Friday, September 30, 2011

No matter what you say ...

For a brief look at the requirements for establishing judicial bias, see Siemer v Heron [2011] NZSC 116. Orthodox response to a recusal application where the appellant relied on his own criticism of a judge as a basis for his claim of bias. Unsuccessful.

Monday, September 19, 2011

The NZSC on improperly obtained evidence

At last Hamed v R [2011] NZSC 101 is online, although in redacted form. It does not answer the question that will occur to most people: is it the duty of the police (1) to detect and stop offending, (2) to bring offenders to court with admissible evidence, or both of those, or some compromise between those?

The Prime Minister has indicated today that he will get legislation passed "suspending" the Supreme Court's decision in Hamed. Whatever that means, it is designed to ensure that other cases where covert surveillance has been used do not collapse because of exclusion of evidence obtained in that way. If in those cases, why not in this one too, since retrospective effect is intended? In any event permanent law reform is on the way "after the election".

This underlines the fact that it is not the police who are to blame for this (see my comment yesterday) but rather it is the fault of those who are responsible for giving effect to the Law Commission's recommendations.

But here I am concerned with the aspect of the case that will be of enduring interest to lawyers. This is the Supreme Court's first in-depth analysis of s 30 of the Evidence Act 2006.

The relevant question here is the extent, if any, to which the Supreme Court alters the interpretation of s 30 established in Williams v R [2007] NZCA 52, [2007] 3 NZLR 207 (CA) (not currently available online).

Where Williams is cited in Hamed, that is done with approval except on one point on which Tipping J departed from it at 240 by rejecting the Williams approach to assessing the seriousness of the offending. McGrath J also thought (277) that the maximum penalties were the guide although they were not a complete basis for assessment of the seriousness of the offending. But those were minority views, and Williams remains authoritative on s 30.

The application in Hamed of the balancing factors mentioned in s 30 needs to be considered. Broadly, it is orthodox. Aside from the minority difference just mentioned, there is some comment on the relevance of the centrality of the evidence to the prosecution case, but this only concerns whether this is relevant as a separate unspecified factor (Blanchard J at 201, Gault J agreeing at 281) or as part of the quality of the evidence factor in s 30(3)(c) (McGrath J at 276), but Tipping J dissented saying centrality is not relevant (236).

In applying the balancing criteria there was the usual variation in judicial opinion. The absence of an alternative investigatory technique was thought by Elias CJ to increase the seriousness of the impropriety (73), Blanchard J (196) appears to include this as a factor favouring admission of the evidence (Gault J agreeing at 281), Tipping J (246) also thought this pointed towards admission of the evidence, although not strongly, and McGrath J (274) treated this factor as increasing the reasonableness of the police misconduct. So, 4-1 absence of an alternative investigatory technique favoured admission.

The deliberate nature of the breach of the defendants' rights was an aggravating factor: Elias CJ 73, Blanchard J 194, Tipping J 233-234, but dissenting on this point McGrath J 267 thought that because the law was only now clarified by this case the deliberate nature of the breach did not enhance the gravity of the impropriety. And on the same point Gault J 284 did not agree with Blanchard J and held that the intrusion on the defendants' rights was no more serious that it was in relation to searches pursuant to warrant. Again, but by a different 3-2, the deliberate nature of the breach of rights did weigh in favour of exclusion.

The Supreme Court of Canada got some favourable mention, particularly for some of its dicta in Grant (see my discussion of that case here on 19 July 2009, and here twice on 18 July 2009). Tipping J at 230 approved dicta on the desirability of taking the long view of the repute to the justice system as opposed to responding to the immediate public clamour for conviction. Blanchard J 187 noted that the decision is not just a balancing of impropriety against the need to convict, but rather it comes down to the need to avoid bringing the system of justice into disrepute. Elias CJ 58 made the same observation, after saying 57 "It would be wrong to treat the assessment of proportionality as being the same in all cases of impropriety" – by which I think she means the division between exclusion and admission of the evidence is not marked by a straight line (see my discussion of improperly obtained evidence).

So, all in all (carefully working through the judgments to find the majority on each point) this is an orthodox application of s 30, even when the seriousness of the offending is assessed at an enhanced level because of public safety considerations.

Sunday, September 18, 2011

Search, surveillance and the Urewera case

A newspaper report today has a commentator suggesting that confidence in the police will be reduced because of their handling of the investigation of what has come to be known as the Urewera terrorist case.

Until the Supreme Court decided the issue in a judgment not yet available on the usual web sites, R v Hamed [2011] NZSC 101, and which I have not yet seen, the law on whether search warrants could authorise surveillance was unclear. Differences among judges in this case reflected that lack of clarity.

