Should one feel sorry for a person who, having served a sentence of imprisonment, has his convictions quashed on appeal because the evidence against him should not have been ruled admissible?
A concurrent sentence of two years imprisonment for two aggravated robberies was served by the appellant "S", a 15 year-old. Then, on appeal, two High Court judges sitting together held that the evidence of his guilt, which was entirely contained in his statement to the police, should have been excluded, and his convictions were quashed: S v Police 14/3/06, Baragwanath and Heath JJ, HC Auckland CRI 2004-404-515.
In reality, unless his confessions were false, S was guilty and, no doubt, he deserved his sentence. But that is to ignore the rule of law, which in this context means that punishment can only be imposed following due process of law. If by "due process" we mean upon lawful conviction, then S did not receive due process.
The problem arises from practicalities. Sentences take effect before rights of appeal against convictions have been exercised. Trials proceed before rights of appeal against evidential rulings have been exercised. Evidential rulings during a trial must be left for appeal after completion of the trial, otherwise trials would have to adjourn to allow appeals to be heard.
The obvious course, to minimise "false" imprisonment, would be to defer sentencing hearings until appeals had been determined, but that is often impractical: many convicted people would run away, or would have to be denied bail.
If there is no viable alternative to the present procedure, should people like S be compensated? How would compensation be measured? Our assessment of the value of due process may have to be balanced against the harm caused by the offender. The courts may be forced to say that the real remedy is the vindication that follows from the quashing of the conviction: see further, my blogs of 6 and 30 March 2005.
In S v Police, a police officer had told S that he wanted him to point out where burglaries had occurred, so that files could be cleared up, and that he would not be charged with committing them. Unexpectedly, from the officer’s point of view, S said he had committed a couple of aggravated robberies. He was interviewed about those, he confessed to them, and was charged. If his initial mention of them had been a "spontaneous" utterance, his consequential dealings with the police would not have been flawed, as the correct procedures for dealing with young people had been followed thereafter. However, if the initial reference to the robberies was not spontaneous, in the sense that it was made in reliance on the officer’s assurance that he would not be charged, then it was made in circumstances that were in breach of the statutory procedures, and what followed, although correct in itself, could be tainted.
The High Court held that the utterance was not spontaneous, but rather it had been made in reliance on the officer’s assurance. There was an error of procedure surrounding that, so the question became whether the following procedures, which led to the making of the confession, were indeed tainted.
The Court found it necessary, at this point, to consider the nature of causation (para 56 – 67). This came down to asking whether, in the circumstances, the non-spontaneous utterance had been the "effective cause" of the subsequent confession. It had, and because the use of an inadmissible statement to secure a subsequent statement was contrary to the policy of the legislation (para 59), both were inadmissible.
A lot turned, in this case, on how the judges assessed the circumstances. It could easily have been decided that S had, on receiving the advice to which he was entitled, decided to make a clean breast of everything, and that that decision, rather than the earlier indication that he would not be charged, was the effective cause of his confession. In cases like this, where the assessment of the circumstances seems to be finely balanced, it is tempting (but, in law, wrong) to think that the court was influenced by the common sense solution: S had served his sentence and may as well be relieved of the convictions to give him some incentive to obey the law.
Did the absence of any compensation for the "wrongful" imprisonment facilitate this balancing of the circumstances?
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