Issue estoppel: rule or discretion?

What place do rules have in modern evidence law?

Should the admissibility of evidence of prior misconduct, for which the accused has been tried and acquitted, be determined by a rule, such as issue estoppel, or by a discretion?

That was the main issue in R v Mahalingan [2008] SCC 63 (14 November 2008).

Before looking at how this was addressed in that case, it is worth recalling that the rules of evidence should promote the ascertainment of the truth, that a trial must be fair to the accused but fairness to the prosecution is also important although not overriding, and that evidence of an alleged fact does not have to establish that fact beyond reasonable doubt before it is admissible as part of the case for either side.

This last point is illustrated by Bayes' Theorem.

In Mahalingan the Supreme Court unanimously ordered a retrial on aggravated assault. After the original trial on that charge the accused had been acquitted of attempting to pervert the course of justice, it having been alleged that he had telephoned a witness before the aggravated assault trial and tried to persuade that person not to incriminate him. Should evidence of that alleged telephone conversation be admissible at the retrial on the aggravated assault?

The minority (Deschamps, Abella and Charron JJ) approached this consistently with the propositions about the law of evidence that I have set out above. To be admissible, the evidence of the telephone call need only be established on the balance of probabilities (166).

That standard is applied as a matter of policy, and is not a requirement of logic, as Bayes' Theorem demonstrates.

The minority rejected an argument that the rule concerning issue estoppel should apply in criminal law. Various reasons for this rejection were advanced by Charron J, who delivered the joint judgment of the dissenters. Most importantly she held that (132):

"The application of issue estoppel as an absolute rule precluding the admission of prior acquittal evidence in all cases regardless of context is inconsistent with the basic rule favouring the admission of all relevant evidence, subject to countervailing concerns."

The countervailing concerns are adequately expressed in existing concepts and provisions: abuse of process, character evidence admissibility, rules against multiple convictions and collateral attack, and the pleas of autrefois acquit and autrefois convict; s 11(h) of the Charter is also relevant (84). Such of those matters as were relevant would be considered by the judge at the retrial, and the evidence was not rendered inadmissible by issue estoppel which is only an appropriate rule for civil cases.

McLachlin CJ delivered the judgment of herself and Binnie, LeBel, Fish and Rothstein JJ. Issue estoppel is retained in criminal law but in a revised form (to correct its drift into difficulty) so that it now precludes the prosecution from relitigating an issue that has been resolved in the accused's favour in a previous criminal proceeding, whether on the basis of a positive fact finding or on a reasonable doubt (2, 22, 26).

The policies behind this are the desirability of avoiding inconsistent verdicts, the need to uphold the principle of finality, and the need to ensure fairness to the accused.

This last matter, fairness to the accused, does not mean fairness in the sense of a fair trial, but rather it means fairness in the public policy sense. The Chief Justice elaborated her use of the expression "fairness to the accused" at 39:

"In my view, it is clear that fairness to the accused requires that an accused should not be called upon to answer allegations of law or fact already resolved in his or her favour by a judicial determination on the merits. This is the most compelling rationale for retaining issue estoppel in criminal law, as it goes to the core tenets of our criminal justice system. The state has the right to charge an accused and to prove the facts at a trial of the charge. If a judge or jury conclusively decides a fact in favour of the accused, including via a finding of a reasonable doubt on an issue, then the accused should not be required in a subsequent proceeding to answer the same allegation. To require, in effect, a second defence of the issue would be to violate the fundamental function of res judicata."

This requires a determination, in each case, of whether the issue in question has been previously decided in the accused's favour (33):

"Only issues that were either necessarily resolved in favour of the accused as part of the acquittal, or on which findings were made (even if on the basis of reasonable doubt) are estopped."

That, I suggest, will operate capriciously. The accused has the burden of showing that the issue was decided in his favour (23), and his ability to meet this burden may depend on what he was previously charged with, and how many issues he raised at the earlier trial. He might diminish his chances of successfully relying on issue estoppel if he raised multiple issues, even though a genuinely innocent accused would put everything in issue.

