Friday, December 21, 2007


Can the prosecution cure an unreasonable delay in the proceedings against an accused by speeding them up? Or, once the accused’s right to a trial without undue delay is breached, is the only remedy a stay of the proceedings?

A difference in the English authorities on this point was recently resolved by the Privy Council in a devolution case, Spiers v Ruddy (Scotland) [2007] UKPC D2 (12 December 2007).

The resolution of the difference brought the law into line with Strasbourg jurisprudence, by upholding Attorney-General’s Reference (No 2 of 2001) [2003] UKHL 68, and declining to follow R v HM Advocate [2002] UKPC D3.

Accordingly, if it is still possible to hold a fair trial, a stay of proceedings is not the appropriate remedy for undue delay, unless it would be, for any compelling reason, unfair to try the accused. Where neither of these two forms of unfairness are present, the appropriate remedy would be a reduction of sentence or payment of compensation.

The distinction between the forms of unfairness is important. If a person cannot be tried fairly, then he cannot be tried at all: this is axiomatic, as Lord Bingham said at para 15 of Spiers v Ruddy.

The other form of unfairness, not discussed in the case, would presumably be the public policy form of unfairness, which really means that continuation of the proceedings would bring the administration of justice into disrepute. Public policy fairness has broad application. I have mentioned public policy fairness in discussing Simmons v R (Bahamas) 4 April 2006 and Williams v R (Jamaica) 26 April 2006.

Of interest here is the mention of reduction of sentence as a remedy for undue delay. It is possible that reduction of sentence (which, obviously, is only applicable if the case proceeds to sentencing) could be a more widely used remedy for breach of rights. One of the factors that New Zealand’s new Evidence Act 2006 mentions as relevant to the decision whether to exclude improperly obtained evidence is the existence of alternative remedies that can adequately provide redress: s 30(3)(f).

Thursday, December 20, 2007

"Never mind your alibi, put the balaclava on ..."

Where errors at trial meant that it could not be said that guilt was proved beyond reasonable doubt, the conviction had to be quashed and there was no question of whether the proviso should be applied: Evans v R [2007] HCA 59 (13 December 2007) at para 10 of the joint majority judgment of Gummow and Hayne JJ. A confusing aspect of this case is its references to the proviso. This is hardly surprising, given the state of the law. There were several differences between the judges on other points too.

The critical errors at trial were two, and they focused on two different sorts of evidence. The first was evidence of clothing that the accused was required by the prosecutor to wear while sitting in the witness box, and the second was evidence that the accused was not permitted to call in the nature of an alibi.

As to the clothing, the majority held that was an error, but Gummow and Hayne JJ (jointly) differed from the third member of the majority, Kirby J, as to what the error was. The joint judgment held that the evidence of what the accused looked like wearing the clothing was irrelevant and inadmissible for that reason. Kirby J found this reasoning objectionable because the point had not been argued and (para 84) “This Court does not enjoy a roving commission to create new grounds of appeal”. But, on this point of relevance, Kirby J agreed with Heydon J (with whom Crennan J also agreed) that the evidence was relevant. However, in Kirby J’s view, the evidence was inadmissible because its illegitimately prejudicial effect outweighed its probative value (para 108):

“…The complaint is that the prosecutor's questions made him sit, in the jury's presence, in a garb often associated with armed robberies; inescapably similar to the appearance of the offender shown on the video film and photographic stills; and necessarily looking sinister and criminal-like. Even if glanced at for a moment, such an image (like images of hijackers, terrorists and murderers in well-remembered films, documentaries and news broadcasts) would etch an eidetic imprint on the jury's collective mind. It is an image unfairly prejudicial to the appellant.”

The second critical error, excluding the evidence of alibi (notice not having being given), was the subject of agreement between Gummow, Hayne and Kirby JJ. The error resulted in the defence not being able to be fully put at trial. The defence had to explain why a cap containing the accused’s DNA had been recovered from the scene of the robbery. The only innocent explanation, in the circumstances, could have been that it had been planted there by the actual robber. This possibility could have been raised if the jury had heard the alibi evidence, although it only went as far as establishing that at the relevant time the accused was routinely at a distant location and no departure from that routine could be remembered.

The dissenters, Heydon and Crennan JJ, approached this point differently, holding that there was no evidentiary support for the suggestion that the cap had been planted at the scene, so the absence of the alibi evidence did not matter. This, one might think, misses the point that it was the alibi evidence that would have been relied on to support an inference of planting.

Heydon J, in a passage (para 189 – 222) with which Kirby and Crennan JJ agreed, discussed the concepts of views, demonstrations and reconstructions at common law, and the statutory references to inspections, demonstrations and experiments in the uniform evidence legislation. Kirby J disagreed with Heydon J’s holding on the status of the in-court wearing of the clothing here: Kirby J held it to be a demonstration at common law (para 107).

There was some mention of how the proviso should be approached in the light of Weiss v R (blogged here 16 January 2006). Kirby J mentioned the aspects that seem to be uncontroversial (para 116 – 118):

“116 The central holding in Weiss, which followed suggestions to similar effect in relation to the role of appellate courts both in criminal … and civil … appeals, was that the appellate function must, in every case, be discharged by the intermediate court for itself. It must be done by reference to principles derived from the statutory language. It is not to be discharged by incantations involving speculation concerning what the jury or judge at trial (or a future jury or judge) would, or might, or should have done if this or that had happened or not happened. About this much, there is, I believe, unanimity in this Court. It has emphasised the very substantial role and duty of appellate courts to review the evidence and to reach conclusions for themselves by the application of the statutory tests.

