How straight-laced are Quebeckers? One would have thought this was a silly-season question. And yes, the people of Quebec are called Quebeckers. In R v Labaye [2005] SCC 80 (21 December 2005) the Supreme Court of Canada had to decide whether acts of indecency included group sex by consenting adults in an environment where any spectators were also voluntary on-lookers. The larger a court, the more likely it is that there will be dissent. Here, the court split 7 – 2.
The majority held that in the circumstances the group sex was not indecent. What is remarkable about this is the complexity of the legal test for indecency, which was summarised at para 62 as:
"Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements:
1. That, by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example:
(a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
(b) predisposing others to anti-social behaviour; or
(c) physically or psychologically harming persons involved in the conduct, and
2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society."
The vetting of members of this private club (L’Orage Club, Montreal) meant, held the majority, that there was no such harm as was required by this test.
The minority placed less emphasis on the private nature of the club, and applied what had hitherto, in their view, been the traditional test, the community standards. Interestingly, they referred to JS Mill (para 105) as underpinning the majority’s emphasis on the need for harm, and they criticized this on the grounds that behaviour may be criminalised without there being an identifiable harm:
"In the case at bar, the offence relates to social morality. To place excessive emphasis on the criterion of harm will therefore make it impossible to give effect to the moral principles in respect of which there is a consensus in the community."
Noting that evidence indicated that only 2 to 5% of Quebeckers engaged in group sex (para 138), the minority concluded (para 153):
"Our analysis does not permit us to conclude that the Canadian community would tolerate the performance, in a commercial establishment to which the public has easy access, of group sexual activities on the scale of those that took place in this case."
The Canadian Charter of Rights and freedoms was not cited in this case, but it makes the rights and freedoms it guarantees "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society" (clause 1). Relevant Charter rights are (clause 2) freedom of conscience, thought, belief, opinion, peaceable assembly, and association. (And see the comparable provisions of NZBORA, s 5, 13, 14, 16, 17.) Even if the minority in Labaye is correct, and the Canadian community would not tolerate group sex in the circumstances in which it occurred in that case, the further question should be whether that intolerance is justified in a free and democratic society. The harm-based analysis applied by the majority surely has a role here.
A "companion case" was also decided yesterday by the same Court, with the same split in judges: R v Kouri [2005] SCC 81 (21 December 2005). Here, the question was whether group sex in a bar was indecency, where entrance was restricted to people who agreed that they were "liberated". Incongruously, entrance was also restricted to "couples", a rather charming nod in the direction of propriety. Important for the majority was the effective restriction of entry to those who knew very well what they were in for.
I should add a technical point. In Kouri, the minority judges dissented by using the same reasoning they employed as the minority in Labaye. Strictly speaking, the law was established in Labaye, and the minority were compelled to follow it. If they were to reach a conclusion different from that of the other Judges, they should have done so by applying lawful reasoning. For example, they may have decided that there was sufficient social harm arising from the relevant conduct to make it criminally indecent. Alternatively, and admittedly, impractically, the minority would should have required argument on whether the law as established in Labaye should be changed.
Thursday, December 22, 2005
Monday, December 19, 2005
The evil that men think
If I am offended, not by what I see a person doing, but by what I think he might do later, have I observed behaviour that the criminal law calls "offensive"?
Further, if I have gone out of my way to see what the person is doing, can I complain? He might have been unobservable by all but the most inquisitive.
Obviously, judges may disagree over what amounts to offensive behaviour. They may also disagree over whether offensive behaviour is nevertheless insufficiently serious to warrant the intervention of the criminal law.
Cases on questions such as these are encountered by all first-year law students. Far from being confined to serve as minor intellectual irritants for novices, such matters also cause disagreement among senior judges.
In R v R (2005) 21 CRNZ 610 (CA) the issues included whether it was offensive behaviour for the appellant to have concealed himself in his curtained van and taken pictures of uniformed schoolgirls as they arrived at school. He could only be observed with difficulty, and was observed by a police officer who went up to the van and peered through a gap in the curtains. One might wonder, at this point, whether such conduct by the police officer might itself be offensive. In any event, one of the Judges in the Court of Appeal, who is not named in the Court’s single judgment, thought the appellant’s behaviour was not, in law, "offensive". The conduct was, this Judge thought, amenable to innocent interpretation (para 39):
"Had the photographer been, for example, a police officer taking photographs for the purposes of a criminal investigation or a paparazzi [sic] taking photographs for a newspaper or magazine, the observable behaviour would have been identical."
But would it necessarily be sufficient to know more? If there was evidence, for example, that the photographs were to be used for sexual gratification, would the taking of the photographs then be offensive? This point did not require consideration by the majority in R, because they found that the behaviour was, albeit marginally, offensive.
This point was, however, considered in Rowe v Police 12/12/05, John Hansen J, HC Dunedin CRI 2005-412-000051. The same Mr "R" took photographs in the University Library. Perhaps learning from his earlier brush with the law, he did not, on this occasion, resort to subterfuge. While his actions were in plain view, there was insufficient evidence in the case to prove what he was photographing. On the point of whether the behaviour would be offensive if more was known, the Judge observed (para 46):
"…It is the action that must be offensive. As a matter of logic, if the observer has no knowledge of what is being photographed the content of the photographs cannot be used to create the necessary level of offence. But the Judge has gone further. She has referred to the downloading of material to the laptop, and possibly the other circumstances as well, as creating in the mind "the need to determine legitimacy". It is unclear from [this] how the need to determine legitimacy would arouse feelings of anger and/or potential disgust [the legal test for offensiveness], or what is the evidential basis for such a finding. While it may raise a need to investigate further, it falls short of what is required in the criminal sense."
