Reverse onus and the strength of rights

In R v Phillips [1991] 3 NZLR 175 (CA) the New Zealand Court of Appeal missed the opportunity to lead the way in upholding human rights. In R v Lambert [2002] 2 AC 545 (HL) the Law Lords seized the opportunity that the New Zealand court had missed. Now, as a result of R v Hansen 29/8/05, CA128/05, an opportunity presents itself to the Supreme Court to catch up. The issues in question were specifically left open by the Court in Siloata v R [2005] 2 NZLR 145, (2004) 21 CRNZ 426 (SC).

There are two issues. The more general is how easily legislation may override the Bill of Rights. The more specific issue is whether the presumption of innocence requires that a statutory reverse burden on the accused to establish a matter carries the standard of proof on the balance of probabilities, or whether it is just the standard of raising a reasonable doubt, when the legislation is silent about that.

Overriding the Bill of Rights.
The New Zealand Bill of Rights Act 1990 ("NZBORA") recognises that it may be overridden by statute, but offers some resistance to that in s 6:

"6. Interpretation consistent with Bill of Rights to be preferred — Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning."

Note the phrases "can be given", and "shall be preferred to any other meaning". These suggest the active "giving" of a meaning, as opposed to passively accepting an apparent meaning, and the strong motivation to give such a meaning implicit in the mandatory "shall be preferred". Moreover, the mandated meaning shall be preferred "to any other meaning", which indicates an intention to override the ordinary and natural meaning (the one usually preferred in statutory interpretation) where necessary.

The relevant United Kingdom legislation, s 3 of the Human Rights Act 1998 [UK] has a similar role:

"3.—(1) So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights."

One would be hard pressed to see any difference in meaning between these two sections. They are expressions of the same idea. Section 3 has been interpreted as requiring a strained interpretation of statutory language if that is necessary to prevent conflict with rights, even if doing so requires a departure from the legislative purpose: Ghaidan v Godin-Mendoza [2004] UKHL 30 (HL).

Strange to say, there has been some effort to draw a distinction between s 6 and s 3. In R v Kebeline [2000] 2 AC 326 (HL), Lord Cooke (who had delivered the judgment in Phillips) said:

"… section 6 of the New Zealand Bill of Rights Act 1990 is in terms different from section 3(1) of the Human Rights Act 1998. The United Kingdom subsection, read as a whole, conveys, I think, a rather more powerful message."

Lord Steyn has also claimed to be able to see a difference: R v A [2002] 1 AC 45; [2001] 3 All ER 1 (HL) at para 44:

"The draftsman of the [Human Rights] Act had before him the slightly weaker model in section 6 of the New Zealand Bill of Rights Act 1990 but preferred stronger language. Parliament specifically rejected the legislative model of requiring a reasonable interpretation. Section 3 places a duty on the court to strive to find a possible interpretation compatible with Convention rights."

Well, does s 6 really limit itself to "reasonable" interpretations? It doesn’t say "wherever an enactment can reasonably be given …".

Reverse onus and the presumption of innocence
Section 25(c) of NZBORA provides that everyone who is charged with an offence has, as a minimum right, the right to be presumed innocent until proved guilty according to law. Of course the presumption of innocence is an ancient common law right, and its inclusion in the Bill of Rights gives it (if this is possible) added status.

In Phillips the question was whether s 25(c) of NZBORA requires a new interpretation of the reverse onus. Hitherto, when a statute provided that an accused shall prove something, that was interpreted to mean prove to the standard of the balance of probabilities. The submission in Phillips was that this should now mean prove by raising a reasonable doubt.

The context of Phillips was s 6(6) of the Misuse of Drugs Act 1975, which applies when an accused is proved beyond reasonable doubt to have had possession of a quantity of drug equal to or more than an amount specified in the Act. The effect is that in such circumstances the accused "is presumed until the contrary is proved to be in possession of a controlled drug for [the purpose of supplying it]." Thus the issue came down to whether "until the contrary is proved" in this context can mean "until a reasonable doubt is raised".

In Phillips it was held that that meaning was not open, whereas in Lambert it was held, in relation to reverse-onus legislation, that it was. In the recent case, Hansen, Phillips was followed.

Hansen is based on two points: the claimed difference between s 6 of NZBORA and s 3 of the Human Rights Act 1998[UK], and the idea that raising an issue is not "proof", so that the meaning of the reverse onus provision advocated for the accused (appellant) was not open. It must be said that the Court of Appeal was correct to follow its own earlier decision in Phillips, and to leave an application for leave to appeal to be made by the accused. This, indeed, is underway.

Admissibility of pre-trial denials

For no good reason, there has recently been some hesitation about whether the exculpatory parts of a statement that also has incriminating content, made by an accused to the police before trial, are admissible as proof of their truth. In Mule v R [2005] HCA 49 (8 September 2005) the law was left unchanged: the exculpatory parts may be relied on by the defence at trial as evidence of their truth. The High Court of Australia noted that this was the established law in Australia and England (citing the House of Lords decision R v Aziz [1996] AC 41, which, however, is a little controversial, insofar as it suggests that an accused cannot insist on production of his mixed statement).

We might as well take advantage of the current dearth of interesting cases (it is the holiday season in Europe) to dwell upon this. Prior consistent statements are inadmissible, as hearsay (R v Sturgeon (2004) 21 CRNZ 345 (CA)), so when an accused gives evidence, the fact that he said the same thing outside court is not proof of the truth of what was asserted. Even the fact that he said it is inadmissible, unless recent fabrication is alleged, in which case it is admissible as proof of consistency, and not as proof of the fact asserted. This rather subtle distinction is, of course, a source of some confusion.

So, when a suspect is interviewed by the police and he makes a fully exculpatory statement, that is hearsay and the defence cannot insist that the prosecution adduce it in evidence. Usually, however, statements to the police do include admissions, even if not complete admissions of the offence alleged. They may admit certain things but deny an ingredient that the prosecution have to prove to establish guilt. These are called mixed statements. As a matter of fairness, the law has allowed them to be admitted as proof of the truth of both their inculpatory and their exculpatory parts: R v Wilkie 27/4/05, CA6/05; R v Poa 26/7/01, CA48/01.

Obviously, a line has to be drawn between statements that are genuinely mixed, and those that are contrived to be exculpatory in the hope that the prosecution will have to adduce them in evidence: R v Reihana 22/3/01, CA350/00.

When an accused gives evidence at trial, it is customary for the judge to give the jury what is called a tripartite direction: (1) they may accept the accused’s evidence and find him not guilty; (2) they may think that the accused’s evidence cerates a reasonable doubt and find him not guilty; (3) they may reject the accused’s evidence, in which case they must consider the evidence in the case that they do accept and determine whether it proves guilt beyond reasonable doubt: R v McI [1998] 1 NZLR 696 (CA). Such a direction is not required for a pre-trial statement: R v I 16/10/02, CA255/02, but it can be given: Reihana, above. Where the accused has made a pre-trial statement but does not give evidence at trial, the judge may comment on the reduced weight that the statement may have: R v Green 18/2/92, CA119/92.

With the law in this mildly complex, but settled, state, it is hardly surprising that the Supreme Court has recently declined to accept an appeal on the question of the admissibility of the exculpatory parts of a pre-trial statement.