When your thought becomes my experience

Another aspect of B(SC12/2013) v R [2013] NZSC 151 (19 December 2013) is its varieties of judicial interpretation of ss 40(3)(b) and 44 of the Evidence Act 2006. Of interest to us is the extent to which this aspect of the case is authority for anything.

Here the challenged evidence (held to be inadmissible) would have been that the complainant on an earlier occasion had invited a man to her house during the day to deal with a dead mouse, and when he was there she was wearing a nightie and a dressing gown. The man dealt with the mouse and left, but he felt that the complainant had been presenting an opportunity for a sexual encounter although she had done nothing overt in that regard.

What was this evidence intended to prove? If it just proved that the complainant invited people to her house to deal with mice, in this case it was hardly relevant because that was not a fact in issue: it was inadmissible, or at least not a miscarriage of justice for it to have been ruled inadmissible. William Young J favoured this approach to the issue of admissibility.

If the evidence was sought to be adduced to prove that the complainant had engineered a situation to have a sexual encounter with the defendant just like she had before in relation to the proposed witness, it would be evidence of her sexual experience with a person other than the defendant, so its admissibility would be governed by s 44(1) and (3). This was the approach favoured in the joint judgment of McGrath, Glazebrook and Arnold JJ.

William Young J didn't like that interpretation of the evidence or s 44 because the witness would not be testifying to an actual sexual experience, only to his impression of the complainant's motive for his visit. William Young J would not "read up" the word "experience" in s 44(1) to include things that didn't happen. It would have been different if the complainant had overtly suggested sexual activity on that occasion, but merely being dressed in a nightie and dressing gown wasn't enough.

Another interpretation of the evidence is that taken by the Chief Justice: the evidence was that the complainant had a propensity to create opportunities for sexual encounters at her home, which amounted to saying she had a reputation for doing that. This evidence of reputation had to be excluded because of s 44(2). It must be said that this is the least convincing interpretation of the proposed evidence.

At [117] William Young J cogently criticises Elias CJ's approach.

There was some obiter discussion of whether evidence of diary entries describing the complainant's sexual fantasies would be admissible. There was no such evidence in this case. The joint judgment would put this sort of evidence into the category of "experience" within the meaning of that term in s 44(1). William Young J would not, refusing to read up "experience" to include fantasies, and refusing to include, within the expression "with any person other than the defendant", the complainant herself.

When judges disagree over what are merely obiter dicta, what binds lower courts? When a case that directly raises the issue has to be decided, subsequent judicial reflection may favour the approach taken here by William Young J. But in the meantime greater weight should be given to the obiter dicta of the joint judgment here, simply because it is a majority opinion.

So, what is the ratio decidendi of the admissibility aspect of this case? All judges agreed that there was no miscarriage of justice arising from the evidence having been ruled inadmissible. Either it was irrelevant, or it was not of sufficient relevance to overcome the heightened relevance requirement of s 44(3), or it was inadmissible because it was reputation evidence. The majority applied the heightened relevance requirement, so the case is, from that perspective, a simple illustration of the application of s 44(1) and (3).

Legal propositions distilled from obiter dicta are not ratio decidendi, and neither are legal propositions not agreed to by a majority. There is therefore no wide ratio in this case, and it is only narrow authority on the admissibility of evidence of the same kind as that sought to be adduced here.

Perhaps you share my suspicion that the whole issue was argued under the wrong sections. The intended evidence was about the witness's opinion of what the complainant was thinking. The governing provision is s 24:

"General admissibility of opinions

A witness may state an opinion in evidence in a proceeding if that opinion is necessary to enable the witness to communicate, or the fact-finder to understand, what the witness saw, heard, or otherwise perceived."

Here there was nothing that the witness "saw, heard, or otherwise perceived" other than the way the complainant was dressed. Her clothing did not require an explanation in the absence of any other overt conduct. There was no other conduct that the witness could point to that could require an explanation. Therefore the proposed opinion evidence was inadmissible.

Perverse acquittals and the limits of the law

Whether you are a stranded speluncean explorer or a shipwrecked sailor adrift and starving, the law applies to you. Even where you enter into a contract agreeing that the ordinary law will not apply, you can only do that if some law allows you to, and even then the law requires you to stick to what you have argeed.

Can the law embrace illegality?