His Honour also noted that in the earlier case, the Court of Appeal had referred to the possibility that evidence of the defendant’s purpose "may be relevant in considering and weighing to strike the balance between competing interests" (para 47). That, however, was said in relation to purpose that is evident to those observing the behaviour (see paras 31-34 of R v R, above).
Unfortunately, the Supreme Court refused leave to appeal from the decision in R v R, because the question of law was not framed in sufficiently general terms to come within the Court’s jurisdiction: Rowe v R [2005] NZSC 40 (23 June 2005).
This discussion highlights the importance of the distinction between the impact on us of our own thoughts, and the impact on us of other people’s conduct.
Further, if I have gone out of my way to see what the person is doing, can I complain? He might have been unobservable by all but the most inquisitive.
Obviously, judges may disagree over what amounts to offensive behaviour. They may also disagree over whether offensive behaviour is nevertheless insufficiently serious to warrant the intervention of the criminal law.
Cases on questions such as these are encountered by all first-year law students. Far from being confined to serve as minor intellectual irritants for novices, such matters also cause disagreement among senior judges.
In R v R (2005) 21 CRNZ 610 (CA) the issues included whether it was offensive behaviour for the appellant to have concealed himself in his curtained van and taken pictures of uniformed schoolgirls as they arrived at school. He could only be observed with difficulty, and was observed by a police officer who went up to the van and peered through a gap in the curtains. One might wonder, at this point, whether such conduct by the police officer might itself be offensive. In any event, one of the Judges in the Court of Appeal, who is not named in the Court’s single judgment, thought the appellant’s behaviour was not, in law, "offensive". The conduct was, this Judge thought, amenable to innocent interpretation (para 39):
"Had the photographer been, for example, a police officer taking photographs for the purposes of a criminal investigation or a paparazzi [sic] taking photographs for a newspaper or magazine, the observable behaviour would have been identical."
But would it necessarily be sufficient to know more? If there was evidence, for example, that the photographs were to be used for sexual gratification, would the taking of the photographs then be offensive? This point did not require consideration by the majority in R, because they found that the behaviour was, albeit marginally, offensive.
This point was, however, considered in Rowe v Police 12/12/05, John Hansen J, HC Dunedin CRI 2005-412-000051. The same Mr "R" took photographs in the University Library. Perhaps learning from his earlier brush with the law, he did not, on this occasion, resort to subterfuge. While his actions were in plain view, there was insufficient evidence in the case to prove what he was photographing. On the point of whether the behaviour would be offensive if more was known, the Judge observed (para 46):
"…It is the action that must be offensive. As a matter of logic, if the observer has no knowledge of what is being photographed the content of the photographs cannot be used to create the necessary level of offence. But the Judge has gone further. She has referred to the downloading of material to the laptop, and possibly the other circumstances as well, as creating in the mind "the need to determine legitimacy". It is unclear from [this] how the need to determine legitimacy would arouse feelings of anger and/or potential disgust [the legal test for offensiveness], or what is the evidential basis for such a finding. While it may raise a need to investigate further, it falls short of what is required in the criminal sense."
His Honour also noted that in the earlier case, the Court of Appeal had referred to the possibility that evidence of the defendant’s purpose "may be relevant in considering and weighing to strike the balance between competing interests" (para 47). That, however, was said in relation to purpose that is evident to those observing the behaviour (see paras 31-34 of R v R, above).
Unfortunately, the Supreme Court refused leave to appeal from the decision in R v R, because the question of law was not framed in sufficiently general terms to come within the Court’s jurisdiction: Rowe v R [2005] NZSC 40 (23 June 2005).
This discussion highlights the importance of the distinction between the impact on us of our own thoughts, and the impact on us of other people’s conduct.
Friday, December 16, 2005
Proof or believability
One of the difficult distinctions in the law of evidence concerns the use of statements made by a witness on a previous occasion to contradict what the witness now says in court. On the one hand, such statements impeach credibility: the court may place less reliance on what the witness now says, because the witness has said something different before. In this situation, reducing reliance on what the witness now says does not amount to positive proof to the contrary. On the other hand, such statements could be treated as proof of what they say, and the court might conclude that the facts were as the witness had previously said, not as the witness now says.
The Supreme Court of Canada, in R v Henry [2005] SCC 76 (15 December 2005), has held that an accused’s prior testimony at a miscarried trial may be used, to contradict evidence he gives at a subsequent trial, as proof of the truth of what was previously said. At para 48 it was put this way:
" …If the contradiction reasonably gives rise to an inference of guilt, s. 13 of the Charter [the right not to be compelled to give evidence; comparable to s 25(d) New Zealand Bill of Rights Act 1990] does not preclude the trier of fact from drawing the common sense inference."
The different approaches were summarised in para 8:
" … both parties view with scepticism the idea that the trier of fact can truly isolate the purpose of impeaching credibility from the purpose of incrimination. They agree on the problem but disagree about the solution. The appellants’ solution … is that unless the statements used to contradict the present testimony were innocuous when made at the first trial, and still innocuous at the second trial, they should be altogether excluded, i.e. even for the limited purpose of challenging credibility. … Otherwise, they fear, the contradictions may well be used by the trier of fact for the forbidden purpose of incrimination. The Crown also recognizes the troublesome nature of the distinction but … says that fair trial considerations absolutely require that the contradictions in the evidence of an accused be exposed. The Crown then goes further … in saying that the trier of fact should be able to make of the contradictions what it wishes, including drawing an inference of guilt, and indeed that a realistic appraisal of the trial process permits no other conclusion, human nature being what it is."
The resolution of this problem is reasonably easy where, as in Henry, the court is concerned with prior testimony, as opposed to out of court, unsworn, statements. Testimony is advanced for its truth, so if a witness had previously given evidence to one effect, it seems appropriate to use that on a later trial as evidence of its truth where it conflicts with what the witness now testifies.
