A veiled attack on substantive fairness in Canada?

The substantive right to a fair trial must be distinguished from its procedural correlatives such as the right to confront witnesses and to present a defence. The procedural rights may be subject to balancing against competing rights, but the substantive right to a fair trial is regarded as absolute in some jurisdictions.

The Supreme Court of Canada has recently not distinguished procedural fairness from substantive fairness, and by a majority it has treated the apparently composite right to a fair trial as something that can be balanced against competing rights: R v NS, 2012 SCC 72 (20 December 2012).

The implications of the case extend far beyond its facts, which raised the issue of how a court should decide whether to permit a witness to wear a niqab (face covering). There is obviously a range of potential answers: always permit it (Abella J), never permit it (LeBel and Rothstein JJ), and sometimes permit it (McLachlin CJ, Deschamps, Fish and Cromwell JJ).

The majority held that if a right competed with the defendant's righs to confront witnesses and to present a defence, and if there was no way to give full effect to all these rights, there would then be a balancing. This would require some limitation of rights, perhaps but not necessarily on both sides.

In including the substantive fair trial right in this balancing exercise the majority have declined the opportunity to use it as the ultimate criterion. Contrasting views of the importance of substantive fairness are found in cases from other jurisdictions, not considered in this case: R v A (No 2) [2001] UKHL 25, [2002] 1 AC 45 (HL) (mentioned here on 4 September 2004, and see also the discussion of Randall v R (Cayman Islands) [2002] UKPC 19 and of other relevant cases here on 16 September 2010, R v Davis [2008] UKHL 36 noted here as the second entry for 19 June 2008, and the still-obscure position in Gäfgen v Germany [2010] ECHR 759 noted here on 25 June 2010.

NS appears to establish that in Canada the right to a substantively fair hearing is not absolute. The minority judgments illustrate arguments that now must be regarded as wrong. McLachlin CJ summarised her position for the majority [34]:

"... The question is whether the salutary effects of requiring the witness to remove the niqab, including the effects on trial fairness, outweigh the deleterious effects of doing so, including the effects on freedom of religion ... ."

This assumes that the right to a fair trial may not outweigh freedom of religion. And at [46]:

"I have proposed that courts should deal with the conflict between rights in cases such as this by finding a just and appropriate balance between freedom of religion on the one hand and fair trial rights on the other. The result is that where a niqab is worn because of a sincerely held religious belief, a judge should order it removed if the witness wearing the niqab poses a serious risk to trial fairness, there is no way to accommodate both rights, and the salutary effects of requiring the witness to remove the niqab outweigh the deleterious effects of doing so."

The deleterious effects are the limitation on freedom of religion, the inhibition of complainants and the consequential escape of offenders from justice. Obviously those are hugely important considerations. The salutary effects are preventing harm to the fair trial interest and safeguarding the repute of the administration of justice. The need to find a balance between the deleterious effects and the salutary effects recognises that the salutary effects do not necessarily outweigh the deleterious effects.

It may be that when unfairness goes beyond procedural unfairness and becomes substantive unfairness, it will always outweigh the deleterious effects of requiring a competing right to yield. But that is not clearly stated as the ratio of this case. On its face the majority reasoning has an unpleasant "ends-justify-the-means" blemish.

Although this case is newsworthy for its decision about the wearing of niqabs and the place of religious expression in the courtroom, it has much wider implications. In a contest of competing rights, the majority judgment potentially diminishes the right to a fair hearing in Canada.

The obligation to select an impartial jury

Jury vetting was last week the subject of three decisions of the Supreme Court of Canada. All three inevitably focus on trial fairness.

R v Davey, 2012 SCC 75 (21 December 2012) concerns personal opinions sought by the Crown from police officers about the suitability of prospective jurors, recorded in an annotated list that was not disclosed to the defence, and a trial in which two of the chosen jurors had been marked as "good" and "ok".

Karakatsanis J for the Court observed that this case did not involve police access to any database or any police investigation. However she held there should be no systematic distribution of jury panel lists to police services for comment regarding the suitability of potential jurors [8]. State resources should not be used by the Crown to enable it to choose a jury that may be perceived to be favourable to the Crown. Targeted consultation with a limited number of individuals working on the case with the prosecution is acceptable if it is to discuss concerns as to partiality, eligibility or suitability of a prospective juror [9], but any information relevant to the selection process must be disclosed to the defence.

Where the information that should have been disclosed had not been disclosed, the question was whether there was a real possibility that the jury was not impartial or whether, had it been disclosed, a differently constituted jury would have been selected. If not, the further question was whether the circumstances created an appearance of unfairness such as to interfere with the administration of justice or such as to so offend the community's sense of fair play and decency that the proceedings should be set aside as a miscarriage of justice [24], [54], [74].

The selection process must ensure an independent, impartial and competent jury [30], and neither party has the right to select a jury or a positive power to shape a jury.

Although there had been a breach of the disclosure requirement here, in the circumstances there was no unfairness and the appeal was dismissed. The reasoning is fact-dependent and the Court defers, with only a slight weakness appearing in [72] where mention is made of the defence not having used all its peremptory challenges.

An interesting and undecided point was what standard would be on the Crown if it had the burden of showing that the jury had been impartial or that there was no appearance of unfairness such as to amount to a miscarriage of justice [55, footnote 5]. Karakatsanis J thought it may be the balance of probabilities. Arguably there is no need for a further legal burden: on appeal the appellant has the legal burden and that should be that. But the point here is that a new issue – factual impartiality - is brought into play, as a sort of defence to the appeal. However you might well think that since the possibility that a different jury might have been chosen is not necessarily related to the real harm of a biased jury, it is inappropriate to make that a criterion for a successful appeal. Therefore it would be preferable to take the more conventional approach of requiring the appellant to succeed on either (i) establishing a real risk that the chosen jury was not impartial, or (ii) establishing the appearance of unfairness. No question of a burden on the Crown would then arise.

The second vetting case did involve use of a police database: R v Emms, 2012 SCC 74 (21 December 2012). Here Moldaver J delivered the judgment of the Court. Information obtained at the request of the prosecutor and not disclosed to the defence concerned whether prospective jurors had criminal convictions or were in other respects "disreputable persons". Although the Crown was entitled to have inquiries made for the purpose of checking eligibility to serve, which included absence of disqualifying convictions, or for other information to support challenge for cause, and was obliged to disclose that information to the defence, it was not entitled to have checks on the further question of whether a prospective juror might be disreputable. But if information on disrepute came to light it should be disclosed to the defence if the Crown considered it to be relevant to the jury selection process [48]. Here the appellant failed to establish that, had the information been disclosed, there was a reasonable possibility that a differently constituted jury would have been chosen [22]-[29]. Neither was the departure from what was, by the time of the trial, a required procedure, sufficient in the circumstances to amount to a serious interference with the administration of justice, or to offend the community's sense of fair play and decency to the extent of being a miscarriage of justice [43]-[49].