Are there times when a sensible person, when told what the law requires, can be permitted to say, "Oh, don't be silly, the law's an ass"?

Can jurors be permitted to return verdicts of not guilty that are contrary to law? These are variously called perverse verdicts, conscience verdicts, merciful verdicts, or instances of jury lenity reflecting the jury's innate sense of justice. See the discussion here on 15 November 2013.

In very limited circumstances the law will recognise that jurors may return conscience verdicts: B(SC12/2013) v R [2013] NZSC 151 (19 December 2013). Here, on an appeal against conviction, the relevant issue was whether two verdicts were inconsistent. The focus in such appeals is on whether the conviction is lawful, not on the acquittal [105], but the acquittal is relevant to the extent that it reveals an irreconcilable error in the conviction. Opinions may differ, as they did here, on whether the acquittal could be explained logically without impugning the reasoning behind the conviction. But without a logical explanation for the inconsistency it might be possible, held the majority, to account for the acquittal as an instance of jury lenity, without impugning the conviction.

Elias CJ did not consider that this case was one of necessary inconsistency in verdicts [30]. There may have been a reasonable possibility, she held, that the prosecutor had not excluded an innocent belief in relation to that charge, while proving all the elements of the other. But she went further than that, and refused to accept that a jury may return a "lenient" verdict [28]:

" ... in the core function of determining guilt or innocence I do not think there is scope for other than conscientious discharge of the responsibility to decide on the evidence and according to law."

The majority disagreed. McGrath, Glazebrook and Arnold JJ [105]:

" ... If the court finds it difficult to understand on what basis the jury accepted a complainant's evidence at one point and not another, it is entitled to consider whether the jury may have departed from its instructions in giving a not guilty verdict, out of an innate sense of justice."

They held that while the difference in verdicts could have a logical explanation, this was also one of those rare cases where the jury might have thought that the conviction sufficiently captured the defendant's culpability for what was in substance a single interaction with the complainant [106].

William Young J said he agreed with the joint judgment [110], [131].

The reasoning which led the majority to accept that jury leniency can have legal effect occurs at [99], which is worth quoting in full:

"Potentially, however, jury leniency undermines the rule of law, creates uncertainty and operates unequally as between comparable defendants. [footnote: See, for example, R v Morgentaler [1988] 1 SCR 30 at [77] per Dickson CJC (with whom Lamer J joined); and Andrew D Leipold "Rethinking Jury Nullification" (1996) 82 Va L Rev 253.] Importantly for present purposes, jury leniency is in direct conflict with the premises on which jury trials are conducted, as reflected in trial judges' instructions to juries. But while jury leniency may not be encouraged – indeed, it is actively discouraged in jury instructions – that does not necessarily mean that its existence must always be ignored. There is widespread acknowledgement that juries do sometimes apply their innate sense of justice by convicting a defendant on one count and acquitting on another, even though the evidence would support convictions on both, and a general (albeit not universal) acceptance that the fact that this sometimes happens is, on balance, a beneficial feature of the jury system (the jury acting as the conscience of the community). Where an appellate court considers that a jury's "not guilty" verdict is explicable on this basis, it seems perverse that the court should be required to quash the conviction because it is not logically consistent with the acquittal. While logic in the law is important, it is not everything."

As I have previously said, a perverse verdict is not available at the request of the defendant, and this case demonstrates that it is, in contrast and when rarely available at all, a weapon for the prosecutor on appeal. While it seems comforting to think that a jury might be lenient when the letter of the law conflicts with conscience, there is attraction in the Chief Justice's position which would disallow illegality as a basis for upholding a conviction.

But there's more in this case: propensity, reputation, prior sexual experience! ... Later ...

[Update: Lord Judge referred to perverse verdicts as constitutional safeguards against barbaric laws in a discussion with Chief Justice Roberts on the 800^th anniversary of the sealing of the first issue of Magna Carta, available here on YouTube: view from the time setting 37:58.]

Control: peaceable possession of land

Pronouns and political correctness: "his", or "his or her"?

Section 56(1) of the Crimes Act 1961 [NZ] has been politically corrected (or, more properly, gender neutralised, or - even more properly - gender balanced). The original version printed in the leading criminal text robustly reads:

"Every one in peaceable possession of any land or building, and every one lawfully assisting him or acting by his authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him therefrom, if he does not strike or do bodily harm to that person."

