Fundamental difficulties

New Zealand has not been served well by the Privy Council in the last criminal appeal it will hear from this country. It is alarming that some of the most senior judges differ over recognising the fundamental attributes of a fair trial. In Howse v R [2005] UKPC 31 (19 July 2005) the Judicial Committee consisted of three Law Lords and two retired Lords Justice of Appeal, the Rt Hon Sir Swinton Thomas, and the Rt Hon Sir Andrew Leggatt. The Court split 3-2. Lord Rodger, the most senior of these Law Lords, dissented. The majority Law Lords were Hutton and Carswell. The other members were also divided, Sir Swinton Thomas being with the majority. The absence of Lords Bingham, Nicholls and Steyn from this Board could be said to significantly reduce the status of the case.

Fairness is a broad and not always easy to define concept. But lawyers like to attack such concepts and break them down. So, there are, I suggest, two kinds of trial unfairness. The first is procedural unfairness, and this may or may not give rise to the second kind, substantive unfairness. Alternatively, substantive unfairness may exist without there also being procedural unfairness. Either kind of unfairness amounts to a substantial miscarriage of justice, requiring the quashing of conviction and (usually) an order for a new trial.

Procedural unfairness occurs where the accused is deprived of the right to have the facts determined by an unbiased tribunal that applies the law correctly. By “unbiased” I mean to include juries that are not impartial because of some misdirection on the law by the judge. This might be, to give just a few examples, a misdirection on the use of propensity evidence, on the burden of proof, on the defendant’s right to silence, or on the need for caution in relation to particular evidence. Such errors could affect a juror’s assessment of the evidence against the defendant. These are not in the category of errors called substantive because they do not involve the ingredients of the alleged offence or, as one might say, the substance of the charge. More obvious procedural errors can occur before a trial, for example where there has been a failure of disclosure by the prosecutor, or where  an impropriety in the obtaining of evidence was such that the evidence was wrongly admitted at trial. There may, nevertheless, be some errors that do not give rise to unfairness if it can properly be said that they were of no consequence in the overall context of the trial. The critical issue in Howse was whether the errors that occurred were of no consequence in this sense.

Substantive unfairness occurs where the accused has, through errors at trial, or through the unavailability of evidence that subsequently comes to hand, been improperly deprived of a fair chance of an acquittal. For example, the jury may have been wrongly directed, or not directed at all, on the elements of the alleged offence, or on the burden and standard of proof, or on a defence. 

It would be wrong to confuse the question of fairness of either kind with the question of guilt. But in Howse the Privy Council majority did just that.

The majority in Howse thought that, because the properly admissible evidence of guilt was overwhelming, there was no substantive unfairness. They also held that there was no procedural unfairness because the errors were inconsequential, and therefore the trial was fair.

The minority in Howse carefully analysed the significance of the improperly admitted evidence in the context of the trial. The Crown had decided to run its case relying on motive to establish that the accused, and not his partner, was the murderer. The Crown had obtained a pre-trial ruling that evidence of motive was admissible, and, bearing in mind the importance of that evidence for the prosecution case, it was impossible (said the minority, para 68) for the Crown to now argue that the evidence was insignificant. The trial judge had referred to it as being significant when she summed up the case to the jury (para 65). In fact, the Court of Appeal held that the evidence of motive was inadmissible, and this finding was not challenged before the Privy Council. The minority held that the trial had been unfair because the accusation of motive, central to the Crown’s case, was not supported by any admissible evidence.

The majority reasoned that, if the errors at trial had not occurred, the Crown’s case was so compelling that a conviction was inevitable, therefore the trial had been fair. In the context of the case, said the majority, the errors were not radical or fundamental enough to deprive the accused of a proper trial (para 40).

A potential difficulty exists in the view of all members of the Board (paras 37 and 54) that a high threshold must be crossed before a finding of trial unfairness can be made. This, it is suggested, should not be taken to mean that a reasonably high level of unfairness will be tolerated before it amounts to a substantial miscarriage of justice. Rather, it should be taken to mean that the courts will scrutinise claims of unfairness very carefully before accepting that unfairness occurred.

Howse is a lesson in the dangers of emphasising substantive fairness at the expense of procedural fairness. The majority made the mistake of applying, to the issue of whether there was procedural unfairness, the criterion for substantive unfairness. There may always be a dispute over whether Mr Howse received "the kind of trial which the law expects that an accused should have" (para 47).

