Monday, January 01, 2018

Posner gives us some holiday reading

It is impossible to have more fun than to spend a little time in the holidays reading Richard A Posner, Divergent Paths: The Academy and the Judiciary (Harvard University Press, Cambridge Mass., and London, 2016). Here is a snippet (p 13):

“Law schools will do almost anything to boost their ranking in U.S. News & World Report, which treats faculty-student ratio and number of library books as plus factors in the ranking, though they have little (library books virtually nothing) to do with the quality of legal education.”

And on the topic of judicial embrace of multifactor tests as aids to judicial decision making, which Judge Posner calls a common pretense of analytical rigour in adjudication, (p 117):

“Not only is the list of factors usually open-ended and therefore incomplete, but the factors are rarely given weights, and so unless all line up on one side of the dispute no decision can be derived from them; they are window dressing.”

And as a federal appellate judge, Posner has this to say about judicial disagreements (p 235):

“The problem of feuding federal judges would be solved in a trice if the Chief Justice summoned them to his office in Washington and told them to stop behaving like children.”

Well, I’m not trying to summarise what Posner says in this endlessly interesting book. We who are not Americans can easily see its relevance to our own legal environment.

Posner, who, to put it mildly, is one of the more intelligent judges, embraces Bayesian reasoning with conditional probabilities. A small glitch – surprising and ironic - occurs on pp 338-339 (if my Kindle's pagination is correct) in his illustration of why lawyers need to be able to understand DNA evidence. But never mind.


I have, over the years of writing this blog, referred to Posner on several occasions. His fearless brilliance is an inspiration for jurists, and his enthusiasm brings both joy and outrage. And laughter.

Saturday, October 28, 2017

Provoking thought - a new issue of NZCLR

You can, on reading a new issue of a law journal, be provoked into thought. Not always, but the latest New Zealand Criminal Law Review, [2017] NZCLR 152-313 (freely available at the New Zealand Criminal Bar Association website) is a positive example.

I have found myself wondering about the following things:

Ink molecules stuck in paper fibres, bits and bytes: is the medium the message?

Is an electronic file a document? Why shouldn’t it be? Should the word “document” in a statute be construed electronically or functionally? In Dixon v R [2015] NZSC 147 the Supreme Court took a functional approach. It seems significant to me that the Court applied s 6 of the Interpretation Act 1999, which simply provides: “An enactment applies to circumstances as they arise.” This is the “always speaking” quality of enactments, discussed from an Australian perspective in a case note on Aubrey v The Queen [2017] HCA 18, by Dan Meagher. It matters not that at the time legislation came into force there were no electronic documents, because the question is whether in the relevant statutory context and in the light of its purpose, the word “document” should include an electronic file. This is the functional approach. Whether an electronic file actually exists in a determinable location is irrelevant to a functional approach. If the file can be read, saved, shared, and in some cases edited or annotated, it functions as a document.

The habit that lawyers have of finding difficulties where there are none can impede the social utility of legislation. In seeking to give effect to legislative intent the courts will try to keep the law as simple as possible. There is a risk that scholarship in a new area of law will, in anticipating judicial decisions, needlessly divert attention to irrelevancies. I am not saying that it has here, just that it might have.

We can’t be wrong about ourselves (can we?)

Another thing I have been provoked into wondering about is the inherent jurisdiction of courts. If the highest court in a hierarchy rules that inherent jurisdiction on a particular point exists, then that must necessarily be correct, unless the court failed to notice legislation that expressly excluded such jurisdiction. Where the highest court considers relevant legislation and interprets it as being consistent with the existence of an independent inherent jurisdiction, then that is the law. What point is there in arguing that the court was wrong?

This arose in discussion of Marwood v Commissioner of Police [2016] NZSC 139. There, the Supreme Court held that in a civil action for forfeiture of criminal proceeds a court has an inherent jurisdiction to exclude improperly obtained evidence. Prior to that it had been conventionally thought that in a civil case there is no jurisdiction to exclude improperly obtained evidence except in extreme cases. Central to the issue was the implications of s 30 of the Evidence Act 2006, which provides for when improperly obtained evidence may be excluded in criminal cases. The critical words are “This section applies to a criminal proceeding”. Does that mean there is no exclusion in civil cases, or is s 30 just setting out the method for the decision in criminal proceedings and being silent as to civil proceedings? The Supreme Court effectively answered those questions in Marwood.

