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High Court Cases
JJAJ v Refugee Status
Appeals
Authority
High Court Auckland
CIV-2009-404-003379
12 August 2010; 16 August 2010
Venning J
Judicial review -
record - scope of the record - inadmissible evidence - whether to be
struck from
the record
The plaintiff was
unsuccessful in an appeal to the Refugee Status Appeals Authority. On
commencing judicial review proceedings he sought an
order striking from the record parts of the written statement of a
witness who gave evidence before the Authority.
Both parties were agreed that the challenged aspects of the evidence
were inadmissible. The plaintiff, however, submitted that because the
evidence did not form part of the material which the Authority was
entitled to take into account, it should be struck from the formal
record before the High Court and should not be before the Judge hearing
the application for judicial review. The second defendant submitted
that the integrity of the record as a whole should be preserved,
including those parts of the evidence ruled inadmissible.
Held:
1 A liberal
approach must be taken to the scope of the record and it includes the
notes of evidence and exhibits presented at the previous hearing. A
similarly liberal approach supports the preservation of the record that
was before the Authority, even where it is accepted parts of it relate
to inadmissible evidence. To do otherwise would be to engage in a cut
and paste exercise with the record. That exercise would not necessarily
stop at
the inadmissible evidence (see paras [12] and [13]).
Collector of Customs v Graham [1990] 1 NZLR 615
(Eichelbaum CJ) referred to.
2 It is
better to maintain the record intact (see para (14).
3 In the
context of the case, the plaintiff could have no rational or reasonable
concern that a High Court Judge would be influenced, consciously or
subconsciously, by the passages conceded to be inadmissible (see para
[15]).
Application to
strike inadmissible evidence
declined
No other cases
mentioned
in judgment
Counsel
CS
Henry for
the plaintiff/applicant
M
Downs for
the defendant/respondent
VENNING J [1] This application for
judicial review is for hearing on 21 September 2010. The applicant
seeks an order striking from the record parts of the written statement
of Belinda Duffy, a witness who gave evidence in the hearing before the
first defendant.
[2] The evidence in issue is
contained at paragraphs 16 and 17 of Ms Duffy's statement of evidence
(record, volume 6 pages 2104 and 2105).
[3] The particular paragraphs
were discussed in the course of Ms Duffy's evidence (record, volume 4,
pages 1162 - 1170).
[4] The challenged material
falls into two categories: the last sentence of paragraph 16 and the
first sentence of paragraph 17 (record, volume 6, page 2105). It is
accepted by the second respondent that the two sentences were agreed to
be deleted from Ms Duffy's written statement. This concession is noted
(record, volume 4, pages 1166 and 1167).
[5] The second respondent does
not seek to rely on that evidence.
[6] The second category of
evidence is the first sentence of paragraph 16. In it Ms Duffy refers
to overhearing the applicant making a particular statement to his then
lawyer. Mr Henry submitted strongly the statement was privileged and
was inadmissible.
[7] The substance of what Ms
Duffy says she overheard is repeated in her evidence-in-chief where she
describes that the applicant effectively told her the same thing
(record, volume 4 at pp 1169, 1170). While Mr Henry accepted that
evidence was admissible, he argued there was a significant difference
between Ms Duffy saying she was told that by the applicant and her
saying that she overheard the applicant telling his lawyer the same
thing.
[8] In any event, nothing turns
on the matter because Mr Downs was prepared to accept that the evidence
of what Ms Duffy overheard the applicant say to his lawyer was
inadmissible and he confirmed the second respondent does not seek to
rely upon that evidence.
[9] So both parties are agreed
that the challenged aspects of Ms Duffy's evidence are inadmissible.
The difference between them is whether, as Mr Henry submits, because
the evidence did not form part of the material which the Authority was
entitled to take into account, it should be struck from the formal
record before this Court and should not be before the Judge hearing the
review or, as Mr Downs submitted, the integrity of the record as a
whole should be preserved, including those parts of the evidence that
was ruled inadmissible.
[10] Mr Henry submitted it was
important that justice not only be done but be seen to be done. He
submitted that the applicant was entitled to be assured that there
would not be any unconscious use of that inadmissible material by the
presiding Judge.
[11] Mr Downs submitted that it
would be wrong to affect the integrity of the record by deleting the
passages or striking them from the record entirely. He noted in
relation to paragraph 16 of Ms Duffy's evidence it would leave a
sentence hanging and unexplained. He submitted that it was offensive to
suggest that a High Court Judge would not be able to put the
inadmissible evidence to one side and would somehow allow him or
herself to be influenced by it.
[12] An aspect of the case is
just what forms the record and the status of the record for the
purposes of the application for judicial review. In Collector of Customs v Graham [1990] 1 NZLR 615, an
issue arose whether the notes of evidence and exhibits should be filed
with the High Court. Eichelbaum CJ took a liberal approach to the scope
of the record and held "the record" included the notes of evidence and
exhibits presented at the previous proceeding.
[13] In my judgment, a
similarly liberal approach supports the preservation of record that was
before the Authority, even where it is accepted parts of it relate to
inadmissible evidence. To do otherwise would be to engage in a cut and
paste exercise with the record. It would not necessarily stop at the
inadmissible evidence. For instance aspects of the record also refer to
the agreement the evidence is not to be read. On Mr Henry's argument
that would go as well.
[14] In my view it is better to
maintain the record intact, with the acknowledgement of the second
respondent that aspects of Ms Duffy's witness statement are not
admissible.
[15] In the context of this
case, the applicant can have no rational or reasonable concern that a
High Court Judge would be influenced, consciously or subconsciously, by
the passages at paras 16 and 17 of Ms Duffy's evidence-in-chief when it
is conceded they are inadmissible.
Result
[16] The application to
strike the passages from the record is declined.
Timetable directions
[17] The one day fixture
allocated for 21 September 2010 is confirmed.
[18] The time for the second
defendant to file and serve any affidavits is extended to Friday 20
August 2010. In the event the second defendant elects not to file any
affidavits then it will file and serve a memorandum confirming that by
the same date, 20 August 2010.
[19] Any affidavits in reply on
behalf of the plaintiff to be filed and served by 27 August 2010.
[20] The plaintiff's
submissions and authorities are to be filed and served by Monday 30
August 2010.
[21] The second defendant's
submissions/authorities are to be filed and served by 10 September 2010.
[22] I record that Mr Henry
also sought leave to file and serve a further affidavit if information
is obtained from Interpol. I decline to grant such general leave at
this stage. If Mr Henry obtains that information prior to the hearing
he will have to seek leave from the trial Judge for that further
evidence to be read and considered.
Costs
[23] Costs on the
application are fixed on a 2B basis to follow the outcome of the
substantive hearing.
Solicitor for the
plaintiff: Witten-Hannah Howard, North Shore
City (Auckland)
Solicitor for the
defendant: Crown Law (Wellington)