Simmons v R (Bahamas) [2006] UKPC 19 (3 April 2006) gives us an opportunity to highlight the distinction between "fairness" when that term is used in the context of the exercise of the public policy discretion to exclude evidence, and "fairness" in the separate sense of trial fairness for the accused.
The two appellants were convicted of murder. Included in the evidence against them were statements they had made to the police. These statements, referred to as confessions, although they were partly exculpatory (and, one accused who gave evidence adopted what he had said to the police), were obtained in breach of the appellants’ constitutional right to be informed of the availability of legal advice before they spoke to the police.
Breach of that right gives rise to a judicial balancing exercise to determine whether to admit or exclude the statement. This balancing exercise is a public policy discretion, having nothing to do with the fairness of the trial. It arises because of the conflict between, on the one hand, the public’s right to have suspects prosecuted and offenders brought to justice, and, on the other hand, the public’s right to have officials comply with the law in the investigation of offences. The only sanction that courts can impose on officials who act in breach of the law in this context is to exclude evidence that they obtain thereby.
Sometimes, in carrying out this balancing exercise, judges say that the cogency of the evidence is a factor strongly favouring its admission. An important observation on this point was made by the Privy Council in this case, para 26:
"The Board has one other concern about the judge's balancing of the respective interests of the prosecution and the defence on the issue of fairness: the evident importance which she attached to the confession being "very cogent evidence against Simmons." Their Lordships cannot accept that the potency of such evidence is necessarily a factor in favour of its admission. If, by denying a suspect his constitutional right to see a lawyer and perhaps be advised against making a statement, the state's case is thereby strengthened by a confession, it is by no means self-evident that fairness demands its admission rather than its exclusion."
However, in New Zealand the cogency of the evidence is routinely taken into account in this balancing exercise: R v Shaheed [2002] 2 NZLR 377 (CA), especially at paras 151-152. At para 151 the joint judgment (Richardson P, Blanchard and Tipping JJ) states: "A trial is not to be regarded as potentially unfair by reason of the admission of evidence unless that evidence may lead to an unsafe verdict." That, with respect, needs to be read with some caution. A safe verdict is not a cure-all for trial unfairness. That point was made strongly by Lord Steyn (Sir Swinton Thomas concurring) in Ebanks v R (Cayman Is) [2006] UKPC 16 (27 March 2006), blogged 28.3.06, at para 40. The Supreme Court acknowledged the same point in Sungsuwan v R [2005] NZSC 57 (25 August 2005), blogged 26.8.05, per Elias CJ at para 6 (putting as alternatives trial unfairness and unsafe verdicts), Tipping J at 112 (lack of a fair trial is itself a miscarriage of justice without the need to consider its effect on the verdict).
If I may, I should add that "cogency", which means being convincing or compelling, is always a matter for the jury. It is usually called the "weight" that is to be given to the evidence. Weight is separate from the question of admissibility, except on occasions where it is possible for a judge to conclude that no reasonable jury could give the evidence any weight. The Privy Council is correct to see no reason to link cogency to admissibility. However, this is not the end of the matter. What is being considered is not the admissibility of the evidence, but rather whether, as admissible evidence, it should be excluded because of the objectionable way in which it was obtained. The question whether convincing or compelling admissible evidence should be excluded is, appropriately, part of the weighing of the public interest in bringing suspects to justice. There is, though, a difficulty: the cogency of the evidence is also appropriately considered on the other side of the balance, where weight has to be given to the public interest in prevention of such abuse of process as would bring disrepute to the administration of justice. One might properly object to the inclusion of "cogency" in the weighing process on the basis that it falls on both sides of the scales.
That aside, having said that the exclusion of evidence to prevent the trial being unfair to the accused is separate from the public policy discretion, I should now make the distinction clear. A fair trial for the accused is one where the law is accurately applied and the facts are determined without bias. There may be flow-on effects of a wrongful exercise of the public policy discretion, in the sense that the trial may not be one where the law has been accurately applied. The question, in terms of trial fairness, of the significance of the error, will be determined, not by the strength of the other evidence against the accused, but by whether the error put the accused at a disadvantage in the trial. I made this point in the blog entry on 29 March 2006, discussing Gilbert v R (Grenada) [2006] UKPC 15 (27 March 2006).
Simmons is an example of the error in applying the public policy discretion not affecting the fairness of the trial. The statements in issue were partly exculpatory and the accused who gave evidence adopted what he had said. The judgment does, however, focus on the strength of the other evidence of guilt, concluding, para 31, that acquittals would have defied all reason. The relevance of this point is that the proviso could be applied: the error in admitting the statements did not amount to a "substantial miscarriage of justice." The error caused neither trial unfairness, nor the loss of a real chance of acquittal.
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