The third, and leading, decision (first in time and applied in Emms and Davey) is R v Yumnu, 2012 SCC 73 (21 December 2012). Moldaver J, for the Court, set out the fundamentals applicable to when police databases may be used in jury vetting. Nothing could do more harm to the criminal justice system than the Crown and the police joining forces to obtain a favourable jury [37]. The Crown has the responsibility, as an officer of the court, to ensure every defendant receives a fair trial [40]. Randomness and representativeness are two qualities looked for in juries, and checking that gives rise to an appearance of stereotyping through the use of peremptory challenges could be seen as incompatible with the Crown's responsibility [40]. The privacy of prospective jurors is also important [43], although there are countervailing interests in ensuring eligibility and impartiality [45]. Limited use of police databases is permissible to check for grounds for challenge for cause [50]-[51]. Sometimes those checks may reveal other relevant information. Any information that is relevant to jury selection (outside matters of public knowledge or feelings, hunches, suspicions, innuendo or other amorphous information [64]) must be disclosed to the defence [55], [63].

There is also a duty on defence counsel to disclose information where there is good reason to believe a potential juror may be ineligible or may not be impartial [66]-[67].

Importantly, jury selection is not a game and winning or losing are concepts that ought not to be associated with it. The aim is to obtain an impartial jury: "The jury does not belong to the parties; it belongs to the people." [71].

Attempts by one side or another to obtain a favourable jury are inimical to the right of every person who is charged with an offence to be tried by an independent and impartial tribunal [72].
In these kinds of cases the appellant must establish that the Crown did not disclose information that it should have disclosed, and that if disclosure had been made there is a reasonable possibility that the jury would have been differently constituted [75]. The point mentioned by Karakatsanis J in Davey above, about the Crown showing that nevertheless the jury was impartial, was left open for another day [76].

On the facts here the appellant failed to establish a real possibility that a differently constituted jury would have been selected [77]. And on the alternative ground of appearance of unfairness [79] what happened here was neither a serious interference with the administration of justice nor was it such an offence to the community's sense of fair play and decency that there was a miscarriage of justice [89].

Again one might object that the possibility that a different jury would have been selected is an inappropriate requirement: even if the defendant had known what the Crown knew about the juror, the defendant may have already run out of challenges at the critical moment.

This separation of two aspects of unfairness – actual unfairness and the appearance of unfairness – gives rise to an interesting interpretive question for those who will have to apply s 232 of the Criminal Procedure Act 2011 [NZ]. There, "an unfair trial" may be construed as including a trial that appears to have been unfair, although this is far from certain.

The Supreme Court of New Zealand has taken a rather more constrained approach to the Crown's disclosure obligations in relation to jury vetting: Gordon-Smith v R [2009] NZSC 20 (23 March 2009, noted here). The dissent of McGrath J in that case is in line, concerning what needs to be disclosed to the defence, with the Supreme Court of Canada's statement of the law. The majority however went so far as to give the impression there might be some justification for limiting trial fairness:

"[18] It is always important that there be no justified perception or real risk of unfairness in any respect, if that can be avoided consistently with other relevant features. The privacy and security of jurors is such a feature. ..." [emphases added]

But Gordon-Smith was decided in a torrid atmosphere of public unrest at the perceived and potential misuse of jury panel lists especially by unrepresented defendants.

This is not to say that the Supreme Court of Canada is not also capable of wobbling a bit when it comes to trial fairness for the defendant, as shall be seen when I come to discuss veiled witnesses. However as far as jury vetting goes, the cases invite discussion of when the court should react to procedures that, although improper, had no discernible effect on the result of a trial, and if reaction is appropriate, what remedy should be given to a defendant when those at fault are out of the court's reach.

A note on substantive trial fairness

An issue of trial fairness is raised if a judge fails to address an element of an offence. If an element is overlooked, but the evidence overwhelmingly proves that element, does it matter that the fact-finder did not make a finding on it?

The significance of the omission will need to be assessed in the circumstances of each case. Trial fairness is not simply a procedural matter. If it was, the answer would be the same in every case. But trial fairness has substantive meaning: the law must be accurately applied to facts determined impartially.

In R v Khawaja, 2012 SCC 69 (14 December 2012) an element of the offence had been overlooked, but the error did not affect trial fairness:

"[93] This is an exceptional result, appropriate in the exceptional circumstances of this case. Generally speaking, if an appellate court finds that the offence for which an appellant was convicted includes an additional essential element, fairness would require ordering a new or directed trial. In this particular case, however, this Court can be confident that the appellant suffered no prejudice deserving of a new trial only because the evidence on the additional element of the offence was overwhelming, as indeed the trial judge found, and it is plain that the appellant's strategy would not have changed had the element been recognized at trial."

A misunderstanding of this would be that the ends justified the means: if the person was obviously guilty the error could not affect the fairness of the trial. What the Court means here is that the error did not affect the impartial determination of the facts because the defendant would not have conducted his defence differently had the error not occurred, and the defendant was not deprived of a real chance of a more favourable outcome.

Bain, Binnie, Fisher, Bayes – how should judges reach conclusions?

Once again out little nation is divided over the Bain case and its consequences. The current controversy is over whether the report by retired Canadian Supreme Court Justice Ian Binnie should be accepted or whether its review by retired New Zealand High Court judge Dr Robert Fisher QC has cast doubt on its conclusions.

We have seen here recently how appellate judges on the same court can differ sharply over what conclusions can be drawn from the evidence in a case. Is there a right way to arrive at conclusions from facts?

In trials juries are given little guidance on how to reason, other than being told that the drawing of inferences is a process of using logic and common sense, something people do all the time in their daily lives. It is assumed that people have an innate ability to reach proper conclusions. This assumption must be correct. We tend to be right more often than we are wrong, but without examining why.

Judges have to give reasons for their decisions. The process of articulating reasons imposes a discipline on judicial thinking, and until that process is completed a judge may not know what conclusion is going to be reached. An echo of this is the instruction to jurors to keep an open mind while evidence is being given.

Bayesian analysis is useful in revealing or guarding against errors of logic when inferences are drawn from facts. Dr Fisher has used this in his report. This does not mean that Ian Binnie was wrong to not use it in his. Most people have no idea what Bayes' Theorem is and they infer correct conclusions without using it. The interesting question is whether Dr Fisher has revealed any error of logic that was sufficient to make Ian Binnie's conclusions wrong.

My assessment is that the only candidate for being an error of this significance is Dr Fisher's claim that Ian Binnie failed to consider the evidence cumulatively as opposed to by taking each item at a time. Ian Binnie has denied, in an email to the Minister of Justice that has been published, that he made this error.

It would be astonishing if Ian Binnie had made this mistake. Judges habitually stand back after evaluating the probative value of particular facts and look at the overall picture. That is done to enable a conclusion to be drawn from the combination of the probative values of the facts. This process is what is done instinctively when people exercise their judgment.

There are all kinds of influences, revealed by psychologists, which can cause people to make mistakes. A Bayesian approach to inference drawing can counteract those, but its best application requires extensive statistical information, far beyond what is usually available in court cases.

Nearly all judicial decisions are made only on the balance of probabilities. This standard recognises that we can seldom be certain we are right, and that in the interests of finality a decision on the balance of probability is good enough. Hugely important decisions are regularly made in the courts on that basis.

