The limits of comity

In Canada (Justice) v Khadr [2008] SCC 28 (23 May 2008) s 7 of the Canadian Charter of Rights and Freedoms was applied extra-territorially. This was possible because Canadian officials had participated in a procedure in the detention centre at Guantanamo Bay that violated Canada’s obligations at international law. This participation occurred when copies of interviews that the Canadian officials had conducted at Guantanamo Bay with Mr Khadr, a detainee, were handed over to the US authorities. The violation of fundamental human rights protected by international law, arising from the procedures then in force at Guantanamo Bay, was held to have occurred on the basis of the procedural failings recognised by the United States Supreme Court in Hamdan v. Rumsfeld, 126 S. Ct. 2749 (2006) (blogged here 30 June 2006).

“26. … The effect of the United States Supreme Court’s holdings is that the conditions under which Mr. Khadr was held and was liable for prosecution were illegal under both U.S. and international law at the time Canadian officials interviewed Mr. Khadr and gave the information to U.S. authorities. Hence no question of deference to foreign law arises. The Charter bound Canada to the extent that the conduct of Canadian officials involved it in a process that violated Canada’s international obligations.”

Section 7 of the Charter provides:

“Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Here, fundamental justice required that Mr Khadr be given, to facilitate his defence to charges that were to be tried at Guantanamo Bay, copies of certain interviews. This was analogous to, but not the same as, the disclosure obligation that would arise in a domestic prosecution. The difference here is that the Canadian authorities were not prosecutors:

“32. … The scope of the disclosure obligation in this context is defined by the nature of Canada’s participation in the foreign process. The crux of that participation was providing information to U.S. authorities in relation to a process which is contrary to Canada’s international human rights obligations. Thus, the scope of the disclosure obligation must be related to the information provided to U.S. authorities.”

The extent of this disclosure requirement was to be determined in accordance with s 38.06 of the Canada Evidence Act, which involves a judicial oversight procedure to protect security and public policy considerations.

It is clear that even if the US SC had held the Guantanamo Bay procedures to be legitimate, the SCC would not have been obliged to agree: para 25.

This case distinguished the facts of R. v. Hape, 2007 SCC 26 (CanLII), [2007] 2 S.C.R. 292, 2007 SCC 26 (blogged here 11 June 2007), and applied dicta in that case on the limits of comity:

“ 18. … comity cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canada’s international obligations. It was held that the deference required by the principle of comity “ends where clear violations of international law and fundamental human rights begin” (Hape, at paras. 51, 52 and 101, per LeBel J.). The Court further held that in interpreting the scope and application of the Charter, the courts should seek to ensure compliance with Canada’s binding obligations under international law (para. 56, per LeBel J.).”

On the question of the material that should be disclosed here, while that was left to the designated judge to determine, the SCC observed that confining it to the interviews that had been given to the US authorities may not be sufficient for the conduct of Mr Khadr’s defence:

“34. … disclosure of an inculpatory statement shared with the U.S. authorities might require disclosure of an exculpatory statement not shared to permit Mr. Khadr to know his jeopardy and prepare his defence. It would seem to follow that fairness requires disclosure of all records in any form of the interviews themselves — whether or not passed on to U.S. authorities — including any transcripts, recordings or summaries in Canada’s possession. For similar reasons, it would seem to follow that Mr. Khadr is entitled to disclosure of information given to U.S. authorities as a direct consequence of Canada’s having interviewed him.”

[Update: the Court does not have jurisdiction to compel the government to order Mr Khadr's return to Canada: Canada (Prime Minister) v Khadr [2010] SCC 3 (29 January 2010).]

Preventing statutory unfairness

It may sometimes be unjust for the courts to wait for the legislature to extend the law to fully achieve its purpose. A stay of proceedings can be a means of avoiding an injustice that the legislature, had it considered the position, would itself have sought to avoid.

In R v Asfaw [2008] UKHL 31 (21 May 2008) the majority (Lords Bingham, Hope and Carswell) applied the stay of proceedings route to avoiding an injustice. The dissenters, Lords Rodger and Mance, would on ordinary principles of statutory interpretation have upheld the conviction.

Broadly, the appellant was a refugee who, in the course of escaping from Ethiopia, entered the UK at Heathrow and, while at the airport, used a false passport to try to board a flight to Washington DC. She was charged with two counts: using the false passport, and attempting to obtain air services by deception. The first charge carried a defence pursuant to legislation protecting refugees, while the second was not listed with the offences to which that defence was available.

