Monday, May 28, 2007
Hearsay confessions
A particularly tricky problem in evidence law is how to deal with the admissibility of hearsay confessions. These occur when a witness for the defence wishes to say that someone else, not available to give evidence, confessed to the crime with which the accused is charged. Here is a draft paper discussing a New Zealand Court of Appeal decision on this topic.
Thursday, May 24, 2007
Hidden badness
An attack by an accused on the character of a prosecution witness, especially a complainant, may result in the court being informed of the accused’s bad character. In DS v HM Advocate [2007] UKPC D1 (22 May 2007) the accused challenged the validity of Scottish legislation to this effect, on the basis that it infringed his right to a fair trial.
Lord Hope noted that the accused’s right to a fair trial is absolute:
“17. … The Convention right that the appellant invokes is his right to a fair trial. This was described in Salabiaku v France (1988) 13 EHRR 379, para 28, as a fundamental principle of law. In Doorson v The Netherlands (1996) 22 EHRR 330, 358, para 67 the Court said that its task was to ascertain whether the proceedings as a whole were fair. In Dyer v Watson, 2002 SC (PC) 89, 113, I drew attention to the fact that a distinction must be made between those rights which are said by the Convention to be absolute and unqualified and those which are expressly qualified by provisions which permit them to be interfered with in certain circumstances. I said that the overriding right guaranteed by article 6(1) was a fundamental right which did not admit of any balancing exercise, and that the public interest could never be invoked to deny that right to anybody in any circumstances: see also Montgomery v HM Advocate, 2001 SC (PC) 1, pp 27E, 29F-G; Brown v Stott, 2001 SC (PC) 43, pp 60B 74B [also reported as Procurator Fiscal v Brown (Scotland) [2000] UKPC D3]. The fundamental nature of the right to a fair trial has been stressed repeatedly in subsequent cases both in the Judicial Committee and in the House of Lords: R v Forbes [2001] 1 AC 473, para 24; Porter v Magill [2002] 2 AC 357, para 87; Millar v Dickson, 2002 SC (PC) 30, para 52; Mills v HM Advocate, 2003 SC (PC) 1, para 12; Sinclair v HM Advocate, 2005 SC (PC) 28, para 37. The law-making powers of the Scottish Parliament do not permit it to pass laws which will deny an accused a fair trial.”
Under the relevant legislation, in the circumstances that arose in this case, it was for the accused to show that “the interests of justice” favoured non-disclosure of his prior conviction. As to this phrase, Lord Hope said:
“49. … the words "the interests of justice" should be read, in this context, as directed primarily to the accused's right to a fair trial. This issue should be addressed in the light of what I have already said about the reasons why previous convictions for sexual offences or an offence in which a substantial sexual element was present may be relevant. The objection should be tested in the light of what use may properly be made of the conviction with regard to the accused's propensity to commit the offence charged, and what use may properly be made of it with regard to his credibility if he were to give evidence or has made exculpatory statements before trial. The test needs to be exacting in proceedings on indictment, in view of the risk that the jury may attach a significance to the conviction which, due to its age or other factors, it cannot properly bear.”
Whether juries are likely to treat the accused’s previous convictions correctly is a matter that we have seen commented on in R v Becouarn [2005] UKHL 55 (blogged 5 August 2005), not cited in the present case, where a jury study was quoted. However, in DS the Privy Council took a robust approach to this point. Lord Rodger, with whom all the other members of the Board agreed, said:
“85 … [the section allowing the accused’s conviction to be revealed, once he had attacked the complainant’s character] would provide an element of parity or balance in the treatment of the two sides by giving the jury an opportunity, when considering their verdict, to have regard also to what the accused had done on other occasions. The balance between the two sides is not perfect: it is tilted in the accused's favour since the jury only get to know about his previous criminal sexual misbehaviour. Any other behaviour or any other aspects of his character or any condition or predisposition are not revealed.”