It is significant that Dr Fisher has not endeavoured to decide whether Ian Binnie's conclusions were right or wrong, but that he correctly restricted his report to Ian Binnie's method. Plainly, if Dr Fisher were to go further in a subsequent report, he would apply the Bayesian approach. But that should lead to the same conclusions that Ian Binnie reached unless radically inappropriate assessments of likelihood were made by Ian Binnie over critical facts to such an extent as to influence the result of considering the combined probative values of all the relevant facts.

I was surprised when reading Ian Binnie's report at how he treated the evidence of the luminol footprints. Depending on the length of those footprints, they could have removed the case from being an exercise in assessing probabilities and made this a case of direct evidence of innocence. That was recognised in the Privy Council hearing, as both sides agree. However Ian Binnie has been generous to the prosecution by recognising some doubt over the accuracy of the measurement made by the police scientist of the footprints on the carpet at the scene.

Whether the measurement could really have been susceptible to error to an extent sufficient to cast doubt on who left it there is a matter of judgment for those who have looked at the evidence that was given on this point.

In his conclusions on the footprint evidence at para 263 of his final report, Ian Binnie appears to accept a margin of error in the measurement carried out by the police scientist at the scene of about 5mm. Taking this at its most favourable to the prosecution, the print at the scene may have been 285mm, and David’s 300mm foot may leave a print that was 295mm. That is a difference of 1cm. In tests referred to at para 252 it was noted that carpet prints were never less than the actual foot length, so it seems extremely generous to the prosecution to accept that David may have left a print that was 295mm, especially if the police scientist’s notes did not record uncertainty or imprecision when the length was measured as 280mm. In any event, even a difference of 1cm (more likely 1.5cm, and even more likely greater than that) marks a clear difference between David and Robin’s footprints. The defence expert said that David’s foot could not have left the print found at the scene (again para 252), and Ian Binnie recommended without hesitation that these results be accepted (para 257).

At the measured 280mm the footprints were exact matches for prints that would be left by Robin Bain's foot.

It is in my opinion appropriate for a fact-finder to accept that David’s foot did not make these prints. The footprints are direct evidence of who the killer was.

The other evidence in the case is consistent with guilt or with innocence. Taken together, in my opinion, and remember I am for the moment ignoring the footprint evidence, the other evidence amounts to proof beyond reasonable doubt that David was guilty. In reaching that conclusion I use a Bayesian approach and assess probabilities on a commonsense basis as best as I can. That method is acceptable in the absence of more formal statistical data. This is why it was reasonable for the Robin Bain supporters to argue that David was guilty. It is also why the Court of Appeal was right in 2003 to conclude that on the evidence before it David was guilty. The footprint evidence in its final form was unknown then (see para 156 of the Court of Appeal’s judgment). The Privy Council corrected the Court of Appeal on the legal grounds of how an appellate court should deal with conviction appeals: not by coming to its own verdict but, if it finds an error that could have affected the fact finding at trial, by ordering a retrial if the prosecution wanted one. At the Privy Council the footprint evidence was approaching its final form and that is why the Board indicated that it was critical evidence, and both sides accepted that.

When the final form of the footprint evidence is included in the assessment it overwhelms the cumulative effect of the other evidence, and requires the reverse conclusion. Now, it can be concluded that what was unlikely did in fact happen. And now David’s innocence is proved beyond reasonable doubt. In Bayesian terms the likelihood ratio is so strongly in favour of the hypothesis that David is innocent that there is no real possibility that he is guilty.

If all the other evidence in the case proved guilt to a probability of 0.95, the footprint evidence would reduce that to 0.80; if all the other evidence in the case proved guilt to a probability of 0.99, the footprint evidence would reduce that to 0.96. So when I say there is "no real possibility that he is guilty" I do acknowledge that 0.96 may be proof beyond reasonable doubt for some people. The estimates of probabilities are used as follows. The first question is, what is the probability of getting these footprints, on the assumption that David is guilty? Experiments showed that it is most unlikely that David's foot could have left prints of that size, so this probability might be assessed as, say, 0.25, which seems rather generous to the prosecution. The second question is, what is the probability of getting these footprints, on the assumption that David is innocent? Because they fit well with the size of Robin's feet, this probability may be close to 1. The third question is, what is the ratio of these probabilities? This ratio, the likelihood ratio, reflects the probative value of the footprint evidence, and it is the probative value of the evidence for the prosecution case. It is, on these assessed figures, approximately 1 : 4. That is the assumption I make when I say that the footprint evidence reduces the probability of David being guilty. The assumption may be far too generous to the prosecution, because the probability that David's foot could have left a print of the size discovered could well be much less that 0.25: in none of the tests did his foot leave a print of that size. There is a possibility that a stretched sock may move under the sole of the foot so that its heel is closer to the toes, and so produce a shorter blood print than the foot wearing it, and I assume that the people who carried out the tests were alert to this.

More relevantly to a civil standard of proof, for a probability of David's guilt of 0.49, thus qualifying him for compensation, and for all the other evidence in the case suggesting a probability of guilt of 0.95, the probability of his foot leaving a print of the size found would need to be 0.05. That is, out of every 100 footprints David made, 5 would be of the size found at the scene. Given that there is no scientific evidence that he ever left the size of footprints found, it should seem reasonable to allow that he might do so no more than 5 times in a hundred. In science, measurements are routinely considered acceptable if they are in the plus or minus 5% range, although obviously greater accuracy is preferred. To disqualify himself for compensation he would need to leave footprints of the size found at least 6 times in every hundred footprints.

The frightening thing about cases of circumstantial evidence (that is, like this case without the footprint evidence) is that an item of direct evidence proving innocence might be missing. We are very fortunate that in the investigation of this case the police did not trample all over the scene, that they noticed the footprints, that they had them measured, and that they disclosed those measurements to the defence. On the critical evidence there is no reason to criticise the police.

Nor should the defence be criticised for not noticing the significance of the footprint evidence at the first trial. We are very fortunate that Mike Guest, David’s then lawyer, introduced Joe Karam to David, and that Joe sensed that David was innocent. We are fortunate that Joe launched his campaign and wrote his books and persisted with David’s cause.

My conclusion is that because David can prove innocence beyond reasonable doubt he is entitled to compensation without the need to show that anyone acted improperly.