In Australia, s 60 of the uniform evidence Acts has been interpreted to allow prior testimony to be used as proof of its truth, at least as far as intended, as opposed to unintended, assertions are concerned (Lee v R (1998) 195 CLR 594 (HCA)).
In New Zealand, clause 33 of the Evidence Bill sets out proposed "truthfulness rules", including a rule that the rules about hearsay evidence "do not apply to exclude evidence about reputation that relates to truthfulness". This formula, "do not apply to exclude", appears to mean that such evidence may be admissible for a hearsay purpose, that is, as evidence of its truth. The position here, however, is far from clear. If a court transcriber (judge's associate) were to be called as a witness to give evidence of what the accused had said at an earlier trial, to rebut what the accused has said at the present trial, that would not be hearsay evidence as defined in the Bill, because it would be evidence about a previous statement by a witness (see cl 4 definition of "hearsay statement"). Again, while this evidence would be admissible on the issue of credibility, it is not clear whether it is also admissible for the truth of what the accused previously said.
Currently, s 10 of the Evidence Act 1908[NZ] covers the position, insofar as it permits witnesses to be cross-examined about their previous inconsistent statements. Judicial opinion on whether the previous inconsistent statements admitted under this provision are evidence of their truth has varied from the mid-nineteenth century. Cross on Evidence, para 9.53, states that the present law is that they are not proof of their truth, citing Tepaki v Police [1967] NZLR 337, and at para 9.54 the learned authors say that the rationale for this is "simply another instance of the pseudo-logic occasionally indulged in by lawyers", while they acknowledge that previous statements made on oath may raise different issues than those made under differing circumstances.
The Supreme Court of Canada, in R v Henry [2005] SCC 76 (15 December 2005), has held that an accused’s prior testimony at a miscarried trial may be used, to contradict evidence he gives at a subsequent trial, as proof of the truth of what was previously said. At para 48 it was put this way:
" …If the contradiction reasonably gives rise to an inference of guilt, s. 13 of the Charter [the right not to be compelled to give evidence; comparable to s 25(d) New Zealand Bill of Rights Act 1990] does not preclude the trier of fact from drawing the common sense inference."
The different approaches were summarised in para 8:
" … both parties view with scepticism the idea that the trier of fact can truly isolate the purpose of impeaching credibility from the purpose of incrimination. They agree on the problem but disagree about the solution. The appellants’ solution … is that unless the statements used to contradict the present testimony were innocuous when made at the first trial, and still innocuous at the second trial, they should be altogether excluded, i.e. even for the limited purpose of challenging credibility. … Otherwise, they fear, the contradictions may well be used by the trier of fact for the forbidden purpose of incrimination. The Crown also recognizes the troublesome nature of the distinction but … says that fair trial considerations absolutely require that the contradictions in the evidence of an accused be exposed. The Crown then goes further … in saying that the trier of fact should be able to make of the contradictions what it wishes, including drawing an inference of guilt, and indeed that a realistic appraisal of the trial process permits no other conclusion, human nature being what it is."
The resolution of this problem is reasonably easy where, as in Henry, the court is concerned with prior testimony, as opposed to out of court, unsworn, statements. Testimony is advanced for its truth, so if a witness had previously given evidence to one effect, it seems appropriate to use that on a later trial as evidence of its truth where it conflicts with what the witness now testifies.
In Australia, s 60 of the uniform evidence Acts has been interpreted to allow prior testimony to be used as proof of its truth, at least as far as intended, as opposed to unintended, assertions are concerned (Lee v R (1998) 195 CLR 594 (HCA)).
In New Zealand, clause 33 of the Evidence Bill sets out proposed "truthfulness rules", including a rule that the rules about hearsay evidence "do not apply to exclude evidence about reputation that relates to truthfulness". This formula, "do not apply to exclude", appears to mean that such evidence may be admissible for a hearsay purpose, that is, as evidence of its truth. The position here, however, is far from clear. If a court transcriber (judge's associate) were to be called as a witness to give evidence of what the accused had said at an earlier trial, to rebut what the accused has said at the present trial, that would not be hearsay evidence as defined in the Bill, because it would be evidence about a previous statement by a witness (see cl 4 definition of "hearsay statement"). Again, while this evidence would be admissible on the issue of credibility, it is not clear whether it is also admissible for the truth of what the accused previously said.
Currently, s 10 of the Evidence Act 1908[NZ] covers the position, insofar as it permits witnesses to be cross-examined about their previous inconsistent statements. Judicial opinion on whether the previous inconsistent statements admitted under this provision are evidence of their truth has varied from the mid-nineteenth century. Cross on Evidence, para 9.53, states that the present law is that they are not proof of their truth, citing Tepaki v Police [1967] NZLR 337, and at para 9.54 the learned authors say that the rationale for this is "simply another instance of the pseudo-logic occasionally indulged in by lawyers", while they acknowledge that previous statements made on oath may raise different issues than those made under differing circumstances.
Monday, December 12, 2005
The "rule" in Browne v Dunn
Can the rules of evidence, that have been designed to ensure fairness, be ignored if the judge feels that it would be more fair to ignore them? Certainly not, says the High Court of Australia in MWJ v R [2005] HCA 74 (7 December 2005).
In MWJ an inconsistency emerged with evidence that had been given by the complainant, when a subsequent witness gave evidence. Could the accused rely on the apparent inconsistency to undermine the complainant’s evidence? The inconsistency was "apparent" because the complainant was not re-called for questioning on the topic to see if the inconsistency was maintained.