“117 There is also unanimity (for the possibility is expressly reserved in Weiss …) that there may be cases where "errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the … proviso".

“118 Beyond these points, there remain questions that I regard as still alive for final resolution if tendered to this Court in a suitable case. In a sense, those questions may be a product of the "conundrum" which the joint reasons in this appeal recognise as appearing on the face of the common form legislation in which criminal appeal jurisdiction is expressed throughout this country…. Elsewhere and earlier, the "conundrum" was described as "a riddle of the kind which Plutarch records caused Homer to die of chagrin"….”
[footnotes omitted]

Part of the difficulty is the tangled language that is used to state the position. The joint judgment in the present case, at para 41 – 42, highlights and indeed endorses, a particularly complex passage in Weiss. Nonetheless, the position here was that (para 48 – 49):

“48 Because the alibi evidence was not called and was not tested at trial, the Court of Criminal Appeal could not decide from the record of the trial and the additional material received on the hearing of the appeal that the appellant was proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdicts of guilty. It could not do that because the material upon which it had to act was incomplete. An important element of the material had been excluded at trial and was necessarily presented to the Court of Criminal Appeal untested. Because it was untested the Court of Criminal Appeal could not say whether it could be taken at less than its face value. And at face value it left an issue about who took the cap to the scene and dropped it there not capable of resolution beyond reasonable doubt.

“49 The Court of Criminal Appeal could not determine beyond reasonable doubt that the appellant was the robber. The errors at trial both undermined his defence and in an important respect prevented him putting it fully. The sworn evidence the appellant had given may well have been undermined by having him dress as the robber. The alibi evidence it had to consider was necessarily incomplete.

“50 It is not then necessary to go on to decide what significance should be attached to the several features of the trial that suggest that the trial judge did not have sufficient mastery of the proceedings to ensure a fair trial. That is, it is not necessary to explore what kinds of failure in the trial process preclude the application of the proviso, beyond noting that in Weiss the Court said … that "no single universally applicable criterion can be formulated which identifies cases in which it would be proper for an appellate court not to dismiss the appeal, even though persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt".
[footnote omitted]

“51 These issues need not be resolved in this matter. They need not be resolved because the errors made at trial undermined the appellant's defence and prevented him putting it fully. The Court of Criminal Appeal ought not to have decided that the appellant had been proved beyond reasonable doubt guilty of the offences charged. The Court of Criminal Appeal ought not to have decided that there had been no substantial miscarriage of justice.”

This seems to mean that the appellate court should have decided that the miscarriage of justice here was substantial, and that therefore the proviso could not apply. If so, this contradicts claim in para 10 of the joint judgment, mentioned above at the beginning of this commentary, that no question arose as to whether the proviso should be applied. There was a question, and it should have been answered in the negative. I have noted many cases on the proviso (see Index), and no doubt will continue to do so. There are differences in the ways courts interpret it, and these tend to arise from the concepts of “miscarriage” of justice, and “substantial miscarriage” of justice. The juxtaposition of these concepts creates the conundrum mentioned here. In my view, the straightforward approach seems to be that the accused in the present case had not had a fair trial, because he was not allowed to present his defence, and because unfairly prejudicial evidence had been adduced. Those errors caused unfairness in that the determination of the facts was biased against the accused. Since the trial was not fair, the conviction could not be saved by the proviso.

Wednesday, December 19, 2007

Firearm "use" in drug transactions

Some gems from Watson v US No.06-571, 10 December 2007:

“we do not normally speak or write the Government’s way.” per Souter J, delivering the Court’s judgment in Watson, and quoting Lopez v. Gonzales, 549 U. S. (2006) (slip op., at 5).

“The Government may say that a person “uses” a firearm simply by receiving it in a barter transaction, but no one else would.” Souter J.

“I would overrule Smith, and thereby render our precedent both coherent and consistent with normal usage. Cf. Henslee v. Union Planters Nat. Bank & Trust Co., 335 U. S. 595, 600 (1949) (Frankfurter, J., dissenting) (“Wisdom too often never comes, and so one ought not to reject it merely because it comes late.”).” per Ginsburg J, concurring in Watson.

In Watson, the Supreme Court granted certiorari to resolve a conflict in the Circuit Courts over whether a person “uses” a firearm when he trades drugs in order to obtain a gun.

I have previously noted an interpretation of the word “use”(see blog on 23 July 2007 concerning R v Steele SCC and mentioning Bailey v US) where the issue was whether a gun had been used in the commission of a crime, when its presence was revealed to a victim.

In Watson, the issue, relevant to sentencing, was whether in giving drugs and receiving in exchange a gun the offender had used the gun in the drug trafficking crime. In Smith v. United States, 508 U. S. 223 (1993) it had been held that giving a gun in exchange for drugs was using the firearm. Ginsburg J, as noted above, would have overruled that decision, but the other members of the Court did not think it was necessary to do so, and held that Smith simply did not address the present issue.

The interpretative problem was addressed in this way: “With no statutory definition or definitive clue, the meaning of the verb “uses” has to turn on the language as we normally speak it”. Unsurprisingly, the result was that a gun is not used in the commission of a drug trafficking offence by the person who receives the gun in exchange for the drugs. As Ginsburg J rather wittily put it, “It is better to receive than to give, the Court holds today, at least when the subject is guns.”