[Update: on 2 August 2016 a second and final report was published. At [115] its author, the Hon Ian Callinan QC (formerly of the High Court of Australia), states: "... the question is not whether the case could or could not accommodate the presence of Mr Robin Bain's footprints, but the reliability and probative value of the evidence of the footprints themselves in the light of all the evidence." If a criticism of this is to be made it would be that it could mean that the question of what the measurements were is determined by all the evidence in the case. Indeed, Mr Callinan appears to consider evidence other than that of footprint measurements as part of his evaluation of the evidence of their length, and says at [328] that the footprints are "inconclusive". In my opinion it is necessary first to determine what the evidence is, before turning to the question of its probative value. Mr Callinan does not demonstrate why the footprint evidence does not have the importance that it was acknowledged to have at the Privy Council hearing. He neglects to get to grips with what the evidence is: the objective evidence is the experimental results obtained by Drs Walsh and "Sandilands" [Binnie sic, Sandiford], see Binnie at [248]-[252]. The range of prints obtained from a 300mm foot would be 288-310 (Walsh) or 300-315 (Sandiford). And the range for a 270mm foot would be 258-280 (Walsh). None of the results gave a print shorter than the foot by 15mm which is what would be needed on all the assumptions favourable to the Crown and allowing a range of error for the measurement at the scene of plus or minus 5mm. The conclusion should have been that David was innocent, certainly on the balance of probabilities. It is easy to find support in the circumstantial evidence for any conclusion, but the footprints were direct evidence of who the killer was.]

Verdicts on appeal - and appeal verdicts - in Victoria

The interpretation of "substantial miscarriage of justice" in s 276(1)(b) of the Criminal Procedure Act 2009 [Vic] was the subject of Baini v The Queen [2012] HCA 59 (12 December 2012).

The decision will be of only limited interest where legislation differs, as for example it does in s 232 of the Criminal Procedure Act 2011 [NZ]. Here there is a definition of the required "miscarriage of justice", and what the appellate court needs to be satisfied of is that an error, irregularity or occurrence in relation to or affecting the trial has created a real risk that the outcome of the trial was affected.

But back to Baini, where the High Court of Australia split and two judgments were delivered. The majority, French CJ, Hayne, Crennan, Kiefel and Bell JJ, allowed the appeal and remitted the case to the Court of Appeal for it to determine whether, having regard to the whole of the evidence at trial, there could have been no reasonable doubt about the appellant's guilt.

Gageler J, dissenting, would have dismissed the appeal because the appellant had not shown that there was a reasonable possibility that the guilty verdicts would not have been returned if the error at trial had not occurred.

Those different conclusions reflect different interpretations of s 276(1)(b). The majority took a fresh start approach to the words of the enactment, whereas Gageler J read it in the context of the common law and its interpretation of common form appeal legislation. The difference between the judges was not merely in the application of s 276(1)(b), but in its meaning.

Central to the difference is the gritty problem of the extent to which appellate judges should act like jurors (see, for discussion, here, and links therein). Obviously in some appeals they have to, if it is submitted that a verdict was unreasonable. But here that was not the submission. When an appellate court is persuaded that an error at trial has given rise to a real possibility that a verdict was affected adversely to an appellant, should it thereupon quash the conviction or should it go on to look at the full record of the case and decide for itself whether the appellant was guilty?

Of course we are not considering different cases where an error at trial was sufficiently fundamental to make the trial unfair to the defendant. There is no doubt that if it did the court would quash the conviction. No, we are considering here lesser errors, but ones sufficient to give rise to a loss of a real chance of a more favourable outcome.

Whereas Gageler J found that the legislation changed the law so as to make the Weiss approach no longer appropriate in Victoria, the majority did not. Weiss, it will be recalled by the relatively few people who study this sort of thing, requires the appeal judges to in effect reach their own verdict. Although Gageler J thought that the legislative basis for Weiss had disappeared [46], [61], [67], the majority recognised that the new legislation left room for the Weiss approach by, as a matter of interpretation, including the inevitability of the verdict [15], [39].

The difference is between what the jury might have thought if the error had not occurred (Gageler J) and what the appeal judges think (majority) about the verdict despite the error.
I expect that our s 232 will be interpreted on its own terms without resort to the common law history concerning the method for deciding conviction appeals. The significant point is that the inquiry stops with a decision that an error (etc) has created a real risk that the outcome of a trial was affected, because that is all that this part of the definition of miscarriage of justice requires.

The unreasoned consequences of unreasonable search

Lawful powers must be exercised reasonably, and it must be reasonable to have resort to those powers. An illustration of unreasonable resort to lawful powers is R v Aucoin, 2012 SCC 66 (30 November 2012).

Upon apprehending the defendant for traffic offences involving licensing and alcohol the officer decided to detain him in the police vehicle because he was concerned that the defendant might run away. A pat-down search of the defendant was carried out prior to this detention. Cocaine was found in a quantity that subsequently supported the defendant's conviction for possession of cocaine for trafficking. There were alternative and reasonably available ways in which the officer could have addressed his concern about the defendant running away.

All members of the Court held that it was on the particular facts unreasonable for the officer to exercise his power to carry out the search and detention, but only a majority held that the evidence was admissible.

On the facts, backup was close at hand so there was no reasonable necessity to detain the defendant in the police vehicle. There was disagreement over the extent of the balancing required to determine reasonableness: the majority appear to accept that regardless of the seriousness of the offence for which the defendant was initially stopped, if detention was reasonably necessary to prevent flight there was no need to take account of the seriousness of the offence: Moldaver J for the majority at [43], disagreeing with LeBel J for the minority at [86].
It is useful when majority judgments directly address points made in minority judgments. Unfortunately such cross-referencing did not occur on the critical issue in the case: the admissibility of the improperly obtained evidence.

The majority addressed briefly the decision process required by R v Grant, 2009 SCC 32 (CanLII), 2009 SCC 32, [2009] 2 S.C.R. 353 (discussed by me here and here and here and here). It seems that the critical point of difference from the minority assessment is that the majority accepted that the officer was not simply applying his standard procedure for more serious offences when he detained the defendant [45], [48]. The minority view of the evidence contrasted sharply, referring to the constable's evidence about his standard practice in relation to detained motorists [101] and this, for the minority, was evidence of a pattern of abuse.

How do appellate judges arrive at such different assessments of the evidence?

All judges agreed that the defendant's expectation of privacy in relation to the contents of his pockets was high, but the minority mentioned too the aggravating feature of questioning the defendant about the contents of his pockets which introduced the right to be protected against self-incrimination [104]. This did not feature in the majority's analysis. Why not?

The majority said that the impact on the defendant's privacy rights was significant, but no more so than society's interest in having the case tried on the merits [51]. There is no explanation of how that evaluation was reached. Neither is there reasoned support in the minority judgment for its opposite conclusion on admissibility. What was the likely starting point for sentence for the cocaine offence (the defendant received a sentence of two years' imprisonment)? Probably it was not in the medium-to-high range, so how was society's interest measured? What relevant decisions supported the conclusion? What do other cases say about the defendant's privacy interests as against the seriousness of the detected offending?

Unpredictability comes from the vagaries of judicial assessment of the evidence and of the relative strengths of rights.

Culpable stimulating

Information can include mis-information: Mansfield v The Queen [2012] HCA 49 (14 November 2012) where insider trading included trading in false information. You can see how similar the policy here is to that which supports criminalising an offer to supply a controlled drug if in fact there was no drug but only an intention to deceive the would-be recipient. The harm is stimulating in another person an interest in unlawfully gaining an advantage.

