Friday, November 23, 2007

Misuse of lies

In a three-paragraph judgment the Supreme Court of Canada has held that “It was not open to the Court of Appeal to acquit the respondent on the basis of speculation about a possible explanation of his conduct that was flatly contradicted by his own testimony”: R v Grover [2007] SCC 51 (22 November 2007).

This superficially attractive proposition does not withstand scrutiny.

Nor does it accurately reflect the evidence in the case, as recorded in the Saskatchewan Court of Appeal majority judgment: (2006) SKCA 146 (15 December 2006).

First, the SCC’s proposition. This is an interpretation of the appeal provision, commonly found throughout the Commonwealth, which requires a conviction to be quashed if it is unreasonable or cannot be supported by the evidence (here, in the Canadian Criminal Code RSC 1985, s 686(1)(a)). At trial, if the trier of fact (here it was a judge-alone trial) rejects any part of the accused’s evidence, that part must be put aside, so that the adequacy of the case against the accused is judged on the evidence that the trier accepts. Juries are routinely directed to this effect when an accused has given evidence which the prosecution says should be rejected.

Only where the trier finds that the accused has lied, and where there is no rational explanation for that lie other than that it was told out of a consciousness of guilt, can the lie be taken as evidence that supports the prosecution case. These kinds of lies are very rare.

And so to the evidence. R v Grover was not a case where the accused’s testimony, if it was a lie, must have supported an inference of guilt. Mr Grover, a landlord of a residential property where there had been a fire, asked a tenant to sign a form certifying that the smoke alarm had been inspected before the fire. He was charged with attempting to pervert the course of justice by asking the tenant to do that. The critical issue was whether, when he asked the tenant to sign the form, he knew that the alarm had not been inspected. Part of the tenant’s evidence (she was a prosecution witness) was quoted in the Court of Appeal’s majority judgment, and this included the following:

“Q Was he insistent that you do it, or was he just asking you in a nice voice, just —

A Well, he mentioned a couple of times to sign it and, you know, because they had checked the smoke detectors, and I kept telling him not in my presence.

Q Did he seem to accept that?

A I thought so, yeah.

Q And what did he say about your name being on the lease?

A He said I could sign it because my name was on the lease, whether I was there or not when somebody checked the smoke detectors.”

Particularly important here is the tenant’s evidence that “…he mentioned a couple of times to sign it … because they had checked the smoke detectors, and I kept telling him not in my presence.”

Equally significant, on the description of the case given by the majority in the Court of Appeal, at para 12, is the following:

“The question before this Court is whether this evidence, in light of the findings of credibility of the trial judge, supports the finding that the appellant [Mr Grover] knew that no inspection had taken place on January 25, 2005. In my respectful view, it does not. Clearly, there is no direct evidence that the appellant knew this fact. The appellant did not admit to knowing it and Mr. Plamondon [the caretaker in charge of the premises] did not testify that he told the appellant. Despite an exceedingly lengthy cross-examination, the appellant was not cross-examined on this point.”

So is not clear that Mr Grover’s testimony “flatly contradicted” (the phrase used by the Supreme Court, above) the possible explanation for his lie.

The relevant conflict in the evidence was over whether Mr Grover had asked the tenant to sign the form when he saw her in hospital. His denial of that did not mean, in the majority’s view, para 13-14, that he knew the inspection had not taken place: “it is consistent with a belief that the inspection had taken place but that the tenant’s signature was missing from the inspection record—exactly what the appellant represented to the fire inspector…. It is reasonable to assume that he would consider it crucial that in this case the inspection records be in perfect order.”

If indeed he lied in his evidence about asking the tenant to sign the form, Mr Grover could have been trying to shield himself from an incorrect judicial conclusion that he must have known there had been no inspection of the smoke alarm, when in reality he had merely been trying to get the paperwork straightened out. The proper course for the court was to ignore the lie, and to consider what was the proper inference on the evidence it accepted. The Court of Appeal majority held that the circumstantial evidence did not support the conclusion of guilt to the standard of beyond reasonable doubt. By accepting the fallacy that had been stated by the dissenting judge in the Court below, the Supreme Court of Canada prevented itself from considering the evidence and determining whether it supported the verdict.