Both charges arose from the same facts. Lord Bingham was concerned about the purpose of prosecuting the appellant for the second:

“31. The appellant … submitted that it was an abuse of the criminal process to prosecute her to conviction under count 2. That submission calls for closer consideration. It was not an abuse to prefer charges under both counts, since the respondent was entitled to question whether the appellant was a refugee, and if she was not neither the article nor the section could avail her. It is true that the two counts related to identical conduct and the second count served no obvious purpose, but the court could ensure, on conviction, that no disproportionate penalty was inflicted. If, however, the second count was included in the indictment in order to prevent the appellant from relying on the defence which section 31 would otherwise provide, I would share the Court of Appeal's view (para 24) that there would be strong grounds for contending that this was an abuse of process. It is not at all clear what legitimate purpose was sought to be served by including the second count, and it must be questioned whether there was any legitimate purpose.”

Section 31 of the Immigration and Asylum Act 1999[UK] provides for the relevant defence for refugees. The appellant had been acquitted on count 1, pursuant to this section, so there was no doubt that she was a refugee. Lord Bingham continued:

“32. … if [as they did] the jury were to acquit the appellant on count 1 in reliance on section 31, it would be both unfair and contrary to the intention of the statute to convict her on count 2. The Attorney General expressly recognised that additional offences might have to be added to section 31(3), and when such offences, requiring addition to the list, arose in individual cases it would plainly be necessary to avoid injustice in those cases. There was in my opinion a clear risk of injustice in this case if the jury were to acquit on count 1 but convict on count 2.”

But,

“33 … If the jury convicted the appellant on count 1, rejecting her section 31 defence, there would have been no objection in principle to further prosecution of count 2. But the appellant would be likely in that situation to have pleaded guilty (as she did in response to the judge's ruling), and the question would arise whether further prosecution of count 2 could be justified: given that the judge had power to sentence the appellant to imprisonment for 10 years on count 1, it could scarcely be suggested that his powers of punishment were inadequate to reflect the appellant's culpability.”

Lord Hope agreed (para 69), calling the omission of the count 2 offence from the offences to which the relevant defence applied an “oversight” (para 67).

The dissenters interpreted the legislation as requiring the appellant to present herself to the UK authorities and to obtain valid travel documents if she wished to travel on to the United States, so both charges were justified. There was, on this view, no need to address the need for a remedy. On the majority approach, the appellant had still been fleeing from persecution when she was at Heathrow. The difference between the conclusions of the Law Lords here may not have occurred without this difference in perception of her situation.

The majority approach is an illustration of how injustice that would arise from a literal reading – and indeed from an ordinary and reasonable reading - of legislation can be avoided by a stay of proceedings at an appropriate time. This could not be taken as an illustration of the court refusing to enforce a statute, but it is a case where the unfair consequences of application of a statute were rejected and avoided by the court’s inherent power to prevent an abuse of process.

Multiplying the Crown's benefit from crime

Depriving an offender of the benefit he obtained from his offending was the subject of three related House of Lords decisions this week: R v May [2008] UKHL 28, R v Green [2008] UKHL 30, and Crown Prosecution Service v Jennings [2008] UKHL 29 (all 14 May 2008).

The leading decision is May, where broad principles were stated for the interpretation of the relevant legislation, the Proceeds of Crime Act 2002[UK] (para 48):

“(1) The legislation is intended to deprive defendants of the benefit they have gained from relevant criminal conduct, whether or not they have retained such benefit, within the limits of their available means. It does not provide for confiscation in the sense understood by schoolchildren and others, but nor does it operate by way of fine. The benefit gained is the total value of the property or advantage obtained, not the defendant's net profit after deduction of expenses or any amounts payable to co-conspirators.

“(2) The court should proceed by asking the three questions posed above: (i) Has the defendant (D) benefited from relevant criminal conduct? (ii) If so, what is the value of the benefit D has so obtained? (iii) What sum is recoverable from D? Where issues of criminal life style arise the questions must be modified. These are separate questions calling for separate answers, and the questions and answers must not be elided.

“(3) In addressing these questions the court must first establish the facts as best it can on the material available, relying as appropriate on the statutory assumptions. In very many cases the factual findings made will be decisive.