Far from its best work

I have long regarded (for example here, here, here, here, here, here) Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 as being far from the High Court of Australia's best work. Even that Court seems to be unenthusiastic about applying it. Support for this impression is to be found in Wednesday's decision in Cooper v The Queen [2012] HCA 50 (14 November 2012). Weiss requires an appeal court to apply the proviso if, on examination of the record, it is convinced beyond reasonable doubt that the defendant was guilty. That is, as Heydon J put it in Cooper at [85],

"...when the proviso is under consideration, the appellate court performs the role of the trier of fact."

In his dissenting judgment in Cooper Heydon J faithfully carried out that role and his detailed examination of the evidence and the conduct of the trial led him to conclude beyond reasonable doubt that the appellant was guilty.

The other judges, however, jointly held that there should be a retrial. Although they gave lip-service to Weiss, their approach was not that of acting as fact-finders. Looking at what the jury did is appropriate when considering the preliminary issue of whether there was a miscarriage of justice:

"[30] ... it cannot now be demonstrated that the jury must have rejected this alternative case. Demonstration of that conclusion depends upon the jury having rejected what the judge's instructions had identified as an available view of the facts."

This was the reason for rejecting the respondent's suggestion that the error was not a miscarriage of justice because it was immaterial. Then it was necessary to consider whether the miscarriage of justice was substantial. The proviso would apply if it was not substantial, and it would not be substantial, according to Weiss, if the evidence convinced the appeal court beyond reasonable doubt that the appellant was guilty. But the majority did not embark on the detailed consideration of the record that is required of fact finders. Instead it relied on concessions in argument [26], and it gave no reasons for concluding that an appeal court could not exclude a reasonable doubt about the appellant's guilt [27].

The error at trial had been, as was conceded on first appeal, giving the jury an alternative route to conviction that was not properly available. It seems elementary that in those circumstances the trial had not been according to law and a retrial was required. The defendant had not received a fair trial. Heydon J skirted around this point at [51]-[55] by saying the appellant had not cited authority for the proposition that this error was fundamental. Obviously this is mischievous:  the common law wouldn't have got started if authority was needed for every submission.

In legislation that will soon come into force in New Zealand we have abolished the proviso and established new criteria for allowing appeals against conviction: Criminal Procedure Act 2011, s 232. How would Cooper have been decided under that provision?

The short answer is that under s 232(4)(b) the trial was unfair and the appeal against conviction had to be allowed.

A longer answer is that under s 232(4)(a) the error at trial had created a real risk that the outcome of the trial was affected. Some jurors may have reasoned improperly, and there was a real risk that if they had applied the correct law they would have acquitted the defendant.

But how is this risk to be assessed? The legislation focuses on the outcome of the trial. The question is what the fact-finder at trial might have done, not what outcome appears appropriate to the appeal judges.

This approach to conviction appeals preserves the defendant's right to have guilt or innocence decided at a properly conducted trial. As everyone knows, appeal judges – confined as they usually are to the written record – make dreadful fact finders.

Acting in the client’s interests but against instructions

A cautionary note from the Privy Council on the timing of a challenge to the defendant's fitness to stand trial: Taitt v The State (Trinidad and Tobago) [2012] UKPC 38, at [18]:

"In Nigel Brown v The State
[2012] UKPC 2, para 68 the Board expressed its concern at the fact that reports as to the appellant's ability to instruct counsel were produced ex post facto and without any explanation as to why medical evidence on the issue of fitness had not been produced in the courts below. It wished to make clear that it should not be assumed that even highly persuasive evidence produced for the first time at the final appeal stage would be admitted: para 70. The fresh evidence has been admitted in this case so that it may be scrutinised. But the Board is just as anxious to make it clear that it will only be in an exceptional case that it will entertain the argument that the appellant was not fit to stand trial because he is of low intelligence due to a learning disability when the point was not taken on his behalf by counsel at his trial. It is the responsibility of counsel to assess whether his client is fit to stand trial. He is in the best position to judge at first hand whether his client is able to understand the charge that has been brought against him and to give instructions for his defence. His conclusion that his client is fit to plead will normally be given great weight. The Board will not permit the introduction of the issue for the first time at the final stage unless the evidence points very clearly to the fact that there has been a miscarriage of justice."

A finding prior to or during a trial that a defendant is unfit to stand trial is usually, perhaps always, made on the balance of probabilities: see for example s 14(3) Criminal Procedure (Mentally Impaired Persons) Act 2003 [NZ]. Counsel may therefore be in the position of having to act for a client who only by a narrow margin fails to establish unfitness to plead. There will in such cases be a strong temptation, in the event of a conviction, to look for more persuasive evidence than was offered earlier to establish unfitness. The Privy Council recognises that where the issue was raised at first instance the position on appeal is quite different to that where the issue was not raised. A decision by experienced counsel not to raise at first instance the issue of fitness to plead will be given great weight. Raising the issue at first instance may require counsel to go against the client's wishes and to insist on expert assessment. Mentally impaired clients may be insulted by any suggestion of disability (recognised at [14] of Taitt). Here the obligation to follow instructions may be overtaken by the obligation to act in the client's best interests from the perspective of avoiding a conviction.

A Canadian catch-up

Now it's time to catch up on some recent cases from the Supreme Court of Canada:

R v Prokofiew, 2012 SCC 49 (12 October 2012) concerns counsel for a co-defendant's comments on D's failure to testify and when the judge should direct the jury on D's silence. It was wrong for counsel for the co-defendant to ask the jury to infer D's guilt from his silence at trial. The exercise of a right to silence is not evidence of guilt. The jury could be invited to infer that evidence was credible and reliable if it was uncontradicted, but the judge should direct the jury that there is no requirement that uncontradicted evidence must be accepted.

R v Cole, 2012 SCC 53 (19 October 2012) discusses when there may be a reasonable expectation of privacy in relation to the contents of a computer that was provided by an employer for use at work. The circumstances had to be considered in their totality and ownership was not determinative. An expectation of privacy may be reduced but still reasonable. Here D's reasonable expectation of privacy was breached, but applying the test of admissibility required by s 24(2) of the Charter, admission of the evidence did not bring the administration of justice into disrepute.

R v Boudreault, 2012 SCC 56 (26 October 2012) decides that the offence of having care and control of a motor vehicle while impaired requires a realistic, not merely a theoretical, risk of danger, and whether this exists is a question of fact. Here D fell asleep in a parked vehicle while sitting in the driver's seat with the engine running so that the heater worked, while awaiting the arrival of a taxi. There was held to be no real risk of danger on these facts.

R v Nedelcu, 2012 SCC 59 (7 November 2012) focuses on when evidence is "incriminating". It is not incriminating if it does not tend to prove guilt but merely questions D's credibility. Here, evidence disclosed during pre-trial civil procedures was sought to be used in a criminal trial.

Dineley v R, 2012 SCC 58 (2 November 2012) concerns when retrospective legislation can be interpreted to apply to current proceedings. The key is not whether the legislation is procedural or substantive, but rather whether it changes substantive rights. Retrospective effect is only given – where this is a question of interpretation – in exceptional circumstances if it affects vested or substantive rights. Here the legislation purported to remove a defence.