As the New Zealand law Commission noted in its report "Search and Surveillance Powers" NZLC R97 2007, there are few references to surveillance powers in the statutes (see para 11.19 of the report). None of those are relevant to the Urewera case. The NZLC recommended that legislation should be formulated to clarify surveillance powers.

In the absence of a statutory or regulatory framework the courts have had to consider whether surveillance is a kind of search, and this has turned on the circumstances of each case. It was held to be not a search in a case which may still be subject to name suppression so I just give its neutral citation: [2010] NZCA 294, and also in another such case: [2010] NZCA 287. Sometimes surveillance from a neighbouring property by consent of the neighbour has been held to be lawful: R v Beri (2003) 20 CRNZ 170 (CA), and R v Robertson [2009] NZCA 154. And sometimes surveillance has been held to be a search: R v Gardiner (1997) 15 CRNZ 131 (CA). In other cases the courts have held that it was unnecessary to decide whether surveillance is a search because the issue of the admissibility of the evidence turned on the balancing exercise used at common law and which is now enacted in s 30 of the Evidence Act 2006: R v Fraser [1997] 2 NZLR 442, R v Peita (1999) 17 CRNZ 407.

The actions of an undercover officer approaching the defendant's door and secretly making a video recording of the ensuing events has not been held to be a search: R v Smith (Malcolm) [2000] 3 NZLR 656 (CA), although in the possibly suppressed case mentioned above, [2010] NZCA 287 the Court of Appeal noted that opinions may differ over whether this was a search, so it determined the admissibility of the evidence on reasonableness and balancing grounds.

Where the police obtained a search warrant and installed video surveillance equipment, the Crown conceded that that was illegal, however the Court of Appeal doubted whether that concession was correct: (another possible name suppression case) [2010] NZCA 457.

So even right up to the Supreme Court's decision in the Urewera case the law was unclear as to whether surveillance was necessarily a search. The point was if surveillance was a search, it could be authorised by a search warrant. If it was not a search and could not be legitimised in that way, and if it involved a trespass the admissibility of evidence obtained by such surveillance was governed by the balancing exercise in s 30. In the Urewera case, the High Court held that surveillance could not be authorised by a search warrant, but the Court of Appeal overruled that decision. The Supreme Court overruled the Court of Appeal on this point. It also overruled the Court of Appeal and the High Court on the admissibility of some of the evidence where it related to less serious charges.

[Update: as it turned out, the Supreme Court's analysis of search was more subtle than this. It differentiated between a narrow form of search that could be authorised by a warrant - search for things that existed at the time the warrant was executed, where "things" did not include captured images - and the wider form of search that was addressed in s 21 of the Bill of Rights. Covert surveillance is a search when it infringes reasonable expectations of privacy, but it cannot be authorised by a search warrant. There could be an unreasonable search without a trespass: Blanchard J at 57, 63, 64 of [2011] NZSC 101, another aspect of which is discussed here tomorrow.] 
My impression from media reports as the case has made its rather slow way through the courts is that the police acted in good faith in their approach to collecting the evidence. I don't see any reason for the public to lose confidence in the police over this aspect of the case.

Friday, September 16, 2011

A small collection ...

No compensation for judicial breach of rights

If a judge breaches your rights under the Bill of Rights, you may not claim compensation: Attorney-General v Chapman [2011] NZSC 110 (16 September 2011) per McGrath and William Young JJ jointly with Gault J concurring. Elias CJ and Anderson J dissented.

The majority reasoning emphasised public policy which was an extension to the personal immunity of judges from suit and was based on the need to protect judicial independence.

Eyewitness identification evidence

An illustration of circumstances where there was insufficient support for the reliability of identification by an eyewitness who claimed in a fleeting sighting to recognise the defendant from two encounters several years previously (there being no evidence about why those should have made the present identification more reliable), so that the requirements of s 45 of the Evidence Act 2006 were not met, is Harney v Police [2011] NZSC 107 (16 september 2011). The Court emphasised the need for strict compliance with s 45 in view of the dangers of mis-identification. Dock identifications too should be permitted only in the most exceptional circumstances [20 at footnote 20]. The witness's confidence in the accuracy of his own identification is just a factor to be taken into account, as the opposite side of the coin of hesitancy, and confidence cannot itself satisfy a reliability test [33].