Baroness Hale also upheld the fairness of the legislative scheme:
“94 There is nothing intrinsically unfair in a court hearing evidence of an accused person's character and conduct, provided that it is relevant to something which the court has to decide. Our historic reluctance to trust the jury with this information arises from the fear that they may give it more weight than it deserves or regard it as proving that which it does not prove. The answer to that does not have to be to withhold it from them; they can be given clear and careful directions about how to use it.”
Lord Brown summarised the accused’s argument and answered it as follows:
“102 … having won the initial ruling that the evidence [of the complainant’s bad character] is required to enable him to defend himself properly, he submits that no inhibition should thereafter be put in his path; he should not be subjected to the pressure of having to choose between two evils: either forgoing the opportunity to advance his defence properly or allowing the jury to learn of his previous convictions of which otherwise they would have remained in ignorance.
“103 Plausible and beguiling though at first blush this argument may appear, it is to my mind founded upon a central fallacy. The long and the short of it is that the accused has no fundamental right to keep his past convictions from the jury. There is nothing intrinsically unfair or inappropriate in putting these into evidence and, indeed, in doing so not merely on the limited basis that they go only to the accused's credibility (the fiction which to my mind disfigured the administration of criminal justice in England and Wales for far too long, now at last ended by the Criminal Justice Act 2003—see particularly sections 101(1)(d) and 103(1)(a)) but on the wider ground that they bear also on the accused's propensity to commit offences of the kind with which he is charged.”
Great reliance is placed on the ability of the trial judge correctly to warn the jury about the use to which they may put the evidence of the accused’s bad prior conduct, and great reliance is also placed on the ability of juries to follow such directions. This latter reliance appears to be misplaced in the light of the jury study cited in Becouarn, above. Should decisions about the fairness of trials rest on legal assumptions that may not be justified in fact?
Lord Hope noted that the accused’s right to a fair trial is absolute:
“17. … The Convention right that the appellant invokes is his right to a fair trial. This was described in Salabiaku v France (1988) 13 EHRR 379, para 28, as a fundamental principle of law. In Doorson v The Netherlands (1996) 22 EHRR 330, 358, para 67 the Court said that its task was to ascertain whether the proceedings as a whole were fair. In Dyer v Watson, 2002 SC (PC) 89, 113, I drew attention to the fact that a distinction must be made between those rights which are said by the Convention to be absolute and unqualified and those which are expressly qualified by provisions which permit them to be interfered with in certain circumstances. I said that the overriding right guaranteed by article 6(1) was a fundamental right which did not admit of any balancing exercise, and that the public interest could never be invoked to deny that right to anybody in any circumstances: see also Montgomery v HM Advocate, 2001 SC (PC) 1, pp 27E, 29F-G; Brown v Stott, 2001 SC (PC) 43, pp 60B 74B [also reported as Procurator Fiscal v Brown (Scotland) [2000] UKPC D3]. The fundamental nature of the right to a fair trial has been stressed repeatedly in subsequent cases both in the Judicial Committee and in the House of Lords: R v Forbes [2001] 1 AC 473, para 24; Porter v Magill [2002] 2 AC 357, para 87; Millar v Dickson, 2002 SC (PC) 30, para 52; Mills v HM Advocate, 2003 SC (PC) 1, para 12; Sinclair v HM Advocate, 2005 SC (PC) 28, para 37. The law-making powers of the Scottish Parliament do not permit it to pass laws which will deny an accused a fair trial.”
Under the relevant legislation, in the circumstances that arose in this case, it was for the accused to show that “the interests of justice” favoured non-disclosure of his prior conviction. As to this phrase, Lord Hope said:
“49. … the words "the interests of justice" should be read, in this context, as directed primarily to the accused's right to a fair trial. This issue should be addressed in the light of what I have already said about the reasons why previous convictions for sexual offences or an offence in which a substantial sexual element was present may be relevant. The objection should be tested in the light of what use may properly be made of the conviction with regard to the accused's propensity to commit the offence charged, and what use may properly be made of it with regard to his credibility if he were to give evidence or has made exculpatory statements before trial. The test needs to be exacting in proceedings on indictment, in view of the risk that the jury may attach a significance to the conviction which, due to its age or other factors, it cannot properly bear.”