This raised what is referred to in general terms as the rule in Browne v Dunn (1893) 6 R 67, which is that fairness usually requires that if a witness’s testimony is to be disputed, the grounds for that dispute should be put to that witness. The High Court noted that this rule has been applied in criminal law in many jurisdictions, including New Zealand, citing Gutierrez v R [1977] 1 NZLR 192, (1996) 14 CRNZ 108 (CA). In that case, the New Zealand Court of Appeal held
" … the rule is simply one of fairness. Has a reasonable opportunity been given to enable the evidence in question to be properly assessed? It is the responsibility of prosecuting counsel or a prosecutor who proposes to attack the credibility of defence witnesses, including the defendant, to cross-examine in a way which makes it plain that the relevant evidence is challenged and gives the witness a fair opportunity to answer the challenge. Such cross-examination however may not be necessary if from what has gone before or from the circumstances of the case it is fairly made plain that the truthfulness of particular facts given in evidence is not accepted, and an adequate opportunity to meet the challenge has otherwise been afforded.
"If evidence relevant to credibility is not so tested when it ought to be, it is likely to be unreasonable for the trier of fact to make an adverse finding in respect of credibility."
The High Court of Australia was unanimous in MWJ that in the circumstances of the case there was no miscarriage of justice and the appeal against conviction was dismissed. Two judgments were delivered, and they differ slightly on the point of when it is appropriate to give weight to the apparent inconsistency in the evidence.
Gleeson CJ and Heydon J held (para 19):
"In the present case, there was no obligation on trial counsel for the appellant to question the complainant about whether there had been more than one incident of sexual abuse at Sutcliffe Street, and there was no obligation to seek to have the complainant recalled for that purpose. Why would counsel for the appellant want to run the risk of eliciting further evidence of uncharged criminal acts by her client? That, no doubt, left the trial judge in a difficult position when he came to evaluate a criticism (in final address) of the complainant's credibility based on the supposed (although, in truth, non-existent) inconsistencies. It did not mean that counsel could not put her argument to the judge. As Doyle CJ said, it was a matter to be taken into account in assessing the weight to be given to the supposed inconsistencies. In the event, it was the fact that counsel chose (with reason) to leave the evidence in a state of uncertainty that undermined her submission about inconsistency. That was a forensic choice for counsel to make."
The penultimate sentence of this extract has difficulties. It was not for counsel for the accused to ask for re-call of the complainant; it was for counsel for the prosecution to offer (or, more accurately, to apply for) re-call of the witness. If counsel for the defence opposed that, less weight might have attached to subsequent reliance on inconsistencies. This is how the other Judges in MWJ, Gummow, Kirby and Callinan JJ, saw it (para 41):
"…As soon as the inconsistency emerged, and the trial judge rejected the appellant's objection to the evidence intended to be adduced from the complainant's mother [whose evidence had appeared to be inconsistent with that of her daughter, the complainant], it was open for the prosecution to offer to tender the complainant for further cross-examination. Had that happened it would then, and only then have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid."
This seems to be the better view, but one might still wonder whether it is really accurate. If it would be unfair to permit recall of the complainant in view of, for example, the obligation on the prosecution not to split its case, then it would be unfair to ignore the apparent inconsistency. Each case will turn on its own facts, but fairness is the all-pervasive consideration.
What, then, if the rules of evidence appear to operate unfairly? This point was addressed in the three-judge joint judgment, para 37:
"Something should first be said of the trial judge's criticism of the appellant's failure, in effect, to give the complainant an opportunity of explaining away the inconsistency arising out of her mother's evidence. The criticism is ill-founded for these reasons. The complainant had already given her evidence when the mother gave her evidence. It was not for the appellant to know and anticipate, by cross-examining the complainant, what the mother would say about the complainant's assertions of complaints of multiple offences at Sutcliffe Street. It was not for the appellant to iron out inconsistencies in the case for the prosecution. Secondly, his Honour erred in holding that if there were competition between the avoidance of unfairness to the complainant and a "technical view of the rules of evidence" … (whatever that in the circumstances means), the former must prevail. It is not for a judge to depart from the rules of evidence on such a basis. The rules are designed to ensure fairness to all, certainly not least, to an accused in a criminal trial."
The difficulty in this apparent contrast between rules and fairness, is that the so-called rule in question is itself more of a principle than a rule. It is, as the New Zealand Court of Appeal said in Gutierrez, above, one of fairness. While it is usually called the "rule" in Browne v Dunn, that is simply shorthand non-technical language.
In MWJ an inconsistency emerged with evidence that had been given by the complainant, when a subsequent witness gave evidence. Could the accused rely on the apparent inconsistency to undermine the complainant’s evidence? The inconsistency was "apparent" because the complainant was not re-called for questioning on the topic to see if the inconsistency was maintained.
This raised what is referred to in general terms as the rule in Browne v Dunn (1893) 6 R 67, which is that fairness usually requires that if a witness’s testimony is to be disputed, the grounds for that dispute should be put to that witness. The High Court noted that this rule has been applied in criminal law in many jurisdictions, including New Zealand, citing Gutierrez v R [1977] 1 NZLR 192, (1996) 14 CRNZ 108 (CA). In that case, the New Zealand Court of Appeal held
" … the rule is simply one of fairness. Has a reasonable opportunity been given to enable the evidence in question to be properly assessed? It is the responsibility of prosecuting counsel or a prosecutor who proposes to attack the credibility of defence witnesses, including the defendant, to cross-examine in a way which makes it plain that the relevant evidence is challenged and gives the witness a fair opportunity to answer the challenge. Such cross-examination however may not be necessary if from what has gone before or from the circumstances of the case it is fairly made plain that the truthfulness of particular facts given in evidence is not accepted, and an adequate opportunity to meet the challenge has otherwise been afforded.
"If evidence relevant to credibility is not so tested when it ought to be, it is likely to be unreasonable for the trier of fact to make an adverse finding in respect of credibility."