Risks, numbers and criminal responsibility

In R v Mabior, 2012 SCC 47 (5 October 2012) the Supreme Court of Canada playfully leaves us to calculate what a "realistic possibility" means in terms of probabilities, in the context of transmission of HIV virus by vaginal sexual intercourse.

Courts are inclined to put things in words, not numbers. This case explains that the phrase "significant risk of serious bodily harm" in this context means "a realistic possibility of transmission of HIV".

The relevant legislation, s 265(3) Criminal Code RSC 1985, C-46, uses the word "fraud": a complainant does not consent if he or she does not resist or submits by reason of fraud. Here, the defendant did not disclose that he had HIV when he obtained agreement to sexual intercourse. His viral load was low, and in he used a condom with one of the four complainants.

The element of fraud had been interpreted as requiring that the defendant dishonestly deprived the complainant of knowledge about a significant risk of serious bodily harm. Now this risk is explained as a realistic possibility of transmission of HIV.

For the New Zealand law (inaccurately referred to at [50]-[54] of Mabior) see s 128A(7) Crimes Act 1961, which provides that consent is not given by a person who is "mistaken" about the nature and quality of an act.

I expect that this NZ provision, introduced in 2005, will be interpreted to mean that a mistake, in a context like that in Mabior, is a failure to recognise a realistic possibility of transmission of HIV.

McLachlan CJ for the Court stressed that what facts give rise to a realistic possibility of HIV transmission will vary as research increases knowledge. The risk assessments may change. But the evidence in the case disclosed the current understanding of what the relevant risks are.

Broadly, and converting the figures given in the judgment [94]-[101], the evidence was that the probability of transmission of HIV infection during unprotected sexual intercourse may be as high as 0.008 or as low as 0.0005. That is, 8 in 1000, or 5 in 10,000. If a condom is used, the risk reduction is 80%, so at the highest the probability of transmission would be 0.0016. If therapy had reduced the viral load, as it had in this case, to a low level, the risk of transmission may be reduced by roughly 92%, so that if a condom is used the probability of transmission would then be 0.000128. If a condom is not used but the viral load is low, the probability of transmission is 0.00064.

I have just used rough figures as ranges were given for the risk of transmission in unprotected intercourse and for the effect of therapy. But the result of the appeals was that reduced viral load plus use of a condom resulted in a risk of transmission of HIV that was less than "a realistic possibility", whereas reduced viral load but without use of a condom resulted in a risk of HIV transmission that was "a realistic possibility".

That is, "a realistic possibility" is greater than a probability of 0.0001, but a probability of 0.0006 is "a realistic possibility" of HIV transmission.

The context is important: where the consequences are serious the acceptable risk may be lower. If we suppose that the consequences in the HIV transmission context are serious (this may change as therapies develop) we can conclude that the Court is regarding an appropriately low risk of transmission for the purposes of attributing criminal responsibility as one that carries a probability of 0.0006.

How does that compare to life's other risks of death? Well, a few second's Googling indicates that in the UK the average risk of death in any one year from injury or poisoning is 1 in 3137, or a probability of 0.0003. The risk of dying in a road accident in the UK is 1 in 16,800, or a probability of 0.00006. And for cancer death it is 1 in 387, or probability 0.003.

So in Mabior a risk that might have been about ten times the risk of dying in a road accident amounted to a realistic possibility of transmission of HIV. Or about one fifth the risk of dying of cancer.

And, while we are out on this limb, (or "out where the buses don't run", as Kinky Friedman would say), we could use this sort of data as an indication of the level of risk of serious harm that the law considers appropriate for attributing criminal responsibility. Then we should wonder about the probability of wrongful conviction that is sufficient to support a verdict of not guilty. Does it vary according to the harm threatened or caused by the offending? Or is all wrongful conviction equally repugnant?

Don't look at me. How should I know?

For discussion of the meaning of "beyond reasonable doubt" see R v Wanhalla (noted here 25 August 2006, R v JHS, noted here 1 June 2008, and R v Layton, noted here 24 July 2009).

No substitute for money

The Privy Council in Hamilton v R (Jamaica) [2012] UKPC 31 (16 August 2012) gives a useful little reminder on how a court will exercise its discretion to grant an extension of time for filing an appeal.

The judgment is worth reading for its reference to difficulties in getting legal representation when legal aid is either unavailable or highly restricted, particularly in Caribbean states.

The exercise of the discretion to grant an extension of time is described here:

"The circumstances that contribute to the problem of delay in the case of criminal appeals that come before the Board from the Caribbean are exceptional, for all the reasons that have been outlined above. But the question for the Board is no different. In these cases, too, the overriding consideration will be whether it is in the interests of justice that the time limit should be extended. Weight will always be given to the merits of the appeal and to the severity of the sentence. The stronger the case appears to be that the appellant may have suffered a serious miscarriage of justice, the less likely it will be that the application will be rejected on the ground that it is out of time. The Board will also be sympathetic to the problems faced by death sentence prisoners, and those in non-capital cases who have been sentenced to very long periods of imprisonment, who have to rely on the services of those who provide legal services pro bono. Those who provide such services free of charge have other demands on their time. So, while they will be expected to progress their cases as quickly as possible, it would be unreasonable to expect them to adhere to the same exacting standards as are expected of those who provide professional services for remuneration."

There are potentially insoluble problems for people serving sentences that are not particularly long and which may well be completely served by the time legal assistance for an appeal against conviction and sentence is obtained. The administrators of legal aid services may be reluctant to grant aid if a sentence is not long. Lawyers may be reluctant to accept instructions on legal aid if remuneration is low, particularly as the risk of being accused of negligence or worse is ever-present. There is no substitute for money when it comes to making the legal system work.

Morality and the scope of criminal liability

Manslaughter by dangerous act, or by an omission to perform a legal duty, was considered by the High Court of Australia in Burns v The Queen [2012] HCA 35 (14 September 2012). The death occurred after consumption of methadone, and the defendant (appellant) could have been liable for supplying the drug, for administering the drug, or for failing to render assistance to the victim in circumstances which gave rise to a duty of care. It was not possible to say why the jury had convicted the defendant. In the High Court the Crown conceded that the defendant could not be liable on the basis of supply of the drug. The Court unanimously held there was no basis in the facts for conviction for breach of a duty of care, and the majority (Heydon J dissenting) held that the facts did not exclude the possibility that the victim administered the drug to himself. The conviction was quashed and an acquittal entered.

The case is of interest for its illustration of the difference between moral and legal duties. While most people might think that a person who supplied an unlawful and dangerous drug to another owed a duty of care to that person to do what was reasonable in the interests of safety, there are difficulties in establishing a legal duty to do the same.

French CJ referred [22] to the "taxonomy" of the duties of care that may support a charge of manslaughter in cases like this: where a statute imposes a duty, where the duty arises from a certain status relationship, where the duty arises from contract, and where one person voluntarily assumes the care of another, secluding that other and preventing third persons from rendering aid. There may also be a duty of care where the defendant has caused a sequence of events which gave rise to a risk of injury.