Whether juries are likely to treat the accused’s previous convictions correctly is a matter that we have seen commented on in R v Becouarn [2005] UKHL 55 (blogged 5 August 2005), not cited in the present case, where a jury study was quoted. However, in DS the Privy Council took a robust approach to this point. Lord Rodger, with whom all the other members of the Board agreed, said:
“85 … [the section allowing the accused’s conviction to be revealed, once he had attacked the complainant’s character] would provide an element of parity or balance in the treatment of the two sides by giving the jury an opportunity, when considering their verdict, to have regard also to what the accused had done on other occasions. The balance between the two sides is not perfect: it is tilted in the accused's favour since the jury only get to know about his previous criminal sexual misbehaviour. Any other behaviour or any other aspects of his character or any condition or predisposition are not revealed.”
Baroness Hale also upheld the fairness of the legislative scheme:
“94 There is nothing intrinsically unfair in a court hearing evidence of an accused person's character and conduct, provided that it is relevant to something which the court has to decide. Our historic reluctance to trust the jury with this information arises from the fear that they may give it more weight than it deserves or regard it as proving that which it does not prove. The answer to that does not have to be to withhold it from them; they can be given clear and careful directions about how to use it.”
Lord Brown summarised the accused’s argument and answered it as follows:
“102 … having won the initial ruling that the evidence [of the complainant’s bad character] is required to enable him to defend himself properly, he submits that no inhibition should thereafter be put in his path; he should not be subjected to the pressure of having to choose between two evils: either forgoing the opportunity to advance his defence properly or allowing the jury to learn of his previous convictions of which otherwise they would have remained in ignorance.
“103 Plausible and beguiling though at first blush this argument may appear, it is to my mind founded upon a central fallacy. The long and the short of it is that the accused has no fundamental right to keep his past convictions from the jury. There is nothing intrinsically unfair or inappropriate in putting these into evidence and, indeed, in doing so not merely on the limited basis that they go only to the accused's credibility (the fiction which to my mind disfigured the administration of criminal justice in England and Wales for far too long, now at last ended by the Criminal Justice Act 2003—see particularly sections 101(1)(d) and 103(1)(a)) but on the wider ground that they bear also on the accused's propensity to commit offences of the kind with which he is charged.”
Great reliance is placed on the ability of the trial judge correctly to warn the jury about the use to which they may put the evidence of the accused’s bad prior conduct, and great reliance is also placed on the ability of juries to follow such directions. This latter reliance appears to be misplaced in the light of the jury study cited in Becouarn, above. Should decisions about the fairness of trials rest on legal assumptions that may not be justified in fact?
Friday, May 11, 2007
Howse of discontent
Another case (in addition to Bain, also decided on 10 May 2007, see blog below) in which a Court of Appeal thought that the case against the accused was strong enough to make errors at trial insufficient to amount to a substantial miscarriage of justice, is Bernard v The State (Trinidad and Tobago) [2007] UKPC 34 (10 May 2007).
Here, the court had compelled the accused to be represented at his murder trial by an inexperienced lawyer, who had only been admitted to the bar three months previously. There had been a failure to disclose material facts to the defence, as well as an understandable failure to make the most of the available forensic techniques that a more experienced counsel (“an older hand” para 25) would have had at his disposal.
