The Supreme Court of New Zealand has accepted that the accused’s right to a fair trial is absolute, that breach of this right is a substantial miscarriage of justice so that the proviso cannot be applied, and a conviction obtained in an unfair trial must be quashed regardless of the strength of the evidence against the accused: Condon v R [2006] NZSC 62 (23 August 2006) at paras 76 - 78. The Court also reasoned that, if the error had not occurred, it could not be said that the outcome of the trial would have been the same, therefore there was unfairness in the trial and that accordingly a substantial miscarriage of justice had occurred (para 89).
This places unfairness in its proper position in relation to substantial miscarriage of justice, a position from which there had seemed to be some slippage in the Court’s earlier decision in Sungsuwan v R (blogged here 26 August 2005).
Also important in Condon is the Court’s indication of the burden of proof on fairness issues (para 81). The case concerned breach of the accused’s right to legal representation, a right described as one of the constituent elements of, or subsidiary rights to, the accused’s right to a fair trial (para 76). It held that if the court found that the subsidiary right was breached, the onus shifted to the prosecution to satisfy the Court that the trial was not unfair.
Although the Court did not specify standards of proof (more accurately, standards of persuasion) here, it did indicate that it would not easily accept that the trial had been fair: para 79.
Further indication of the importance of the right to a fair trial is the Court’s recognition that, even if the subsidiary right was not found to have been breached, the overall fairness of the trial would be examined, although in such a case the burden would be on the appellant (para 80):
"… if the accused makes an informed choice to go to trial without a lawyer, or is rightly refused legal aid, or by conduct creates a situation in which, on a proper balancing of the various interests, further delay in the holding of the trial is not to be tolerated, there will have been no breach of the s 24 rights. But even in such circumstances an appeal Court must still examine the overall fairness of the trial, as was done in the New Zealand cases cited earlier, because the right to a fair trial cannot be compromised – an accused is not validly convicted if the trial is for any reason unfair. If there has been no breach of the appellant’s right to representation, because the trial Court was properly "satisfied" in terms of s 30(2) of the Sentencing Act, the conviction will not be set aside unless the appellant can persuade the Court that the trial was unfair because the defence could not, in the particular case, have been adequately conducted without the assistance of counsel…."
We have seen in these blogs that pragmatism (which would lead to the dismissal of appeals against convictions where there was no doubt about the appellant’s guilt) and formalism (which places primacy on the need for compliance with procedural fairness at trial) have been emphasised differently by judges in all the jurisdictions considered here. Although Condon concludes by linking outcome in the absence of error (pragmatism) with substantial miscarriage of justice (para 89), much of the jurisprudence the Court accepts is formalist. It is clear that the Court endorsed the dominance of the formalist approach and that even if the evidence against the appellant had been overwhelming, the absence of a fair trial would have amounted to a substantial miscarriage of justice.
On a long view of the developments in this area of the law, Condon can be seen as settling a fundamental difference between judges on the status of a criminal trial. The view that has been rejected saw criminal trials as no different from civil trials, except for the standard of proof of the ultimate issue, and also except for a special rule concerning proof to the same high standard of the voluntariness of confessions if they were to become admissible evidence. From this perspective, trials function as a search for the truth, a search which must proceed to its conclusion despite circumstances that create unfairness to either side. While judges will try to be fair to each side, other interests may require something less than absolute fairness to the defence. Examples of such other interests might be the privacy interests of a victim, the public interest in bringing those accused of crime to trial (this sometimes being phrased, less circumspectly, as the public interest in bringing offenders to justice), and, more vaguely, the interests of justice, which was seen as an overarching consideration. This view of criminal trials was taken by the authors of our two leading textbooks on the Bill of Rights.
The alternative view, accepted by the Supreme Court in Condon, is that criminal trials are sui generis, with special rules needed to accommodate the considerations peculiar to criminal law. Criminal trials are not necessarily concerned merely with the question of guilt. They can have to deal with the problem of how to react to misconduct by officials in the gathering of evidence. This required development of the concept of abuse of process, and the recognition of two senses in which the term “fairness” is used. Public policy fairness has become the grounds on which wrongfully obtained evidence may, after a balancing of relevant interests, be ruled inadmissible. This is distinct from the second sort of fairness: trial fairness. No balancing of interests occurs to diminish the accused’s right to a fair trial, which is absolute.
Establishing the broad characteristics of the accused’s right to a fair trial (ie that it is absolute and essential), is only the start of securing this right. Giving content to the meaning of “fair trial” comes next. I have, in recent publications, developed the absolutist position by suggesting that a fair trial is one where the law is correctly applied to facts that are determined without bias. There is, inevitably, some circularity in this, insofar as the law is assumed to be fair. That is why, in New Zealand, the Evidence Bill should be attracting our attention. Some of its current provisions will operate unfairly to an accused. A central concept in trial fairness is the absence of bias, whether bias in the application of the law, or bias in the determination of the facts. Judicial directions to the jury are the final opportunity in a trial to prevent unfairness to the accused, and a rigorous approach to them is essential. Proposals to water them down must be resisted.
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