Proof and risks

Is there a difference, in terms of whether a standard of proof is applicable, between deciding whether a "fact" is proved, and deciding whether a "risk" exists?

One view is that a reasonable doubt may exist about the existence of a fact, and about the existence of a risk. Another view is that, while facts may be amenable to reasonable doubt, risks are matters of judgment to which application of a standard of proof is inappropriate.

An example of a "risk" is the risk that a prisoner will be a danger to the safety of the public if released on parole. Another example is the risk that a decision in the course of a trial, such as one concerning the admissibility of evidence, will result in unfairness to the accused. Is the risk of trial unfairness a matter for standard of proof?

Trial unfairness can arise if evidence is wrongly admitted. In particular, evidence that has been obtained unfairly may, if ruled admissible, result in an unfair trial. The approach taken in R v Noble 7/4/87, Eichelbaum J (as he then was), HC Wellington T4/86 was that where the accused establishes an evidential foundation for his claim that the evidence was unfairly obtained, the burden of proof shifts to the prosecution to prove beyond reasonable doubt that it was not unfairly obtained.

In contrast, there are some dicta to the effect that questions of admissibility are matters of judgment not amenable to any particular standard of proof (R v Marsh (1991) 7 CRNZ 465 (CA), R v Williams (1990) 7 CRNZ 378 (CA)), but these should not be taken as governing the approach to be taken where a factual foundation for admissibility is required. In Marsh the Court quoted its dictum on this point in Williams, and it is clear that the point was that what amounts to unfairness is a matter of judgment. In other words, when the Court has determined the facts, it must apply judgment to decide whether they amount to unfairness. Notwithstanding this, a reasonable doubt about fairness should lead to exclusion of evidence, as occurred in R v Te Huia 8/9/97, Gendall J, HC Napier T17/97, discussed in Mathias, "Unfairly observed rights" [1998] NZLJ 21. The Privy Council has required fairness to be proved beyond reasonable doubt, after considering and rejecting the (now obsolete) New Zealand prima facie exclusion rule: Mohammed v The State [1999] 2 AC 111 (PC): the prosecution must prove beyond reasonable doubt that there was no breach of rights, and (p 124) a breach of the right to a fair trial must inevitably result in the conviction being quashed. Consequently, it would be inappropriate to rely on the notion that fairness is a matter of judgment not amenable to a standard of proof.

The House of Lords has recently expressed views on whether a risk can be amenable to a standard of proof: Re McClean [2005] UKHL 46 (7 July 2005). On this point the relevant issue was whether a standard of proof applied to the judgment of the risk posed by a prisoner to the safety of the community. Lord Bingham, para 26, referred to cases in which doubts had been expressed about whether a standard of proof applied to the evaluation of a risk, but he concluded, para 29, that

" … In the last resort, any reasonable doubt which the Commissioners properly entertain whether, if released immediately, a prisoner would be a danger to the public must be resolved against the prisoner … "

This indicates that, when after considering the evidence, the tribunal is unsure, a standard of proof then is applicable to enable a decision to be made.

Lord Brown, agreeing, made the same point, para 103:

"…But even accepting that just occasionally the Commissioners may be genuinely unsure if such a prisoner can safely be released—the only situation in which the burden of proof assumes relevance—I for my part would unhesitatingly conclude that he should remain in prison rather than benefit from the accelerated release scheme…."

This is preferable to endeavouring to sustain fallacious distinctions between conclusions of "fact" and evaluations of "risk". Both, after all, are just conclusions, and both can be challenged by the question "how sure are you of that?"

"Starting points" for sentences

The starting point for a sentence is "the true point of comparison with other offending before individual aggravating and mitigating factors are taken into account. Fixing the starting point is the mechanism for seeking consistency in sentencing": R v Mako 23/3/00, CA446/99. The assessment of starting points is not capable of exact arithmetical gradation or scaling: R v Norfolk 27/8/01, CA195/01. The cases reveal two approaches to starting points, as was noted in R v Hooker 30/8/01, CA154/01, at para 7:

"…it is perhaps unfortunate that the term ‘starting point’ is used in judgments in two different ways. Sometimes the term is used to reflect the opening position before a consideration of aggravating and mitigating circumstances. At other times the term is used to reflect the position before mitigating circumstances are taken into account; that is, aggravating features are built into the so-called starting point."

In R v Gemmell 23/10/01, CA267/01 it was held that the starting point should reflect all aspects of the case except the plea (citing R v Ataria 15/12/98, CA318/98).

