As predicted in these blogs on 25 August 2004, the Supreme Court of New Zealand has upheld, in Siloata v R 16/12/04, SC CRI 8/2004, the primacy of the requirement of jury unanimity in the face of a statutory presumption of guilt in the absence of proof by the defence to the contrary. The Court of Appeal (in a judgment delivered by the President) had held that where this presumption applies, if the jury cannot agree on their verdict the accused must be convicted because he has failed to rebut the presumption of guilt. That is, according to the Court of Appeal, there was no room for a "hung jury" once the presumption of guilt applied. This view of the law has been corrected by the Supreme Court. It held that where the jury is not unanimous as to whether the accused has rebutted the presumption of guilt, there is no verdict.
In doing the count, if there are any "don’t knows", these go on the side of the guilties, because getting to the line (the standard of proof on the defence) is not crossing it. Thus, 11 jurors in favour of acquittal, and one don’t know, amounts to a hung jury. This is preferable to the Court of Appeal’s approach, whereby 11 innocents and one don’t know would mean a guilty verdict.
I should point out that this decision does not depend for its validity on the requirement that verdicts must be verdicts of all 12 jurors. If that requirement were to be changed, so that a majority of, say, 10 would be sufficient for a verdict, then the Siloata interpretation is that in such a case there must be unanimity among 10 jurors: 10 thinking the accused has satisfied the burden of proof means a "not guilty" verdict; 10 thinking he has not met the burden (or some or all of the 10 being unable to decide whether he has or not, ie being on the line) means "guilty", and less than 10 being sure that he has, or has not, met the burden means a hung jury.
While the law was corrected in Siloata, the result of the case was dismissal of the appeal, because the way the judge had directed the jury at trial must have left them with the correct impression, namely that they must be unanimous in order to have arrived at a verdict. The error in the case had been introduced at the Court of Appeal level, not at trial. Although in this case it might be thought that the defence had won the battle but lost the war, because the conviction was upheld, on a broader perspective, this is a case of the defence losing the battle (this case) but winning the war (getting the law corrected). It must be acknowledged that the Crown did not oppose the correction, simply contending that there had been no error at trial.
It is impossible to devise a legal system, involving a hierarchy of courts, where there will not be the possibility of introduction of errors at each level. Inevitably, with time, there will be the occasional instance of error in the decisions of the Supreme Court, just as there has been in the House of Lords and the Privy Council. It is important that the Supreme Court should regard itself as free to depart from its own precedents when they are shown to have been wrong.
The point considered by the Supreme Court in Siloata was very narrow. There are dangers in looking too narrowly at the law. Montaigne, in "On Experience" (Essays, Book 3 Chapter 13) reminds us of Seneca's observation (Letters LXXXIX): "Anything that is divided into minute grains becomes confused." One might respectfully wonder whether it was appropriate to restrict the issues in this case so as to exclude the important matters of (1) whether the standard of proof on the defence to rebut the presumption of purpose should remain at balance of probabilities, when human rights law favours the lower standard of raising a reasonable doubt, and (2) whether the jurors have to be unanimous on the issue of possession of a minimum quantity of drug before any of them can use the presumption of purpose in their reasoning towards a verdict, when usually the requirement for unanimity permits individual jurors to determine facts for themselves as they work towards a decision. This second point is explored in more detail below.
An aspect of the law concerning use of the presumption was not considered in Siloata because the accused had conceded possession of the quantity of drug necessary to raise the presumption of purpose of supply. This aspect is, does the presumption only arise if the jury unanimously find possession of the necessary quantity of drug, or can the presumption be used as a fact finding tool by any individual juror who is satisfied beyond reasonable doubt that the accused had possession of that quantity? It seems to have always been assumed that the jurors will all be in agreement about quantity before the presumption arises. Indeed, the requirement for unanimity, on whether the accused has satisfied the standard of proof to rebut the presumption, reflects this assumption. A perhaps unintended consequence is that, if one juror is not satisfied beyond reasonable doubt that the accused had possession of the necessary quantity of drug to raise the presumption of purpose, then none of the jurors can use the presumption in deciding the issue of purpose of supply. A preferable approach would, it is respectfully suggested, have been to regard the presumption as a fact finding tool available to those jurors who were satisfied on the issue of quantity; the jury has to be unanimous in its verdict but may reach that verdict by different routes.
I suggest that the presumption has developed an unfortunate mystique which has caused it to be misunderstood. The presumption is simply a fact-finding tool. It should be available for use by any juror who is satisfied that the criteria for invoking it are met. It is a separate matter from the requirement for jury unanimity in the verdict, and it is separate from the issue of standard of proof. Nevertheless, these considerations will all come together in the case. The effect of the presumption is to make it harder for the accused to avoid the conclusion, in the mind of any juror for whom the presumption is available in fact finding, that the drug was possessed for supply.
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