Techniques of judicial reasoning are illustrated here in the Court’s treatment of the prosecution’s arguments. I summarise the arguments here, although this may not be particularly intelligible, but it is the form of argument that I am highlighting.

The Government argued that an interpretative clue was provided by a nearby provision in the statute, and also that symmetry favoured its view ( ie both parties to the transaction are responsible for the danger to society posed by the use of the firearm; the danger recognised in Smith was reciprocated here).

The Court dismissed the context point on the ground that the other provision was too vague about who the user of the firearm would be in a transaction and this meant there was no pressure to apply the same meaning to the present provision; and, in any event, applying the same meaning in the different contexts would require overruling an earlier decision - Bailey v. United States, 516 U. S. 137 (1995) – which was unanimous and not challenged by the Government.

The symmetry argument was dismissed on the ground that, not only did it strain language, but also it was weakened by the Government’s pointing out that, in any event, receiving the gun in exchange for drugs would (at least in the Government’s view, the Court left the point open) be within another section which covered possessing a firearm in furtherance of a drug transaction. This “does leave the appeal to symmetry under-whelming in a contest with the English language, on the Government’s very terms.”

Tuesday, December 18, 2007

Policy v Logic

R v Daley [2007] SCC 53 (13 December 2007) calls to mind the different approaches that have been taken to the problems for criminal responsibility that are raised by the accused’s state of intoxication during the commission of what is alleged to be an offence.

The tension between policy and logic has been resolved differently in various jurisdictions.

The policy originating in English law has been adopted and developed in Canada. Fundamentally, this involves distinguishing (controversially) between offences of specific intent, and offences of basic intent. Intoxication is not, as a matter of policy, an impediment to liability for an offence of basic intent. It will, however, be relevant to whether the accused is liable for an offence of specific intent. This is discussed in Daley at paras 34 – 53.

In New Zealand the tension between policy and logic is resolved in favour of logic. The focus is on whether the mental element necessary for liability for the relevant offence was present. The position is summarised in Adams on Criminal Law, CA23.50:

“For the history of defences based on intoxication: see Singh (1933) 49 LQR 528; and for a review of the law in New Zealand: see the Criminal Law Reform Committee, Report on Intoxication as a Defence to a Criminal Charge (1984). The applicable principles are the same whether the defendant was affected by alcohol or by other drugs, or both: R v Lipman [1970] 1 QB 152; DPP v Majewski [1977] AC 443; [1976] 2 All ER 142 (HL); Viro v R (1978) 141 CLR 88; compare R v Hardie [1984] 3 All ER 848; CA23.52. The basic rule is that intoxication is never in itself a defence: R v Kamipeli [1975] 2 NZLR 610 (CA), at p 616; R v Munro (1986) 2 CRNZ 249 (CA); R v Doherty (1887) 16 Cox CC 306, at p 308; DPP v Beard [1920] AC 479, at p 499. It is not a defence that intoxication removed a defendant’s inhibitions and caused him or her to act in a way he or she would not have done when sober, or prevented the defendant knowing the act was wrong: A-G for Northern Ireland v Gallagher [1963] AC 349; [1961] 3 All ER 299 (HL), at p 380; p 313 per Lord Denning; R v Sheehan [1975] 1 WLR 739, at p 744. But there may be a defence if a mental element required for the offence was absent as a result of intoxication. In such a case the defence is the absence of the required mental element, not the intoxication, although the evidence which may support such a defence includes the fact of intoxication, as well as other relevant circumstances: Kamipeli (above), at p 616.”

It is not necessary, under this approach, to distinguish in law between states of intoxication such as advanced or extreme intoxication. Nor is it necessary to classify offences as involving specific or basic intent. Nor is it necessary to distort the concept of recklessness to accommodate liability for drunken lack of foresight.

Generalisations about the Australian jurisdictions must be treated with caution. Broadly, the common law jurisdictions generally take the same logical approach as in New Zealand: R v O’Connor (1980) 146 CLR 64 (HCA), although this may be modified by statute, as it is for example in South Australia by the Criminal Law Consolidation (Intoxication) Amendment Act 2004 (No 40 of 2004), s 5. This creates liability, notwithstanding absence of voluntariness or intention due to intoxication, for offences that do not require proof of foresight of consequences or awareness of surrounding circumstances. If death is caused, a different rule applies: the question becomes whether the accused was criminally negligent; if so, he may be convicted of manslaughter. In Queensland, a Code state, the logical approach is taken: see s 28 of the Criminal Code 1899.

If the logical approach may seem to offer little protection against the harm that may be caused by a person who deliberately removes himself from criminal liability by becoming intoxicated before embarking on his illegal purpose, the forensic realities may provide some reassurance. In practice, the prosecutor’s catch-phrase in such cases is, “A drunken intent is still an intent!” and this memorable formulation, usually repeated by the judge in summing up, is difficult to counter. “A drunken lack of intent is still lack of intent” is about as good a response as defence counsel can make. It may be that policy enters by the back door, through pragmatic fact-finding.

Monday, December 17, 2007

... the verdict of you all?

It is easy to agree with one, then the other, of two opposing views of a case. In WGC v R [2007] HCA 58 (12 December 2007) the first two judgments (Gummow CJ and Kirby J) come to the same conclusion and for similar reasons, and they seem entirely convincing. But they are dissenting judgments. The next judgment in the case, by Hayne and Heydon JJ, in its turn seems entirely convincing, although it comes to the opposite conclusion. By the time I get to Crennan J’s judgment – and she now has the disposition of the appeal under her command – I am not surprised to see her agreement with Hayne and Heydon JJ, since that is the judgment freshest in my mind.

