Delay and its various remedies

The Privy Council has recently corrected any impression that may have existed about when unreasonable delay should result in the staying of proceedings or the quashing of a conviction: Tapper v DPP (Jamaica) [2012] UKPC 26 (17 July 2012).

The quashing of a conviction is only appropriate where delay prevents a fair trial or where delay makes it unfair to put the defendant on trial at all: Boolell v The State (Mauritius) [2006] UKPC 46 (noted here on 18 October 2006).

Other remedies may be the reduction of a sentence or if the defendant is acquitted the payment of compensation, the making of a public apology, or the expediting of a trial without further delay: Attorney-General's Reference No 2 of 2001 [2003] UKHL 68 per Lord Bingham at [24]-[25], applied in Tapper.

Issue estoppel and sentencing facts

A routine application of issue estoppel, applying R v Mahalingan [2008] SCC 63 (noted here on 15 November 2008) is R v Punko, 2012 SCC 39. In a multi-issue trial it could not be said that there was the necessary logical connection between the verdict and the issue now before the court, so there was no estoppel.

More interesting is the only point that divided the Court: Fish J disagreed with the majority judgment delivered by Deschamps J on whether a judge's finding of fact at sentencing could in principle give rise to issue estoppel. The majority held that it could not, because it was not a decision on the merits, that is, relevant to verdict, and issue estoppel requires a logically necessary conclusion that the jury were unanimous on the issue [11]-[12]. At sentencing the judge makes findings of fact to elucidate the jury's verdict of guilty, but in relation to counts on which the jury acquitted the defendant the judge in sentencing on the guilty verdicts has no power to make a finding binding on future judges [12].

Fish J, who agreed with everything else, considered that the sentencing powers of a judge included the power to find any relevant fact that was disclosed by the evidence, and that the question whether a fact found at sentencing could give rise to issue estoppel should be left open as a matter of principle [26]-[27].

One would have thought that if a sentencing judge finds a particular fact to have been proved beyond reasonable doubt, the issue is settled and the estoppel should apply.

Punko illustrates the narrowness of issue estoppel. Deschamps J did comment on how the doctrine of abuse of process could come into play if the prosecution's conduct were to be found to be "sufficiently egregious" [21]. In commenting on Mahalingan I noted that abuse of process can be of more use than issue estoppel in criminal law, if only the courts will get to grips with giving it meaning instead of dismissing it as something too vague.

Appellate error and wit

In the spirit of helpfulness ...

Don't rely on what our Court of Appeal said in Tutu v R [2012] NZCA 294 (5 July 2012) about there being a right to elect trial by jury on charges of common assault and assault on a constable in the execution of duty [19]. Section 43 of the Summary Offences Act 1981 removes that right.

For an insight into appellate advocacy and bench-bar exchanges, with occasional flashes of wit, in the High Court of Australia, see the perhaps rather irreverently-named http://shitjudgessay.tumblr.com .

Association with criminal groups

Some comments of general interest on criminal organisations or what are sometimes called organised criminal enterprises or organised criminal groups, were made by the Supreme Court of Canada in R v Venneri, 2012 SCC 33 (6 July 2012).

"[40] ... focus on the goal of the legislation, which is to identify and undermine groups of three or more persons that pose an elevated threat to society due to the ongoing and organized association of their members. All evidence relevant to this determination must be considered in applying the definition of "criminal organization" adopted by Parliament. Groups of individuals that operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased risk contemplated by the regime.

"[41] Courts must not limit the scope of the provision to the stereotypical model of organized crime ― that is, to the highly sophisticated, hierarchical and monopolistic model. Some criminal entities that do not fit the conventional paradigm of organized crime may nonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislative scheme."

Deciding whether there is a criminal organisation or an organised criminal group is a preliminary step. Liability for an offence depends on what conduct by a defendant is proscribed in relation to the organisation or group. Canada has defined several such offences, which broadly involve committing offences for the benefit of, or at the direction of, or in association with the organisation, or being a member of such an organisation and instructing any person to commit a qualifying offence for the benefit of the organisation. Also included are offences of participation in or contributing to the activity of the organisation with the purpose of enhancing the ability of the organisation to commit a relevant offence.

In New Zealand we have the offence of participation in an organised criminal group, if – again broadly - the defendant knows that his conduct contributes to achieving an objective of the group or to the occurrence of any criminal activity, or is reckless as to that contribution. The defendant need not share the objectives of the group.