There seems to be a sort of halfway house approach in practice, according to which the starting point is measured by taking into account aggravating features. It is respectfully suggested that this is the preferable method. An interesting illustration is R v Raheke 8/7/04, France J, HC Napier S8/2004 (above, para 1808), where although the Crown submitted that the starting point should be established before aggravating features were added (para 9 of the sentencing remarks), France J took the aggravating features into account in setting the starting point (paras 18 and 20 of the sentencing remarks).

This logically sensible approach was taken while at the same time her Honour was guided by the approach in R v Bradley and Galvin 20/2/04, Williams J, HC Rotorua CRI-2003-063-8523. However in that case Williams J had set a starting point, then (apparently) added aggravating features (para 22 of his Honour’s remarks). In referring to the desirability of consistency, in following the approach of Williams J, France J found guidance in R v Wallace and Christie [1999] 3 NZLR 159, (1999) 16 CRNZ 443 (CA) in setting the starting point.

Thus although both Judges found assistance in Wallace in setting the starting point, their approaches to the relevance of aggravating features appears to differ. In Wallace the Court did not specify which method was to be preferred, but at para 30 of the judgment, after setting out summaries of relevant cases, the Court referred to starting points before allowance was made for mitigating factors. Again, in para 36, the Court referred to either method producing an appropriate result in relation to Wallace, whose appeal was dismissed. However, in R v Arthur 17/3/05, CA382/04, at para 26, the approach was said to be to set the starting point before taking into account aggravating features (such as the existence of relevant previous convictions) and mitigating features (such as a plea of guilty).

The above discussion of starting points is predicated on the meaning of "mitigating factors" as factors that are not connected with the offending but that may properly be taken into account as diminishing the final sentence. This is the meaning of "mitigating factors" used by DA Thomas in his analysis of English sentencing. A different usage has been employed by the Court of Appeal, whereby "mitigating factors" include matters that concern the commission of the offence, as well as those that concern the circumstances of the offender: R v Taueki 30/6/05, CA384/04, a decision of the Full Court giving guidelines for sentencing for violent offending involving grievous bodily harm. Accordingly, the "starting point" may now be understood as the sentence appropriate when aggravating and mitigating circumstances relating to the offending are taken into account, but excluding aggravating and mitigating features personal to the offender. The starting point is the sentence, determined in this way, for an adult offender after a defended trial: Taueki para 8.

Fairness to Prisoners

Parole Board decisions differ from those of trial courts: the former give paramount consideration to the safety of the community (Parole Act 2002[NZ], s 7(1)), while the latter acknowledge the fundamental requirement of fairness to the accused. To what extent, then, must Parole Board hearings be fair to the prisoner?

This issue has been considered by the House of Lords in Roberts v Parole Board [2005] UKHL 45 (7 July 2005), where the questions were whether the Parole Board could withold information from the prisoner and his legal representative and instead use the specially appointed advocate (SAA) procedure. The same questions could arise in New Zealand, as s 13(3) and (5) of the Parole Act 2002[NZ] authorise the non-disclosure of information to the prisoner in the interests of the safety of any person, and the Board "may" (not must) disclose that to the prisoner’s counsel.

In Roberts the House of Lords split 3-2. Lord Woolf (the Chief Justice) and Lords Rodger and Carswell held that in principle (the case could not yet be determined on its facts) the SAA procedure could be used in rare cases where the public interest required non-disclosure, but (per Lord Woolf, para 83, point vii):

"What will be determinative in a particular case is whether looking at the process as a whole a decision has been taken by the Board using a procedure that involves significant injustice to the prisoner. If there has been, the decision should be quashed. The procedure may not be ideal procedure but it may be the only or the best method of balancing the triangulation of interests involved in the very small number of cases where a SAA may be instructed."

This may be criticised for vagueness over what is "significant" injustice to the prisoner. Lord Carswell, concurring, put the conclusion in these terms (para 144):

"I accept that there may well be cases in which it would not be sufficiently fair to be justifiable and each case will require consideration on its own facts. I would agree that the SAA procedure should be used only in rare and exceptional cases and, as Lord Bingham of Cornhill said in R v H [2004] 2 AC 134 at para 22, as a course of last and never first resort."

Again, what is "sufficiently" fair?

