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?"