It is not necessary that the organisation or group has actually committed any substantive offence, and contributing to achieving the objective of the group may not necessarily involve inciting or any other form of secondary liability.

Venneri highlights the point that associating with the organisation can occur through the defendant's offending and his membership is not required. So where the defendant supplied cocaine to a member of a criminal organisation, knowing that it was involved in drug trafficking, he was operating in association with the organisation, there was a sufficient nexus between the organisation and the defendant's supply of the drug.

Law reform by stealth

Sometimes the implications of law reforms or new legislation dawn on me rather slowly. This can happen to other people too, thank goodness, especially where controversial aspects of the proposed reforms distract attention from something more subtle but profoundly disturbing. So it is with ... [Note: the first part of this posting, down to the "Update" has been published in NZ Lawyer, Issue 188, 13 July 2012, copyright LexisNexis NZ Ltd - no longer available online as NZ Lawyer has a new publisher.]

Search on suspicion

The Search and Surveillance Act 2012, s 6 (not yet in force) will allow a search warrant to be issued on suspicion that a relevant offence has been committed, is being committed, or will be committed. This suspicion must be on reasonable grounds.

The reasonable grounds requirement looks like a safeguard. But the current law requires reasonable grounds for believing that a relevant offence has been committed or will be committed: s 198 of the Summary Proceedings Act 1957. The higher threshold of belief in s 198 is replaced by suspicion in s 6.

Certainly s 198 is not perfect. The new law improves it by referring to offences that are being committed. There is also a complexity in s 198 because it includes reasonable grounds for believing that a relevant offence is suspected of having been committed. But that has not been the subject of careful judicial analysis, and the case law has focused on the difference between belief and suspicion that an offence has been committed. In the leading case, R v Sanders [1994] 3 NZLR 450, (1994) 12 CRNZ 12 (CA) the universal requirement of s 198 was held to be belief on reasonable grounds both in relation to the offence and to the finding of the evidence.

Both s 6 and s 198 require reasonable grounds to believe that evidence of the relevant offending will be found at the place to be searched.

The Law Commission recommended that the threshold of reasonable grounds for belief should apply both to the offending and to the finding of evidence. In NZLC R97 (2007) "Search and Surveillance Powers" the Commission said (Recommendation 3.1):

"There should be a standard statutory threshold for the exercise of general law enforcement powers of search. That threshold should be reasonable grounds to believe that an offence has been, is being, or is about to be committed, and that evidential material is in the place to be searched. That test should be departed from only where there is a compelling case to do so. Current provisions where the lower threshold can be justified and should be retained include sections 60 to 61 of the Arms Act 1983 and search powers relating to border control offences under the Customs and Excise Act 1996."

The Search and Surveillance Bill was so extensive and contained so many controversial measures that submissions do not seem to have focused on what has become s 6. I didn't notice it myself. Either everyone thought it was alright, or everyone overlooked it. There is no mention of it in the minority views in the Justice and Electoral Committee's report on the Bill.

The courts certainly think the distinction between reasonable grounds to believe and reasonable grounds to suspect is significant. See Collins v R [2010] NZSC 3 at [2]. In Britten v R [2012] NZCA 81 at [15], Priestley J for the Court cited R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [213]:

"Having "reasonable grounds to believe", the test under s 198 of the Summary Proceedings Act, is a higher standard to meet than "reasonable ground to suspect", the test under s 60(1) of the Arms Act for example (see R v Karalus (2005) 21 CRNZ 728 (CA) at para [27]). Belief means that there has to be an objective and credible basis for thinking that a search will turn up the item(s) named in the warrant (see Laugalis (1993) 10 CRNZ 350 (CA) at pp 354 – 355), while suspicion means thinking that it is likely that a situation exists. The issuing officer must hold the view that the state of affairs the applicant officer is suggesting actually exists (see Sanders [1994] 3 NZLR 450
at p 461)."

