prejudicial effect on the proceeding. We rejectthis ground of appeal.43 District Court judgment, above n 6, at [19].44 Police v Huritu, above n 2, at [11].Absence of notice under s 22[54] As we have mentioned, Mr Chisnall raised for the first time in this Courtthe failure to comply with s 22 of the Act. Section 22(1) proscribes offering a hearsaystatement in evidence unless the party proposing to offer the statement has compliedwith the requirements of subss (2)–(4),every other party has waived thoserequirements, or the judge has dispensed with them.[55] Relevantly for this case, the requirements of subs (2) include the giving ofa written notice stating the party's intention to offer the hearsay statement, the nameof the maker of the statement, any circumstances to be relied on for the purposes ofs 18(1)(a) and, if the case involves the unavailability of a witness, why the person isunavailable. Where the hearsay statement is in writing, subs (3) provides that a copymust be attached to the notice. Under subs (4), this must be done in sufficient timebefore the hearing to give the other parties a fair opportunity to respond tothe statement. It can be seen from this that the section will be more easily compliedwith in cases where a party seeking to rely on a hearsay statement has formedan intention to do so before the trial.[56] It is more difficult to apply the section in cases where there was no suchintention but the need to rely on the hearsay statement has arisen because the witnesshas failed to appear. It is probably for that reason that s 22(1)(c) contemplates thatthe judge may dispense with the requirements of subss (2)–(4). Subsection (5) statesthat may be done if, having regard to the nature and contents of the statement, no partyis substantially prejudiced by the failure to comply with the requirements, compliancewas not reasonably practical in the circumstances or the interests of justice so require.[57] We consider that each of these bases for dispensing with the requirements ofsubss (2)–(4) was applicable here. There was no substantial prejudice from the failureto give the notice because Mr Huritu had the complainant's written statement wellprior to the trial and must have anticipated that evidence would be given in accordancewith it. Secondly, if the trial was to proceed, it was not reasonably practical for thereto be compliance with the notice requirement: this was not a case in whichthe prosecution had formed an intention to proceed on the basis of the writtenstatement prior to the date of the trial. Thirdly, there was a fair opportunity to respondto the statement since its contents were known to the defence in advance. This wasnot a case where there could be any surprise arising out of the content of the statement.The interests of justice in fact required the trial, which had already once beenadjourned, to proceed.[58] In all the circumstances we are satisfied that had this issue been raised in eitherof the Courts below the Judges would have regarded it as an appropriate case forthe requirements of s 22(2)–(4) to be dispensed with. The issue having been raised forthe first time in this Court on a second appeal we do not consider it requires any furtherdiscussion.Result[59] The appeal is dismissed.Solicitors:Haigh Lyon, Auckland for AppellantCrown Law Office, Wellington for Respondent