The New Zealand Court of Appeal last week delivered an important decision on the corresponding appeal provision of the Crimes Act 1961[NZ], s 385(1)(a): R v Munro [2007] NZCA 510 (16 November 2007). The Court unanimously quashed the appellant’s conviction as it could not be supported by the evidence, and entered an acquittal, in a lengthy joint judgment (Glazebrook, Chambers, Arnold and Wilson JJ) with which Hammond J largely agreed. In the course of considering the law in other jurisdictions, reference was made to the Canadian case R v Yebes [1987] 2 SCR 168, which was also cited by the Saskatchewan Court of Appeal in R v Grover. The joint judgment in the New Zealand Court of Appeal summarised the position, para 27, as follows:

“In Yebes the Supreme Court explained the obligations of an appellate court under this provision in the Criminal Code…. The appellate court must look beyond the question of whether there is some evidence to support the conviction. Rather, it must determine whether, on the whole of the evidence, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered (at 430). It was recognised that, to some extent, this will require the court on appeal to re-examine and re-weigh the evidence and ascertain whether it is sufficient to justify the verdict.”

And further, in relation to R v Biniaris [2000] 1 SCR 381; (2000) 143 CCC(3d) 1, the Judges added, para 30,

“…Close scrutiny might reveal that the jury reached its verdict pursuant to an analytical flaw, or judicial experience about the need for special caution in evaluating certain types of evidence might lead an experienced appellate judge to conclude that in a given case the jury’s fact-finding process was flawed and thus the result was unreasonable….”

These statements of principle were held, para 42, to be applicable in New Zealand. It is to be hoped that the error in the Supreme Court of Canada’s dismissal of the appeal in R v Grover, is not.

Monday, November 19, 2007

"... anything you say may be shown on television."

Even improperly obtained confessional statements, that are excluded from evidence at trial, may be permitted by the court to be shown on television. In Rogers v TVNZ [2007] NZSC 91 (16 November 2007) this was held by the 3-2 majority. No doubt, as a result, lawyers will be warning their clients about this when giving advice in response to a police request for an interview.

The minority, Elias CJ and Anderson J, considered, in separate judgments, that there were too many unresolved issues, particularly concerning what relevance, if any, the method by which the media obtained a copy of the videotape of the excluded confession, had to the ultimate issue.

The majority, Blanchard, Tipping and McGrath JJ - also delivering individual judgments – preferred to treat the proceedings as if they were an application under the Criminal Proceedings (Search of Court Records) Rules 1974. This made sense, because TVNZ could have simply said, never mind about the copy we have, give us another. What was important for the majority was the need for open justice, for public discussion at an informed level about the decisions made in this case.

Public interest is high. I have previously blogged the Court of Appeal’s decision in the present proceedings (see 8 August 2006). There I suggested that public discussion that is properly informed will be difficult to achieve, because of the complexity of the issues relevant to the admissibility of the evidence here. The Supreme Court majority did little to further inform the public, leaving people to hope that the media give them sufficient material, or to fossic it out for themselves.

Mr Rogers’ uncle, Mr Lloyd, had been tried for a murder and acquitted, but was convicted of manslaughter. He was sentenced to 11 years in prison. Eventually, when the sentence was almost served, the police became doubtful as to the correctness of Mr Lloyd’s conviction. This was because Mr Rogers had made admissions to family members, and had demonstrated how he alone had killed the victim. The Crown consented to Mr Lloyd’s appeal against conviction being allowed. Mr Rogers was arrested and charged with the murder. His lawyer obtained an agreement from the police that they would not interview Mr Rogers unless the lawyer was present. In breach of that agreement, the police arranged for the temporary release of Mr Rogers from custody (he had been denied bail) so that he could, without his lawyer’s knowledge, go with the police to the scene of the murder and demonstrate, on videotape, how he did it.

