Friday, February 29, 2008

Facing inevitable defeat

Every barrister knows the difficulty of presenting a hopeless case. Especially so in criminal law, where the likelihood of settling (pleading guilty) is small. Sometimes, dissenting judgments can give clues about how the best possible arguments can be advanced.

A disagreement about whether there had been substantial defects at trial which went to the root of the proceedings occurred in Ayles v R [2008] HCA 6 (28 February 2008). The minority, Gleeson and Kirby JJ jointly took an approach similar to that of the House of Lords in R v Clarke (blogged 7 February 2008), on the issue of whether a requirement for a note on the information or indictment of an amendment to a charge is a mandatory requirement. The dissent also concerned whether a statutory provision allowed the judge to amend the charge without an application for this having been made by the prosecutor.

In Ayles the majority held that in the particular circumstances of this case there had been no unfairness to the accused in the procedure that had been adopted to amend the charge. This indeed seems correct, as the only material factual dispute in the case had been resolved in this judge-alone trial by acceptance of the accused’s version. Also, the difficulty with the charge had been the subject of discussion during the hearing and defence counsel had not taken up an opportunity to object to an amendment which was of the kind that the judge eventually made in the course of her judgment. There had been a change in the statutory provision which needed to be specified, the relevant one depending on what was the date of the offending. Apart from the section number, the change was not relevant to the facts of the case. As Kiefel J (with whom Gleeson CJ and Heydon J agreed) said at para 75, the defence could have had no objection to the amendment during the hearing. The relevant statutory provision, s 281(2) of the Criminal Law Consolidation Act 1935 (SA), did not limit the judge to acting only on an application for amendment, but she could amend the charge on her own initiative. Further, as a matter of interpretation, the particular provision requiring a note of the amendment to be made on the information or indictment, s 281(3), was not a condition for the validity of an order for amendment.

The minority in Ayles held that the noting of the amendment on the information or indictment was imperative, not directory. Since it was fundamental that a person cannot be convicted of an offence that is not alleged against him, there had been a basic defect in the proceedings. R v Clarke [2008] UKHL 8 was approved, particularly its overruling of R v Ismail (1990) 92 Cr App R 92. Further, the judge should not have amended the charge without an application from the prosecutor, because it is necessary to keep separate the functions of judge and prosecutor. Citing Gaudron and Gummow JJ in Maxwell v The Queen [1995] HCA 62 at para 26 for the proposition

“The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what”

they continued (para 37):

“The last-quoted sentence is of fundamental importance. It affords a most important principle that lies at the head of the resolution of this appeal. A decision to amend an information so as to add or substitute a new charge is plainly a decision about the particular charge to be laid or prosecuted, yet any suggestion that a court could - let alone should - decide for itself the offences with which a defendant is to be charged would be inimical to the judicial process.”

Applying R v Weiss [2005] HCA 81 (blogged here 16 January 2006) the minority held that these substantial defects went to the root of the proceedings and the proviso could not be applied.

It is surprising that there should be such a sharp difference between the interpretations of the legislation. Here are the relevant subsections of s 281:

“(2) When before trial, or at any stage of a trial, it appears to the court that any information is defective or that there is any variation between any particular stated therein and the evidence offered in proof thereof, the court shall make such order for the amendment of the information as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendment cannot be made without injustice.

“(3) When an information is so amended, a note of the order for amendment shall be endorsed on the information and the information shall be treated, for the purposes of the trial and all proceedings in connection therewith, as having been presented in the amended form.”

The majority’s interpretation seems unanswerable: subsection (2) does not require an application to be before the judge before an order for an amendment can be made, and subsection (3) applies upon the information being amended and is not a condition for that amendment. By way of contrast, in Clarke the relevant legislation had provided: “where a bill of indictment has been so preferred the proper officer of the court shall, if he is satisfied that the requirements of the next following subsection have been complied with, sign the bill, and it shall thereupon become an indictment and be proceeded with accordingly”; that is, the signing is the act that makes the document an indictment and so is an essential condition for the existence of the indictment.

Looking at the case from a distance, I imagine that the real unfairness (although that is not quite the right word) lay in the accused being denied the opportunity to enter, and take sentencing credit for, an early guilty plea to a properly framed charge. That matter could have been sorted out at trial, but defence counsel chose not to make submissions on the point, and there could well be proper reasons for not doing so. Having played the cards that way, it was too late on appeal to ask for another deal.

