Wednesday, March 30, 2005
There is a difference between the Constitution of Trinidad and Tobago, and the New Zealand Bill of Rights Act 1990, in that the former expressly provides that a person may apply by way of originating motion to the High Court for redress for breach of rights, without prejudice to any other action in respect of the same matter which is lawfully available. No equivalent exists in the latter. However, the NZBORA does not exclude a constitutional, as distinct from a private law, remedy. The question becomes one of whether the court can create a constitutional remedy for breach of constitutionally protected rights.
Professor Jim Evans has doubted the correctness of Baigent’s Case, in which a constitutional remedy was created: "What Does it Mean to Say Someone Has a Legal Right?" (1998) 9 Otago Law Review 301. In Brown v Attorney-General (discussed in these blogs, March 6, 2005) a majority of the Court of Appeal doubted, obiter, and without citing Professor Evans’s article, whether constitutional remedies should be available for breach of the right to a fair trial. The question can therefore be said still to be open.
The judgment of Thomas J, endorsed by the Privy Council, includes the following observations:
 Baigent’s Case established a new cause of action and remedy in compensation for a breach of the Bill of Rights. It applies, not only where there is no existing cause of action, but also where the existing cause of action and consequential remedy is inadequate. The focus is on the inadequacy as well as the availability of the cause of action. Consequently, to seek to restrict the remedy provided by Baigent’s Case to situations where there is no existing common law cause of action is not in accord with the ratio of the majority decision in that case. Furthermore, such claimed exclusivity runs counter to the fact that a number of causes of action deriving from statute or common law can and do exist concurrently and frequently overlap.
 Nor is the attempted exclusion particularly logical in that the cause of action under the Bill of Rights does not duplicate the common law cause of action. As I emphasise below, the common law cause of action is a private remedy to redress a private wrong. The cause of action under the Bill of Rights is a public law remedy based on a right in the nature of a public right. The Crown’s liability is not vicarious as it would be in tort. Its liability arises directly from the fact that in affirming fundamental rights in the Bill of Rights, the State has undertaken a constitutional obligation to respect, protect and vindicate those rights. Why, then, when the State has failed in that obligation should that essentially different public law remedy lie dormant if there is an equivalent common law private law civil action, and only arise from its torpor if and when there is no such cause of action? What is there in this public law remedy which would restrict it to such a back-up role? How can it be said that the elements of this public law remedy will only exist when the plaintiff has no common law remedy but not when he or she has such a remedy? Are we to pretend that the public law factors in respect of a breach of the Bill of Rights only arise where by fortuitous happenstance there is no equivalent private law remedy? Is there some policy consideration which is yet to be disclosed?
 I prefer to accept that Baigent’s Case established a new remedy for a violation of the Bill of Rights and that the key question which arises is not whether a remedy is available for that violation, but whether the existing private law remedies are adequate to provide an effective remedy for such a violation. Contrary to the Crown’s submission, I take the view that existing private law remedies are inadequate to vindicate those rights, and I turn to the critical need for such vindication.
 Compensation will not be effective to vindicate and affirm the right which has been violated, however, unless the quantum of the award recognises that a fundamental right possessed by the plaintiff has been denied. It follows that the award cannot be simply equated with damages for "equivalent" breaches of common law torts such as wrongful arrest, false imprisonment, or the like. The focus of the Court is wider and must embrace the impact of the State’s violation of the citizen’s fundamental rights."
These observations are similar to those of the Privy Council on the topic of the ingredients of the constitutional remedy (para 19) in Ramanoop.