The High Court ruled that this tape was admissible evidence against Mr Rogers. On appeal, the Court of Appeal overruled that decision, holding that the tape was inadmissible. This was because the police had improperly obtained the evidence on the tape by breaching Mr Rogers’ right to legal advice and his right to silence, in circumstances where the police should be held to their agreement with Mr Rogers’ counsel. A full balancing exercise was not carried out; that would have involved detailed consideration of the seriousness of the impropriety by which the evidence was obtained, and the public interest factors including the importance of the evidence in the overall context of the other evidence that would be before the jury.

At trial, Mr Rogers was acquitted.

The Supreme Court in these subsequent proceedings did not elaborate the balancing factors. The case came before it as an appeal by Mr Rogers against a Court of Appeal ruling that TVNZ could broadcast a copy of the tape that the police had given it at a stage before the Court of Appeal had ruled it inadmissible. The Supreme Court expressed concerns about the propriety of the police dealing with what should, it seemed, be treated as information not for public release. A problem with these proceedings was that proper pleadings, identifying issues and providing for the development of legal argument, had not occurred because of the urgency of this case (the issue of broadcasting) in its early stage.

Among the points made in the Supreme Court are the following:

  • Acquitted people cannot expect to be able to prevent public discussion of their cases (Blanchard J at 47; Tipping J added that an acquittal is not a declaration of innocence, at 66).

  • Open justice is important, indeed it is the dominant interest here. The courts should not be perceived to be discouraging criticism (Blanchard J, at 56). A defensive attitude by the courts would undermine public confidence in the judicial system (Tipping J, at 74).

  • The public have an interest in being fully informed so they can make their own assessments of the reasons for exclusion of the tape, and uninformed commentary is not in the interests of the administration of justice (Blanchard J at 51; McGrath J at 124).

  • An interview with the police is not (at least, here) private information (Blanchard J at 48; McGrath J at 99, although Elias CJ disagreed at 23, and Anderson J at 145 would not go as far as Blanchard J).

  • The issue here was how far the consequences of the ruling of inadmissibility should affect the use of the tape for other purposes (Tipping J at 64).

  • The approach to search of court records should be to release information unless there is good reason to withhold it (Tipping J at 67).

  • The court might have an inherent power to prevent access to information, even before it becomes part of the court’s record (McGrath J at 109 - 113, but Anderson J would not encourage the courts to arrogate to themselves a broad claim of inherent power used to constrain rights (at 152).

  • The argument, advanced by Mr Rogers, that publicity at this stage would disrupt his rehabilitation, was met by the fact that he was responsible, by opposing publication, for the delay, and if publication had occurred earlier (with reports of the verdict) it would not have had a disruptive effect (Tipping J at 70).

  • The breaches of Mr Rogers’ rights were adequately remedied by the exclusion of the tape from evidence at his trial (Blanchard J at 49; Tipping J at 65; McGrath J at 132 but noting that broadcasting might be seen as undermining this vindication of Mr Rogers’ rights; Anderson J doubted, at 148, that exclusion will necessarily always be a sufficient remedy, and Elias CJ was of similar view at 28-29).

  • Knowledge by suspects that their statements to the police might be broadcast will not deter them from talking to the police (Blanchard J at 48, noting that the police don’t seem to be concerned about this; but Elias CJ was not so sure at 30).

No doubt, public discussion will first focus on whether Mr Rogers was really guilty. Whether the verdict would have been different if the jury had seen the tape can only be a matter of speculation. More interesting, at least to lawyers and informed commentators, is the propriety of excluding the tape from evidence in this case. This is difficult to assess, because the judgment of the High Court (ruling it admissible) is not readily accessible – at least at present – and the Court of Appeal, as noted above, did not conduct a detailed analysis. The Supreme Court judgments do not criticise the Court of Appeal’s decision. Blanchard J was careful, at 54, not to indicate any doubt about the legal soundness of the Court of Appeal’s ruling, but at 53 he said that the tape may have assisted the prosecution case, and Anderson J at 149 said it was “weighty” evidence. Tipping J refrained from expressing any view on whether a correct balance had been struck in this case between redressing breaches and the effective prosecution of crime: 72. It is not clear whether the Supreme Court Judges viewed the tape; probably they did not.