The Board cited Randall v The Queen [2002] UKPC 19, [2002] 1 WLR 2237, 2251 as authority for the approach to take on the question whether errors at trial have resulted in unfairness, quoting para 28 of Randall:
“While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”
And added (para 29 of Bernard):
“There are statements in the Australian case of Wilde v The Queen (1988) 164 CLR 365 which, if taken out of context, could give support to a proposition that where the evidence against a defendant is overwhelmingly strong, the defects in procedure required for setting the verdict aside on the ground that the trial was unfair have to be such that there has scarcely been a trial at all. The Board applied the decision in Wilde v The Queen in the New Zealand appeal of Howse v The Queen [2005] UKPC 30, but it is not to be taken to have approved this formulation as the universally necessary criterion for proof of unfairness of a trial. In the context of the incorrect admission of evidence, the strength of the rest of the evidence will be material, but in a case of procedural unfairness their Lordships would regard the statement which they have quoted from Randall v The Queen as the appropriate approach. Determination of such an issue involves weighing the seriousness of the irregularities. If the defects were relatively minor, the trial may still be regarded as fair. Conversely, if they were sufficiently serious it cannot be accepted as fair, no matter how strong the evidence of guilt. In such a case it may also be said that the defendant was deprived of his constitutional right of due process.”
The distinction made here is between cases, like Howse, where the error at trial had been the wrongful admission of evidence, and cases like the present appeal, where the question was whether the error had involved procedural unfairness.
Whether this is a clear distinction remains to be seen. The wrongful admission of evidence could result in the fact-decider undertaking a biased task, so creating procedural unfairness, just as failure to disclose material facts to the defence, or failure to cast the doubt on the prosecution case that could have been cast, also gives rise to procedural unfairness.
Perhaps the Privy Council is, in Bernard, tactfully disagreeing with the contentious decision in Howse, where the Board was split 3-2. This, however, may be doubted, because this judgment was delivered by Lord Carswell, who had delivered the majority judgment in Howse. However, a reader of these decisions who applies the rule-of-thumb “Lord Bingham is never wrong” will note his absence from Howse and his presence in Bernard, in which only one judgment was delivered. Did Lord Bingham prompt this subtle qualification of the application of Wilde?
Here, the court had compelled the accused to be represented at his murder trial by an inexperienced lawyer, who had only been admitted to the bar three months previously. There had been a failure to disclose material facts to the defence, as well as an understandable failure to make the most of the available forensic techniques that a more experienced counsel (“an older hand” para 25) would have had at his disposal.
The Board cited Randall v The Queen [2002] UKPC 19, [2002] 1 WLR 2237, 2251 as authority for the approach to take on the question whether errors at trial have resulted in unfairness, quoting para 28 of Randall:
“While reference has been made above to some of the rules which should be observed in a well-conducted trial to safeguard the fairness of the proceedings, it is not every departure from good practice which renders a trial unfair. Inevitably, in the course of a long trial, things are done or said which should not be done or said. Most occurrences of that kind do not undermine the integrity of the trial, particularly if they are isolated and particularly if, where appropriate, they are the subject of a clear judicial direction. It would emasculate the trial process, and undermine public confidence in the administration of criminal justice, if a standard of perfection were imposed that was incapable of attainment in practice. But the right of a criminal defendant to a fair trial is absolute. There will come a point when the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty. The right to a fair trial is one to be enjoyed by the guilty as well as the innocent, for a defendant is presumed to be innocent until proved to be otherwise in a fairly conducted trial.”
And added (para 29 of Bernard):
“There are statements in the Australian case of Wilde v The Queen (1988) 164 CLR 365 which, if taken out of context, could give support to a proposition that where the evidence against a defendant is overwhelmingly strong, the defects in procedure required for setting the verdict aside on the ground that the trial was unfair have to be such that there has scarcely been a trial at all. The Board applied the decision in Wilde v The Queen in the New Zealand appeal of Howse v The Queen [2005] UKPC 30, but it is not to be taken to have approved this formulation as the universally necessary criterion for proof of unfairness of a trial. In the context of the incorrect admission of evidence, the strength of the rest of the evidence will be material, but in a case of procedural unfairness their Lordships would regard the statement which they have quoted from Randall v The Queen as the appropriate approach. Determination of such an issue involves weighing the seriousness of the irregularities. If the defects were relatively minor, the trial may still be regarded as fair. Conversely, if they were sufficiently serious it cannot be accepted as fair, no matter how strong the evidence of guilt. In such a case it may also be said that the defendant was deprived of his constitutional right of due process.”