The minority judgment in Ayles is a lesson in how to endeavour to meet an overwhelming argument: go to the fundamentals (here, procedural fairness and the limits of proper judicial function) and argue that the case is one of substantial miscarriage of justice. This may, as here, involve a retreat into principle and away from the facts and particular circumstances. Although not a victory, it was a dignified defeat.

Tuesday, February 26, 2008

Judicial warnings about eyewitness identifications

Not all the warnings necessary as a safeguard against misuse of identification evidence may be required by statute. The common law may supplement what statute requires.

Evidence Acts can be rather vague on what sort of warnings to juries must be given concerning eyewitness identification. In New Zealand, s 126 of the Evidence Act 2006, and in Australia (in jurisdictions where it is applies or is adopted), s 116 of the Evidence Act 1995 (C’th), both provisions are in general terms. Often the matter is entirely one for the common law, as in may be in Canada and is in the United Kingdom.

In Pipersburgh v R (Belize) [2008] UKPC 11 (21 February 2008) there had been no identification parade and the first visual identification of the accused persons as the offenders was made in the courtroom. The Privy Council held that its decision in Holland v HM Advocate [2005] UKPC D1 at para 47 applied. This is as follows:

"In the hearing before the Board the Advocate-depute, Mr Armstrong QC, who dealt with this aspect of the appeal, accepted that identification parades offer safeguards which are not available when the witness is asked to identify the accused in the dock at his trial. An identification parade is usually held much nearer the time of the offence when the witness's recollection is fresher. Moreover, placing the accused among a number of stand-ins of generally similar appearance provides a check on the accuracy of the witness's identification by reducing the risk that the witness is simply picking out someone who resembles the perpetrator. Similarly, the Advocate-depute did not gainsay the positive disadvantages of an identification carried out when the accused is sitting in the dock between security guards: the implication that the prosecution is asserting that he is the perpetrator is plain for all to see. When a witness is invited to identify the perpetrator in court, there must be a considerable risk that his evidence will be influenced by seeing the accused sitting in the dock in this way. So a dock identification can be criticised in two complementary respects: not only does it lack the safeguards that are offered by an identification parade, but the accused's position in the dock positively increases the risk of a wrong identification."

Accordingly, two issues needed to be addressed by the judge in directing the jury: the general dangers concerning eyewitness identification, and the particular dangers concerning dock identification. The Board summarised the inadequacies of the judge’s directions, para 17 of Pipersburgh:

“In the present case, it may well be that the judge bemoaned the fact that no identification parade had been held and pointed out the advantages of such a parade. But, despite what the Board had said in Pop v The Queen (Belize)[2003] UKPC 40, he did not point out that Mr Robateau [one of the appellants] had thereby lost the potential advantage of an inconclusive parade. Moreover, while giving directions on the care that needs to be taken with identification evidence in general, the judge did not warn the jury of the distinct and positive dangers of a dock identification without a previous identification parade. In particular, he did not draw their attention to the risk that the witnesses might have been influenced to make their identifications by seeing the appellants in the dock. And, perhaps most importantly, even if the judge's directions would have ensured that the jury appreciated that this type of identification evidence was undesirable in principle, he did not explain that they would require to approach that evidence with great care. On the contrary, the closing words of the direction really left the whole matter to the jury on the basis that the witnesses said that they knew the men and it was simply up to the jury to accept or reject their evidence.”

The circumstances in this case demonstrate that even where, in the opinion of a court of first appeal, the witnesses observed the offenders in good conditions of lighting, distance and time, and where they claimed to be recognising people they had seen several times before, it is still necessary for the judge to give a detailed warning about the risk of error.

Monday, February 25, 2008

Identifying dangerous driving

You might think from my discussion of R v Hayes, blogged 15 February 2008, that analysing the actus reus and mens rea of an offence is quite easy. In R v Beatty [2008] SCC 5 (22 February 2008) the Supreme Court of Canada unintentionally demonstrated just how difficult it can be.

At issue here was the meaning of “dangerous” operation of a motor vehicle. The Court split into separate judgments 5-3-1, and each discussed the actus reus and the mens rea requirements.