The High Court of Australia was unanimous in MWJ that in the circumstances of the case there was no miscarriage of justice and the appeal against conviction was dismissed. Two judgments were delivered, and they differ slightly on the point of when it is appropriate to give weight to the apparent inconsistency in the evidence.
Gleeson CJ and Heydon J held (para 19):
"In the present case, there was no obligation on trial counsel for the appellant to question the complainant about whether there had been more than one incident of sexual abuse at Sutcliffe Street, and there was no obligation to seek to have the complainant recalled for that purpose. Why would counsel for the appellant want to run the risk of eliciting further evidence of uncharged criminal acts by her client? That, no doubt, left the trial judge in a difficult position when he came to evaluate a criticism (in final address) of the complainant's credibility based on the supposed (although, in truth, non-existent) inconsistencies. It did not mean that counsel could not put her argument to the judge. As Doyle CJ said, it was a matter to be taken into account in assessing the weight to be given to the supposed inconsistencies. In the event, it was the fact that counsel chose (with reason) to leave the evidence in a state of uncertainty that undermined her submission about inconsistency. That was a forensic choice for counsel to make."
The penultimate sentence of this extract has difficulties. It was not for counsel for the accused to ask for re-call of the complainant; it was for counsel for the prosecution to offer (or, more accurately, to apply for) re-call of the witness. If counsel for the defence opposed that, less weight might have attached to subsequent reliance on inconsistencies. This is how the other Judges in MWJ, Gummow, Kirby and Callinan JJ, saw it (para 41):
"…As soon as the inconsistency emerged, and the trial judge rejected the appellant's objection to the evidence intended to be adduced from the complainant's mother [whose evidence had appeared to be inconsistent with that of her daughter, the complainant], it was open for the prosecution to offer to tender the complainant for further cross-examination. Had that happened it would then, and only then have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid."
This seems to be the better view, but one might still wonder whether it is really accurate. If it would be unfair to permit recall of the complainant in view of, for example, the obligation on the prosecution not to split its case, then it would be unfair to ignore the apparent inconsistency. Each case will turn on its own facts, but fairness is the all-pervasive consideration.
What, then, if the rules of evidence appear to operate unfairly? This point was addressed in the three-judge joint judgment, para 37:
"Something should first be said of the trial judge's criticism of the appellant's failure, in effect, to give the complainant an opportunity of explaining away the inconsistency arising out of her mother's evidence. The criticism is ill-founded for these reasons. The complainant had already given her evidence when the mother gave her evidence. It was not for the appellant to know and anticipate, by cross-examining the complainant, what the mother would say about the complainant's assertions of complaints of multiple offences at Sutcliffe Street. It was not for the appellant to iron out inconsistencies in the case for the prosecution. Secondly, his Honour erred in holding that if there were competition between the avoidance of unfairness to the complainant and a "technical view of the rules of evidence" … (whatever that in the circumstances means), the former must prevail. It is not for a judge to depart from the rules of evidence on such a basis. The rules are designed to ensure fairness to all, certainly not least, to an accused in a criminal trial."
The difficulty in this apparent contrast between rules and fairness, is that the so-called rule in question is itself more of a principle than a rule. It is, as the New Zealand Court of Appeal said in Gutierrez, above, one of fairness. While it is usually called the "rule" in Browne v Dunn, that is simply shorthand non-technical language.
Friday, December 09, 2005
How civilised are we?
What use of torture is tolerable? More precisely, what risk that evidence tendered to the court was obtained by torture is tolerable? The House of Lords has answered, if on the balance of probabilities there was no torture, that is acceptable: A v Secretary of State for the Home Department [2005] UKHL 71 (8 December 2005).
This means that a risk of torture, just falling short of tipping the balance, can be ignored. It is notable that this case involved 7 Law Lords, and they split 4-3 on this difficult issue. Of course, they unanimously held torture to be repugnant to the common law. The minority, Lords Bingham, Nicholls and Hoffmann, held that evidence was inadmissible if the court was left with a real risk that it had been obtained by torture.
We should remember that in R v McCuin [1982] 1 NZLR 13 (CA) it was held that statements by accused persons should be excluded unless the court was sure beyond reasonable doubt that they had been made voluntarily.
As we often see in cases considered in this blog over the last 16 months, the choice between formalist and pragmatic reasoning is fundamental. This is illustrated in A’s case by Lord Hope, para 119:
"… it would be unrealistic to … demand that each piece of information be traced back to its ultimate source and the circumstances in which it was obtained investigated so that it could be proved piece by piece, that it was not obtained under torture. The threshold cannot be put that high. Too often we have seen how the lives of innocent victims and their families are torn apart by terrorist outrages. Our revulsion against torture, and the wish which we all share to be seen to abhor it, must not be allowed to create an insuperable barrier for those who are doing their honest best to protect us. A balance must be struck between what we would like to achieve and what can actually be achieved in the real world in which we all live. Articles 5(4) and 6(1) of the European Convention, to which Lord Bingham refers in para 62, must be balanced against the right to life that is enshrined in article 2 of the Convention."
Lord Carswell reasoned as follows (para 158):
"After initially favouring the Bingham test, I have been persuaded that the Hope test should be adopted … in determining whether statements should be admitted when it is claimed that they may have been obtained by the use of torture. Those who oppose the latter test have raised the spectre of the widespread admission of statements coming from countries where it is notorious that torture is regularly practised. This possibility must of course give concern to any civilised person. It may well be, however, that the two tests will produce a different result in only a relatively small number of cases …. Moreover, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out in para 166 of his opinion, intelligence is commonly made up of pieces of material from a large number of sources, with the consequence that the rejection of one or some pieces will not necessarily be conclusive. While I fully appreciate the force of the considerations advanced by Lord Bingham in paras 58 and 59 of his opinion, I feel compelled to agree with Lord Hope's view in para 118 that the test which he proposes would, as well as involving fewer practical problems, strike a better balance in the way he there sets out."