The distinction made here is between cases, like Howse, where the error at trial had been the wrongful admission of evidence, and cases like the present appeal, where the question was whether the error had involved procedural unfairness.
Whether this is a clear distinction remains to be seen. The wrongful admission of evidence could result in the fact-decider undertaking a biased task, so creating procedural unfairness, just as failure to disclose material facts to the defence, or failure to cast the doubt on the prosecution case that could have been cast, also gives rise to procedural unfairness.
Perhaps the Privy Council is, in Bernard, tactfully disagreeing with the contentious decision in Howse, where the Board was split 3-2. This, however, may be doubted, because this judgment was delivered by Lord Carswell, who had delivered the majority judgment in Howse. However, a reader of these decisions who applies the rule-of-thumb “Lord Bingham is never wrong” will note his absence from Howse and his presence in Bernard, in which only one judgment was delivered. Did Lord Bingham prompt this subtle qualification of the application of Wilde?
Justices Marple, Holmes and Poirot
Stating the law is one thing, applying it another. An appellate court may be able correctly to state the way it should approach the question of whether there has been a substantial miscarriage of justice in the case before it, yet, when it comes to deciding the appeal, it may contravene its own statement of the law.
This fundamental error occurred in the New Zealand Court of Appeal’s decision which yesterday was overturned by the Privy Council: Bain v R (New Zealand) [2007] UKPC (10 May 2007).
The law as to how the question of substantial miscarriage of justice should be determined was set out by the Court, and quoted by the Board (para 35), as follows:
"The court went on, in paragraph 24 of its judgment, to observe that when fresh evidence is admitted, it must move on to the next stage of the enquiry
“which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such a real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.”
“The court pointed out (paragraph 25) that its concern is whether the jury, not the court, would nevertheless have convicted had the posited miscarriage of justice not occurred. This was consistent with
“the fundamental point that the ultimate issue whether an accused person is guilty or not guilty is for a jury, not for Judges. The appellate court acts as a screen through which the further evidence must pass. It is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result.”"
It was surprising, after such a precise statement of the appellate court’s role, that the Court of Appeal should then have embarked on a detailed analysis of the evidence and come to its own determination of the appellant’s guilt. As I observed in an article mentioning this case, “Proof, fairness and the proviso” [2006] NZLJ 156, 158 (copy available on this link): “ … we are left to wonder whether a jury would have reached the same conclusion at a new trial.”
The Privy Council held that only a jury could assess the impact of the fresh evidence that the defence had obtained. The Court of Appeal’s reasons for concluding that the appellant was guilty were based on assumptions and matters that had not been raised at trial. As to these (para 115):
“…The Board does not consider it necessary to review these points in detail, for three reasons. First, the issue of guilt is one for a properly informed and directed jury, not for an appellate court. Secondly, the issue is not whether there is or was evidence on which a jury could reasonably convict but whether there is or was evidence on which it might reasonably decline to do so. And, thirdly, a fair trial ordinarily requires that the jury hears the evidence it ought to hear before returning its verdict, and should not act on evidence which is, or may be, false or misleading. Even a guilty defendant is entitled to such a trial.”
And added (para 119):
“ … Where issues have not been fully and fairly considered by a trial jury, determination of guilt is not the task of appellate courts.”
The conclusion was that there had been a substantial miscarriage of justice (which became apparent only after the trial, when the fresh evidence came to light), that the convictions should be quashed and a retrial ordered.
The lesson here is that procedural fairness is of fundamental importance, and an improper focus on the apparent guilt of the appellant must not cause the appellate court to take over the role which is properly that of a jury.
As evidence of the temptation to overlook trial fairness and to focus on apparent guilt, we need only recall that in last year’s report by a retired High Court Judge on the likely occurrence of miscarriages of justice in trials in New Zealand, no criticism was made of the upholding of the Bain convictions.
This fundamental error occurred in the New Zealand Court of Appeal’s decision which yesterday was overturned by the Privy Council: Bain v R (New Zealand) [2007] UKPC (10 May 2007).