“(4) In addressing the questions the court should focus very closely on the language of the statutory provision in question in the context of the statute and in the light of any statutory definition. The language used is not arcane or obscure and any judicial gloss or exegesis should be viewed with caution. Guidance should ordinarily be sought in the statutory language rather than in the proliferating case law.

“(5) In determining, under the Proceeds of Crime Act 2002, whether D has obtained property or a pecuniary advantage and, if so, the value of any property or advantage so obtained, the court should (subject to any relevant statutory definition) apply ordinary common law principles to the facts as found. The exercise of this jurisdiction involves no departure from familiar rules governing entitlement and ownership. While the answering of the third question calls for inquiry into the financial resources of D at the date of the determination, the answering of the first two questions plainly calls for a historical inquiry into past transactions.

“(6) D ordinarily obtains property if in law he owns it, whether alone or jointly, which will ordinarily connote a power of disposition or control, as where a person directs a payment or conveyance of property to someone else. He ordinarily obtains a pecuniary advantage if (among other things) he evades a liability to which he is personally subject. Mere couriers or custodians or other very minor contributors to an offence, rewarded by a specific fee and having no interest in the property or the proceeds of sale, are unlikely to be found to have obtained that property. It may be otherwise with money launderers.”

The results were that the Crown may obtain orders for confiscation of benefits that exceed the total benefits derived by the offenders from the crime they jointly committed. This is because each offender may – on appropriate facts - be treated as having joint ownership of the proceeds. To “benefit” from crime means to obtain property so as to own it, whether alone or jointly, which ordinarily connotes a power of disposition or control.

In submissions in Green there was some reference to what was argued to be a different approach in Australia, Canada and New Zealand. There was no decision on whether there was indeed such a difference (I suggest not, in NZ), but the House of Lords held that even if there were a difference, legislation in other countries would not assist in interpreting the meaning of the statute in question.

On being unable to communicate with one's self

Perceptions of trial fairness may depend on what is known about the accused’s mental condition. An appellate court that does not know that the accused was suffering, while on trial, from a mental disorder that made him incapable of adequately communicating with his counsel, may assess the record of the trial and conclude that the trial was fair. Another appellate court, armed with fuller information about the accused’s mental condition, may assess the same trial as having been unfair. Such unfairness would arise, not from the course of the trial, but from the unfairness of making a person under mental disability stand trial.

This occurred in Cumming v R [2008] NZSC 39 (15 May 2008). The Supreme Court concluded (para 21):

“It is very clear to us that by reason of mental disorder Mr Cumming was under a disability or, in terms of the present legislation, unfit to stand trial. For that reason there has been a substantial miscarriage of justice. The appeal must therefore be allowed.”

The Court did not refer to, and in particular did not criticise, the Court of Appeal’s assessment of the trial as being fair: [2005] NZCA 260. That Court had summarised its view of the trial as (para 67):

“The reality of this case is demonstrated by the defence the appellant did conduct at the trial. He did understand what he had to do and he put his defence in a way which left the jury able to make fair assessments of the complainant as a witness, and also of the appellant. The transcript shows that the appellant’s conduct of his defence had elements of confusion and other difficulties not unusual in litigants who represent themselves but no more than that. There was a fair presentation of his defence to the jury so that no considerations arise of the kind addressed by the Supreme Court in Sungsuwan v R [2005] NZSC 57 at [48], [58] and [65] to [68].”

The accused had represented himself at trial, having dispensed with the services of a series of counsel. A psychiatric report, available to the Supreme Court but not to the courts below, concluded that

“As Mr Cumming was acting as his own counsel the impact of his mental disorder was even greater upon his functioning in court. Conducting a delusionally based defence and with obvious impairments in his ability to process information, make appropriate inquiries and respond to what was happening, Mr Cumming, as his own counsel, could be said to be unable to communicate adequately with himself. Essentially both defendant and counsel were mentally disordered in this situation.”

This case highlights the need for accurate psychiatric diagnoses at an early stage, and the need for review of those as a trial proceeds. The difficulty is that a person who is advancing, albeit in a confused and irritating way, a coherent defence, may easily be misdiagnosed as being fit to stand trial. A coherent defence may nevertheless be the product of delusion and mental disorder. This case establishes that a person on trial has the right to present a defence that is not the result of mental disorder, regardless of how rational it may appear to be.