In not giving fuller details of the relevant facts in its judgments the Court leaves it to the media to supply the public with sufficient information for proper debate of the issues.

The television programme broadcast on Sunday night, 18 November 2007, on TV One, did not discuss two matters I would like to know more about: first, why was Mr Rogers’ lawyer’s agreement with the police treated by the Court of Appeal as if it were a right supplementing the right to counsel in the Bill of Rights, and second, why didn’t the Court of Appeal treat Mr Rogers as having waived his right to counsel before going with the police to make the reconstruction of the murder?

On the other hand, the excerpts of the tape shown on television did not suggest to me that the confession made there was likely to be true, as opposed to being a re-enactment of a fantasy that, apparently, evidence in the trial had suggested Mr Rogers thought was true. There seemed to be some pressure on Mr Rogers from family members to admit guilt, and he had indeed made several previous admissions to them, but the police had not thought they were believable. Perhaps an issue of voluntariness arose; it is difficult to say without full knowledge of the case. The television programme left me with the impression that the police investigation of the case had not resulted in persuasive evidence so a confession was necessary. But as to its reliability, who can really say? It does not seem appropriate to call the part of the tape shown on television “weighty” evidence for the prosecution, and comments in the Supreme Court judgments about the inadequacy of a verbal account of the video (Tipping J at 72; McGrath J at 123) may seriously underestimate the power of words and imagination compared with the relatively mundane visual presentation.

Friday, November 09, 2007

Muscles strong, but unflexed

When the power of a legislature is limited to its territory, an intent to supply drugs outside that territory may not be within the scope of the offence of possession of those drugs for supply. This was the position in Seymour v R (Bermuda) [2007] UKPC 59 (5 November 2007).

The power of the legislature of Bermuda is set out in s 34 of the Bermuda Constitution Order 1968, using the familiar formula “peace, order and good government” of Bermuda. Thus, where the appellant had possession of heroin in Bermuda, intending to take it to Florida for supply to others, that was not an offence of possession for supply under the law of Bermuda. The Privy Council substituted a conviction for possession simpliciter. At trial, the accused had conceded possession, because he had valid legal arguments and they were accepted, and the Privy Council held that it would be unfair to substitute a conviction for preparing to export the drug, because if he had faced that charge he may not have conceded possession.

In New Zealand, the power of the parliament to make laws is set out in s 15(1) of the Constitution Act 1986: “The Parliament of New Zealand continues to have full power to make laws.” This “full power” departs from the “peace, order and good government” formulation, and is not expressly limited to New Zealand territory. There is a common law presumption against extra-territorial effect, but express provision in a statute will of course displace that. Such a provision is s 12C of the Misuse of Drugs Act 1975:

“(1)Subject to subsection (2), every person commits an offence against this Act who, outside New Zealand, does or omits to do any act that would, if done or omitted in New Zealand, constitute an offence against—
(a)Section 6 …
(2)No proceedings for an offence against subsection (1) may be brought unless—
(a)The person to be charged is a New Zealand citizen; or
(b)The person to be charged is present in New Zealand.
(4)Subsection (1) does not apply if the doing or omission of the act to which the charge relates was not an offence under the law of the place where the act was done or omitted.”

So, if the facts of Seymour occurred here, the intention to supply the drug to someone outside New Zealand would be an intention to commit an offence outside New Zealand (assuming, of course, that supply of the drug was an offence in the foreign jurisdiction), but would that intention be an intention to “supply” in terms of s 6(1)(f)? That provision makes it an offence as follows:

“(1) Except as provided in section 8 of this Act, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall— …
(c) Supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; or
(d) Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or
(e) Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or
(f) Have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e) of this subsection.”