The law as to how the question of substantial miscarriage of justice should be determined was set out by the Court, and quoted by the Board (para 35), as follows:
"The court went on, in paragraph 24 of its judgment, to observe that when fresh evidence is admitted, it must move on to the next stage of the enquiry
“which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such a real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.”
“The court pointed out (paragraph 25) that its concern is whether the jury, not the court, would nevertheless have convicted had the posited miscarriage of justice not occurred. This was consistent with
“the fundamental point that the ultimate issue whether an accused person is guilty or not guilty is for a jury, not for Judges. The appellate court acts as a screen through which the further evidence must pass. It is not the ultimate arbiter of guilt, save in the practical sense that this is the effect of applying the proviso, or ruling that the new evidence could not reasonably have affected the result.”"
It was surprising, after such a precise statement of the appellate court’s role, that the Court of Appeal should then have embarked on a detailed analysis of the evidence and come to its own determination of the appellant’s guilt. As I observed in an article mentioning this case, “Proof, fairness and the proviso” [2006] NZLJ 156, 158 (copy available on this link): “ … we are left to wonder whether a jury would have reached the same conclusion at a new trial.”
The Privy Council held that only a jury could assess the impact of the fresh evidence that the defence had obtained. The Court of Appeal’s reasons for concluding that the appellant was guilty were based on assumptions and matters that had not been raised at trial. As to these (para 115):
“…The Board does not consider it necessary to review these points in detail, for three reasons. First, the issue of guilt is one for a properly informed and directed jury, not for an appellate court. Secondly, the issue is not whether there is or was evidence on which a jury could reasonably convict but whether there is or was evidence on which it might reasonably decline to do so. And, thirdly, a fair trial ordinarily requires that the jury hears the evidence it ought to hear before returning its verdict, and should not act on evidence which is, or may be, false or misleading. Even a guilty defendant is entitled to such a trial.”
And added (para 119):
“ … Where issues have not been fully and fairly considered by a trial jury, determination of guilt is not the task of appellate courts.”
The conclusion was that there had been a substantial miscarriage of justice (which became apparent only after the trial, when the fresh evidence came to light), that the convictions should be quashed and a retrial ordered.
The lesson here is that procedural fairness is of fundamental importance, and an improper focus on the apparent guilt of the appellant must not cause the appellate court to take over the role which is properly that of a jury.
As evidence of the temptation to overlook trial fairness and to focus on apparent guilt, we need only recall that in last year’s report by a retired High Court Judge on the likely occurrence of miscarriages of justice in trials in New Zealand, no criticism was made of the upholding of the Bain convictions.
Friday, May 04, 2007
Disorderly rights
Offences of disorderly behaviour, involving the simplest of facts, can provide the basis for interminable disputation among jurists. This affords students an introduction to the role of law, the need for certainty and the problem of definition of crime, the proper scope of judicial discretion, the nature of judgment, and the complicating influence of competing rights on the definition of the offence.
Also, such apparently simple cases can be occasions for judicial disagreement as they proceed up the court hierarchy. A dogged appellant can eventually succeed, as happened today in Brooker v R [2007] NZSC 30 (4 May 2007). In this case, the successful appellant represented himself before the Supreme Court, thereby illustrating what many may suspect: it’s the issues, not the lawyers, that matter.
The judges took 288 paragraphs to deliver their separate judgments, and the case was decided by a bare majority of 3 to 2. As Thomas J, one of the dissenters, pointed out (para 150), in all, 10 judges had considered the case, 7 of them were in favour of convicting, and only the 3 majority judges at this final appeal stage effected the quashing of the conviction. That, of course, is an illegal count, comparing – if one might carefully choose one’s fruit – apples with oranges.
For our purposes, the result of the case doesn’t matter. We are more interested in how judges differ in their approaches to deciding how the actus reus of the offence is affected by the existence of competing rights.