Mootness and ordering judge alone trials

Occasionally an appellate court may hear and decide an appeal notwithstanding that the issue in question no longer is a live one in the case: Signer v R [2011] NZSC 109 (16 September 2011), applying R v Gordon-Smith [2008] NZSC 56 (its substantive point discussed here on 23 March 2009) and see also R v McNeil [2009] SCC 3 discussed here on 20 January 2009).

The substantive point in Signer concerned the interpretation of s 361D of the Crimes Act 1961. Does the word "likelihood" in subsection 3(b) mean that a judge must find it "probable" that jurors will not be able to perform their duties effectively? Or does it just mean that the judge considers there is an "appreciable risk" of that? The Supreme Court held that "likelihood" imports a balancing exercise and does not set down a specific standard. The accused's right to a jury trial may be outweighed by the need for a fair trial. Beyond saying that, the Court preferred not to explore the matter without a live issue which would provide specific circumstances for consideration.

Friday, September 09, 2011

More on Momcilovic

I should, so as not to appear lazy, add a few observations on the aspects of R v Momcilovic (last entry) concerned with interpretation.

It is not unusual to find in Bills of Rights provisions to the effect that rights shall only be subject to such limitations as are justified in a free and democratic society. Section 32(1) of the Victorian Charter of Rights and Freedoms is an example. So too is s 5 of the New Zealand Bill of Rights Act 1990. The question is, are these provisions to be used in defining what the rights mean?

In Momcilovic the minority (French CJ, Crennan and Kiefel JJ) answer was no, s 32(1) is just a mechanism by which the court can decide whether to issue a declaration that the legislation in question inconsistent with the rights. However the majority (and I recall Dworkin's comments on the weights that might be given to individual judge's votes: Justice for Hedgehogs, pp 484-485) did use the rights-limiting provision as interpretive: Gummow J at 166-168, Hayne J agreeing at 280, Heydon J at 411-427, and Bell J at 678. Similarly, but where the New Zealand BORA does not give the courts power to make declarations, s 5 has been held to be interpretive, to be used to determine what the right means: Hansen v R [2007] NZSC 7 per Blanchard, Tipping, McGrath and Anderson JJ (57-60, 89-92, 186, 190-192), but with Elias CJ dissenting at 6, 7, 15-24. The Chief Justice's dissent takes the approach which was favoured by the minority of the High Court of Australia in Momcilovic.

But even this interpretive role in the New Zealand approach is not necessarily applied. For example, in Morse v Police [2011] NZSC 45, discussed here on 6 May 2011, only McGrath J used it.

The interpretive method, outlined by McGrath J in Hansen at 192, applies the following steps:

  1. Ask first whether the circumstances fit within the ordinary meaning of the statutory provision being applied. Here, which standard of proof would be a natural interpretation of the reverse onus provision?
  2. Then ask whether, on that meaning there appears to be an inconsistency with a protected right. Here, is the legal burden on the defendant inconsistent with the right to be presumed innocent?
  3. If there is such an inconsistency, ask whether the limit on the right is a justifiable one in terms of s 5. Here, is the legal burden on the defendant justifiable?
  4. If the limit is not justifiable, ask whether there is another meaning available through which the statute can be read consistently with the right. Here, can the reverse onus provision be read in a way that puts an evidential burden on the defendant?
  5. If there is no such other meaning, the natural meaning must be applied. Here, the legal burden on the defendant.
For the fourth step, which is interpretive, the powers given by the relevant interpretive provision must be considered. Is the court limited to applying the ordinary and natural meaning of the legislation, or can the court apply a meaning that "can be given" to the enactment, or thirdly, is the court allowed to be more imaginative and strain the words of the statute to preserve the relevant right? In Momcilovic French CJ, Crennan and Kiefel JJ applied the ordinary rules of statutory construction, including the principle of legality, to determine the meaning of the reverse onus provision. This was the first of these interpretive approaches, although these judges were denying that the rights limiting procedure was relevant and were in effect just using step 1. Accordingly, no straining for an unnatural but rights-consistent meaning was permitted. There was no asking what might be reasonable limits on the right to be presumed innocent. But the minority agreed with the majority that the construction contended for by the defendant was not available on ordinary principles of statutory interpretation: to "satisfy" the court means more than merely to raise a reasonable doubt.