Notably, s 6(1)(f) does not include the purposes in s 12C, ie the purpose of committing the offence of supply outside New Zealand. Parliament could have included that, had it wished.

So, it seems that, notwithstanding the assumption of extraterritorial powers, the New Zealand legislature has not made provision for circumstances like those in Seymour.

Impugning acquittals

Disputes about relevance and fairness can arise over whether an accused should be able to inform the jury that he was acquitted at an earlier trial if the prosecution now seeks to use some of the evidence from that earlier trial in its present case. This problem can arise even if the two trials concern different allegations.

Yesterday, the High Court of Australia considered an example of this in Washer v Western Australia [2007] HCA 48 (8 November 2007). I say “an example” because there is no general rule that applies: in some cases an accused will be allowed to insist that the jury be told that he was acquitted at an earlier trial when some evidence adduced at it is now produced by the prosecution. In other cases, it will not be appropriate to inform the jury of the earlier verdict. The critical point is, what is the relevance of the earlier acquittal? What fact in issue in the present trial does the earlier acquittal make more probable?

Sometimes, the reason for the earlier acquittal will be clear. This could occur if that trial involved a dispute over one fact, as long as the only reason for the verdict must have been a reasonable doubt as to proof of that fact. But it is likely to more frequently to be the case that the reasons for the earlier acquittal could be various, as occurred in Washer. It will be difficult to establish relevance in the present case if there could be more than one reason for the earlier acquittal.

In Washer, the prosecution adduced evidence that the accused had previously been dealing in methylamphetamine (as it is called in the relevant jurisdiction), in order to prove that he was, on this present occasion, also intending to deal in that drug. The sole relevance of this evidence was to establish his intent. However, that evidence had been presented at a trial where the accused was alleged to have conspired with two others (not involved in the present trial) to sell or supply the drug over a period extending over a year, and he was acquitted on that charge. The present charge was conspiring to possess, for sale or supply, another amount of the drug, over a period of two weeks. These two weeks were in the early part of the year with which the former trial had been concerned.

There could be a number of reasons for the earlier acquittal. These were pointed out in the joint judgment of the majority, Gleeson CJ, Heydon and Crennan JJ (Hayne J concurring) at para 28:

“It is impossible to know why the jury at the earlier trial acquitted the appellant of conspiring with [the other two] to supply drugs to third parties. They may have doubted that the conversations between the appellant and [the other two] related to drugs. They may have doubted that the conversations showed more than that the appellant was in the business of dealing in drugs on his own account. They may have concluded positively that the appellant was a legitimate businessman. It is not possible to tell; and it could not be suggested that the jury at the [present] trial … should have been invited to re-examine the conduct of the earlier trial in order to reach their own conclusion about what the jury at the earlier trial must have decided.”


“41 … Let it be supposed that the jury had been informed that the appellant had been charged previously with being a party to an agreement (not related to the [present matter]) with [the other two], that he had been acquitted, and that the jury must therefore act on the basis that there was no agreement to supply between those three men. That would have been a complete statement of what was involved in the benefit of the acquittal. There was no process of reasoning whereby that information would have made less plausible any step in the [present] prosecution case as it was finally left to the jury. There was nothing more that the jury could properly have been told. If the jury had been told that the earlier acquittal established that the appellant was not a drug dealer, or that he was not talking about drugs in his conversations with [the other two], that would have been untrue. If the trial judge had told the jury they must give the appellant the full benefit of his acquittal without further explanation, that would have been mischievous.”

Kirby J dissented in his reasons, but agreed in the dismissal of the appeal as a result of applying the proviso. Kirby J held that fairness required the accused, in the particular circumstances of the present matter, to be permitted to inform the jury of the earlier acquittal. The risk of impugning the earlier verdict was significant (para 91):

“ … If the conversations with [the other two] were designed to prove that Mr Washer "is not talking about ... anything innocent", was the appellant not entitled to have the second jury informed that, notwithstanding any conclusion that they might otherwise reach about such evidence, an earlier jury had, in fact, found the appellant not guilty of the offence with which he was then charged? And that this jury finding was to be treated as a finding that he was innocent and given full effect by the second jury?”