Reflecting on this case, one is tempted to think that, as the courts have to respond to the difficult issues raised by the State’s responses to terrorism, a law peculiar to the demands of this sort of warfare will develop. It may well be that where public safety is a major consideration, a criterion for admissibility set at the level of the balance of probabilities can be acceptable, whereas in criminal cases of the ordinary kind the McCuin approach will remain appropriate.
Another point, on which laws about terrorism may properly set themselves apart, is the extent to which investigation of crime may be lawful, even though it is based on information obtained through torture. In ordinary criminal cases, the lawfulness of investigatory techniques, such as the use of interception devices, is assessed by ignoring information that had been improperly obtained. For example, if there is insufficient information available to support the granting of an interception warrant once improperly obtained information is ignored, the warrant is invalid: R v Crowe [1996] 3 NZLR 415; (1996) 13 CRNZ 708 (CA). But terrorism raises different values. As Lord Bingham said:
"68. … If the police were to learn of the whereabouts of a ticking bomb it would be ludicrous for them to disregard this information if it had been procured by torture. No one suggests the police should act in this way. Similarly, if tainted information points a finger of suspicion at a particular individual: depending on the circumstances, this information is a matter the police may properly take into account when considering, for example, whether to make an arrest.
"69. In both these instances the executive arm of the state is open to the charge that it is condoning the use of torture. So, in a sense, it is. The government is using information obtained by torture. But in cases such as these the government cannot be expected to close its eyes to this information at the price of endangering the lives of its own citizens. Moral repugnance to torture does not require this."
Judicial supervision of executive acts, however, can produce what in A was called a "mismatch" between information properly considered by the executive, and information properly admissible in evidence. While the Law Lords considered this mismatch was an acceptable inevitability (Lord Bingham at para 48 said "The common law is not intolerant of anomaly"), one might wonder how persistent this mismatch will be; this, indeed, is the central question. The law tends to adopt pragmatic compromises, as Lord Bingham pointed out in para 16:
" … there is an obvious anomaly in treating an involuntary statement as inadmissible while treating as admissible evidence which would never have come to light but for the involuntary statement. But this is an anomaly which the English common law has accepted, no doubt regarding it as a pragmatic compromise between the rejection of the involuntary statement and the practical desirability of relying on probative evidence which can be adduced without the need to rely on the involuntary statement."
On another point, but one that arises from this sort of legislative endorsement of illegal investigatory procedures, Lord Bingham let slip an old fashioned remark. At para 51 he said:
"… it would of course be within the power of a sovereign Parliament (in breach of international law) to confer power … to receive third party torture evidence."
Well, would it? Historical understanding of sovereignty supports this view, but the development of strong international law, with which this case is largely concerned, is incompatible with the notion that Parliament can make any law whatsoever. Further, the implications of Lord Bingham’s remark are that the British people may embrace barbaric behaviour, condemning themselves in the same terms as the Law Lords, and all civilized people, condemn torture.
Similar issues, to those considered in A's case, could arise in New Zealand under the Terrorism Suppression Act 2002, which (to summarise some of its aspects) allows the Prime Minister to use any relevant information to designate as a terrorist any person or organisation (s 30), and which creates offences of involvement with terrorists (s 13). On prosecution, a dispute may arise over the applicability of the definition to a particular person or organisation, and some inquiry into the source of the Prime Minister's information may be necessary: s 39(4) "In determining the proceedings, the Court may take into account any relevant classified security information available to it, even though that information has not been disclosed to or responded to by other parties to the proceedings."
This means that a risk of torture, just falling short of tipping the balance, can be ignored. It is notable that this case involved 7 Law Lords, and they split 4-3 on this difficult issue. Of course, they unanimously held torture to be repugnant to the common law. The minority, Lords Bingham, Nicholls and Hoffmann, held that evidence was inadmissible if the court was left with a real risk that it had been obtained by torture.
We should remember that in R v McCuin [1982] 1 NZLR 13 (CA) it was held that statements by accused persons should be excluded unless the court was sure beyond reasonable doubt that they had been made voluntarily.
As we often see in cases considered in this blog over the last 16 months, the choice between formalist and pragmatic reasoning is fundamental. This is illustrated in A’s case by Lord Hope, para 119:
"… it would be unrealistic to … demand that each piece of information be traced back to its ultimate source and the circumstances in which it was obtained investigated so that it could be proved piece by piece, that it was not obtained under torture. The threshold cannot be put that high. Too often we have seen how the lives of innocent victims and their families are torn apart by terrorist outrages. Our revulsion against torture, and the wish which we all share to be seen to abhor it, must not be allowed to create an insuperable barrier for those who are doing their honest best to protect us. A balance must be struck between what we would like to achieve and what can actually be achieved in the real world in which we all live. Articles 5(4) and 6(1) of the European Convention, to which Lord Bingham refers in para 62, must be balanced against the right to life that is enshrined in article 2 of the Convention."
Lord Carswell reasoned as follows (para 158):
"After initially favouring the Bingham test, I have been persuaded that the Hope test should be adopted … in determining whether statements should be admitted when it is claimed that they may have been obtained by the use of torture. Those who oppose the latter test have raised the spectre of the widespread admission of statements coming from countries where it is notorious that torture is regularly practised. This possibility must of course give concern to any civilised person. It may well be, however, that the two tests will produce a different result in only a relatively small number of cases …. Moreover, as my noble and learned friend Lord Brown of Eaton-under-Heywood points out in para 166 of his opinion, intelligence is commonly made up of pieces of material from a large number of sources, with the consequence that the rejection of one or some pieces will not necessarily be conclusive. While I fully appreciate the force of the considerations advanced by Lord Bingham in paras 58 and 59 of his opinion, I feel compelled to agree with Lord Hope's view in para 118 that the test which he proposes would, as well as involving fewer practical problems, strike a better balance in the way he there sets out."