How can two opposite conclusions seem viable? When this occurs it may be because the difference is over a fundamental point of interpretation. This indeed was the case here, where the statutory definition of an offence raised issues over what was an element of the offence and what was a mere particular, and how the obligation placed on the defence to prove certain matters affected the identification of the elements of the offence.

At a slightly lesser level of abstraction, a question in the case involved whether the verdict of the jury may not have been unanimous. Was this a case where guilt may have been proved by two separate and independent theories, so that the jury had to agree on which one they accepted, or was this a case where the defence had to prove more than one issue, and the jury may have had different reasons for deciding that the defence had failed overall?

The offence was the sort of sexual offending that is defined variously in different jurisdictions, but broadly it was having sexual intercourse with a girl aged of or above 12 and under 17 years. The charge specified a period over which the particular offending was alleged to have occurred. The majority held that this range of dates was not an element of the charge, but was merely a particular of the offending that did not have to be proved. The minority held that the date on which the offending was alleged was an element of the charge and so had to be proved beyond reasonable doubt. The statute provided a defence if the accused proved that at the time of the intercourse the girl was aged of or over 16 and that he believed on reasonable grounds that she was of or over 17.

In this case the accused admitted having intercourse with the complainant but said it occurred several years after she claimed it did, and that at the time she was aged 16 and he had the belief necessary for the defence.

Did the accused’s stance at trial make the date of the occurrence of the intercourse an element of the offence, for the prosecution to prove? Or was his stance at trial an allegation that he made that was purely a matter of defence?

Gummow CJ held (para 7) that an accused does not make allegations. This position thus coloured his interpretation of the definition of the offence, and Kirby J’s approach was similar. In particular, Kirby J pointed out (para 92), that jurors could not reach the verdict of guilty by some members concluding that the intercourse occurred when she was under 16 (so that the statutory defence did not apply) and others concluding that it occurred when she was 16 but the accused failed to establish that he believed she was 17 and that this belief was reasonable. If the jury held such differing views they were not unanimous on when the intercourse occurred. Since, for the minority, the time of the offence was an element that had to be proved beyond reasonable doubt, the accused should have been acquitted and a new trial should have been ordered.

The majority reasoning involved a focus on what were the elements of the offence as distinct from particulars provided to assist the accused in identifying the conduct that was impugned. On the view that the accused was alleging a different date than the prosecution (Hayne and Heydon JJ at para 116), and that this allegation was simply a part of endeavouring to establish the defence, the way was clear to concluding that the date on which the offending was alleged was not, in law, an element for the prosecution to establish. What the prosecution did have to establish beyond reasonable doubt was that, at whatever time the intercourse occurred, the complainant was of or over 12 and under 17 years of age.

An important reason advanced by Hayne and Heydon JJ for this interpretation was the procedural difficulty that would arise if the date of the intercourse was an element of the offence. As there was no evidential basis for alleging intercourse at the date claimed by the accused, until the accused gave evidence, an alternative charge could not have been laid at the outset. Once the accused gave evidence, there would be a basis for alleging intercourse with a girl aged 16, but if the indictment was amended by adding that count, the accused would have to be given the opportunity to plead to it and, more significantly, to cross-examine prosecution witnesses again. That muddle (which, it must be said, seems to be an overstatement of the difficulties in how the situation could have been managed: the accused, always aware of his case, would be expected to put it to the witnesses as they gave their evidence the first time: see the rule in Browne v Dunn, blogged here 12 December 2005 and 23 March 2007) is avoided if the count in the indictment is read as not specifying the date as an element and as capable of covering both versions of the facts.

As to the opacity of the verdict point (how could the basis for the jury’s verdict be ascertained for sentencing purposes?), the majority held that this is not an unusual situation: there may be different reasons for the failure of the defence, and the Judge could make his own assessment of the facts on sentencing.

So, it all came down to a difference over whether the date was an element of the offence. The minority interpretation was that the date was an element because it had particular legal consequences: if intercourse occurred when the complainant said it did, the statutory defence relied on here did not apply, but if it occurred when the accused said it did, then the defence did apply. This was a matter on which, in the minority view, the jury needed to be unanimous. Kirby J reviewed the law in New Zealand (para 87 et seq), Canada (88 – 89) and England (90), emphasising the need for the members of a jury to agree on the theory of guilt (or, the factual basis for guilt).

I have discussed this case without quoting the statutory provision which was in issue, s 49(3) and (4) of the Criminal Law Consolidation Act 1935 (SA), because it is the consequences for the shapes of arguments that arise from each alternative interpretation that is of interest here. Depending on what the elements of the offence are, there may be difficulties with jury unanimity.

Friday, December 14, 2007

The lawfulness of police helpfulness

Where do the police get their powers to be helpful?

In Ngan v R [2007] NZSC 105 (13 December 2007) the appellant was injured when his car overturned, and the police, after he had identified himself, arranged for him to be taken to hospital. Then, to clear up the accident scene, the police gathered items, including banknotes that had been scattered, and, in the course of inspecting the contents of a zipped pouch that appeared to be a sunglasses case, they discovered drugs. The purpose in taking possession of the items was to safeguard them for the owner, and the reason for opening the pouch was to make an inventory of items, also in the owner’s interests. The appellant had unsuccessfully objected to the admissibility at his trial of the evidence of the finding of the drugs.