Facts, fairness and the proviso

Once again the application of the proviso has come under the scrutiny of the High Court of Australia: Gassy v R [2008] HCA 18 (14 May 2008).

Previous efforts at clarification of when a miscarriage may be regarded as substantial have been noted here: see in particular Weiss v R (blogged 16 January 2006) and AK v Western Australia (blogged 27 March 2008), and there are others (see Index).

Before the appellate court can apply the proviso, and dismiss the appeal against conviction, it must be satisfied of two things: that the evidence properly admissible against the accused established guilt beyond reasonable doubt, and, if it did, that the trial was fair.

In Gassy, the three majority Judges differed in the routes they took to conclude that the proviso could not be applied here. Gummow and Hayne JJ jointly held that the evidence could not be regarded by an appellate as establishing guilt beyond reasonable doubt. Kirby J held that, although the evidence could well be held to establish guilt to that standard (I reflect here his Honour’s “cusp” remark, mentioned below), the trial was not fair.

Two miscarriages of justice were relied on by the appellant: the first, held not to be relevant because its result favoured the appellant, was refusal of the trial judge to permit the accused, who at all other times represented himself on the charge of murder, to have legal representation for the limited purpose of conducting a voir dire. The second was the “assistance” that the judge endeavoured to give the jury in overcoming an impasse after a lengthy period of deliberation. The supplementary directions lacked balance because they did not adequately mention the defence perspective on the relevant issues.

Interestingly, Gummow and Hayne JJ held that, although this supplementary direction was an error, the question of whether the evidence could be said on appeal to have proved guilt beyond reasonable doubt still had to be considered. This approach, reflected in para 31, is one of avoiding classifying some errors as “fundamental” (para 33). It was, on this view, necessary to examine what effect the error could have had on the outcome of the trial (para 34). These Judges, therefore, were not holding that the misdirection itself was unfair. They noted that the jury had, before the impugned supplementary directions, deliberated for more than a day and a half, and that therefore an appellate court would have to be careful before concluding that guilt had been proved beyond reasonable doubt (para 35). The inferences that the prosecution sought to persuade the jury to draw were not compelled by the evidence (para 37), and there should be a retrial.

Kirby J, agreeing in the result, reasoned that the evidence of guilt was (virtually) conclusive, but this was a case of trial unfairness and therefore the proviso could not be applied. He agreed (para 46-47) with Gummow and Hayne JJ that there had been miscarriages of justice in both the voir dire point (albeit that this was not determinative) and the supplementary direction point. But he held that the supplementary direction lacked impartiality (para 51) and that the question of the application of the proviso therefore arose (para 57). He did not consider that the miscarriage of justice here was one which involved “the presuppositions of a criminal trial” (para 61) - but at this point one must ask whether use of this classification is appropriate, notwithstanding the authority for it – and he proceeded to evaluate the strength of the evidence (para 69-91) and concluded that this case was “at the cusp”: a very powerful prosecution case. This should be read bearing in mind that, a retrial being ordered, it would be inappropriate for the appellate court to actually say it thought guilt had been established beyond reasonable doubt. However, it was clear form the events at trial that the impact of the supplementary direction on the jury was significant, as they returned the guilty verdict shortly afterwards.

Kirby J does not go so far as to say the proof of guilt was conclusive, and he acknowledges (para 99) that the jury had to make a number of factual judgments. The Judge’s assistance in the supplementary direction had, therefore, to be impartial and should have referred to the defence perspective more than it did. Kirby J summarised his approach by saying (para 105), after referring to the minority approach of Crennan and Kiefel JJ:

“…It is enough for me to say that I place the highest value on the principle of manifest judicial impartiality and neutrality. Those qualities were of cardinal importance given the impasse that the applicant's trial had reached. In the end, this case stands for the principle that, particularly in circumstances of jury disagreement after a long trial, the trial judge must balance "ways forward" that lead to conviction with a reminder of those that lead to the opposite outcome.”

But in remarks that indicate he considered the prosecution case strong enough to support the conviction, Kirby J concluded (para 106-107) by referring to dicta in Weiss and AK concerning fundamental trial defects (as found here) which prevent application of the proviso notwithstanding that the appellate court may consider guilt to have been proved.

It is unfortunate that the majority Judges differed in their approaches to the application of the proviso here. Gummow and Hayne JJ obscure the primary importance of the right to a fair trial by their treatment of the strength of the prosecution case, while Kirby J emphasises it.