But online you will find this (to become the "official" version from 6 January 2014):

"Every one in peaceable possession of any land or building, and every one lawfully assisting him or her or acting by his or her authority, is justified in using reasonable force to prevent any person from trespassing on the land or building or to remove him or her therefrom, if he or she does not strike or do bodily harm to that person."

I can tolerate a bit of this sort of thing, and my objections spring from experience: if you try to think of a way of saying something by avoiding "he or she", and sexist language generally, you may well come up with better prose.

But s 56(1) is a hard nut to crack from that point of view, so the two versions confront us with the aesthetic question of which is the better prose, and if the former is better, the moral question whether gender balance is more important than cadence. However one would also have to take into account the need to avoid redundancy and tautology, arising from the operation of s 31 of the Interpretation Act 1999.

Strictly speaking, wrestling with this sort of problem is a matter for the Chief Parliamentary Counsel in the preparation of a revision Bill pursuant to s 31(2)(e) of the Legislation Act 2012. It can also be done when there is a reprint under s 25(1)(a) of that Act, to conform to "current drafting practice".

This gender balance business did not concern the Supreme Court this week in Taueki v R [2013] NZSC 146 (17 December 2013), where at [26] and [42] the original version of s 56(1) is quoted. The central point decided here is that possession requires a power of control over the land or building [57]-[58].

Additional points are: "peaceable" possession means "possession that has been achieved other than in the context of an immediate or ongoing dispute. In brief, it is possession obtained and maintained before the employment of the physical force the use of which the person seeks to justify" [64]; and mistake is irrelevant: "[t]here is no scope for applying s 56 on the basis of beliefs (reasonable or otherwise) on the part of the defendant as to whether he or she enjoyed peaceable possession of the land, nor as to whether the other party was a trespasser."

Control in context

The Court in Taueki did not look around and borrow inspiration from the law relating to drug offences. Control is a central element of offences of, or including, possession of a drug, and of permitting the use of premises for the commission of a drug offence. Control here has been interpreted judicially to mean having the power to invite or arrange for the presence of a drug, having the power to say what will be done with a drug, or having the power to invite or exclude others from premises or to prevent the commission of a drug offence on the premises.

In Taueki the appellant did not have powers of those kinds: [22]-[25]. There is thus a consistency in the meaning of control in these diverse contexts. That is hardly surprising, as the word will be given its ordinary and natural meaning unless the legislation requires otherwise.

The Court adopted Lord Browne-Wilkinson's description of possession of land in this context as that of a person who is "dealing with the land in question as an occupying owner might have been expected to deal with it and that no-one else has done so" JA Pye (Oxford) Ltd v Graham [2002] UKHL 30, [2003] 1 AC 419 at [41], quoting from the judgment of Slade J in Powell v McFarlane (1977) 38 P & CR 452 (ChD) at 470–47; Taueki at [57].

This circumstance-dependent issue – is the defendant dealing with the land in question as an occupying owner might have been expected to deal with it? – links control to the powers of an owner, but as the Court in Taueki noted [56]: "while possession is often an incident of ownership (or other legal right), in this context, ownership of the property is not necessarily required, nor even is a claim of right, before a person will have a defence".

So there's room here for assistance from the usage of "control" in the context of drug offences. If that is correct, the material questions on the issue of possession here will be whether in the circumstances the defendant had the power to invite or exclude others from the land, or the power to say whether they could do a relevant thing while on the property.

When is a judicial development too late?

A simply-defined statutory offence may require detailed judicial development. Pending such development and final determination by the highest court the law may be unascertained and inaccessible.

Lower courts may develop the definition of an offence, and intermediate appellate courts may confirm that development, so that the law appears to be settled, and settled for some time, but suddenly the superior appellate court says no, everyone was wrong, here is what the ingredients of the offence really are.

In R v McRae, 2013 SCC 68 (6 December 2013) four judges – the trial judge and three appeal judges – had their definition of an offence overturned by seven judges of the Supreme Court.
The prosecutor had been able to appeal against the acquittal on a question of law: s 676(1)(a) of the Criminal Code. The Supreme Court ordered a retrial.