Unsurprisingly, the Supreme Court unanimously held that the evidence was admissible. Four Judges held that there had been a search, when the pouch was unzipped, but McGrath J dissented on this point (para 101 – 117). Tipping J assumed that there had been a search, as the prosecution had not argued to the contrary, and held that the police conduct was not even prima facie unlawful as they were simply doing what any private citizen would have been entitled to do in undertaking the role of a bailee of necessity (para 44 - 54). However, in a joint judgment Elias CJ, Blanchard and Anderson JJ (delivered by Blanchard J) held that there was prima facie illegality because the police are bound by stricter standards than ordinary citizens (para 14, applying R v Waterfield [1964] 1 QB 164, 170). However, as Blanchard J put it, para 21:

“The difference in approach to Waterfield taken in these reasons from that taken in the reasons of Tipping J appears to turn on to what amounts to a prima facie unlawful interference with property. As we consider that the police conducted a search of the pouch, we take the view that prima facie there was such an interference. But it was justified in terms of Waterfield. However, the difference in approach has no practical significance because it has been overtaken by the requirements of the Bill of Rights Act.”

All five Judges agreed that pursuant to the Bill of Rights the search was reasonable and there was no reason to exclude the evidence (McGrath J indicated his agreement – if contrary to his view there was a search – at para 121). This reasonableness extended beyond the use of the information about the contents of the pouch for inventory purposes, to use as evidence of drug offending.

There was some discussion of North American authorities, as the appellant had sought to rely on them to support restriction of reasonableness to the making of an inventory. R v Caslake [1998] 1 SCR 51 was held (para 23) not to be authority for the proposition that an inventory search is unlawful because an inventory may be taken in the interests of the owner and not for police purposes. It was noted that subsequent Canadian cases have applied the Waterfield approach (R v Mann [2004] 3 SCR 59; R v Clayton and Farmer 2007 SCC 32). R v Colarusso [1994] 1 SCR 20 was also relied on by the appellant, but was distinguished (para 34) on the ground that in that case the police had an unlawful initial purpose, whereas here their purpose in carrying out the inventory was lawful. The New Zealand case R v Salmond [1992] 3 NZLR 8 (CA) was also relied on by the appellant, but was distinguished on similar grounds (para 36).

So, the answer to the question where the police get their powers to be helpful, depends on statute and common law. McGrath J was the only member of the Court who sought to go beyond that to a “residual third source of authority” (para 96), but one might respectfully wonder whether that is usefully distinct from the fundamental rule in a free society that everything is lawful except that which is prohibited by law.

At para 14 Blanchard J (with Elias CJ and Anderson J) put the central idea as follows:

“Notwithstanding that police officers may be expected to intervene in a case like the present, any interference with private liberty or property by the police is unlawful unless it can be justified either “by the text of the statute law, or by the principles of common law” [Entick v Carrington (1765) 19 How St Tr 1029 at p 1066]. An interference with property in the form of a search of the pouch occurred in this case. But was it unlawful? In order to determine whether a particular course of conduct was actually unlawful, it has been said in R v Waterfield to be relevant [[1964] 1 QB 164 at p 170. See also Hoffman v Thomas [1974] 1 WLR 374]:

“to consider whether (a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.”

“There may be less justification for any use of such powers where the conduct is not in pursuance of an “absolute” duty and where the apprehended danger is to property rather than persons. Overall, as Cooke P stressed in Minto v Police, “[t]he citizen’s protection lies in the insistence of the law that the steps should be reasonable” [[1987] 1 NZLR 374 at p 378 (CA). Further relevant considerations include the immediacy and potential seriousness of the apprehended danger: Police v Amos [1977] 2 NZLR 564 at p 568 at pp 568 – 569].”

Since the police had decided, “reasonably and therefore lawfully” (para 15) to take on the obligations analogous to those of a bailee, for the benefit of the owner, and since they had done no more than was reasonably necessary to safeguard the property (para 20 – 21), there was no unlawfulness or unreasonableness in their discovery of the drugs.

Thursday, December 13, 2007

Guiding sentencing

A couple of recent decisions of the United States Supreme Court call attention to the operation of sentencing guidelines. In New Zealand we have made provision for guidelines to be issued pursuant to the Sentencing Council Act 2007. This, for us will be a new venture. Occasionally our Court of Appeal has handed down guideline judgments in particular areas of offending, but the utility of these is doubtful, as may be indicated by the creation of the Council. An interesting question will be whether sentencing guidelines are more effective when issued by the Council than when they are given in judgments.

How should departures from guidelines be treated by appellate courts? In Gall v US No 06-7949 (10 December 2007) the Court held (Thomas and Alito JJ dissenting) that appellate courts must review sentences under a deferential abuse-of-discretion standard. This involves acknowledging the advantages enjoyed by the first instance court in making the decision as to sentence, and then determining whether that decision was reasonable. In US v Booker, 543 U.S. 220 (2005) the Court had held invalid a statute which purported to make the guidelines mandatory, and had also held that the appellate court does not examine the sentence de novo, substituting its view for that of the lower court. So, in Gall the Court held that there was no need for extraordinary circumstances before a sentence outside the guidelines could be imposed. While the guidelines are the starting point, the initial benchmark, they are not the only consideration. The question of reasonableness of the sentencing decision depends on whether the judge had abused his discretion in determining that the relevant factors justified a deviation from the range of sentences indicated by the guidelines.