Here there was [46] no statutory duty, no status relationship, no contract. On the facts the defendant had not assumed responsibility for care of the victim and had not secluded him so as to prevent others rendering assistance. As to creating a causative sequence of events giving rise to risk of injury, on the facts it was possible that the victim had injected himself with the drug [47] and he may even have rebuffed a suggestion that an ambulance should be called [48].

The joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ pointed [106] to difficulties with the proposition that those who unlawfully supply dangerous drugs have a duty to people they supply. What would discharge the duty of care? Supplying clean needles and syringes? Supplying information about levels of safe use? Ordinarily the supplier will have no control over how the recipient uses the drug. Is the duty (as was accepted in the appeal court below) confined to use of the drug in the supplier's presence? This, said the joint judgment, looks like imposing a duty because "it is an affront to morality that the supplier of a prohibited drug should not bear responsibility for the callous disregard for the life of the drug user." The absence of control counted against the imposition of a duty of care, and [107]

"... courts must be circumspect in identifying categories of relations that give rise to a previously unrecognised legal obligation to act [footnote: See, eg, R v Sinclair, Johnson and Smith unreported, England and Wales Court of Appeal (Criminal Division), 21 August 1998; B Hogan, "Omissions and the duty myth", in Smith (ed), Criminal Law: Essays in Honour of J C Smith, (1987) 85 at 87]."

So it was a matter for the legislature, not the courts, to develop the law on the liability of drug suppliers for harm to users ([108], Heydon J agreeing at [131]).

I should add that there is a useful discussion of liability for omissions by Andrew Ashworth QC, "Public Duties and Criminal Omissions: Some Unresolved Questions", available at the Association of Commonwealth Criminal Lawyers website. For legislative developments in New Zealand, see Crimes Act 1961, s 150A and the sections referred to therein.

Another decision of the High Court of Australia touching on the scope of criminal responsibility was delivered the same day: Likiardopoulos v The Queen [2012] HCA 37 (14 September 2012). It is noteworthy for these points:

• French CJ was careful to distance himself from any (obiter) suggestion that the decision to prosecute is never reviewable.
  
• A person can be a secondary party to a greater offence even though the principal offender was convicted of a lesser offence. A lesser conviction does not of itself provide a shield for another person. If the prosecution can show that the principal did commit the greater offence, the defendant could be a party to that. The principal is not in jeopardy of conviction for the greater offence.
  
• The charging of the defendant as a secondary party to the commission of a more serious offence than that for which the principal was convicted does not of itself give rise to abuse of process or unfairness, especially where, as here, when the plea to the lesser offence was accepted there was insufficient evidence to charge the principal with the greater offence. The moral culpability of the secondary offender was, here, greater than that of the principal(s) in view of his being much older [joint judgment, 39].
  
• A revision of the law of complicity could result in too great a change – retrospective and adverse to the interests of defendants - for the courts to introduce and should be left to the legislature (Heydon J agreeing, [43]). The limit of secondary liability is set by the offence actually committed.
  

This last point was a response to the prosecution submission that liability of all secondary parties should be determined by their mens rea. That would mean that if the secondary party had the mens rea for murder, but murder could not be proved against the principal, the secondary party would be guilty of murder. The difference from this case is that the prosecution would not need to establish mens rea on the part of the principal offender. That would mean that even if the evidence was no stronger than it had been against the principal party when the plea to the lesser charge was accepted, the secondary party could still be convicted of murder. Should the secondary offender benefit from a fortuitous lack of evidence in relation to the principal offender, or should the same requirements of actus reus and mens rea apply to both principals and secondary parties? To what extent should the maxim actus non facit reum nisi mens sit rea apply – should the secondary party's guilty mind make the principal's act guilty in relation to the secondary party? Currently the law says there is only an actus reus if the principal has mens rea.

Judge-alone trials and reasons for verdicts

Today the High Court of Australia has held inadequate the reasons given at a judge alone trial for convicting the defendant (appellant): Douglass v The Queen [2012] HCA 34 (11 September 2012). Further, the High Court quashed the conviction and did not order a retrial. That was because the evidence was insufficient to prove the defendant's guilt beyond reasonable doubt.

It is a fundamental mistake to say that where a criminal case involves an accuser and a defendant who denies the accusation, it is a case of one person's word against another's. It is, instead and as usual, a case of whether the evidence is sufficient to prove guilt beyond reasonable doubt. If, as here, a judge says he prefers the complainant's evidence, that is not the same as saying he finds the complainant's evidence sufficient to prove guilt beyond reasonable doubt.

Reasons given by a judge for convicting a defendant must be sufficient to show an appellate court that the judge has correctly applied the law: R v Keyte [2000] SASC 382. For the same point over here, see Connell v Auckland City Council [1977] 1 NZLR 630, Chilwell J, R v McPherson [1982] 1 NZLR 650 (CA) per Somers J at 652, and R v Atkinson [1984] 2 NZLR 381 (CA) judgment of the Court delivered by Hardie Boys J at 383, emphasising the need to demonstrate that the judge has applied the correct standard of proof.

In Douglass there were some difficulties with the complainant's evidence: she initially denied that the offending had occurred, she was inconsistent as to the location at which it had occurred, and her accusations were obtained by leading questions. The judge had not explained why, despite these difficulties, he had found her evidence to be truthful and reliable. He did specify two reasons for accepting her evidence, but the High Court criticised these: he thought she was unlikely to have made up the accusations, but the High Court pointed out that she had described similar behaviour by another man so invention was not as unlikely as the judge had thought, and her firmness in cross-examination indicated truthfulness, but the High Court did not think that this necessarily followed.

The defendant had given evidence and had called a supporting witness, but the judge did not give reasons for rejecting that. The judge should have explained why the defence evidence did not raise a reasonable doubt.

There is a bit of obscurity in the High Court's judgment (only one judgment in this case - Heydon J not being on this bench) over truthfulness and reliability. This was not the sort of case where the complainant could have been mistaken over the identity of the alleged offender, or mistaken over the alleged acts. The Court used the term reliability to mean sufficient to prove the charge. The trial judge may have used the description of the complainant's evidence as "credible and reliable" as a way of saying it was truthful, but the High Court said [15] that accepting the evidence as true was not the same as accepting it as sufficient to prove the charge. On the facts of this case it is difficult to see why not. My impression is that the Court was really saying that the difficulties with the complainant's evidence meant that it lacked the necessary probative value to establish guilt beyond reasonable doubt.

The High Court took a provision in the relevant evidence legislation, to the effect that a warning is not required about the special need for caution in relation to the evidence of a child complainant, as an indication that child witnesses are not to be regarded as a special class of witness, and it rejected [44] a submission that it was appropriate to consider published research on the reliability of child complainants. This was because here the issue was the sufficiency of the complainant's evidence. But in view of the obscurity I mentioned above, it is not clear why the reliability of the complainant's evidence should not be assessed in the context of specialist research on factors affecting or not affecting the reliability of child witnesses. The issue was, after all, the reliability of the complainant "as an historian" [47].

Overwhelmed by prejudicial evidence

When is an error at trial insufficient to require an appeal court to quash a conviction?