Fifteen years of illegal trials?

For fifteen or so years the statutory procedure for empanelling juries in the British Virgin Islands has not been followed. In R v Clarke (blogged here 7 February 2008) a trial was held to be a nullity because an indictment had not been correctly signed. Was the British Virgin Islands problem more profound?

The Privy Council addressed this in DPP (Virgin Islands) v Penn (British Virgin Islands) [2008] UKPC 29 (8 May 2008).

Here, the Registrar of the Court had not maintained a list from which an array of jurors was summoned for jury service. From this array the trial jury (of nine) would be impanelled. Instead of maintaining the jury list, the list of registered voters was used. The qualifications for jurors and electors differed.

Constitutional lawyers will be thinking this was an opportunity for application of the “de facto doctrine”, or, more precisely, the doctrine which holds valid, in certain situations, the acts of officials who have not been lawfully appointed to office. This doctrine is particularly useful in revolutions and coups, where an illegal government purports to appoint officials to carry on the day to day business of the state. Although it was not necessary to apply this doctrine here, the Board did make reference to it in paras 22-23.

No, here the solution was arrived at by reasoning consistent with that used in Clarke: if the legislative intent was not that the consequences of a breach of the enacted procedure should be a nullity, then, as long as everything was done in good faith, the proceedings would not be invalid on that score:

“18. The modern tendency is no longer to seek to identify or distinguish between mandatory and directory acts, but the Board's judgment in [Montreal Street Railway Company v. Normandin [1917] AC 170] … underlines the need for careful examination of the relevant legislation, to ascertain the purpose of statutory procedures for the impanelling of an array and whether an intention should be attributed to the legislature that non-compliance with such procedures should render a jury trial a nullity, irrespective whether it may have occasioned potential unfairness or prejudice. The Board recognises the seriousness of a criminal charge and the particular vigilance that the courts will exert to maintain the fairness and integrity of criminal proceedings. But the Board considers that there is scope for the reasoning in the Montreal Railway case in a criminal context.”

These considerations come into play once there has been a trial at which no objection to the procedure in question was made. Had such an objection been made at trial, the judge may well have decided to quash the proceedings (para 33). But, where there is no reason to think that there had not been a fair trial, quashing would only be appropriate if that was the clear intention of the legislature.

Here, the legislation indicated a flexible approach was available to objections to the array at trial: s 24 of the Jury Act 1914 provides

“24. Every application, made at a sitting of the High Court, for the quashing of an array, shall be heard and determined by the presiding judge, and no array shall be quashed on the ground of any formal defect, or of any breach of any of the provisions of this Act, unless the presiding Judge is satisfied that it is expedient, on the merits and in the interests of justice, that the array should be quashed.”

The Board reasoned, para 35:

“Section 24 is not itself applicable on an appeal. It deals with applications to the presiding judge before whom the applicant is to be tried. But its flexible focus on the interests of justice assists to confirm the appropriate approach to the question which is in issue on the present appeal: whether the appellant's trial and conviction should be regarded as a nullity or set aside and a fresh trial ordered. There is no suggestion that the trial judge or jury were aware of the Registrar's default in his or her statutory duties. The Board does not accept that the Registrar's awareness of the default equates with awareness on the part of the judge or jury. There is no suggestion of any disadvantage or prejudice to the respondent by reason of the defects in process which occurred. Any jurors' register would have been very largely identical with the voters' list from which the array was in fact selected. There is no suggestion that the array was not taken from the voters' list in a manner which was comparably random to the way in which it should have been taken from a jurors' register. There is no suggestion that any of the nine jurors who eventually served at the trial did not meet the age and other qualifications in the Jury Act.”

The conclusion was that there was nothing in the legislative intent to require the trial that had occurred in these circumstances to be declared invalid.

Controlling the back-seat driver

Who makes the important technical decisions concerning the way a defence is to be run, the accused or counsel representing him?