Reflecting on this case, one is tempted to think that, as the courts have to respond to the difficult issues raised by the State’s responses to terrorism, a law peculiar to the demands of this sort of warfare will develop. It may well be that where public safety is a major consideration, a criterion for admissibility set at the level of the balance of probabilities can be acceptable, whereas in criminal cases of the ordinary kind the McCuin approach will remain appropriate.
Another point, on which laws about terrorism may properly set themselves apart, is the extent to which investigation of crime may be lawful, even though it is based on information obtained through torture. In ordinary criminal cases, the lawfulness of investigatory techniques, such as the use of interception devices, is assessed by ignoring information that had been improperly obtained. For example, if there is insufficient information available to support the granting of an interception warrant once improperly obtained information is ignored, the warrant is invalid: R v Crowe [1996] 3 NZLR 415; (1996) 13 CRNZ 708 (CA). But terrorism raises different values. As Lord Bingham said:
"68. … If the police were to learn of the whereabouts of a ticking bomb it would be ludicrous for them to disregard this information if it had been procured by torture. No one suggests the police should act in this way. Similarly, if tainted information points a finger of suspicion at a particular individual: depending on the circumstances, this information is a matter the police may properly take into account when considering, for example, whether to make an arrest.
"69. In both these instances the executive arm of the state is open to the charge that it is condoning the use of torture. So, in a sense, it is. The government is using information obtained by torture. But in cases such as these the government cannot be expected to close its eyes to this information at the price of endangering the lives of its own citizens. Moral repugnance to torture does not require this."
Judicial supervision of executive acts, however, can produce what in A was called a "mismatch" between information properly considered by the executive, and information properly admissible in evidence. While the Law Lords considered this mismatch was an acceptable inevitability (Lord Bingham at para 48 said "The common law is not intolerant of anomaly"), one might wonder how persistent this mismatch will be; this, indeed, is the central question. The law tends to adopt pragmatic compromises, as Lord Bingham pointed out in para 16:
" … there is an obvious anomaly in treating an involuntary statement as inadmissible while treating as admissible evidence which would never have come to light but for the involuntary statement. But this is an anomaly which the English common law has accepted, no doubt regarding it as a pragmatic compromise between the rejection of the involuntary statement and the practical desirability of relying on probative evidence which can be adduced without the need to rely on the involuntary statement."
On another point, but one that arises from this sort of legislative endorsement of illegal investigatory procedures, Lord Bingham let slip an old fashioned remark. At para 51 he said:
"… it would of course be within the power of a sovereign Parliament (in breach of international law) to confer power … to receive third party torture evidence."
Well, would it? Historical understanding of sovereignty supports this view, but the development of strong international law, with which this case is largely concerned, is incompatible with the notion that Parliament can make any law whatsoever. Further, the implications of Lord Bingham’s remark are that the British people may embrace barbaric behaviour, condemning themselves in the same terms as the Law Lords, and all civilized people, condemn torture.
Similar issues, to those considered in A's case, could arise in New Zealand under the Terrorism Suppression Act 2002, which (to summarise some of its aspects) allows the Prime Minister to use any relevant information to designate as a terrorist any person or organisation (s 30), and which creates offences of involvement with terrorists (s 13). On prosecution, a dispute may arise over the applicability of the definition to a particular person or organisation, and some inquiry into the source of the Prime Minister's information may be necessary: s 39(4) "In determining the proceedings, the Court may take into account any relevant classified security information available to it, even though that information has not been disclosed to or responded to by other parties to the proceedings."
Monday, December 05, 2005
Synchronicity
The House of Lords and the New Zealand Supreme Court decided similar cases on 1 December 2005. Each concerned the rights of persons who had been convicted, and each involved sentencing. They differed, in general terms, in that the English case concerned a transitional question arising from a legislation change, whereas the New Zealand case concerned the effect of a change in the circumstances of the offender, namely his age, on his eligibility for the indeterminate sentence of preventive detention. Both cases were decided by applying considerations of fairness.
In R (on application of Hammond) v Secretary of State for the Home Department [2005] UKHL 69 (1 December 2005) a literal reading of the relevant legislation required that the punitive period of a sentence of life imprisonment must be set by a High Court Judge on the papers and without an oral hearing. It was held that this should be read as being subject to an implied condition that an oral hearing must be permitted where that is necessary to comply with the prisoner’s right to a fair trial under art 6(1) of the European Convention on Human Rights.
Interestingly, this implication of an exception to an absolute legislative provision was accepted by the Secretary, once it had been decided that the absolute provision breached the Convention. There was, accordingly, no need to reconsider this approach to interpretation, which had been established in R v A [2002] 1 AC 45 (HL), where it was held that such implication was required by s 3(1) of the Human Rights Act 1998[UK], which provides:
"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."
International law was also relevant in Mist v R [2005] NZSC 77 (1 December 2005). Here, preventive detention could be imposed on an offender, who was otherwise eligible, if he was "not less than 21 years of age". The provision did not specify whether this age was to be taken as at the date of the commission of the offence, or at the date of sentencing.
The Court was unanimous that the answer was the age of the offender at the time of the offence. Three Judges decided this on a narrow point: the interpretation of s 4(2) of the Criminal Justice Act 1985 (legislation which has since been replaced with provisions clear on the point). The other two Judges, Elias CJ and Keith J, agreed with that, and added broader considerations, which included the need to read s 4 consistently with art 15 of the International Covenant on Civil and Political Rights. Gault J summarised the opposing arguments in a way that suggested they were finely poised, but at para 62, he expressed agreement with a generous interpretation of s 4(2) "in conformity", apparently meaning the requirement of consistency with rights to which Elias CJ and Keith J had referred.