The defendant had been tried on five counts of uttering threats, an offence pursuant to s 264.1(1)(a) of the Criminal Code. This offence had been considered earlier this year but the Supreme Court then did not need to address the points raised in McRae: see R. v. O'Brien, 2013 SCC 2 (CanLII), 2013 SCC 2, [2013] 1 S.C.R. 7, mentioned briefly here on 31 January 2013.

The details of the definition of the offence as they were judicially elaborated need not detain us. The question I raise is, should the Supreme Court have ordered a retrial? There is no doubt that the power to make such an order existed. There could have been little objection (subject to the inaccessibility of unascertained law point mentioned above) to the first appeal court ordering a retrial. But given that the first appeal court was also wrong about the law, wasn't the law much more inaccessible and unascertainable than is acceptable? Shouldn't the defendant have been allowed his acquittals?

Compare the discussions of accessibility and ascertainability here on 13 March 2006, here on 9 May 2013, and here on 16 June 2013.

Common law fairness and the Evidence Act 2006[NZ]

To what extent does the Evidence Act 2006 [NZ] exclude the common law discretion to rule inadmissible evidence that was obtained, not through improper acts of officials, but through unfairness arising independently of officials?

People who can access the New Zealand Universities Law Review can find an interesting discussion of this by Don Mathieson QC, "Fair Criminal Trial and the Exclusion of 'Unfair Evidence'" (2013) 25 NZULR 739 (October 2013). Dr Mathieson analyses a Court of Appeal decision which is currently subject to a suppression order, but which the Court has allowed to be discussed in professional publications.

So I am rather constrained in what I can say about the case here, and nor should I quote much of what Dr Mathieson says. In Adams on Criminal Law – Evidence at EA30.09(9) the central point is summarised in this way:

"The Court held that when a defendant argues that evidence such as a statement has been improperly obtained by the police, admissibility of the evidence must be determined in accordance with s 30. However, when the defendant argues that, although not improperly obtained, it would nonetheless be unfair to admit evidence against the defendant, admissibility will be governed by the exercise of the Court's common law discretion, which continues after the Evidence Act 2006."

Dr Mathieson argues, in effect, that the Court's holding, summarised in the last sentence of that passage, is wrong. There is no such common law discretion, and even if there was it would now have been replaced by the provisions of the Evidence Act, in particular ss 6, 7 and 8, pursuant to either s 11(2) or s 12.

Section 12 is central to the reasoning, so I set it out here:

If there is no provision in this Act or any other enactment regulating the admission of any particular evidence or the relevant provisions deal with that question only in part, decisions about the admission of that evidence—

(a) must be made having regard to the purpose and the principles set out in sections 6, 7, and 8; and

(b) to the extent that the common law is consistent with the promotion of that purpose and those principles and is relevant to the decisions to be taken, must be made having regard to the common law.

Dr Mathieson's argument is that this replaces whatever common law there might be on a relevant topic with law that interprets the Act in a way that, to the extent permitted, has regard to the common law. The new law is not common law – in the sense of law invented by judges in an area not covered by legislation – but rather is, collectively, decisions under s 12.

Then, applying s 7 and s 8 to the evidence that was obtained by what I might call the 'non-official unfairness' in the case at hand: yes, the evidence is relevant, and no, it is not excluded pursuant to the s 8 discretion. There is no resort to any posited common law discretion.

The Court of Appeal's reasoning was (here I risk quoting [31] of the suppressed judgment):

"It would be inconsistent with the common law and the purpose of the Evidence Act which is to promote fairness to parties, to construe s 30 as excluding the common law discretion. The continued existence of the common law discretion is consistent with the purpose of promoting fairness in s 6(c) to parties, and the Court must have regard to that purpose under s 11(2). The exclusion of evidence on unfairness grounds can be seen as dealt with only "in part" (in terms of s 12)by s 30, so that decisions on the admission of evidence can still involve a consideration of what is fair to the parties, that is, irrespective of the provisions of s 30. We conclude that the common law discretion survives the Evidence Act, although s 30 governs those cases to which the section applies."


You can see that this is quite a different interpretation of the effect of s 12 than that advocated by Dr Mathieson. The "decisions about the admission of that evidence" remain, in the Court's view, common law decisions.

