Sasha Borissenko: Russell McVeagh misconduct charge case raises hearsay evidence issue

This week a legal practitioner will appear before a National Standards Committee at the District Court in Wellington. The practitioner has been charged with eight charges of misconduct or (alternatively) unsatisfactory conduct.

The charges relate to alleged conduct at two Christmas functions “some years ago” when the practitioner was with Russell McVeagh in Wellington. Various forms of sexual misconduct have been alleged. The first five charges relate to an office Christmas function, and the remaining three charges involve events that occurred at a “team” Christmas party held at the practitioner’s home.

In advance of this week’s hearing, a National Standards Committee sought a ruling before the Lawyers and Conveyancers Disciplinary Tribunal on whether hearsay evidence could be used against the practitioner.

Held in March, the alleged victim had never made a written statement to the Law Society, a Legal Standards Officer, or to the person appointed as an investigator for the committee. “Indeed, she has, through her barrister, Maria Dew QC expressed an overt desire not to participate,” the decision reads.

The alleged victim had spoken about an incident to four other females and one male in close proximity to the alleged event. The committee sought to introduce evidence of the statements made to the five confidants to support the allegation of sexual misconduct.

“No criticism can be (or is) made by us in relation to her decision not to provide a statement to the society, or to give evidence before the tribunal. However, we must approach the hearsay question on the basis that she will not give evidence, and assess the consequences as to admissibility which flow from that.”

In a legal context, the Lawyers and Conveyancers Act 2006 says a tribunal may receive any statement that may, in its opinion, assist it to deal effectively with the matters before it, irrespective of whether the statement would be admissible in a court of law. The Act also specifies that a tribunal must, in performing and exercising its function and powers, observe the rules of natural justice.

Cue the case of W v Health Practitioners Disciplinary Tribunal, which has changed the game so-to-speak. In the 2019 High Court case, the evidence in question related to an existing statement by a complainant. The issue was whether, if the complainant did not give evidence before the tribunal, might their hearsay statements be admitted under the Evidence Act or under the admissibility provision under the health-equivalent of the Lawyers and Conveyancers Act.

The High Court held a two-stage approach in determining whether the hearsay evidence should be admitted, which was upheld at the Court of Appeal last year. The tribunal had to assess whether the evidence would be admissible under the Evidence Act, but nonetheless in its discretion, it could admit evidence if it would assist the tribunal to deal effectively with the matters before it. Essentially, if the evidence doesn’t meet the standards prescribed in the Evidence Act, the tribunal had discretion to use it, but it had to be exercised judicially (with care). In exercising its discretion, the tribunal had to take into account the following: the professional body’s principles and purposes, the circumstances of the case, and the importance of the principles – namely natural justice – underlying the Evidence Act.

Under the Evidence Act, a hearsay statement is admissible if the circumstances are such that the statement is reliable, and either the maker of the statement is unavailable as a witness, or if the judge considers that undue expense or delay would be caused if the statement maker were required to be a witness.

A person must be dead, outside New Zealand, un-compellable, or unfit to be a witness because of age, physical or mental condition in order to meet the standard of “unavailable”. Additionally the court must consider whether the evidence will “have an unfairly prejudicial effect on the proceeding”.

In criminal trials, a judge must take into account the right of the defendant to offer an effective defence – or cross examination of said evidence, in other words. In the W case it was found that the hearsay evidence was inadmissible under the Evidence Act, and the matter was sent back to the tribunal to decide for a second time. The case is ongoing.

In the Russell McVeagh case, the tribunal followed suit. “[The alleged victim] is both competent to give evidence, and compellable. There is no medical evidence to demonstrate that the alleged victim is unable, by virtue of her present mental state, to give evidence.”

“If she were called to give evidence, it is possible to ameliorate the trauma of giving evidence by adopting the use of screens or CCTV to shield her from the practitioner. We understand that those options have been explored with the alleged victim, but she continues to decline to participate in the evidential process. For those reasons, the hearsay statements are inadmissible under s 18(1) of the Evidence Act.

“Sadly, there are many cases of sexual abuse that are heard throughout the country every day and, despite the obvious trauma caused to victims, they are expected to give evidence to support the allegations of fact made against an accused person.

“The availability of alternative means of giving evidence and the ability to have a support person present are intended to protect a complainant as much as possible. We would have had no hesitation in directing that evidence be given in an alternative way, in a closed hearing room and in the presence of a support person.”

Interestingly the committee decided not to issue a subpoena to compel the alleged victim’s attendance before the tribunal, and gave no justification as to why.

Nonetheless, one could argue that equating professional standards with criminal law standards is problematic. The practitioner in question may lose their practising certificate, but seeing as it’s not a criminal proceeding, the penalties are far less severe.

It begs the question, if the evidence rules for professional body hearings continue to align with criminal proceedings, what’s the point in having two different jurisdictions?

And to impose the “unavailability” standards, it means you pretty much have to be dead otherwise you’ll be compelled to come to court. To be compelled to court to relive one’s trauma – via audio link or not – seems contrary to what these professional bodies are designed for – to protect those with less bargaining power, and to make sure the alleged offending doesn’t happen again.

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