Although Kirby J found there to have been an error of law in the trial, namely the ruling that the jury should not be told of the earlier acquittal, this did not amount to a substantial miscarriage of justice in the present circumstances, because the other evidence of intention here was strong. Accordingly, he applied the proviso, upheld the conviction, and, with the other judges, dismissed the appeal.

The result is that impugning the earlier acquittal does not occur if the acquittal might be inconsistent with the use now made of the evidence; what is required for impugning is that there must be such an inconsistency.

Friday, November 02, 2007

A moment's silence

When a suspect held in police custody exercises his right to remain silent, does continued questioning amount to a breach of that right, and is a subsequent statement involuntary?

Two approaches to these issues are possible. First, a rule may be imposed making all police questioning unlawful once the suspect has exercised the right to silence. Secondly, further police questioning may be permitted, subject to a rule against cross-examination, with the ultimate criterion for admissibility being voluntariness.

The Supreme Court of Canada has chosen the latter alternative: R v Singh [2007] SCC 48 (1 November 2007), although only by a majority of 5-4. The majority held that the overriding consideration was the voluntariness of the challenged statement and that breach of the right to silence would prevent a conclusion that the statement had been made voluntarily. Whether the right to silence was breached depends on the balance to be struck, in the circumstances of each case, between the state’s interest in the effective investigation of crime, and the suspect’s “individual interests” in being protected from “the unfair use by the state of its superior resources” (para 45, citing R. v. Hebert, 1990 CanLII 118 (S.C.C.), [1990] 2 S.C.R. 151). Police persistence in questioning may raise the issue of voluntariness.

The minority in Singh held that the police should be required to respect the suspect’s exercise of the right to silence as it is a constitutional promise (para 97), and there is no evidence that this would hamper the police in the investigation of crime; but even assuming it would have that effect, a rule was preferable to reflect the importance of the right to silence (para 96). While acknowledging that the detainee may well change his mind over whether to exercise the right to silence, any such change must not be compelled by police persistence, which is what happened in this case (para 95).

This split over whether the facts of the case supported a doubt over the voluntariness of the statement shows how sensitive this balancing exercise is to elusive and personal judicial dispositions. It remains arguable that the more robust and predictable rule based approach is preferable where the issue is voluntariness.

In New Zealand there is currently a divergence in the Court of Appeal, between cases that seem to support a rule of no questioning after the suspect exercises the right to refuse to answer questions (R v Kai Ji [2004] 1 NZLR 59; (2003) 20 CRNZ 479 (CA)), and cases where a balancing exercise seems to operate (R v Ormsby 8/4/05, CA493/04). The Chief Justice’s Practice Note on Police Questioning does not settle the issue, but it repeats the Judges’ Rule against cross-examination. Section 29 of the Evidence Act 2006 requires, without a balancing exercise, exclusion of statements “influenced by oppression” (which reflects the common law’s voluntariness rule), and in other respects leaves the matter of the propriety of police questioning to be determined by a balancing exercise under s 30. That provision applies, inter alia, to statements obtained in breach of the New Zealand Bill of Rights Act 1990. So, there is (Ormsby), or may be (Kai Ji) a balancing exercise under the Bill of Rights to determine whether there has been a breach of the right to silence, and, if there has, there is a balancing exercise (unless the rule against oppression applies) under s 30 to determine admissibility. In other words, balancing applies unless there is a reasonable doubt that the statement was influenced by oppression.