In Gonzales v United States [2008] USSC No 06-11612 (12 May 2008) the plurality opinion, delivered by Kennedy J, contains the following observations (p 9):

“Giving the attorney control of trial management matters is a practical necessity. ‘The adversary process could not function effectively if every tactical decision required client approval.’ Taylor v. Illinois, 484 U. S. 400, 418 (1988). The presentation of a criminal defense can be a mystifying process even for well-informed laypersons. This is one of the reasons for the right to counsel. See Powell v. Alabama, 287 U. S. 45, 68–69 (1932); ABA Standards for Criminal Justice, Defense Function 4–5.2, Commentary, p. 202 (3d ed. 1993) (‘Many of the rights of an accused, including constitutional rights, are such that only trained experts can comprehend their full significance, and an explanation to any but the most sophisticated client would be futile’). Numerous choices affecting conduct of the trial, including the objections to make, the witnesses to call, and the arguments to advance, depend not only upon what is permissible under the rules of evidence and procedure but also upon tactical considerations of the moment and the larger strategic plan for the trial. These matters can be difficult to explain to a layperson; and to require in all instances that they be approved by the client could risk compromising the efficiencies and fairness that the trial process is designed to promote. In exercising professional judgment, moreover, the attorney draws upon the expertise and experience that members of the bar should bring to the trial process. In most instances the attorney will have a better understanding of the procedural choices than the client; or at least the law should so assume. See Jones v. Barnes, 463 U. S. 745, 751 (1983); see also Tollett v. Henderson, 411 U. S. 258, 267–268 (1973); cf. ABA Standards, supra, at 202 (‘Every experienced advocate can recall the disconcerting experience of trying to conduct the examination of a witness or follow opposing arguments or the judge’s charge while the client ‘plucks at the attorney’s sleeve’ offering gratuitous suggestions’). To hold that every instance of waiver re quires the personal consent of the client himself or herself would be impractical.”

That case concerned the jury examination and selection procedure, but obviously these remarks are of general application.

There will be times when, as defence counsel, one realises that the client would have a much better chance if only his instructions were different. There is, importantly, an obligation to follow the client’s instructions and not to create a defence where none would otherwise have arisen. Failure to conduct a defence in accordance with instructions can give rise to a substantial miscarriage of justice eg R v Irwin [1987] 1 WLR 902; [1987] 2 All ER 1085.

In Adams on Criminal Law the position is summarised, at CA385.13, as:

“Counsel’s obligation to conduct the trial according to the accused’s instructions carries with it an obligation to take instructions where matters arise as to which counsel’s current instructions do not extend: R v Kerr 11/4/00, CA504/99. The requirement does not extend to investigating in detail all possible defences so as to obtain the “informed consent” of the accused to the running of some alternative to that most open on the facts: R v Nicholson 8/10/98, CA439/97. Nor need counsel canvass with the accused all possible options, including those which are tactically unsound or depend on matters solely within the accused’s own knowledge: R v Momo 23/7/02, CA115/02. Counsel is not required to inform the accused that he or she has the right to insist on a particular course of action being taken: R v Hookway [2007] NZCA 567, at paras 19 and 23.

“The accused will not be bound by concessions made without authority by counsel during sentencing: R v Xie [2007] NZCA 571, at paras 6 and 7.”

"As I said before ..."

The most subtle and troublesome rules of the common law concern the use that may be made at trial of a witness’s own out of court statements. These may be consistent with the witness’s trial testimony, or inconsistent with it. In R v Dinardo [2008] SCC 24 (9 May 2008), an appeal which was allowed on other grounds, the trial had been by judge alone and the judge had misstated the law concerning the use that may be made of a complainant’s prior consistent statements.

The appeal was allowed on the grounds that insufficient reasons for his verdict were given by the judge, causing the accused to be deprived of his right to be told the reasons he was convicted (R v Gagnon, [2006] SCC 17), and of his right to meaningful appellate review (R v Sheppard, [2002] SCC 26).

However, it is the use of prior inconsistent statements that is of interest here. Such statements may be called “narrative evidence”. In a refreshingly unanimous decision, delivered by Charron J, the Court quoted, at para 37, McWilliams’ Canadian Criminal Evidence (4th ed. (loose-leaf)), at pp. 11-44 and 11-45:

“The challenge is to distinguish between “using narrative evidence for the impermissible purpose of ‘confirm[ing] the truthfulness of the sworn allegation’” and “using narrative evidence for the permissible purpose of showing the fact and timing of a complaint, which may then assist the trier of fact in the assessment of truthfulness or credibility”.

It is quite possible that there may be someone who is able to understand that distinction, but many more people will claim, falsely, to understand it. It is a distinction that has been dropped in New Zealand, where the law of evidence was recently reformed: Evidence Act 2006.