The critical question at the present stage is whether the court should "recognise" the existence of a constitutional remedy, or whether the court should conclude that the matter is one for the legislature, and that until Parliament creates a constitutional remedy there is none. Why, however, is this an issue, after the Court of Appeal’s decision in Baigent’s Case? The CA has traditionally been regarded as normally being bound by its own decisions. Exceptions exist, where the law has been shown to have been decided wrongly, or where changes in the needs of society make change in the law desirable. Has an error in Baigent’s Case been demonstrated? Have social needs changed? The new circumstance is the existence of the Supreme Court, which last year took over the role of the less accessible Privy Council. One might surmise that the CA is willing to revise its earlier decisions in the interests of getting issues before the SC for final determination.
Monday, March 28, 2005
For reasons of etiquette as much as of law, the Court refrained from calling its decision a "guideline" or "tariff" judgment, as the bench included only one permanent member of the Court of Appeal. Left for clarification is whether this guidance applies to class A drug offences other than those involving methamphetamine, especially the hallucinogenic drugs.
General points notable in Arthur are:
- The starting point for a sentence is determined, before taking into account matters of aggravation (such as relevant previous convictions) and mitigation (such as guilty plea).
- The sentencing principles in the Sentencing Act 2002 take effect once the starting point is set, unless for truly exceptional reasons a custodial sentence is not appropriate.
- The starting points set out in Arthur apply to offences of supply. Importing or manufacturing may warrant higher levels of sentence.
- The quantity of drug involved in the offending, although important, is not the only factor to consider, therefore there may be some overlap between the ranges of the starting points.
The ranges of appropriate starting points, based on those applicable in New South Wales, are:
- Low level supply, up to 5 grams, from 2 to 4 years’ imprisonment
- Commercial quantity supply, between 5 and 250 grams, from 3 to 9 years’ imprisonment
- Large commercial quantity supply, in excess of 250 grams, upwards of 8 years’ imprisonment
The Court noted that, for the low level offending, sentence ranges were similar to those that have recently been applied in the High Court.
We can be pleased that the Court refrained from repeating one of the hackneyed tautologies of deterrent sentencing: that in addition to setting the starting points high in the interests of general deterrence, the court places little importance on the particular circumstances of the individual offender. This is a tautology because setting sentencing levels by the requirements of general deterrence itself involves ignoring the particular circumstances of individual offenders; there is no need to ignore them twice, for on the second occasion they may be ignored at the expense of justice. That is particularly important because, even under a regimen of general deterrence, some movement back from the higher levels of sentence may be required in the interests of justice to acknowledge the particular circumstances of an individual offender.
Update: Subsequently, in R v Fatu CA415/04, 18/11/05, guidelines for methamphetamine dealing (manufacturing, importing, supplying) were set down, based on the Arthur levels but with increases to reflect the greater seriousness of importing and manufacturing as compared with supplying. The Court used the quantity of drug, rather than its value, as the basic yardstick, and made no reference to ignoring the personal circumstances of the offender. The starting points set down were based on the seriousness of the offending, and recognition could then be given to the individual aggravating and mitigating circumstances. It is still not clear how broadly the mitigating circumstances personal to the offender can be construed under Fatu; traditionally these have been presence or absence of previous convictions and an early plea of guilty signifying remorse.
Friday, March 18, 2005
Lord Bingham, delivering the leading opinion on the issue of duress – the common law version of coercion – observed that duress is akin to the defence of necessity, which applies to threats which are not of human origin but rather consist in the force of extraneous circumstances (para 19). Given that non-human perils are in the domain of necessity (a common law defence in New Zealand), and threats by humans are in the domain of duress (a common law defence in the UK), duress is only a common law defence in New Zealand if it is not covered by the statutory defence of compulsion. Is, therefore, the common law defence of duress wider than the statutory defence of compulsion?
Hasan suggests that it is not. Lord Bingham tightened the criteria for the operation of duress (para 22, for reasons he set out in paras 18 – 20), and indicated that circumstances falling short of being a defence might appropriately be considered as mitigating sentence.