I wonder whether this matters, particularly where the common law on the point had been undeveloped. You could say it matters if the Act is more restrictive than the common law. The Court, developing the common law, applied by analogy such of the considerations specified in s 30 as were relevant, and concluded that the evidence was admissible. Dr Mathieson on the other hand would confine the considerations to those applicable under s 8.

A difficulty is that, pursuant to s 12, it is the "purpose and principles set out" in s 8 to which the court must "[have] regard". Section 12 does not simply apply s 8 to the issue. Identifying the relevant purposes and principles of s 8 is not a simple matter, as none are "set out". A rule is not the same thing as a principle. There are abstract concepts named in the section: "probative value", "unfairly prejudicial effect", "the proceeding", "take into account", "the right", "offer an effective defence". But the only principle apparent in s 8 is the principle that evidence must not be ruled admissible if it would be unfair to do so. Arguably this isn't even a principle, it is a rule ("must not"). But let's pretend it is a principle. Is this principle more restrictive than the common law?

But don't let my ramblings deter you from reading Dr Mathieson's splendid article. It is unfortunate that it is not more widely available.

Culpable recklessness and innocent negligence: inferences from conduct

How does a court decide what a defendant foresaw about the consequences of his acts?

The difference between foreseeing and not foreseeing consequences can be important. It is the distinction between intention or recklessness on the one hand, and negligence or blameless inadvertence on the other hand.

Some offences are offences of negligence (careless driving, carelessly discharging a firearm, and so on), and criminalisation of negligence is done by express words or clear legislative intent.

Recklessness, in contrast, is usually sufficient for liability, but again this depends on the language creating an offence.

Negligence and recklessness have their own meanings, resulting from judicial interpretation of legislation, but these too are subject to any specific enacted meanings that may apply.

In Li v Chief of Army [2013] HCA 49 (27 November 2013) recklessness as to the occurrence of circumstances was required by legislation which applied certain provisions of the Criminal Code (Cth): [19]-[22]. These circumstances were the interruption of order that was caused by the defendant's intentional acts, on a charge of creating a disturbance:

"[28] The service offence created by s 33(b) of the DFDA is therefore best construed as relevantly having two physical elements, to each of which the Criminal Code attaches a distinct fault element. The first physical element is conduct, for which the fault element is intention: it must be proved that the defence member or defence civilian charged did the act, and meant to do the act. The second physical element is the result of that conduct, for which the fault element is recklessness: it must be proved that the act resulted in a disturbance (being a non-trivial interruption of order), and that the defence member or defence civilian charged either believed that the act would result in a disturbance or was aware of a substantial risk that the act would result in a disturbance and, having regard to the circumstances known to him or her, it was unjustifiable to take that risk." [emphasis added]

So, back to the first question: how would a fact-finder decide whether the defendant was aware of the substantial risk of a disturbance (and so was reckless), as opposed to finding that he failed to be aware of a risk that a reasonable person would have been aware of (and so was merely negligent)?

It is easy to answer this when the defendant has confessed to having been aware of the risk, but what if there is no such admission?

The temptation will be to decide that if a reasonable person would have been aware of the risk, then the defendant must have been aware of it too. But this is the same as holding the defendant liable on negligence grounds, which here are insufficient.

Plainly, the fact-finder– again, in the absence of a confession – will need to identify something in the defendant's words and actions at the relevant time to support an inference that he was aware of the risk of a disturbance. In many cases this will not be difficult, but the facts of Li, at least as related in the High Court's judgment, do suggest that drawing the necessary inference here might be more difficult. The Court ordered that the conviction be quashed.

Looking into oral argument about causation

Oral argument on appeals is quite an interesting thing, as you can hear and read in relation to Burrage v United States (Docket No 12-7515, 12 November 2013).

At issue here is what distribution of heroin "resulting in" death means. Here is discussion of the case, and here is the relevant legislation; you need to read down to the penalty part to get the phrase "if death or serious bodily injury results from the use of such substance."

Was it necessary for liability that the heroin was the only cause of death? Or that it was a contributing cause of death? Or that it was not merely a contributing, but a significant cause of death? Another question was whether the death had to be a foreseeable consequence of the distribution of the drug. This turns on the extent to which the common law relating to the causation aspect of the attribution of responsibility applies to the interpretation of the words "resulting in" in this statutory context.