Eilas CJ and Keith J referred to the need for fairness and due process (paras 28, 29) and to developments in human rights law over the last 30 years (para 39), and to the need to give individuals the full measure of their rights (para 45).
Implicit in this approach is compliance with s 6 of the New Zealand Bill of Rights Act 1990, which is as follows:
"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."
The Bill of Rights is, according to its statement of purpose, "An Act – … (b) To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights".
Article 15(1) of that Covenant states:
"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby."
The first sentence of this is echoed in s 26(1) NZBORA. The second and final sentences are reflected in s 25(g) of NZBORA, although the wording differs slightly:
"(g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty."
Of course, in Mist it was the offender’s age, not the legislation, that had changed, but Elias CJ and Keith J, and implicitly Gault J, were prepared to apply the applicable provision consistently with art 15.
Significantly, this approach does not involve a close reading of s 6 NZBORA (which, indeed, was not cited in Mist). There was no agonizing over how strongly s 6 compelled an interpretation consistent with rights, and no attempt to contrast the approach required by s 6 NZBORA with the approach required of English courts by s 3 of the Human Rights Act 1998[UK]. The force of international rights law was recognised by three judges as relevant to the interpretation problem in Mist. As in Hammond, the rights-mandated approach to interpretation was accepted, without the need for argument over the strength of the legislative direction to conform to rights.
This has relevance to the forthcoming issue of the standard of proof imposed on the defence by reverse-onus provisions, which is essentially the question on which leave to appeal was granted in R v Hansen [2005] NZSC 74 (24 November 2005). Developments in international rights law have revealed an aversion to interpreting reverse onus provisions as placing legal burdens on the defence. Those developments can be followed in New Zealand without straining the words of s 6 of NZBORA.
In R (on application of Hammond) v Secretary of State for the Home Department [2005] UKHL 69 (1 December 2005) a literal reading of the relevant legislation required that the punitive period of a sentence of life imprisonment must be set by a High Court Judge on the papers and without an oral hearing. It was held that this should be read as being subject to an implied condition that an oral hearing must be permitted where that is necessary to comply with the prisoner’s right to a fair trial under art 6(1) of the European Convention on Human Rights.
Interestingly, this implication of an exception to an absolute legislative provision was accepted by the Secretary, once it had been decided that the absolute provision breached the Convention. There was, accordingly, no need to reconsider this approach to interpretation, which had been established in R v A [2002] 1 AC 45 (HL), where it was held that such implication was required by s 3(1) of the Human Rights Act 1998[UK], which provides:
"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."
International law was also relevant in Mist v R [2005] NZSC 77 (1 December 2005). Here, preventive detention could be imposed on an offender, who was otherwise eligible, if he was "not less than 21 years of age". The provision did not specify whether this age was to be taken as at the date of the commission of the offence, or at the date of sentencing.
The Court was unanimous that the answer was the age of the offender at the time of the offence. Three Judges decided this on a narrow point: the interpretation of s 4(2) of the Criminal Justice Act 1985 (legislation which has since been replaced with provisions clear on the point). The other two Judges, Elias CJ and Keith J, agreed with that, and added broader considerations, which included the need to read s 4 consistently with art 15 of the International Covenant on Civil and Political Rights. Gault J summarised the opposing arguments in a way that suggested they were finely poised, but at para 62, he expressed agreement with a generous interpretation of s 4(2) "in conformity", apparently meaning the requirement of consistency with rights to which Elias CJ and Keith J had referred.
Eilas CJ and Keith J referred to the need for fairness and due process (paras 28, 29) and to developments in human rights law over the last 30 years (para 39), and to the need to give individuals the full measure of their rights (para 45).
Implicit in this approach is compliance with s 6 of the New Zealand Bill of Rights Act 1990, which is as follows:
"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."
The Bill of Rights is, according to its statement of purpose, "An Act – … (b) To affirm New Zealand’s commitment to the International Covenant on Civil and Political Rights".
Article 15(1) of that Covenant states:
"No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time when the criminal offence was committed. If, subsequent to the commission of the offence, provision is made by law for the imposition of the lighter penalty, the offender shall benefit thereby."
The first sentence of this is echoed in s 26(1) NZBORA. The second and final sentences are reflected in s 25(g) of NZBORA, although the wording differs slightly:
"(g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty."
Of course, in Mist it was the offender’s age, not the legislation, that had changed, but Elias CJ and Keith J, and implicitly Gault J, were prepared to apply the applicable provision consistently with art 15.
Significantly, this approach does not involve a close reading of s 6 NZBORA (which, indeed, was not cited in Mist). There was no agonizing over how strongly s 6 compelled an interpretation consistent with rights, and no attempt to contrast the approach required by s 6 NZBORA with the approach required of English courts by s 3 of the Human Rights Act 1998[UK]. The force of international rights law was recognised by three judges as relevant to the interpretation problem in Mist. As in Hammond, the rights-mandated approach to interpretation was accepted, without the need for argument over the strength of the legislative direction to conform to rights.
This has relevance to the forthcoming issue of the standard of proof imposed on the defence by reverse-onus provisions, which is essentially the question on which leave to appeal was granted in R v Hansen [2005] NZSC 74 (24 November 2005). Developments in international rights law have revealed an aversion to interpreting reverse onus provisions as placing legal burdens on the defence. Those developments can be followed in New Zealand without straining the words of s 6 of NZBORA.
Subscribe to:
Posts (Atom)