In New Zealand we have crept away from issue estoppel in criminal law: R v Davis [1982] 1 NZLR 584 (CA), Bryant v Collector of Customs [1984] 1 NZLR 280 (CA), R v Coombs [1985] 1 NZLR 318 (CA), R v Fatu [1989] 3 NZLR 419 (CA), R v Degnan [2001] 1 NZLR 280 (CA), Fox v A-G [2002] 3 NZLR 62 (CA). See also Z v Dental Complaints Assessment Committee [2008] NZSC 55 (blogged here 25 July 2008) especially at paras 57-59, 125-127, for discussion of the use of criminally determined matters in civil proceedings, a topic also addressed in abuse of process terms, without reference to issue estoppel. That trend suggests that the minority approach in Mahalingan would be favoured here. We have regarded the jurisdiction to prevent an abuse of process by, inter alia, excluding evidence on public policy grounds, as a potentially powerful means of ensuring fairness in the wider sense. This contrasts with the majority judgment in Mahalingan, where abuse of process was described as a broad, somewhat vague concept that varies with the eye of the beholder, reserved for obviously egregious abuses of the Crown power, to be relied on successfully only extremely rarely (42):

"To protect parties from relitigation, abuse of process would need to be cast in a less discretionary form than it now takes. Therefore, considering the high threshold for proof and the unpredictability of its operation, it is unlikely that the doctrine of abuse of process adequately achieves the fairness goal that underlies the doctrine of issue estoppel."

That may reflect the emaciated form of the abuse of process jurisdiction in Canada. In other legal systems it may be relatively (I feel I am entitled to use the word "relatively" in view of my recent brush with smugness) strong and an adequate substitute for the rule against issue estoppel.

I should add, lest I be accused of regarding Canadian law as unduly flaccid, that the Charter provides the remedy of discretionary exclusion (s 24(2)) in terms that will usually make resort to the common law unnecessary: R v O’Connor (1995) 103 CCC(3d) 1 (SCC) per L’Heureux-Dube J at para 70-72. Under s 24(2) the determination is whether admission of evidence obtained in a manner that infringed or denied a Charter right or freedom would bring the administration of justice into disrepute. Common themes had been evident between the common law and Charter jurisprudence. For example, in R v Mack (1990) 44 CCC(3d) 513 (SCC) Lamer J, for the Court, addressed police conduct of an investigation that amounted to entrapment, and held that admitting evidence obtained through such conduct would bring the administration of justice into disrepute. He noted (para 77) that the same principle applied with respect to the common law doctrine of abuse of process. The dominance of the Charter does not render irrelevant Lamer J’s statement of basic principles in Mack.

Nevertheless, the majority in Mahalingan seem to distrust the usefulness of abuse of process. True it is that criticisms for vagueness can always be levelled at concepts that can only be expressed in general terms. Harmless fun can be had in making such criticisms, as occurred in argument in Ngan v R SC8/2007, 14 August 2007 at pp 32-33 (jibes which misfire, as the “high sounding principles” in the Charter are also in the New Zealand Bill of Rights Act 1990). And Blanchard J, the jester in that argument, set out his own general principles in R v Shaheed [2002] 2 NZLR 377 (CA) in defining the criterion for discretionary exclusion of improperly obtained evidence, a formulation that has been adopted in s 30(2)(b) Evidence Act 2006[NZ]: “...determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.” [emphasis added; cf para 156 of Shaheed]

Judges do have a sense of what such general concepts mean. As cases applying them accumulate, patterns emerge and these aid the prediction of how the general concepts will work in particular instances.

Exclusion of improperly obtained evidence

Users of my method for analysing discretionary exclusion of improperly obtained evidence will be interested to see that in R v Horsfall [2008] NZCA 449 (30 October 2008) the Court ruled inadmissible evidence obtained through an improperly conducted search where the offending had attracted a sentence of over 4 years imprisonment. I have included this in my draft paper.

I could do it in my sleep

Does it matter that the judge sleeps during significant parts of a trial? What if there is a jury, can the judge sleep longer? What if the judge is alert for most of the time, and only misses some bits of evidence, through sleep or conscious inattention?

In Cesan v R [2008] HCA 52 (6 November 2008) the High Court of Australia considered two appeals against convictions that had resulted at a trial by jury where the judge's sleeping had distracted the jury. French CJ summarised the facts (94):

"In this case the facts ... indicated a substantial failure of the judicial process. The trial judge was asleep on a number of occasions on the 11 days when evidence was being given. He slept at least once on most of those days and on some days on two or three occasions. Some of the sleep episodes, possibly between two and five, lasted from 10 to 15 minutes. Most lasted between two and 10 minutes. The judge's sleeping was accompanied by heavy breathing on a number of occasions and he snored when Cesan was giving his evidence. This was disruptive and caused Cesan to look around at the trial judge. The judge also slept through parts of [the other accused] Mas Rivadavia's evidence. The jury was distracted by the judge's sleep episodes and some of the jury members found his behaviour amusing and even emulated it."

It was sufficient for French CJ that there was an appearance of injustice. This made the likelihood of convictions irrelevant (97). The flaw in the proceedings had been fundamental and incurable. It was a miscarriage of justice by failure of the judicial process, constituted by the judge's substantial failure to maintain the necessary supervision and control of the trial (96). Therefore the proviso could not be applied.

That straightforward reasoning, which separates procedural fairness from the question of the likelihood of the convictions being justified on the evidence, was not adopted by the other members of the Court.