Lord Rodger, also in the majority, highlighted the difficulties that arise when primacy is given to the interests of the prisoner (para 111):

"One solution would be to disclose the information to the prisoner's representative and, if possible, to require the informant to give evidence, even though this would risk putting his life or health in jeopardy. That solution would be, to say the least, unattractive and might well give rise to significant issues under articles 2 and 3 of the European Convention. The other solution would be for the Board to exclude from their consideration any evidence which could not be safely disclosed to the prisoner or his representative. In other words, the Board should close their eyes to evidence, even though it would be relevant to the decision which Parliament has charged them to take for the protection of the public. That solution too would be - again, to say the least - unattractive and, moreover, hard to reconcile with the Board's statutory duty not to direct a prisoner's release on licence unless they are satisfied that it is no longer in the interests of the public that he should be confined."

Unfortunatley this latter point undermines Lord Woolf’s view that (para 80):

"The Board can refuse to pay any attention to the information that the individual could provide. This would mean, however, that the Board could be in breach of its express statutory duty. So it is my view that the information should only be disregarded if there is no other way in which the prisoner's fundamental right to be treated fairly can be protected."

Lord Woolf’s approach is an attempt to apply the procedure taken to ensure fairness to the accused in criminal trials where the prosecution seeks to refuse full disclosure, set out in R v H (above), to proceedings of the Parole Board. In trials, the ultimate issue is the adequacy of the tendered proof of guilt, and if the prosecution considers that disclosure ordered by the court in the interests of trial fairness should not be made because of the need to protect an informant, then it can elect not to proceed with its case. But in proceedings before the Parole Board, the safety of the community is the dominant interest. Discontinuance of the proceedings is not a solution because the prisoner’s case would not be heard. The dilemma is that a serious risk to a member of the public might be grounds for non-disclosure to the prisoner, and for ignoring the information about that risk in the interests of "fairness".

The minority judges, Lords Bingham and Steyn, placed primacy on the need for fairness to the prisoner. The SAA procedure was no substitute for full disclosure. Lord Steyn (para 88) summarised it:

"Taken as a whole, the procedure completely lacks the essential characteristics of a fair hearing. It is important not to pussyfoot about such a fundamental matter: the special advocate procedure undermines the very essence of elementary justice. It involves a phantom hearing only."

He went so far as to quote from Kafka’s "The Trial" (para 95), in a passage that was obliquely (and, some might say, rather bitchily) criticised by Lord Rodger (para 110) as an inapposite reference that tended to trivialise a difficult problem.

It may be that the real difference between the majority and the minority in Roberts is on how abstract the issue before the House was. All judges recognised that the circumstances of each individual case have to be considered in deciding whether the adopted course was fair to the prisoner. The minority may have attempted to pre-emptively reject the SAA procedure before being able to see whether it worked in this case.

Ordinary self-control

Six days before Timoti v R was decided, applying the Rongonui interpretation of provocation, the Privy Council addressed the English law of provocation in Attorney-General for Jersey v Holley [2005] UKPC 23 (15 June 2005). Because of the need to sort out inconsistent decisions of the House of Lords and the Privy Council, the Board in Holley consisted of 9 members. It turned out that three of them, all with considerable criminal law experience, dissented. In the result, the majority took the same approach as had the New Zealand Court of Appeal (by a majority) in R v Rongonui [2000] 2 NZLR 385. Accordingly, the standard of self-control is fixed at that which the ordinary person has, and the level of provocation is to be assessed taking into account such matters as are relevant including, where appropriate, features peculiar to the defendant.

In Holley the Privy Council was dealing with law that was the same as that which applies in England. Plainly, the intention was to overrule (so to speak) the House of Lords majority decision in R v Smith (Morgan) [2001] 1 AC 146.

There is an air of unreality about distinguishing between the effect of provocative acts or words on the accused’s actual self-control, on the one hand, and the effect of those acts or words on the level of provocation he experienced, on the other. While the conceptual model applied in the Holley and Rongonui cases has a pleasing elegance, its use must be reviewed in the light of changes in the law concerning homicide. When the sentence for murder was mandatory life imprisonment, whereas life imprisonment was the maximum for manslaughter, there was some point in having the "partial defence" of provocation. Now, with the sentence for murder being a maximum of life imprisonment, provocation could be better placed as a matter relevant to sentencing. However, one should acknowledge that this is to ignore the symbolic significance of the terminology describing the offence. If provocation was limited to being a matter relevant to sentence for murder or manslaughter it could be understood in a more flexible sense than it is as a partial defence to murder.

Update: the partial defence of provocation has been repealed in New Zealand, from 8 December 2009.