Under this reformed law, a witness’s out of court statements are not hearsay, and prior consistent statements are, in the limited circumstances in which they are admissible, evidence for the truth of their contents: s 35

In the USA (my thanks to Peter Tillers for this:) "Under the (US) Federal Rules of Evidence the default rule remains that out of court statements of testifying witnesses are hearsay. Under R 801(d)(1)(A) statements of testifying witness are "exempt" from the hearsay rule only if the statements were made under oath in certain proceedings. The other exemptions in subdivision (d) cover limited situations as well. This may not make sense but, for the moment, that's the law in the federal courts of the United States and in the courts of the most States of the United States. The Advisory Committee that drafted the Federal Rules of Evidence (in the late 1960s and early 1970s) proposed that all prior inconsistent statements of testifying witnesses be made exempt from the hearsay rule but Congress rejected this proposal by adding the words "and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition" to Rule 801(d)(1)(A). Even some prior consistent statements remain hearsay: some years back the US Supreme Court held that only those prior inconsistent statements that are offered to "rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive" are exempt from the hearsay rule and that prior consistent statements made after a motive for recent fabrication etc arose remain hearsay. See FRE 801(d)(1)(B). Moreover, even the Evidence Advisory Committee did not propose a blanket exemption for pretrial statements of testifying witness; as in current Rule 801, the remaining exemptions in Rule 801 pertain to (i) certain pretrial identifications and (ii) admissions (including vicarious admissions of various kinds) and statements of coconspirators. If these exemptions do not apply, the hearsay rule kicks in."

In Australia, where the uniform evidence provisions apply (Commonwealth, NSW, ACT, Tas, NI and soon, Vic), hearsay includes a witness’s out of court statements (eg, Evidence Act 1995 (C’th) s 59). However, as Jeremy Gans has reminded me, s 60 should render prior statements admissible as proof of their assertions; the High Court has complicated this a bit in Lee v R [1998] HCA 60, but broadly that’s it. In Queensland they are admissible for their truth too.

In the UK, pursuant to the Criminal Justice Act 2003, s 120(2), such prior statements are evidence of the truth of what they assert.


In 1991 the New Zealand Law Commission in Preliminary Paper No 15 Evidence Law: Hearsay, p 3 para 4 said of the distinction between using a prior statement as supporting credibility, and using it to determine what actually happened, “Explaining this to juries – and expecting them to follow the instruction – is one of the more difficult aspects of the hearsay rule.”

R v Dinardo illustrates that explaining the rule to judges – and expecting them to follow it - is difficult too.

Tainted by inadmissible evidence?

If a judge tells a jury to ignore certain prosecution evidence, does that mean the wrongly admitted evidence can’t be used as grounds for appeal against conviction?

In Young v The State (Trinidad and Tobago) [2008] UKPC 27 (6 May 2008) there was a confession and a dock identification, both being obstacles to acquittals on charges of kidnapping and robbery. However, in directing the jury, the judge told the jury to ignore the dock identification. That left the confession, which, after an unsuccessful voir dire, the accused in evidence to the jury said was made as a result of threats from the police and in any event was not true, and he called an alibi witness.

The Court of Appeal dismissed the appeal, holding that the direction to the jury to ignore the dock identification made the giving of that evidence a dead issue. The Privy Council disagreed with that approach: it was necessary carefully to consider the way the jury might address the reliability of the confession. It was possible, at least in theory (but not, as it turned out, here), that the effect of the dock identification, even if it was ignored as one route to conviction, might influence the assessment of the reliability of the confession.

In this case, the Board held that the judge’s warning to the jury was sufficient to prevent that possible misuse of the evidence. This was not a situation where a Turnbull direction would have been appropriate as it would have been “confusing and potentially misleading” (para 20). The accused had not been deprived of a fair trial.

The Board cited, inter alia, Pipersburgh v R (Belize) (blogged here 26 February 2008), but did not cite Edwards v R (Jamaica) (blogged here 26 April 2006) in which strong comments against dock identification had been made. The position seems to be (para 17 of Young):

“…The trial judge must give sufficient warnings about the dangers of identification without a parade and the potential advantage of an inconclusive parade to a defendant, and direct the jury with care about the weakness of a dock identification. Much may depend on the circumstances of the case, the other evidence given and the run of the trial, so that it is not possible to lay down a universal direction applicable to all cases.”