The appellant (called the "petitioner" in American terminology) argued that a "but for" causal connection is required: the prosecutor must prove that the death would not have occurred but for the distribution of the drug.

The victim had consumed other drugs too, and these had not been supplied by the appellant. Expert evidence was that it could not be said that the victim would have lived if the heroin had not been used. The heroin contributed to the death but could not be said to be its sole cause. To what extent, if any, is the defendant to be held responsible for the acts of strangers, including acts of the victim?

Standing back and looking at the problem in the conventional terms of common law causation, there is no great difficulty. As to the actus reus, liability requires proof that the defendant's acts were an operative contributing cause of death. This can sometimes be put as a "substantial" contributing cause. The evidence in the case must be assessed against this requirement. Liability will be negatived by an intervening act that replaces the defendant's acts as an operating cause of death.

For an intervening act in this case the defence would have to point to evidence that raised a reasonable possibility that death would have occurred without the defendant's act of supplying heroin. See, for example, the discussion of Hughes v R [2013] UKSC 56, here on 9 August 2013, Burns v The Queen [2012] HCA 35, here on 15 September 2012, Maybin v R, 2012 SCC 24, here on 22 May 2012, and R v Kennedy [2007] UKHL 38, here on 19 October 2007. In Kennedy the victim's voluntary choice to use the drug supplied by the defendant was a novus actus interveniens. These decisions were not cited in the brief filed for the petitioner (which was confined to citation of American cases; not that there is anything necessarily wrong with that).

As to mens rea, liability for the victim's death usually requires gross negligence at least.
These conventional considerations are merely a background for interpreting the relevant legislation. The legislature can be taken to be aware of the existing law, and to intend to change it only by clear provision: Hughes, above. The policy supporting the creation of the statutory offence must be identified if the plain words of the enactment are ambiguous.

The opening remarks of counsel for the appellant in Burrage show a departure from the ordinary legal meaning of cause, claiming that "but for" cause is the usual requirement. Would it have been better to refer to the evidence first, arguing that it supported intervening act? Justice Ginsburg began the questions from the bench by referring to the hypothetical that invites consideration of intervening acts. Justice Scalia makes this clear with his first comments, emphasising that the expert evidence was that the victim may have died without using the heroin.

The argument proceeds with discussion of hypotheticals and with counsel insisting on a "but for" interpretation of causation. Hypotheticals are used to raise policy considerations. What policy supported the appellant's argument and made it more acceptable than the policy that supported the opposing argument? The three-drops-of-poison hypothetical raises the question of the appropriate boundaries – in this legislative context - of the danger to the victim that is attributable to the defendant's conduct. This was alluded to by Scalia J in his reference to "the scope of the risk".

The trouble with a "but for" requirement is that it easily reduces to a situation where no-one is guilty, as where poisoners independently administer a sub-lethal dose which cumulatively kills the victim. And the trouble with a substantial contributing cause requirement is that others may have already given a lethal dose when the defendant administers what is also a lethal dose; as the victim would die anyway, has the defendant caused the death, assuming he has not accelerated it? Is it acceptable that in this latter example the defendant might only be liable for the attempt to kill?

Sometimes judges play with numbers when the law prefers words, as happened with the questioning of counsel for the United States (the "respondent") by Kagan J: how much more likely than other causes does the defendant's acts have to make the victim's death – 50%, 30%? Scalia J had the same difficulty with what is a "substantial" contributing factor to the death: "10 percent, 20 percent ... 5 percent, what?" That is like demanding that the expression "beyond reasonable doubt" be put into numbers, something that the law does not currently do, as Kagan J pointed out.

Anyway, this transcript and recording is an interesting illustration of how argument on appeal can develop. Both counsel demonstrated significant expertise in handling questions from the bench.

Guidance for oral arguments is given in "Guide for counsel in cases to be argued before the Supreme Court of the United States" (Clerk of the Court, Supreme Court of the United States, October term 2013). Much of the advice on oral argument in that document will be of assistance to counsel in other courts.

A diligent and simple people

Two recent cases from the Supreme Court of Canada:

Diligence and freshness

In R v Hay, 2013 SCC 61 (8 November 2013) on the issue of the admissibility of fresh evidence [63], the Court held that lack of diligence by counsel in looking into the availability of the evidence for trial would not determine whether the interests of justice required that the evidence be adduced. That the evidence was credible on an important issue at trial, and that its absence could reasonably be expected to have affected the result, were sufficient to meet the interests of justice criterion in a serious criminal case. It has long been recognised that the diligence requirement is not applied as strictly in criminal cases as it is in civil cases [64].