The issues on duress in Hasan were decided by holding that the defence is not available if there was a reasonable (not merely a subjective) risk of exposure to threats, and that such threats were not limited to those directed at the commission of the type of crime that was actually committed. A reasonably appreciable risk of being exposed to threats directed at the commission of an offence, as a result of the defendant’s having associated with the person who makes the threat, would thus make the defence unavailable. The other narrow limits to the defence of duress were set out in para 21. The position of undercover officers was deliberately left for future determination, and Lady Hale would have made some allowance for defendants in battered spouse relationships.
In Kapi v MOT (1991) 8 CRNZ 49 (CA), at 57, the Court said, of the possible defence which it referred to as "necessity":
"We consider on the authorities cited to us that a defence of necessity, if available in New Zealand, requires at least a belief formed on reasonable grounds of imminent peril of death or serious injury. Breach of the law then is excused only where there is no realistic choice but to act in that way. Even then the response can be excused only where it is proportionate to the peril."
To the extent that the threats in Kapi were of human origin, the Court should be taken to be referring to the mooted common law defence of duress of circumstances, as necessity is limited to non-human threats. But further, if the common law defence (called duress, but, as is implicit in Hasan, synonymously duress of circumstances) is as constrained as indicated in Hasan, then the relevant defence in Kapi was the statutory defence of coercion.
In Police v Kawiti  1 NZLR 117; (1999) 17 CRNZ 88, Salmon J, the defence is properly called necessity, not duress of circumstances.
The statutory elements of coercion can, on facts which substantiate lack of moral fault, be interpreted liberally. In R v Jones  EWCA Crim 1981, at para 51, it was pointed out that the requirement of immediacy of threatened serious harm would not be so restrictive so as to exclude, for example, harm that was inevitable albeit not immediate.
Monday, March 14, 2005
The joint judgment of Gleeson CJ, Gummow, Hayne and Heydon JJ, at para 84, highlighted the need to provide the best and safest system of determination that is compatible with human frailty. (Contrast, the standard of excellence referred to by Hammond J in Lei v Chamberlains.) McHugh J, concurring, stressed the professional consequences of misconduct and the duties owed by the barrister to the court. Callinan J, also concurring, noted that the common law tends to change incrementally, and it would be undesirable to make barristers liable for not pursuing apparently weak points on appeal just because of the possibility of a change in the law. Further, it would be unfair to continue protecting judicial error if barristers’ protection were to go. Kirby J dissented, fundamentally because other jurisdictions did not consider they needed to retain the immunity.
Plainly, when the New Zealand Supreme Court considers the matter, the desirability of our law being consistent with that of Australia will be an influential consideration.
Friday, March 11, 2005
Not every error by counsel at a criminal trial gives rise to a miscarriage of justice. For example, decisions may be made for tactical reasons to avoid taking every possible objection to the admissibility of evidence. This was recognised by the High Court of Australia in Ali v R  HCA 8 (8 March 2005), per Gleeson CJ at para 9, Hayne J at 23, and Callinan and Heydon JJ at 98 and 99. On the other hand, while it may be difficult to point to a single critical error by counsel, an accumulation of circumstances may result in there being a miscarriage of justice, as occurred in R v Sharma (2003) 20 CRNZ 491 (CA). Would conduct of the kind that occurred in Sharma be sufficient to sustain an action for negligence?
As Hammond J said in Lai, at 181, the law should support a standard of excellence, although this was offered as a reason for applying negligence liability, not as a reason for holding counsel liable for anything less than excellence. In Sharma, such grounds for concern as there were, under this head, may have arisen from failure of senior defence counsel’s self-control due to the stress of the trial. Included in the causes of that stress may have been a personality conflict with the client during the trial. If there was negligence by counsel, was there contributory negligence by the client? Furthermore, in Sharma the overturning of the convictions was partly caused by judicial error in receiving verdicts before questions from the jury had been answered (or without establishing that the jury no longer required such answers). To what extent should that error reduce any liability for negligence that might otherwise have attached to counsel?