I should point out that vagueness in the definition of an offence is not unusual. Most offences can be attempted, and the attempt is a separate offence. To be guilty of an attempt, one must perform an act that is sufficiently proximate to the commission of the full offence to constitute an actus reus of an attempt. Proximity is vague, and fact-dependent. Nevertheless, the courts have worked out various ways of asking whether particular circumstances disclose sufficient proximity. Those cases, certainly not always free of controversy, do not involve the added complication of conflicting rights.
In Brooker, the complication of competing rights was approached in two different ways. In the first, one right was seen as a limitation on the other. The complainant’s right to privacy was seen as a limitation on the accused’s right to freedom of expression, and the question was whether this limitation was justified. If it was, the defendant was guilty. This approach is evident in the majority judgments of Blanchard J (para 69), Tipping J (91).
The second way of dealing with the complication of competing rights does not involve justifying the limitation to the defendant’s right to freedom of expression. Instead, the competing rights are put against each other: the right to freedom of expression as against the right to privacy, and the question is which the balance favours. The dissenters, McGrath and Thomas JJ take this approach (paras 136, 231 respectively).
The other judge, Elias CJ, held that the lower courts had applied the wrong test for what disorderly behaviour means, failing to require a serious disruption to public order, and allowed the appeal because of that error. She added that the defendant could not have been convicted on the correct approach.
The two approaches, summarised above, to dealing with the complication of competing rights in the context of a vaguely defined offence, deserve some reflection. They reveal a difference in the idea of the role of rights in society. For Tipping J, the question was what a reasonable citizen should be expected to bear (para 91): how much disorderly behaviour should a reasonable citizen be expected to bear in the interests of upholding the defendant’s right to freedom of expression? The focus is on the impact on the defendant’s right, because the question is basically what is the proper scope of the criminal law? This may seem a little odd, since it is the defendant who is initiating the conflict. One might have thought that the question should be put as, what limitation on his right to freedom of expression should the defendant be expected to bear (by incurring criminal liability), in the interests of upholding the complainant’s right to privacy?
In contrast to rights limitation, the other approach, elaborated carefully by Thomas J, involves rights balancing. Pragmatists will appreciate his reference to the test of the “reasonable person” (para 199), echoing that introduced by the famous pragmatist Oliver Wendell Holmes Jr. Thomas’s pragmatism has been noted in these blogs before. Some, too, will appreciate his reference to Barak’s “The Judge in a Democracy” (para 177).
Central to this pragmatist view of rights are the ideas that everyone is entitled to be treated with equal concern and respect (para 171), and that the right to dignity is central to all human rights. Primacy is not accorded, as a starting point, to the rights of the defendant when they are in opposition to the rights of another citizen; this playing field is level (232). It is doubtful that, at this point, Thomas J was intending to suggest that all rights will have equal weight in a balancing exercise.
Theory is one thing, putting it into practice another. We do not have to agree with Thomas J’s conclusion on the facts of the case. It is difficult to form a view of these, because each judge, in reporting the facts of the case, puts them in a light which tends to support his or her conclusion. Such is the way of humans.
Questions remain about which of the two approaches, rights limitation or rights balancing, is appropriate to the decision whether behaviour constitutes an actus reus. The four judges who considered this split 2-2. The balancing approach is familiar in the context of determining the admissibility of evidence obtained improperly, where the public policy discretion arises from the need to prevent abuse of process and the related need to avoid bringing the administration of justice into disrepute. The definition of offences, however, has traditionally been based on utilitarian grounds, whereby, as JS Mill put it, the state is justified in restraining the freedom of those within its jurisdiction only to the extent that such restraint is necessary to prevent harm.
Also, such apparently simple cases can be occasions for judicial disagreement as they proceed up the court hierarchy. A dogged appellant can eventually succeed, as happened today in Brooker v R [2007] NZSC 30 (4 May 2007). In this case, the successful appellant represented himself before the Supreme Court, thereby illustrating what many may suspect: it’s the issues, not the lawyers, that matter.
The judges took 288 paragraphs to deliver their separate judgments, and the case was decided by a bare majority of 3 to 2. As Thomas J, one of the dissenters, pointed out (para 150), in all, 10 judges had considered the case, 7 of them were in favour of convicting, and only the 3 majority judges at this final appeal stage effected the quashing of the conviction. That, of course, is an illegal count, comparing – if one might carefully choose one’s fruit – apples with oranges.