A joint judgment was delivered by Hayne, Crennan and Kiefel JJ, with whom Gummow J and Heydon J agreed. These reasons stress (104, 110) that established principles are being relied on. This, in effect, means that the obscure approach laid down in Weiss v R (blogged here 16 January 2006) is going to make this difficult.

And it does. The joint judgment reasons that because the jury were distracted it is not possible to conclude from the written record of the trial that guilt was proved beyond reasonable doubt (127). That non sequitur, repeated at 130, emerges from an attempt to apply the Weiss approach of perceiving the likelihood of guilt as it appears from the record of evidence but also taking into account the verdicts.

It is difficult to see why the verdicts should be of assistance to an appellate court in the task of reviewing the adequacy of the evidence, given that the jury were misled in some way – usually by a misdirection on the law, or by inadmissible evidence, or as here by judicial slumber.

It would have been preferable for Gummow J, instead of simply agreeing (107) with the joint judgment's approach to the proviso, to have taken the line he took in AK v Western Australia (blogged here 27 March 2008), reasoning that this miscarriage was substantial and there was no need to ask if the accuseds were guilty. The absence of reasons in the judge alone trial in AK is not all that far removed from the absence of juror attention to the evidence here.

In Cesan the majority took one approach to the proviso, namely that it cannot be applied where the court cannot conclude that the convictions were supported by the evidence (127). The other generally accepted reason for not applying it – procedural unfairness at trial regardless of the likelihood of guilt – provides a more straightforward reason, as French CJ demonstrated, for ordering a retrial of each appellant.

Overkill

By laying too many charges the prosecution may give the accused a get-out-of-jail-free card.

This happened in R v JF [2008] SCC 60 (31 October 2008).

There was one death in this case, but the accused faced two charges of manslaughter. The jury convicted on the more serious, and acquitted on the lesser; this led the SCC to quash the conviction because the verdicts were inconsistent. The accused was left with two acquittals.

The accused's foster child had died as a result of injuries sustained at the hands of the accused's wife, who pleaded guilty to manslaughter. The two charges brought against the accused were

1. Manslaughter by criminal negligence;
   
2. Manslaughter by failure to provide the necessaries of life.
   

Deschamps J was the sole dissenting judge. She was able to perceive a distinction between the elements of the charges that provided a basis for the different verdicts. This distinction is the kind of thing that (in my view) you can persuade yourself you can see if you don't look directly at it, but as soon as you do it seems insubstantial. The jury may have had a reasonable doubt on the second charge, she reasoned, because they did not accept the Crown had proved an element peculiar to it, namely that the accused's failure had the effect of endangering V's life or of causing permanent endangerment to his health.

Deschamps J's judgment illustrates how a complicated explanation is unlikely to be convincing. Look at paras 73 and 74. Given that the jury concluded that the Crown had not proved that the accused's failure to provide the necessaries of life had endangered V's life, or caused or likely caused his health to be endangered permanently, how could the jury then conclude that on manslaughter by criminal negligence his marked and substantial departure from what a reasonable parent would do in the circumstances caused V's death?

On the first charge, the jury found (and correctly so in Deschamps J's opinion) that the accused should have been alert to the risk to V's safety.

Fish J delivered the judgment of himself, McLachlin CJ, Binnie, Abella, Charron and Rothstein JJ. The verdicts were inconsistent because each charge required proof that the accused had failed in his duty to protect V. The real distinction between the charges was, as Fish J said at 11, that in the present context the criminal negligence charge requires a marked and substantial departure from the conduct of a reasonably prudent parent, whereas the other charge simply requires a marked departure.

The second charge had the lesser degree of fault, and acquittal on it meant that the jury could not have found proved the higher degree of fault in the first charge. The jury should have considered the first charge only if it found the second proved.

Juries may well be more pragmatic that the law permits. There is a niggling possibility here that the jury simply thought that there should be one conviction, which should be for the more serious charge.

The Crown should have put its case to the jury in the way indicated by Fish J: first consider the charge of manslaughter by failure to provide the necessaries of life. If the verdict on that is guilty, then consider the charge of manslaughter by criminal negligence. If the verdict on the failure to provide the necessaries charge is not guilty, then the verdict on the criminal negligence charge must also be not guilty. Since it did not do this, the Crown lost on both.

The law appears to be different in New Zealand, where the charges would both require the same "major departure" from the standard of care expected of a reasonable person: s 150A, 160(2)(a) and (b) Crimes Act 1961 and R v Powell [2002] 1 NZLR 666 (CA), so they could not be put in the way indicated in R v JF. In such a case it would be necessary to make clear what the difference between the charges was alleged to be, otherwise only one could be left to the jury.