The other recent decision is Kimbrough v US No 06-6330 (10 December 2007). The guidelines differentiated markedly (there was a sentence “cliff”) between sentences for dealing in different forms of cocaine, the ordinary powder form, and the crystalline “crack” form. The appropriateness of this differentiation was a matter of some difference of opinion as between the legislature, which supported the guidelines, and the Sentencing Commission which did not. The Court held that although the sentencing judge was obliged to consider the guidelines, he could determine that, in a particular case, the within-guidelines sentence would be greater than necessary. The differential in the guidelines was not an exception to the general freedom of the judge to depart from the guidelines and to taylor the sentence in recognition of other concerns. The differential in the guidelines based on the form of the drug was a departure from the practice of the Commission of setting the guidelines according to an empirical examination of sentencing levels, and the judge could take that matter into account when deciding whether departure from the guidelines was warranted.

These cases illustrate that sentencing guidelines may introduce difficulties of their own: instead of simply examining how other courts have sentenced for similar offending and placing the present case in that context, when guidelines are imposed, the court must have proper regard for them while recognising when departure is justified. Factors specified by the guidelines as relevant may be inappropriate (for example, in Kimbrough, the form of the drug rather than its quantity).

Section 9(1)(a)(v) of the Sentencing Council Act 2007[NZ] provides that it is one of the functions of the Council to give guidelines as to grounds for departure from the guidelines. In case you don’t believe me, here is subsection (1):

“(1)The functions of the Council are—
(a)to produce guidelines that are consistent with the Sentencing Act 2002 relating to— (i)sentencing principles:
(ii)sentencing levels:
(iii)particular types of sentences:
(iv)other matters relating to sentencing practice:
(v)grounds for departure from the sentencing guidelines:”

What about departure from the grounds for departure from the guidelines? We can be reasonably sure that the guidelines will not provide for departure where the guidelines are not considered by the court to be rational (as in Kimbrough), but let’s wait and see.

Tuesday, December 11, 2007

When is a verdict unreasonable?

An appeal provision of the kind that I have recently referred to (see blogs for R v Jackson, 10 December 2007, and R v Grover, 23 November 2007) was the subject of today’s decision by the New Zealand Supreme Court in Owen v R [2007] NZSC 102 (11 December 2007).

The focus is on the meaning of s 385(1)(a) of the Crimes Act 1961[NZ]; I set out the provision in its context, which will be familiar in many jurisdictions:

“(1) On any appeal … the Court of Appeal or the Supreme Court must allow the appeal if it is of opinion—
(a) That the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or
(b) That the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or
(c) That on any ground there was a miscarriage of justice; or
(d) That the trial was a nullity—
and in any other case shall dismiss the appeal:
Provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

So, in Owen the Court was concerned with only the first of the four grounds on which an appeal must be allowed. This, like the others, is – at least on a literal meaning - subject to the “proviso” in the concluding part of the subsection; however, that literal meaning is illogical, as was pointed out in Sungsuwan v R [2006] 1 NZLR 730; (2005) 21 CRNZ 977 (SC) per Tipping J (who delivered the Court’s judgment in the present case) at para 114, and the proviso has therefore been held not to apply to subsection (1)(a).

An almost literal meaning was, nevertheless, applied to subsection (1)(a) itself in Owen. I say “almost”, because the Court held that the phrase “or cannot be supported having regard to the evidence” is redundant, best seen as simply an example of what an unreasonable verdict would be. That leaves the essential part of paragraph (a) as “That the verdict of the jury should be set aside on the ground that it is unreasonable”.

At para 17 the Court held:

“…There is, in the end, no need to depart from the language of Parliament. The question is whether the verdict is unreasonable. That is the question the Court of Appeal must answer. The only necessary elaboration is that … a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty. We do not consider it helpful to employ other language such as unsafe, unsatisfactory or dangerous to convict. These words express the consequence of the verdict being unreasonable. They should not be used as tests in themselves.”

Also rejected was the “lurking doubt” test, used in English law and referred to by the Privy Council, for example in Dookran v The State (Trinidad and Tobago), blogged here 13 March 2007.

Unexplored in this decision is the question of how sure must the appellate court be that the jury’s verdict was unreasonable? Does the appellate court have to be sure (whatever that means) that the jury could not reasonably have been satisfied to the required standard that the accused was guilty? Or, must the appellate court allow an appeal if it thinks it more likely than not that the jury could not reasonably have been satisfied to the required standard that the accused was guilty? Or, again, must the appellate court allow the appeal if it has a reasonable doubt that the jury could not reasonably have been satisfied to the required standard that the accused was guilty? The statutory language does not clarify this, it simply says the appellate court “must allow the appeal if it is of opinion” that the relevant paragraph applies.

The Supreme Court did adopt some general points from the Court of Appeal joint judgment in R v Munro [2007] NZCA 510 (referred to here in the blog entry for Grover, 23 November 2007):

“(a) The appellate court is performing a review function, not one of substituting its own view of the evidence.
(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.
(c) The weight to be given to individual pieces of evidence is essentially a jury function.
(d) Reasonable minds may disagree on matters of fact.
(e) Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.
(f) An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.”