For our purposes, the result of the case doesn’t matter. We are more interested in how judges differ in their approaches to deciding how the actus reus of the offence is affected by the existence of competing rights.
I should point out that vagueness in the definition of an offence is not unusual. Most offences can be attempted, and the attempt is a separate offence. To be guilty of an attempt, one must perform an act that is sufficiently proximate to the commission of the full offence to constitute an actus reus of an attempt. Proximity is vague, and fact-dependent. Nevertheless, the courts have worked out various ways of asking whether particular circumstances disclose sufficient proximity. Those cases, certainly not always free of controversy, do not involve the added complication of conflicting rights.
In Brooker, the complication of competing rights was approached in two different ways. In the first, one right was seen as a limitation on the other. The complainant’s right to privacy was seen as a limitation on the accused’s right to freedom of expression, and the question was whether this limitation was justified. If it was, the defendant was guilty. This approach is evident in the majority judgments of Blanchard J (para 69), Tipping J (91).
The second way of dealing with the complication of competing rights does not involve justifying the limitation to the defendant’s right to freedom of expression. Instead, the competing rights are put against each other: the right to freedom of expression as against the right to privacy, and the question is which the balance favours. The dissenters, McGrath and Thomas JJ take this approach (paras 136, 231 respectively).
The other judge, Elias CJ, held that the lower courts had applied the wrong test for what disorderly behaviour means, failing to require a serious disruption to public order, and allowed the appeal because of that error. She added that the defendant could not have been convicted on the correct approach.
The two approaches, summarised above, to dealing with the complication of competing rights in the context of a vaguely defined offence, deserve some reflection. They reveal a difference in the idea of the role of rights in society. For Tipping J, the question was what a reasonable citizen should be expected to bear (para 91): how much disorderly behaviour should a reasonable citizen be expected to bear in the interests of upholding the defendant’s right to freedom of expression? The focus is on the impact on the defendant’s right, because the question is basically what is the proper scope of the criminal law? This may seem a little odd, since it is the defendant who is initiating the conflict. One might have thought that the question should be put as, what limitation on his right to freedom of expression should the defendant be expected to bear (by incurring criminal liability), in the interests of upholding the complainant’s right to privacy?
In contrast to rights limitation, the other approach, elaborated carefully by Thomas J, involves rights balancing. Pragmatists will appreciate his reference to the test of the “reasonable person” (para 199), echoing that introduced by the famous pragmatist Oliver Wendell Holmes Jr. Thomas’s pragmatism has been noted in these blogs before. Some, too, will appreciate his reference to Barak’s “The Judge in a Democracy” (para 177).
Central to this pragmatist view of rights are the ideas that everyone is entitled to be treated with equal concern and respect (para 171), and that the right to dignity is central to all human rights. Primacy is not accorded, as a starting point, to the rights of the defendant when they are in opposition to the rights of another citizen; this playing field is level (232). It is doubtful that, at this point, Thomas J was intending to suggest that all rights will have equal weight in a balancing exercise.
Theory is one thing, putting it into practice another. We do not have to agree with Thomas J’s conclusion on the facts of the case. It is difficult to form a view of these, because each judge, in reporting the facts of the case, puts them in a light which tends to support his or her conclusion. Such is the way of humans.
Questions remain about which of the two approaches, rights limitation or rights balancing, is appropriate to the decision whether behaviour constitutes an actus reus. The four judges who considered this split 2-2. The balancing approach is familiar in the context of determining the admissibility of evidence obtained improperly, where the public policy discretion arises from the need to prevent abuse of process and the related need to avoid bringing the administration of justice into disrepute. The definition of offences, however, has traditionally been based on utilitarian grounds, whereby, as JS Mill put it, the state is justified in restraining the freedom of those within its jurisdiction only to the extent that such restraint is necessary to prevent harm.
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