It is well worth reading French CJ's judgment in Momcilovic at 37-51 for a comparison with the approach in applying s 3 of the Human Rights Act 1998[UK], in particular at 49:

" ... Section 3 of the HRA has a history and operates in a constitutional setting which is materially different from that which exists in Australia. Before its enactment, United Kingdom courts, which had to give effect to the supremacy of European Community law, lacked domestic legislation providing for the direct application of rights under the ECHR. In the result there was a perception that British judges were denied the responsibility of safeguarding Convention rights and that the European Court of Human Rights had become "in effect a supreme constitutional court of the UK."[Footnote 97: "Lester, Pannick and Herberg (eds), Human Rights Law and Practice, 3rd ed (2009) at 12 [1.34]."] The HRA was enacted under the political rubric of "bringing rights home"[Footnote 98: "Lester, Pannick and Herberg (eds), Human Rights Law and Practice, 3rd ed (2009) at 12-15 [1.35]-[1.46]."]."
Perhaps this is a clue for anyone who, like me, is perplexed about why s 3 of HRA should be given a different meaning to s 6 BORA, as it was in Hansen and Lambert, as was mentioned in yesterday's note. The UK enactment applies the provisions of a Convention, whereas the NZ one is technically just an ordinary statute. In the absence of some sort of rationale like this, one is left with the thought that there is a bit of judicial pride being protected.

The UK interpretive approach is of the third kind mentioned above: some straining for a rights-compliant meaning is allowed (Ghaidan v Godin-Mendoza [2004] UKHL 30 noted here 19 September 2005), the New Zealand and Australian approaches are of the second kind.

And for a wee caustic-to-the-point-of-being-truthful glimpse of how the law works, see Heydon J in Momcilovic at 455.

Thursday, September 08, 2011

Reverse onus provisions and the presumption of innocence

A reverse onus provision is one that puts a burden of proof on the defendant. It raises questions about what standard of proof is required to meet that burden. Illustrations commonly occur in legislation concerning drug offending.

For example, s 6(6) of the Misuse of Drugs Act 1975[NZ] applies when a person has been proved to have been in possession of a specified quantity of a drug, and it operates by creating a presumption that the person had the purpose of supplying it, "until the contrary is proved". This has been held to mean that the defendant has the legal burden – that is, to the standard of the balance of probabilities – of proving absence of that purpose: Hansen v R [2007] NZSC 7. The Supreme Court held that "proved" means proved on the balance of probabilities, and it rejected an interpretation of "proved" which was that it means the burden of raising a reasonable doubt, that is, the evidential burden. For my earlier commentary, see 13 January 2010, 5 March 2009, 20 February 2007, and 19 September 2005.

This latter, rejected, interpretation of "proved" was based on a suggestion by Glanville Williams in "The Logic of 'Exceptions'" [1998] CLJ 261, 265. I had relied on that article in making submissions (also rejected) to the New Zealand Court of Appeal in R v Phillips [1991] 3 NZLR 175. In that case, Cooke P for the Court found that interpretation of "proved" a "strained and unnatural interpretation".

The House of Lords did not find it "strained and unnatural" in R v Lambert [2001] UKHL 37, and indeed at [42] Lord Steyn said:

"In Kebilene [ [2002] 2 AC 326 ] I described this as a respectable argument: 370G. Lord Slynn agreed: 362A. Lord Cooke of Thorndon regarded the distinguished author's view as a possible meaning under section 3. Specifically, Lord Cooke stated that "unless the contrary is proved" can be taken to mean "unless sufficient evidence is given to the contrary" [2000] 2 AC at 373G. I respectfully adopt Lord Cooke's observation. Applying section 3 I would therefore read section 28 (2) and (3) as creating an evidential burden only. In particular this involves reading the words "prove" and "proves" as meaning giving sufficient evidence."

So, something about s 3(1) of the Human Rights Act 1998[UK] allowed Lord Cooke (who was the same person as Cooke P in Phillips) to accept the Glanville Williams interpretation of "proved", whereas the corresponding provision of the New Zealand Bill of Rights Act 1990, s 6, had allowed neither him nor the Court in Hansen to accept it.

Much can turn on the interpretive directions given by the constitutional legislation.

The same submissions about the reverse onus were made in Momcilovic v R [2011] HCA 34 (8 September 2011). The wording of the reverse onus provision here was different and was held to be unambiguous, in that it requires the defendant to "satisfy the court" of the specified matter. "Satisfy" has always been understood to mean to establish on the balance of probabilities. See French CJ at 62, Crennan and Kiefel JJ jointly at 581 and Bell J at 659. That applied to proof of possession of the drug. But as to possession for the purpose of trafficking, the legislation did not impose a presumption and so the possession and the purpose had to be proved by the prosecution to the standard of beyond reasonable doubt: French CJ at 72, Gummow J at 200 (Hayne J agreeing at 280), Crennan and Kiefel JJ at 611 and Bell J at 659.

Momcilovic is, in addition, full of dicta of interest to those who are concerned with the Australian constitutional legislation.