The Supreme Court also endorsed, at para 14, the following passage from Munro:

“The correct approach to a ground of appeal under s 385(1)(a) is to assess, on the basis of all of the evidence, whether a jury acting reasonably ought to have entertained a reasonable doubt as to the guilt of the appellant. We consider the word “ought” is a better indication of the exercise to be conducted than the word “must” used in Ramage [1985] 1 NZLR 392. It emphasises the task that the Court has to perform. This test also, in our view, accords with the statutory wording.

“We consider that McLachlin J’s comments in R v W(R) [1992] 2 SCR 122 encapsulate the main elements of the test. The test is not whether the verdict is one that no jury could possibly have come to. A verdict will be … unreasonable where it is a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt. The Court must always, however, keep in mind that it is not the arbiter of guilt, and that reasonable minds might disagree on findings of fact – see the comments in Biniaris [2000] 1 SCR 381 and those in Mareo [1946] NZLR 660.”

After considering the evidence and submissions in the present case, the Court concluded:

“…We are, however, not persuaded that the Court of Appeal erred in concluding that the appellant had failed to demonstrate that the verdicts were unreasonable. In short, having regard to all the evidence, the jury could reasonably have been satisfied to the required standard that the appellant was guilty on all counts. The appeal must therefore be dismissed.”

This illustrates the need for the appellant to “persuade” the Supreme Court that the Court of Appeal was wrong, and the need for the appellant to “demonstrate” to the Court of Appeal that the verdicts were unreasonable. One would think that if the Court of Appeal had a doubt about the reasonableness of the verdict, it would conclude that unreasonableness had been “demonstrated”, and that if the Supreme Court had that doubt about the reasonableness of the verdict, it would be “persuaded” that the Court of Appeal was wrong. The difficulty with this logic is that the general points (a) to (e) in Munro, above, give the appellate court reason not to promote its view of the evidence.

We might wonder whether the operative part of s 385(1)(a) should be the phrase “cannot be supported having regard to the evidence”, with the unreasonableness of a verdict being an instance of that. It’s now a bit too late for that interpretation, but it would have put the focus on the evidence and the need for proof of guilt to the criminal standard; the appellate court would normally acknowledge the jury’s advantage in seeing and hearing the evidence and would perform its review function by examining the rationality of inferences and the completeness of the evidence. This approach would also indicate that a reasonable doubt in the mind of the appeal court would be sufficient to quash the conviction. There are, however, as the Court in Owen explained, historical reasons why the phrase "cannot be supported by the evidence" should be taken as a reference to what is really a question of law, namely whether there is evidence on each element of the relevant offence. This interpretation, appropriate from the perspective of history and precedent, has the result that the phrase rarely has any use, as cases where vital evidence is absent are unlikely to proceed to verdict.

Monday, December 10, 2007

Well done, or half-baked?

Unresolved differences between judges in a split decision can leave us wondering whether the case was really ready for judgment. In R v Jackson [2007] SCC 52 (6 December 2007) the Court divided 5 – 2 on whether there had been sufficient evidence to support the verdict in the Judge alone trial of the appellant for cultivation of cannabis (illegal production of marijuana).

The majority held that there had been sufficient evidence to support the conviction. Their judgment, delivered by Fish J, does not go into the evidence in the same detail as does the dissenting judgment of LeBel and Deschamps JJ.

Fish J repeated passages from the trial Judge’s decision. On reading that, one would agree that the case against the accused seemed conclusive. However, Deschamps J pointed out, particularly at para 18, that in critical respects the trial Judge’s findings were not supported by the evidence that had been given.

We do not have the majority’s response to the minority’s difficulty. If we wanted to delve further into the case, we would have to look, not merely at the full reasons given by the trial Judge, but at the transcript of the evidence in the case. It is not possible for most readers of the Supreme Court’s judgments to do so. All we can do is assume that the dissenters have pointed to a difficulty that the majority cannot answer: the equipment discovered at the crime scene may not have supported an inference that the accused participated in the offending.

This is not to suggest that each individual inference must support guilt beyond reasonable doubt. A weak inference of guilt from some facts may combine with a stronger inference of guilt from other facts, so that guilt may be established, by this combination, beyond reasonable doubt. In this case, the equipment might support a weak inference of guilt; the rubber boots that the accused wore when he got out of the tent when the police arrived might also support a weak inference of guilt; so too might the fact (if indeed it was a fact) that the amount of work done suggested participation by all five of the people at the scene. These, although not individually sufficient to support guilt beyond reasonable doubt, might in combination have done so. The minority gave better reasons than the majority for rejecting that conclusion.

Interestingly, on the recently discussed topic of an accused’s lies in his testimony in court (see blog for 23 November 2007), Deschamps J quoted with approval, at para 16, a passage from the dissenting judgment in the Quebec Court of Appeal, which included the following:

“The appellant’s testimony, which the judge did not find to be credible, cannot be used to prove, a contrario, the acts that the appellant denies having committed; in other words, not believing the appellant’s denial that he handled any object whatsoever used to produce cannabis does not justify a conclusion that, contrary to what he says, he did handle the objects in question.”

Friday, December 07, 2007

Breach or miscarriage?

When should an appeal court acknowledge that an error at trial must be remedied by the granting of a re-trial? To uphold a conviction that was obtained at a wrongly conducted trial is, in effect, to turn the appellate court “into an instrument of injustice rather than a protection against miscarriages of justice.” That was how Kirby J put it in Gately v R [2007] HCA 55 (6 December 2007).