Sunday, March 06, 2005
Five judges heard the appeal in Brown. All agreed in the result, four judges jointly, and William Young J delivered a separate judgment in which he preferred to decide the matter of the availability of compensation rather than, as the other judges had, leave it open. The appeal from the refusal of compensation failed.
The joint judgment, delivered by Chambers J, held that the State (in the form of a District Legal Aid Sub-committee, referred to as the DLSS) did not breach Mr Brown’s right to a fair trial. This was so because the decision it reached, not to cover the costs of a DNA analysis that the defence sought to have conducted in Australia, was reasonable on the information before the DLSS at the time the decision was made.
Two concerns might be entertained about this approach. First, was the DLSS obliged to give reasons for its refusal to allow the costs? It is not clear from the judgment whether the DLSS did seek additional information or advise counsel for the defendant of what might have strengthened the claim. Much of the joint judgment is concerned with the inadequacy of the information placed before the DLSS by counsel for Mr Brown. A failure to give reasons would, of course, only be significant if it would have led to a different decision. This brings us to the second concern.
Were the results of the tests that were sought to be conducted likely to be of significance for the defence? The joint judgment (para 64, 85, 90, 98) assumes that the results would not have been significant. Essentially, the defence sought to establish that the accused’s DNA was not present on a shirt worn by a robber, and that therefore he was not the robber. The Crown accepted that there was no DNA which could be proved to have come from the accused on the shirt. The joint judgment concluded that it was unlikely that further testing would have produced any results, let alone decisive results (para 85, points (b) and (c)), saying that the absence of Mr Brown’s DNA took the matter nowhere.
Well, one might respectfully wonder about that. If the most sensitive testing then available could not find evidence that should be there if Mr Brown had worn the shirt, that fact would have significant probative value in favour of the defence. This can be seen from an application of Bayes’ Theorem. The critical point is, how likely is it that the robber’s DNA would have been detectable on the shirt? Scientists have an obligation to consider matters such as that (see Robertson and Vignaux, Interpreting Evidence, 1995, pp 76 – 77). If the robber’s DNA should have been there, and especially if DNA was there but it wasn’t Mr Brown’s, then the likelihood of Mr Brown being the robber was diminished. [Update: in dismissing the application for leave to appeal this decision, Brown v Attorney-General  NZSC 59, 29 August 2005, the Supreme Court noted that the evidence was that a significant proportion of the population do not secrete DNA in their sweat. The SC held that there was no evidence that the absence of the tests that the defence had requested caused any loss to the appellant.]
Applying Bayes’ Theorem involves comparing the probability of obtaining the evidence (that Mr Brown’s DNA was not detected) assuming that he was guilty, to the probability of obtaining the same evidence given that he was not guilty. The ratio of these probabilities (the former divided by the latter) is called the likelihood ratio. If the accused was not guilty, then the probability of the "none of his DNA" result would be 1. The denominator of the likelihood ratio would be 1. The numerator is therefore the critical thing: what is the probability that the robber would not leave detectable DNA on the shirt? That is the critical point on which the DLSS should have been informed (or, on which it should have sought information).
If there was a chance of, say, one in ten that the robber could have worn the shirt without leaving DNA on it, then the likelihood ratio would affect the likelihood of guilt compared to the likelihood of innocence, by a tenth. That, one would have thought, should have been sufficient to raise a reasonable doubt and thus be grounds for a verdict of not guilty.
A weakness of the joint judgment in Brown is, therefore, its emphasis on the results of the proposed tests being unlikely to assist the defence.