Apart from the accused’s right to a fair trial, which is an absolute right, balancing of other rights against each other and against other interests is well recognised. This is clear from the summary given by Lord Bingham in Procurator Fiscal (Scotland) v Brown [2000] UKPC D3 (5 December 2000), also called Brown v Stott:

“Effect has been given to the right not to incriminate oneself in a variety of different ways. The fifth amendment to the Constitution of the United States provides that no person shall be compelled in any criminal case to be a witness against himself. The Indian Constitution (article 20(3)) provides that no person accused of any offence shall be compelled to be a witness against himself. The International Covenant on Civil and Political Rights 1966 provides in article 14(3)(g) that in determination of any criminal charge everyone shall be entitled to certain minimum guarantees, including a right not to be compelled to testify against himself or to confess guilt. The Canadian Charter of Rights and Freedoms confers on a person charged with an offence the right not to be compelled to be a witness in proceedings against himself in respect of that offence (section 11(c)). The New Zealand Bill of Rights Act 1990, in section 25(d), grants to everyone who is charged with an offence, in relation to the determination of the charge, certain minimum rights which include the right not to be compelled to be a witness or to confess guilt. The recently adopted constitution of South Africa grants rights to a suspect on arrest to remain silent and not to be compelled to make any confession or admission that could be used in evidence against him (section 35(1)(a) and (c)) and also a right to a fair trial, which includes rights to remain silent and not to testify during the proceedings and not to be compelled to give self-incriminating evidence (section 35(3)(h) and (j)). In contrast, the Universal Declaration of Human Rights 1948, in articles 10 and 11(1), grants a right to a fair trial in terms similar to the European Convention, but, like the Convention, contains no express guarantee of a privilege against self incrimination. Thus the right we have to consider in this case is an implied right. While it cannot be doubted that such a right must be implied, there is no treaty provision which expressly governs the effect or extent of what is to be implied.

“The jurisprudence of the European Court very clearly establishes that while the overall fairness of a criminal trial cannot be compromised, the constituent rights comprised, whether expressly or implicitly, within article 6 are not themselves absolute. Limited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for. The general language of the Convention could have led to the formulation of hard-edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the Court throughout its history. The case law shows that the Court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognising differences of degree. Ex facto oritur jus. The Court has also recognised the need for a fair balance between the general interest of the community and the personal rights of the individual, the search for which balance has been described as inherent in the whole of the Convention: see Sporrong and Lönnroth v. Sweden (1982) 5 EHRR 35, at paragraph 69 of the judgment; Sheffield and Horsham v. United Kingdom (1998) 27 EHRR, 163, at paragraph 52 of the judgment.”

See also the discussion on this site of cases involving the right to silence: Em v R 4 October 2007; Carr v Western Australia 25 October 2007; R v Turcotte 5 October 2005; Tofilau v R 3 September 2007.

What is the point of having two balancing exercises, one determining whether there has been a breach of the right, and another to determine what are the admissibility consequences of any breach? The point is, from the perspective of criminal law and the admissibility of evidence, elusive, because in each balancing exercise the same matters weigh in favour of the public interest. If these public interest matters are outweighed by the suspect’s rights, then the next balancing exercise comes into play, and of course the suspect’s (now, the defendant’s) rights will again prevail. The public interest factors in each balancing exercise are, in terms like those stated by the majority in Singh, the community interest in effective investigation and prosecution of crime. Those interests will be expressed, by the time the case gets to trial, as the starting point for sentencing for the particular offence, if the defendant is convicted. In the end, there is no harm to the public interest in taking a more rigorous approach, without balancing, to determining whether there has been a breach of the right to silence, because the public interest will eventually be considered in the weighing exercise to determine the admissibility of the statement.

Also, if there are two balancing exercises, one at the investigatory stage and one at the trial stage, and if the investigation was carried out in circumstances of urgency where the public interest was high enough to outweigh the suspect’s right to silence, there would be no breach of his right; but if at his trial he faced a much less serious charge, carrying lower public interest factors, there would nevertheless be no breach of rights to weigh in favour of exclusion of his statement. This supports the inappropriateness of duplicating the balancing exercise, even where the public interest values change in weight.

In the different context where the question is whether the defendant committed an offence or was simply exercising his rights (see, for example, Brooker v R, blogged here 4 May 2007) the balancing exercise does have a purpose. The point in issue in such cases is whether the defendant breached another person’s rights, and the factors to be balanced are different from those discussed above. There is no two-tier balancing in cases like Brooker.