Tuesday, January 12, 2010

Overview (1) – Interpreting the proviso

This introductory part continues with my overview of important topics that are often addressed by the appellate courts in criminal cases. Where I refer to cases with accompanying dates, those are dates of blog postings on the Blogger site; on the WordPress site the dates may be a day out due to clock settings on the servers.

First overview topic ...

Interpreting the proviso – what is a "substantial miscarriage of justice"?

For around 100 years courts have dealt with criminal appeals by determining whether an error in the trial court amounted to a "substantial miscarriage of justice", but very little of that time has been spent examining what that phrase means. It has been found to be a difficult concept. Some courts have tried to achieve clarity on a case-by-case basis, but the alternatives of legislative change (in the UK since 1995 the criterion has been whether the conviction is "unsafe"), and of ignoring the recent judicial efforts by going back to fundamental statutory interpretation, have also been taken.

Courts that continue to address the meaning of substantial miscarriage of justice identify one characteristic as whether the error could have affected the outcome of the trial in a way adverse to the accused. This leads to the further question: does the appellate court ask whether the jury at trial could have reached a different conclusion, or does it ask whether it – the appellate court – would have reached that different conclusion? There is a split between courts according to which answer they give to that question.

The Privy Council has remained faithful to the traditional view that the answer is that the appellate court asks whether the jury could have reached a different conclusion. The High Court of Australia has changed its approach (Weiss, noted 16 January 2006) and, scrapping the case law and returning to principles of statutory interpretation, it decided that the appellate court asks whether it itself could have reached a different conclusion. The Supreme Court of New Zealand has reacted against the Privy Council's traditional treatment of Bain (see, for example, note for 9 July 2009) by adopting (in Matenga 20 July 2009) much of the High Court of Australia's new approach. In turn, on a subsequent appeal from New Zealand (Barlow 9 July 2009), the Privy Council has felt itself obliged to follow the new line but has emphasised that under this new approach the result in Bain would have been the same. The lingering problem for subsequent would-be appellants is how to get the Supreme Court to hear an appeal if it is based only on advocating a different interpretation of the evidence from that taken by the Court of Appeal.

Independent of the effect on the outcome of the trial, another characteristic of a substantial miscarriage of justice is that the error at trial deprived the accused of a fair hearing. The Privy Council made the right to a fair hearing absolute, and that is uncontroversial now, although before then another approach, in which the accused's right to a fair hearing could have been balanced against the rights of victims and of society, was possible. It is one thing to hold that the right to a fair hearing is absolute, but what is a "fair" hearing?

The meaning of fair hearing will need to be consistent with the place of that concept in the "substantial miscarriage of justice" model. The model that has emerged – and which may well be unintended – in Matenga is that the first question is whether the hearing was fair; if it was, the second question is whether the result of the hearing may have been different in the absence of the error. At first glance this Matenga model sounds fine: it places fairness of hearing as the primary requirement, and that looks like being an appropriate reflection of its quality of absoluteness. It requires the appeal to be allowed if the trial may have been unfair. But the difficulty is, what does fair trial mean if the trial may have been fair but also may have contained an error that amounted to a substantial miscarriage of justice? Logically, it seems odd to make the set of fair trials intersect with the set of trials involving a substantial miscarriage of justice.

A clearer concept of a fair hearing would require a different relationship between fairness and substantial miscarriage of justice. Under this model, a fair trial would be one in which there was no substantial miscarriage of justice, and that means one in which the law was properly applied to facts that had been determined impartially. Here, an impartial determination of facts presupposes an unbiased tribunal and also a tribunal that is not deflected from impartiality by errors of law. There is thus room for some errors of law, and it is usual to recognise that perfection is not always attained, but errors of law that affect the impartial determination of facts are not permitted. Nor are errors of law in applying the substantive law to properly determined facts, if such errors may have affected the result in a way adverse to the appellant. A trial may seem to have been fair but afterwards fresh evidence may cast doubt on the correctness of the verdict; in such cases there would be a substantial miscarriage of justice, albeit with the trial only having been retrospectively unfair, and the appeal would have to be allowed.

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