The distinction is important too where there are powers of search without warrant. For example s 18(2) of the Misuse of Drugs Act 1975 permits warrantless search where there are reasonable grounds for believing in both the occurrence of a relevant offence and the presence of evidence. However s 20 of the Search and Surveillance Act 2012 replaces that with a power to search without warrant where there are reasonable grounds to suspect the commission of a relevant offence. (I note in passing that it is strange, given the opportunity to improve the law, that s 20 retains the rather technical and unrealistic requirements of s 18(2) as to identity of drug, particularly in view of the difficulty that they had caused the prosecution in Hill v Attorney-General (1990) 6 CRNZ 219 (CA)). The significance of the high threshold for warrantless search was emphasised in Hill by Richardson J at p 222:

"Search without warrant is a very special exception to the general principle that police officers must satisfy a statutory officer that they have reasonable grounds for believing justifying the issue of a warrant authorising their entry to and search of private property. As Sir Thaddeus McCarthy put it, "New Zealanders have been cautious in our grants of powers to the police", citing Lord Devlin's observation that:

"It is because the British have learnt to measure out stingily their grants of authority so that it is just enough and no more that they have, perhaps more successfully than any other nation, held the balance between order and freedom"

("The role of the Police in the Administration of Justice", Clark, Essays on Criminal Law in New Zealand, p 173.)"

We now seem to be intent upon eroding this general principle of requiring a belief, and a reasonable belief at that. Does our legislature's eagerness to grant powers to the police really reflect New Zealanders' wishes? Recent high profile searches have arguably given fresh life to Sir Thaddeus's reflections. We should reconsider this issue.

[Update] After I posted the above comments a colleague drew my attention to a recently published New Zealand Law Society Seminar Paper on the Search and Surveillance Act. There, the authors review the changes made to the grounds for issuing search warrants, in particular under s 6, and they conclude that the provision is balanced:

"Law enforcement needs are met by not requiring an overly high factual foundation for the commission of a crime to trigger investigative powers. But human rights, and in particular the right to be free from unreasonable search (and by extension having reasonable expectations of privacy respected) are upheld by requiring a more significant factual foundation for those investigative powers to operate on a particular place or person, etc."

It doesn't surprise me that this was written by two prosecutors. They wrongly suggest that the belief as to the existence of the evidence is a protection of human rights and they overlook the erosion of the same rights created by the "[not] overly high factual foundation" of suspicion. It is easy to see that the belief in the presence of the evidence at a specified location is readily established: for example, if a reliable witness saw items being taken into a stated address, the reasonable grounds to believe they were there would be made out. That would say nothing about the requirement of the items being evidence of an offence, which is, under s 6, easily met by other information that gives rise to a suspicion of criminal activity. It is this element that protects - or should protect - reasonable privacy expectations.

It is fair to expect confirmation of my assertion that reasonable grounds to believe that a specified offence has been committed are required by s 198. In Rural Timber Ltd v Hughes [1989] 3 NZLR 178 (CA) the Court included in its description of the effect of s 198 the following:

"The application and warrant should specify which of those lettered paragraphs [(a), (b) and (c) of subsection (1)] is involved. Generally speaking as many of them as it is proper to invoke should be invoked and a proper foundation should be laid for the necessary reasonable grounds for belief in respect of each paragraph invoked. In almost all cases where the issue of the warrant is justified paragraph (b) is likely to apply; paragraph (a) is generally somewhat less likely to be engaged while paragraph (c) is probably the least likely to apply in the general run of cases"

And the form prescribed for search warrants, Form 50 in Schedule 1 to the Summary Proceedings Act 1957 materially as to paragraph (b) states:

"To every constable ... I am satisfied ... that there is reasonable ground for believing that there is in [the specified place, specified things] ... which there is reasonable ground to believe will be evidence as to the commission of an offence of [specified] ... ."

This applies the standard of reasonable grounds to believe to both the presence of the evidence in the specified place and to the link between it and the commission of a relevant offence.

A search authorised on lesser grounds, such as suspicion that a relevant offence has been committed and that the thing searched for will be evidence of that offence, will be a limitation on the right to be free from unreasonable search: s 21 New Zealand Bill of Rights Act 1990 (BORA).

Yet, on 12 June 2009 the Crown Law Office advised the Attorney-General that the search powers in what was then the Search and Surveillance Bill (now enacted, including s 6) did not give rise to unreasonable search and seizure in terms of s 21 of BORA. That ignores the restriction of the meaning of unreasonable search that is required for the new law to be accommodated. Unreasonable search will no longer include searches based on grounds that only amount to suspicion. The advice did not specifically address the terms of what is now s 6.

The Law Commission advised the Justice and Electoral Committee, which reported to Parliament on the Search and Surveillance Bill, that what is now s 6 does not substantively change the grounds for issuing a search warrant. (See the Interim Report on the Search and Surveillance Bill 45-1, p 10.) But s 6 is inconsistent with the Law Commission's Recommendation 3.1 quoted above which in turn is consistent with s 198. Plainly the point was overlooked, as there was so much in the Bill requiring consideration.