The more the attention that is given to this question, the more difficult it is to answer. At least, that was the experience of appeal courts in the 2000s. Before then this question had gone largely unexamined, and appeals were decided with appellate courts deciding apparently intuitively whether miscarriages of justice were substantial enough to require the quashing of convictions.

I have considered this in discussing Weiss v The Queen [2005] HCA 81 on 16 January 2006, and see also the discussion of Grant v R (Jamaica) [2006] UKPC 2 on 20 January 2006. A difficulty was when should the appeal court act like a jury and consider the evidence and dismiss an appeal because despite the error at trial the evidence was sufficient to convict? See Bain v R (New Zealand) [2007] UKPC 33, discussed here on 11 May 2007.

The Weiss approach has been followed with minor adjustment in New Zealand: Matenga v R [2009] NZSC 18, discussed here on 9 July 2009.

An unattractive aspect of the Weiss approach is that it seemed to say that the appellate court may dismiss an appeal notwithstanding an error at trial if it considers that the evidence was sufficient to support a conviction. Obviously the ends (conviction of a person who is plainly guilty) cannot justify the means (never mind whether the trial was fair). To avoid that unpleasantness two requirements had to be met before a conviction could be upheld: the trial had to have been fair notwithstanding the error, and the evidence of guilt had to have been sufficient.

So, when does an error not affect the fairness of the trial? It is difficult to generalise without a definition of "fair trial". I tirelessly suggest one here.

Yesterday the High Court of Australia dealt with an appeal in which the errors at trial had been so substantial that it was unnecessary, indeed impossible, for the Court to address the sufficiency of the evidence: Patel v The Queen [2012] HCA 29 (24 August 2012). The appeal was allowed because no weight could be given to the verdict, the jury were overwhelmed by the prejudice created by the admission of evidence that, because of a change in the prosecution case, was inadmissible, and the proviso didn't apply: joint judgment of French CJ, Hayne, Kiefel and Bell JJ at [128]-[130]. Heydon J separately agreed, holding at [260] that there had been a departure from the requirements of a fair trial to such an extent that the court could not justly assess the strength of the case against the appellant, applying Gleeson CJ in Nudd v The Queen [2006] HCA 9, discussed here on 9 March 2006.

This seems to me to be a case where the unfairness was the rendering of the jury partial – that is, not impartial – through the introduction of evidence that would prejudice its judgment against the defendant.

Heydon J noted two difficult questions that did not have to be answered in this appeal [262]: to what extent should a judge disallow the introduction of evidence although no party objects to it, and when should a judge require the prosecution to provide particulars although they were not sought by the defence?

I suggest the answer to those is indicated by the meaning of a fair trial. But until judges get down to explaining what a fair trial means we are left to define it for ourselves.

I should add that in New Zealand we have revised the conviction appeal criterion by abolishing the proviso and defining miscarriage of justice to include errors that result in unfair trials: Criminal Procedure Act 2011, s 232 (not yet in force). Again, there is no definition of fair trial.

And now we are eight!

And that is 8 years of this site's existence.

It isn't really a blog in the sense of an invitation to readers to post comments. Instead it is an online casebook on criminal law. It now has commentary on over 500 cases from the leading appellate courts in New Zealand, Australia, Canada, the USA, the UK and the European Court of Human Rights.

My purpose is to promote scholarship and research in criminal law. For a given topic you can consult the Index which refers to the relevant cases and the dates on which commentary was posted. Or if you just want to know if there is commentary on a particular case, enter one word from its title in the search box on this page.

This site is not designed to make money, and there is no information here on how to contact me. It is just an attempt to show how interesting criminal law as a technical discipline can be. But it's not written anonymously because commentary needs to be responsible and readers should have an opportunity to assess the author's qualifications.

I have given the Blogger version of this site (http://www.nzcriminallaw.blogspot.com ) a title that now includes the word casebook; the mirror site retains its old title as I haven't figured out how to change it (http://www.donmathias.wordpress.com ).

When can one defendant rely on another defendant’s statement to the police?

If two defendants, A and B, are on trial together, when can A rely on part of B's statement to the police if B does not give evidence?

Broadly, once evidence is admissible it can be used for all purposes at trial unless there is a specific restriction: Hart v R [2010] NZSC 91 at [54]. Does s 27 of the Evidence Act 2006 provide for a restriction? Its first subsection says:

"Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, but not against a co-defendant in the proceeding."

Does this prevent the defence "offering" it? ("Offer evidence" is defined inclusively and widely in s 4.) Plainly no, although this has been controversial. Difficulties have concerned the meaning of "against". The answer seems to be that which is given in Leslie-Whitu v R HC Rotorua CRI-2009-263-163, 5 October 2011, Woolford J (not available online): s 27 does not prevent A relying on B's statement, but the statement is hearsay in relation to A. Since the evidence in relation to A must be considered separately from that in relation to B in a joint trial, A must rely on the hearsay provisions to get B's statement admissible in his case. As hearsay the rule is that it would be inadmissible, but there are exceptions, the main one of which is s 18 of the Evidence Act 2006.

The criterion in s 18 when B is unavailable, as he would be if he chose not to give evidence, is that "the circumstances relating to the statement provide reasonable assurance that the statement is reliable". The "circumstances" are defined in s 16.

I don't know whether that is the best answer. It creates an uneven playing field in that to use B's statement A must overcome the "reasonable assurance" of reliability threshold in s 18, whereas the usual requirement for admissibility is relevance, s 7, which has a low threshold: Wi v R [2009] NZSC 121, mentioned here on 11 August 2012. If the prosecution can get the statement admitted under s 27 (overcoming any objections based on unreliability, s 28, oppression, s 29, and impropriety, s 30) then A should be able to use it too without further restriction.

I suggested in a New Zealand Law Society Seminar that arguably the admissibility of B's statement for A's case should be governed by the common law fairness considerations.

Yesterday the High Court of Australia touched upon this in a common law context: Baker v The Queen [2012] HCA 27 (15 August 2012). However here B's statement did not really exculpate A: see Heydon J at [70]-[76]. But basically the Court said, "Aw fieck orf moit" (I assume Australians all sound like Hughsey).

The case illustrates how the common law has diverged in various jurisdictions. Canada and England (see Baker at [54], [88]) have expanded the hearsay exceptions to permit use of B's statement by A if it is apparently reliable, but as the judgments in Baker show, there are difficulties in establishing reliability in this context.

I still think use of the hearsay exception here is inappropriate because it is only by chance that B's statement is hearsay – at least under our statutory definition of hearsay which does not include within it statements made previously by a witness (see the definition of "hearsay statement" in s 4). If B gives evidence he is a witness so it is not hearsay, whereas if he does not give evidence it is. Should the trial tactics of one party govern the admissibility of evidence for another? And if the prosecution can rely on B's exculpation of A and argue it is a lie demonstrating B's guile, why can't A rely on it and argue it is a glimpse of B's truthfulness?

The common law position is different because the definition of hearsay is not dependent on whether the maker of the statement, B, gives evidence. Baker remains of interest for its emphasis on the difficulties in applying a criterion of reliability.