This was a case where a driver who had otherwise been driving unexceptionally suddenly crossed the centre line into the path of an oncoming vehicle, resulting in the deaths of all its three occupants. The question was whether a momentary lapse of attention could constitute dangerous driving.

The Court unanimously allowed the appeal and restored the appellant’s acquittal. The reasoning was not unanimous.

As to actus reus, five Judges held that this was established. Charron J delivered the judgment of herself, Bastarache, Deschamps, Abella and Rothstein JJ, saying (para 43):

“…it may assist to restate the summary of the test in terms of both the actus reus and the mens rea of the offence. I respectfully disagree with the Chief Justice that the test for the actus reus is defined in terms of a marked departure from the normal manner of driving (para. 67). The actus reus must be defined, rather, by the words of the enactment. Of course, conduct that is found to depart markedly from the norm remains necessary to make out the offence because nothing less will support the conclusion that the accused acted with sufficient blameworthiness, in other words with the requisite mens rea, to warrant conviction. In addition, it may be useful to keep in mind that while the modified objective test calls for an objective assessment of the accused’s manner of driving, evidence about the accused’s actual state of mind, if any, may also be relevant in determining the presence of sufficient mens rea. I would therefore restate the test reproduced above as follows:

(a) The Actus Reus
The trier of fact must be satisfied beyond a reasonable doubt that, viewed objectively, the accused was, in the words of the section, driving in a manner that was “dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic that at the time is or might reasonably be expected to be at that place”.

(b) The Mens Rea
The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.”

This approach makes the question of the departure from the normal standard of driving relevant to mens rea, and Charron J concluded that although there was an actus reus, there was no mens rea because momentary negligence was insufficient to be a marked departure from the standard of care of a prudent driver.

McLachlin CJ delivered the judgment of herself, Binnie and LeBel JJ, and summarised their position at para 67:

“I therefore conclude that the correct statement of the law is as follows:
1. The actus reus requires a marked departure from the normal manner of driving.
2. The mens rea is generally inferred from the marked departure in the nature of driving. Based on the finding of a marked departure, it is inferred that the accused lacked the requisite mental state of care of a reasonable person.
3. While generally the mens rea is inferred from the act constituting a marked departure committed by the accused, the evidence in a particular case may negate or cast a reasonable doubt on this inference.”

Further, momentary lapse of attention could, without more, establish neither actus reus nor mens rea (para 69).

Accordingly, on this approach there was no actus reus or mens rea, but in particular there was no actus reus as there was no larger pattern of impugned driving.

In the third judgment, Fish J agreed with Charron J about the actus reus being defined according to its statutory context (para 84), and also agreed that there was no mens rea in the circumstances of this case, as the appellant had not failed to meet the objective standard of a reasonable person in the circumstances (para 87).

The difference in this case was over the actus reus: six judges held that it must be determined according to its statutory context, and that here an actus reus was proved, because crossing the centre line was dangerous. Three judges held that the actus reus was not proved because a marked departure from the normal standard of driving was necessary and this was not established by an instance of crossing the centre line in the context of an otherwise unobjectionable pattern of driving (para 66):

“…The actus reus is the act and the mens rea, or guilty mind, the intention to commit that act. If the mens rea of the offence requires a failure to take reasonable care which is inferred from the conduct of driving in a manner that represents a marked departure from the norm, then the actus reus must be the act of driving in a manner that represents a marked departure from the norm.”

This is the critical point of difference between the judges: is the actus reus to be defined as a result of the requirements of the mens rea? Para 66 begs the question in its minor premiss “which is inferred from the conduct of driving in a manner that represents a marked departure from the norm”.

It is not unusual for crimes to involve acts that are apparently innocuous but which are rendered culpable because of the state of mind with which they are done. Attempts are paradigm examples, but there are many others. On the minority view in Beatty, would driving while texting be dangerous, if there was no accident? Should this depend on how normal it is to drive while texting?

Thursday, February 21, 2008

Retrospective application of new rules

When judges strengthen the rule against hearsay to protect the accused’s right to a fair trial, can people who were convicted under the old, lax, form of the rule complain? Does the new rule apply only to future cases (plus the case deciding the new rule), or can it be applied retrospectively?

