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.