Thursday, February 17, 2005

Miscarriage of justice, or inconsequential error?

When can an appellate court hold that, notwithstanding an error at trial, conviction of the accused was not a miscarriage of justice?

The difficulties in deciding this issue are illustrated by the 3-2 split in the Privy Council decision Dial v The State (Trinidad and Tobago) [2005] UKPC 4 (14 February 2005). The appellants were seeking to overturn convictions in respect of which they had been sentenced to death.

I have, in the last entry on this blog, pointed out that the implications of there being no power to direct juries to convict (R v Wang [2005] UKHL 9, 10 February 2005), have some relevance to this issue. Wang emphasised the fundamental point that at trial, it is the jury that carries out the function of applying the law to the facts. But from the perspective of a court of first appeal, the view is slightly different. Where there is a second appeal, the court’s function may again be seen differently.

The majority in Dial described the approach of a court of first appeal as follows (para 42):

"…the question arising for the Appeal Court's determination is whether [new evidence, or an error at trial] realistically places the appellant's guilt in reasonable doubt - whether, in other words, the verdict is now to be regarded as unsafe. That necessarily must depend upon all the evidence in the case." [emphasis in the judgment]

On second appeal, the court looks at whether the first appellate court considered the relevant matters and whether it was accordingly entitled to reach the conclusion it did. While the majority in Dial (Lords Bingham, Carswell and Brown in a joint judgment) held that the appellate court’s conclusion should be sustained, the minority (Lords Steyn and Hutton in separate judgments) disagreed. Lord Steyn (para 54) held:

"Nowhere in … the judgment, does the Chief Justice [of Trinidad and Tobago] pause to consider how the jury (or a reasonable person circumstanced as the jury were) would have viewed the potential impact of the [fresh evidence]. That was an issue which the Court of Appeal as a matter of legal principle should have squarely faced. The Court of Appeal did not do so. It is a fundamental flaw in the judgment. In these circumstances it is not appropriate to defer to the Court of Appeal as the court who heard the new evidence."

Lord Steyn concluded with a caution for appellate courts:

"64. It is always important for a judge to bear in mind what Justice Learned Hand in his famous address during the Second World War, in Central Park, New York City, called the spirit of liberty. He said that the spirit of liberty is the spirit which is not too sure that it is right. The need for such an approach is immeasurably increased where the issue at stake is killing a man by the cruel and barbaric punishment of the death penalty. This spirit is not evident in the judgment of the Chief Justice. Instead his judgment is expressed in certainties and absolutes with some questionable and speculative assumptions in favour of the state."

Lord Hutton, also dissenting, referred to the law on how the court of first appeal should approach the matter:

"74. In R v Pendleton, at para 19, [2002] 1 WLR 72 the House of Lords affirmed that the guiding principle is that stated by Viscount Dilhorne in Stafford v Director of Public Prosecutions [1974] AC 878 at 906:
"While … the Court of Appeal and this House may find it a convenient approach to consider what a jury might have done if they had heard the fresh evidence, the ultimate responsibility rests with them and them alone for deciding the question [whether or not the verdict is unsafe]."
"In R v Pendleton, at para 19, Lord Bingham of Cornhill stated:
"The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the trial jury to convict. If it might, the conviction must be thought to be unsafe." "

This reflects the inevitable distance of the appellate courts from the witness box. Furthermore, as evidence is recounted and digested on appeal, errors may creep into the narrative. Lord Steyn, at para 63, points out how the majority apparently allowed this to happen in their reliance on prosecution evidence which had not, in fact, been given. "The reliance on this factor in the majority judgment is unjustified and a failure of due process."

When the court of second appeal finds an error of reasoning in the court of first appeal, the court of second appeal carries out the exercise as it should, in its view, have been done. We can only guess what the majority in Dial would have concluded had it found an error in the court below, and had the majority not (assuming Lord Steyn’s due process criticism is correct) made a mistake about the extent of the prosecution evidence.

There are lessons to be learnt from Dial, and they include the danger of an appellate court being dogmatic about the facts of the case. An analogy that I suggest is useful is with the approach that a trial judge takes to submissions of "no case": R v Flyger [2001] 2 NZLR 721; (2000) 18 CRNZ 624 (CA). This, of course, is only an analogy in a loose sense, calling for lateral thinking rather than direct transposition of concepts. The question on a no case submission is whether there is evidence which, if accepted, would be sufficient to support a conviction. This might be transformed into an appropriate question on appeal where miscarriage of justice is in issue: if the error had not occurred at trial (or, as the case may be, if the fresh evidence had been available), could there have been stronger grounds for acquitting the accused than there had been at the flawed trial?

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