In the United States of America, Teague v Lane, 489 U.S. 228 (1989) established a general rule for when changes in rules of criminal procedure can be applied retrospectively. The Teague rule is that such changes do not apply to cases that have become final before the new procedure is announced, with two exceptions: first, new rules putting conduct beyond the power of lawmakers to proscribe will be applied retrospectively, and second, watershed rules that implicate the fairness of the trial will be applied retrospectively.

Naturally enough, the interpretation of the Teague rule has generated much discussion and litigation. Yesterday, for example, the Supreme Court decided Danforth v Minnesota No 06-8273 (20 February 2008), and held that the Teague rule is a limitation on the right of Federal courts to overturn State court convictions, and it is not a limitation on the power of State courts to grant relief. That is, State courts may retrospectively apply changes to rules and may grant remedies, outside of the constraints of the Teague rule.

In Danforth the hearsay rule was relevant, underlying the admissibility of a child complainant’s video testimony. The child did not give evidence at trial, but a video recording of an interview with the child was played. In Crawford v Washington, 541 U.S. 36 (2004) the rule against hearsay evidence was strengthened by eliminating an exception based on indicia of reliability of confrontational testimony. The new rule is that hearsay of a confrontational nature can be admissible if the witness (ie, the person whose utterances are sought to be used as evidence) is unavailable and if the defendant had a prior opportunity to cross-examine the witness. “The only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation.” This new rule is referred to as a new constitutional rule of criminal procedure. It is constitutional in the sense that it is an application of the Sixth Amendment right of an accused to be confronted by the witnesses against him, via the Fourteenth Amendment’s due process guarantee that trials will be fair. The new rule was not, therefore, an invention of the Court arising from its own policy preference, instead its origin was the Constitution itself. The rule was new in the sense of not being dictated by judicial precedent at the time it was articulated. For discussion of the rule, click here.

The Minnesota State Supreme Court in Danforth had held that it was not free, under the rule in Teague, to apply Crawford to the present case. Crawford had been decided after the petitioner’s conviction had become final. The US Supreme Court reversed this decision and remanded the case for further consideration. The Opinion of the Court noted, at pp 26-27 that the question whether there had been a violation of a right was distinct from whether there was a remedy:

“It is fully consistent with a government of laws to recognize that the finality of a judgment may bar relief. It would be quite wrong to assume, however, that the question whether constitutional violations occurred in trials conducted before a certain date depends on how much time was required to complete the appellate process.”

The US Supreme Court held (p 4) that the court below had correctly recognised that it was not obliged to apply Crawford, but held that the lower court was not prohibited from doing so.

So, after all that, it was for the State court to decide whether the new hearsay rule should apply to convictions that had been finalised before the rule was laid down. It may seem a little strange that the Supreme Court did not simply decide that the second exception to the Teague rule required that the new hearsay rule applied retrospectively, because confrontation was necessary to the fairness of the trial. Without confrontation there was no sufficient reliability, and without an opportunity to challenge the reliability of the witness the trial was not fair. Perhaps the answer is that the fairness of a trial requires consideration of all its circumstances: generally speaking, if an accused had fully and freely confessed to a crime, that confession could be sufficient on its own, or together with other non-hearsay evidence, to sustain a conviction.

The case calls to mind differing approaches to interpretation of the Constitution. Richard A Posner, in “Overcoming Law” (1995) p 174 notes that interpretation is as much creation as discovery. Aharon Barack, in “The Judge in a Democracy” (2006) pp 149-152 discusses Old Textualism, saying that “for the true intent of the author it substitutes the intent of the interpreter.” EW Thomas, in “The Judicial Process” (2005) at pp 25-26 says the declaratory theory “assists to absolve judges from personal responsibility for their decisions.” Richard Posner, in “The Problems of Jurisprudence” (1990) at p 299 prefers to recognise that interpretation has plural goals – “fidelity to framers’ intent, certainty, coherence, pragmatically good results.” Was the new rule in Crawford really dictated by the framers’ intent, or would they have recognised that reliability of hearsay evidence can be established by methods other than confrontation?

Friday, February 15, 2008

You can't always get what you want ...

Where dishonesty offences involve the obtaining of a pecuniary advantage or valuable consideration, does that include getting what one is entitled to?