Arguments about whether there should continue to be the inherent jurisdiction recognised in Marwood should now be addressed to the legislature, not to the courts. They will be policy arguments, not fine-grained arguments about statutory interpretation. And they would probably end up by concluding that a total prohibition on exclusion of improperly obtained evidence in this sort of civil case would be wrong, but that a statutory framework for the decision process, analogous to s 30, might be appropriate. It may not be, because the inherent jurisdiction gives the courts flexibility to develop a process appropriate to the needs of cases as they arise.

Are good people better than ordinary people?

This issue of the journal includes a clear and comprehensive summary of an important case on when recklessness is a component of mens rea. There are suppression orders still in place, so I don’t give the citation. But I would be more confident than the author of the case note seems to be that the decision applies generally, wherever an offence is not of absolute or strict liability but where liability is not expressly limited to intent or belief. I would also wonder why the court needed to say that a person is not reckless if they are honestly doing their best to comply with the law. Just unreasonably taking a known risk is the conventional way of describing recklessness. Has the threshold for recklessness been raised by requiring people to do “their best” to comply with the law? Why is compliance with the law mentioned at all, when the traditional definition of recklessness simply asks whether the defendant's action in taking the known risk was reasonable? Don’t ask. Is "doing one's best" to comply with the law compatible with the taking of any risk of breaking the law? There is potential for jury confusion and requests for further explanations of the relationship between what it was reasonable for the defendant to have done and what a reasonable person doing their best to comply with the law would have done.

A good book about bad things


The journal includes book reviews, and I was pleased to favourably review Robert J Frater QC’s Prosecutorial Misconduct (2nd ed, Thomson Reuters, Toronto, 2017). Editing has its perils: why did the editors changed my correct reference in footnote 19 to the ONSC to make it an incorrect reference to the ONCJ?

Monday, October 09, 2017

Are obvious opinions irrelevant or just unhelpful?

A witness who gives the court an opinion may have no better information than that already available to the court, and may be in no better position to come to an opinion than the fact-finder.

In such a case the admissibility of the witness’s opinion is (in New Zealand) governed by ss 23 – 25 of the Evidence Act 2006. Evidence of an opinion is not admissible in a criminal case except pursuant to ss 24 and 25.

Section 24 provides:

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived.

Where the fact-finder is in just as good a position as the witness to form an opinion, the s 24 requirement of necessity is not met. Section 24 does not, in such a case, allow the opinion to be given in evidence.

Sometimes a witness will have specialised knowledge, not available to the fact-finder, on which an opinion is based. Then the admissibility of the opinion will be governed by s 25. Subsection (1) provides:

An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

The definitions of opinion, expert, and expert opinion in s 4 are explanatory and consistent with ordinary usage.

Merely satisfying the criteria in ss 23 or 24 does not render opinion evidence necessarily admissible, as it may be excluded by another provision of the Act, such as s 8 (prejudicial effect exceeding probative value).

In a recent decision, currently suppressed ([2017] NZCA 430), our Court of Appeal has held that another section that may apply to exclude opinion evidence that does not go further than the fact-finder can go without the witness’s opinion, is s 7. This is headed “Fundamental principle that all relevant evidence admissible”, and reads:

(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

In effect, the Court of Appeal has read words into subsection (3), as if it read (adding the blue words):

(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything and is capable of assisting the fact-finder in determining anything that is of consequence to the determination of the proceeding.

The Court drew that from dicta requiring evidence to  be reasonably capable of supporting the fact in issue: Bain v R [2009] NZSC 16 at [40].


I do not think that it was necessary for the Court of Appeal to read words into s 7. An opinion, as defined, on a fact in issue will necessarily be relevant, unless it is equally consistent with proof, as with disproof, of the fact in issue. It will have a tendency to prove or disprove something of consequence to the determination of the proceeding, just as the fact-finder’s opinion will. The point is that, in the case that has given rise to this discussion, the witness’s opinion had no more probative value than the opinion that the fact-finder could come to independently. It was relevant, but inadmissible because it did not satisfy the requirements of ss 24 or 25: it was not “necessary” and it was not likely to give the fact-finder “substantial help”.