He was (one could almost say “of course”) dissenting. The errors in that case did not, according to the other Judges, amount to a miscarriage of justice. Often, in appeals, the focus is on whether a miscarriage of justice was “substantial”; if not, the proviso could be applied and the appeal against conviction dismissed. But here, the focus was on the prior question of whether the errors at trial amounted to miscarriages of justice.

The approach to an appeal against a conviction is set out in the appropriate statute in the relevant jurisdiction, and, as it happens, there is broad similarity in these provisions wherever the English law has been influential. In this case, the method was described by Heydon J as follows:

“…First, was there an irregularity? Secondly, if so, was it, or did it cause, a miscarriage of justice? Thirdly, if so, can it be said, after examining the whole trial record, that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned their verdict of guilty so that no substantial miscarriage of justice has actually occurred within the meaning of the "proviso" in [the relevant provision, here] s 668E(1A) [of the Criminal Code (Q)]? Fourthly, if so, does the case nonetheless fall within a category precluding the application of s 668E(1A) on the ground, for example, that there has been a significant denial of procedural fairness or a serious breach of the presuppositions of the trial[citing Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at 317 [45]- [46] per Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ, blogged here 16 January 2006]? On occasion it may be desirable to consider the fourth stage before the third.”

Here the trial errors were (1) not having the judge and counsel present when, after retiring to consider their verdict, the jury viewed again a video recording, that had, appropriately in the circumstances here, been prepared before trial as the method through which the young complainant was permitted to give evidence and be cross-examined, and, (2) failing properly to warn the jury about the weight they should give to a written statement made by the complainant to the police.

Whereas the majority attached great weight to the fact that at trial counsel for the accused had agreed to the procedure adopted for the jury’s re-viewing of the video, Kirby J pointed out that counsel had originally objected, and that the Judge and prosecuting counsel had a duty to follow the law as it had been established to be:

“47. Just as the failure of trial counsel to reserve points or to perceive and raise grounds of appeal is not fatal to the case of an accused person who comes to the judicature of the Commonwealth for protection against injustice[50], so the mistaken acquiescence of trial counsel in the proposals of the judge and the prosecutor is not, in the end, conclusive of this appeal. This is particularly so because trial counsel's initial objection to the course initiated by the judge was correct. That objection should have alerted the judge and the prosecutor to the applicable principles expressed and repeated in successive decisions of the Queensland Court of Appeal.

“48. What is the practical use of courts of criminal appeal laying down clear rulings to be observed in criminal trials if, when they are not observed by the judge or prosecutor, this Court (whilst substantially endorsing those rulings) does not proceed to afford the accused, who is adversely affected, the relief that he seeks? Apart from the injustice in the particular case, this approach, when it becomes a common practice of this Court, presents a serious question as to whether further appeal to uphold basic principles had any point. The best way that this Court can reinforce principle in such matters, where a miscarriage has occurred, is to order a retrial. That is when principle tends to be learnt and applied.”

On the other hand, here the trial was unusual in that the only evidence against the accused was from the complainant: there was no evidence of any statement made by the accused to the police, and he did not give or call evidence. The argument put to the jury by his counsel was that the complainant’s evidence was not reliable and this was indicated by its inconsistencies. Did the error in allowing the jury to see the video again in the absence of judicial supervision amount to a miscarriage of justice, or was it merely a procedural error? The majority held that there was no miscarriage of justice.

Nevertheless, Hayne J (with whom the other Judges, including on this point Kirby J, agreed) stressed that the video recording was not to be treated as real evidence: it was not an exhibit in the case, and the jury’s access to it during their deliberations was to be the same as its access to any other part of the record: the judge could read (play) it to them as necessary and with appropriate warnings. The trial process is essentially oral (para 88) and it is seldom appropriate to admit a record of it as an exhibit (para 93).

This unanimous view of the treatment of the record of the evidence in the case is contrary to an increasing trend, in some jurisdictions, of allowing the jury to have transcripts of the evidence available for use during their deliberations. For example, the New Zealand Law Commission, in its Report “Juries in Criminal Trials” (NZLC R69, at p 205 para A49), recommended that juries be given a copy of the notes of evidence when they retire to consider their verdicts. It has become acceptable for juries to be given copies of the previous day’s evidence at the start of the next day; see R v Taylor (2005) 21 CRNZ 1035 (CA); R v McLean (Colin) [2001] 3 NZLR 794; (2001) 19 CRNZ 362 (CA); R v H 23/6/03, CA436/02; R v Haines [2002] 3 NZLR 13; (2001) 19 CRNZ 331 (CA).

At para 88 of Gately, Hayne J referred to Butera v Director of Public Prosecutions (Vict) [1987] HCA 58; (1987) 164 CLR 180 at 189 per Mason CJ, Brennan and Deane JJ, and endorsed the following:

“The adducing of oral evidence from witnesses in criminal trials underlies the rules of procedure which the law ordains for their conduct. A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury's estimate of the witnesses. By generally restricting the jury to consideration of testimonial evidence in its oral form, it is thought that the jury's discussion of the case in the jury room will be more open, the exchange of views among jurors will be easier, and the legitimate merging of opinions will more easily occur than if the evidence were given in writing or the jurors were each armed with a written transcript of the evidence.”

Of course views of what is appropriate for juries to have during their deliberations may change over time as experience grows and knowledge increases of the procedure as experienced by jurors. We may acknowledge that changes in procedural rules may be appropriate, but still wonder whether breaches of those rules should amount to miscarriages of justice, especially as the subsequent question on an appeal is whether any such miscarriage was “substantial”.