And, do such offences require, to negative the elements of dishonesty and absence of claim of right, a belief in entitlement to be reasonable?

In Hayes v R [2008] NZSC 3 (15 February 2008) these questions were answered yes and no respectively.

An example of this sort of offence, and one considered in Hayes, is s 228 of the Crimes Act 1961[NZ]:

“Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,—
(a) dishonestly and without claim of right, takes or obtains any document; or
(b) dishonestly and without claim of right, uses or attempts to use any document.”

The first thing a lawyer does is ascertain what is the actus reus of each of these offences. Here, the verbs takes, obtains, uses, attempts to use are the proscribed acts, done in relation to any document. No other act is required to be proved by the prosecution, and in particular there is no reference to pecuniary advantage or valuable consideration as part of the actus reus. It is the mens rea to which those matters are relevant.

Secondly, a lawyer will ask what constitutes mens rea for these offences. The mental elements are indicated by the words “with intent to obtain” any of the specified things. In Hayes it was held that pecuniary advantage includes the obtaining of something that one does not already have, even if one is entitled to have it. Anything that enhances the defendant’s financial position is a pecuniary advantage (para 16). This interpretation of pecuniary advantage followed that in Attorney-General’s Reference (No 1 of 2001) [2003] 1 WLR 395. Other elements of mens rea for these offences are dishonesty and absence of a claim of right. It is in relation to these that a belief in entitlement will be relevant.

As to whether the belief in entitlement has to be a reasonable belief, the Supreme Court held that it does not. A subjective belief is sufficient to negative mens rea (para 34, 35). The Court indicated that in directing a jury on this issue the judge should not refer to an honest belief, but instead should refer to the accused’s belief (para 34).

The Court examined the Crown’s submission that if there was no reasonableness requirement for absence of mens rea the law in New Zealand would be out of step with that elsewhere. This was rejected after considering the position in England, Australia, and Canada.

Strange as it seems, this aspect of the appeal had not been argued in the Court of Appeal. In R v Hayes [2007] NZCA 6 (14 February 2007) the appellant had argued that the Crown had to prove that the accused was not entitled to the pecuniary advantage in question. This was on the assumption that entitlement would negate advantage. The Court of Appeal, applying its earlier decisions, held (para 14 – 16) that there would be a pecuniary advantage if the accused had used a document in a way that avoided disclosing information that would have led to a reduction in payment, and that the accused’s actual entitlement was not in issue. In the Supreme Court the same result was reached, but it was the newly taken point on the subjectiveness of mens rea that required the appeal to be allowed (para 37):

“The Judge was thereby treating the reasonableness of the accused’s belief as a necessary ingredient rather than as simply having evidentiary significance on the question whether it was or was not held. On conventional principles this was a material misdirection which gave rise to a substantial miscarriage to which it would not be appropriate to apply the proviso to s 385(1) [of the Crimes Act 1961]. There must be a real risk that the jury, or at least some members, might have thought that Ms Hayes actually held the belief she asserted but that it was not reasonable for her to do so.”

In terms of the approach to the proviso preferred in these blogs, this was an example of the kind of substantial miscarriage of justice that arises when a misdirection results in a real risk that the law has not been applied by the jury. There was no attempt to assess the strength of the evidence and the chance of a different verdict, because the trial was fundamentally flawed.

Thursday, February 07, 2008

Power and legality

Formalism, technicality, the principle of legality versus substantive justice: when can statutory requirements concerning court procedures be overlooked?

In R v Clarke [2008] UKHL 8 (6 February 2008) the failure of a court official to sign an indictment was held to invalidate the ensuing trial and to require the quashing of the convictions on that invalid indictment.

Lord Bingham delivered the leading opinion; at para 17 he observed:

“…It is always, of course, lamentable if defendants whose guilt there is no reason to doubt escape their just deserts, although the present appellants, refused leave to appeal (on other points) by the single judge in 1977 and the full court in 1998, have now served the operative parts of their sentences. Technicality is always distasteful when it appears to contradict the merits of a case. But the duty of the court is to apply the law, which is sometimes technical, and it may be thought that if the state exercises its coercive power to put a citizen on trial for serious crime a certain degree of formality is not out of place. …”

The approach to the procedural breach was to ask two questions: what did the legislature intend the consequences of the breach to be as far as the document in question was concerned, and, if the document was void, what did parliament intend the consequences to be as far as the trial was concerned.