This is not to say that the Court was wrong to reject compensation as a remedy for breach of the right to a fair trial. While the joint judgment leaves the point open, it does acknowledge the matters referred to by William Young J at paras 126 to 142 of his judgment. Even if there had been a breach of his right to a fair trial, Mr Brown’s remedy was through the appeal process (obtaining a quashing of his conviction and, perhaps, a retrial). The most persuasive reason for this conclusion is the difficulty in distinguishing cases of ordinary error at trial, cured by appeal, from errors that merit the constitutional remedy of compensation from the Crown. After all, there will be overlaps. An erroneous direction to the jury on the applicable law, curable by appeal, deprives the accused of the right to a fair trial. And misconduct by agents of the State is normally remedied by exclusion of evidence or stay of proceedings, not by compensation. There is therefore a question over the future of Simpson v Attorney-General (Baigent’s Case)  3 NZLR 667 (CA), at least to the extent that it might have been thought to be applicable, beyond its facts, to cases where the rights that are breached belong to a person who is, consequently, charged with an offence.
Two aspects of William Young J’s agreement on the issue of breach of rights leave cause for concern. At para 124 he assumes that the accused would not have himself paid the costs of the tests, had he had the funds to do so. A person of even ordinary financial means would probably think anything around $10,000 (the tests here were likely to have cost much less) to be a wise investment, in view of the prospect of 9 years’ imprisonment (the sentence Mr Brown received). Secondly, William Young J says (para 125) that the appellant’s approach to the equality of arms argument was selective: results favourable to the prosecution should have been disclosable if the tests had been allowed. This, with respect, is a dangerous suggestion. If the tests had been privately funded, any results unfavourable to the defence would certainly not have been disclosed to the Crown, so why should an impecunious defendant be in any different position just because the State is funding his defence?
Thursday, March 03, 2005
An example of constrained interpretation of rights is the holding in R v Mallinson  1 NZLR 528; (1992) 8 CRNZ 707 (CA) that the police do not have to facilitate the exercise of the suspect’s right to legal advice right unless the suspect indicates a wish to exercise it. On that approach, the right only covers informing the suspect of the existence of the right, which, indeed, is following the letter of the New Zealand Bill of Rights Act 1990. There is, according to Mallinson, no need to tell the suspect how the right might effectively be exercised; in particular, there is no need to tell the suspect about the existence of a list of lawyers who make themselves available free of charge for the purpose of giving advice, and of private access to a telephone.
Fortunately, there has been a widening of perspective since then. Mallinson was decided by five judges, but a 3 judge bench in R v Kai Ji  1 NZLR 59 (CA) held that telling the suspect of the availability of free legal advice was integral to the existence of the right to be informed of the right to consult a lawyer under s 23(1)(b) of the Bill of Rights. This change in approach reflected the introduction of the statutory Police Detention Legal Assistance scheme in the Legal Services Act 2000, which established in statutory form a practice that had existed when Mallinson was decided.
The Privy Council has extended the right to legal advice to those who are arrested, not on suspicion of committing an offence, but for non-payment of fines: Ramsarran v Attorney-General of Trinidad and Tobago  UKPC 8 (28 February 2005). The social utility of the right is apparent (para 11):
"In their Lordships' view the fundamental reason why section 5(2)(c) covers cases of non-payment of fines is that it is necessary to ensure that persons incorrectly arrested or detained for reasons other than suspicion of having committed a criminal offence have an effective and practical means of securing their release as soon as possible. That may be illustrated by the case before the Board. If the appellant had been informed of his right to legal advice and had been given the necessary facility to contact a lawyer, the lawyer could have lent his weight to a demand that the records be checked forthwith for payment of the fine, and could have made a speedy habeas corpus application if this did not secure the appellant's early release. One would have expected that a lawyer's intervention would have effected the appellant's release long before three days had elapsed. One may readily envisage other cases in which access to legal advice would be of material assistance to a person arrested and detained. In a case of mistaken identity he may be arrested for non-payment of a fine imposed upon another person. It is possible to envisage other occasions apart from pretrial situations on which unjustified arrests might take place. In none of them could it be said that the requirement of access to legal advice would be unnecessary, let alone "farcical", as Sharma JA suggested. On the contrary, it seems to their Lordships that it would constitute a very real help in time of trouble."