Here, the legislation and the history of judicial application of it (in the main), led inescapably to the conclusion that an unsigned indictment was void and a trial upon a void indictment was not valid.

A difficulty, requiring clarification, was recent Court of Appeal departure from its own authority, R v Morais (1988) 87 Cr App R 9. Morais, upheld in the present case, had not been followed in R v Ashton, R v Draz and R v O'Reilly [2006] EWCA Crim 794, [2007] 1 WLR 181. Ashton had been greeted by a number of academic authorities as “a victory of substance over formalism” (para 17). Lord Bingham concluded (para 20):

“…I cannot, however, accept the basis upon which the court in R v Ashton distinguished its earlier decision in R v Morais. …”

In Ashton the Court of Appeal had made the mistake of turning the question of the intention of the legislature into a search for prejudice to the defence, and a use of the lack of any such prejudice as grounds for treating the statutory requirement as a technicality.

It is not unusual to hear judges ask counsel for the defence to identify what prejudice the accused will suffer from the departure from a requirement of procedure. In such cases, the question will be, what was the intention behind the establishment of the procedure. Absence of prejudice will often, but not always, be an answer to an irregularity.

Friday, February 01, 2008

No, you decide ...

When should a court of second appeal remit the question of whether to apply the proviso to the appellate court below?

The proviso allows an appellate court to dismiss an appeal on the basis that an error that had occurred at trial did not amount to a “substantial” miscarriage of justice.

In Mahmood v Western Australia [2008] HCA 1 (30 January 2008) the High Court of Australia remitted to the Court of Appeal of the Supreme Court of Western Australia the question of whether the proviso should be applied. The error at trial, the occurrence of which the Court of Appeal had not accepted, was held by the High Court to have been a failure by the trial judge to give the jury a direction, when all she had given was a comment.

Directions are binding on the jury, whereas comments may be ignored: para 16 of the joint judgment of Gleeson CJ, Gummow, Kirby and Kiefel JJ (with which Hayne J agreed).

In this case, part of a video tape made a week after the murder of the accused’s wife, showing the accused reconstructing for the police his movements at the scene, was shown to the jury at the request of the defence. This was to show how the accused got blood on his clothing. The defence was willing to have the jury shown the whole tape, but the prosecution objected on the ground that the tape was self-serving. The only judge to deal with this point in the High Court, Hayne J, held that the whole tape was no more self serving that an ordinary police interview which included denials of guilt: there were aspects of an inculpatory nature, such as admissions of presence at the scene, opportunity, and so on. The prosecution should adduce all the admissible evidence that it has that incriminates the accused (para 38 – 41).

A problem arose at trial because the prosecutor in closing suggested to the jury that the accused’s demeanour in the part of the video they were shown disclosed a lack of emotion consistent with a cold-blooded intent to kill. The judge declined a defence request to have the whole tape shown, saying she would deal with the matter in her summing up to the jury.

The Court of Appeal had held that what the judge told the jury was sufficient to rectify the unfairness that arose from the prosecutor’s comments. The High Court disagreed, and remitted the question of the application of the proviso to the Court of Appeal.

What would an ordinary bystander expect the Court of Appeal to do? Probably, to conclude that the failure to give the jury a direction did not matter because the comment was sufficient to rectify the unfairness.

Only the comments of Hayne J could draw the Court of Appeal away from their earlier stance. From his approach it is clear that much evidence (the two hour video tape, of which only a few minutes had been shown to the jury) that should have been adduced by the prosecution was not, and that this included evidence that could have assisted the defence.

The way the proviso is to be approached in Australia has been considered most recently in Evans v R (blogged here 20 December 2007). There, since the defence was not able to be fully put at trial (alibi evidence was not permitted to be called), and because inadmissible evidence had been allowed, the proviso could not be applied. Mahmood seems to be a case where the proviso should not be applied because a significant amount of evidence in this purely circumstantial case had not been received by the trial court.

The approach to the proviso is still obscure, even though there have been numerous considerations of it by the High Court. In declining to address the difficulty further in this case, and in remitting the question to the lower appellate court, the High Court has left the impression that it may be getting a bit tired of wrestling with the problem of when to apply the proviso.