In this case the lack of diligence was not something for which counsel could be criticised. It simply hadn't occurred to any of the experienced counsel, either in the trial or on the appeal to the Court of Appeal, that testing of the relevant kind could have been carried out [66].
I suppose that in determining what is due diligence, the standards of diligence used in practice by experienced lawyers must be the criterion. Failing to explore an avenue of inquiry that wouldn't reasonably have been explored is not lack of due diligence. So is this case really an example of the diligence requirement not being applied as strictly in this criminal case as it would have been in a civil case?

 
Computer privacy: different strokes for similar folks

We in New Zealand think of Canadians as a decent, simple people, nurtured on seal meat and loyal to the Queen. But if our laws are any indication, we can have contrasting values.
In R v Vu, 2013 SCC 60 (7 November 2013) privacy interests in the contents of a computer were such that without specific authorisation in a warrant a search and seizure of the computer was illegal. On balance, however, the challenged evidence was admissible.

Different law on computer searches may well apply in other jurisdictions, depending on legislation. For example, in New Zealand a rather relaxed approach is taken: s 110(h) of the Search and Surveillance Act 2012 allows access of a computer system in the course of execution of a search warrant if any relevant material "may" be found therein.

Information doesn't have a special privacy value just because it is stored electronically, as opposed to being written on paper. At least, that is the assumption behind laws such as that in s 110. The Supreme Court of Canada takes a different view of electronic information, [24] per Cromwell J for the Court:

"The privacy interests implicated by computer searches are markedly different from those at stake in searches of receptacles such as cupboards and filing cabinets. Computers potentially give police access to vast amounts of information that users cannot control, that they may not even be aware of or may have chosen to discard and which may not be, in any meaningful sense, located in the place of the search. These factors, understood in light of the purposes of s. 8 of the Charter, call for specific pre-authorization in my view."

The reasons for this conclusion are elaborated at [40]-[45].

One might compare the Canadian analysis of the privacy values attaching to information in computers with that of the New Zealand Law Commission whose Report, "Search and Surveillance Powers" NZLC R 97 (June 2007), was the basis for the current legislation. The Commission placed emphasis on "functional equivalence" [7.12], which permitted this conclusion [7.16]:

"We have therefore considered whether it is desirable to create a more stringent search and seizure regime for intangible material. However, we have concluded that this would introduce additional hurdles for law enforcement agencies when collecting a significant proportion of evidential material that is created in intangible form. If it is harder for agencies to access intangible material than tangible information, this will also create an incentive for criminal organisations to use an electronic medium to conduct or record criminal activity wherever possible. The net effect would make it more difficult to investigate criminal activity."

No special form of search warrant is required [7.18] because enforcement agencies may not know in advance of a search whether information is in a tangible or an intangible form.

Perverse acquittals

A conviction can only be "according to law", but an acquittal need not be.

We don't often mention the jury's power to return a perverse verdict acquitting a defendant. It is probably best not to mention it at all. Sometimes it is put in a way that is obviously wrong, as when a self-represented defendant submitted on appeal that it is the jury's

"... right and their primary and permanent duty, to, judge the justice and rightness of the law, and to hold all laws invalid, that are, in their opinion, unjust or oppressive, and all persons guiltless in violating or resisting the execution of such laws."

Mckee v R [2013] NZSC 122 (14 November 2013) at [8]. Naturally the Court rejected this submission.

A problem with this sort of broadside submission is that it will provoke a sweeping reaction. The Court said [9]:

"This submission is misconceived. A jury's duty is to apply the law in accordance with the judge's instructions."

More accurately, a jury's duty is to ensure that if a verdict is guilty it results from applying the law in accordance with the judge's instructions.

If the jury has applied the law in accordance with the judge's instructions, the defendant cannot appeal saying that the jury shouldn't have done that. Perversity of verdict is a matter entirely for the jury and cannot be taken up as ammunition for the defendant on appeal.

Nor can a prosecutor appeal against an acquittal on the grounds that it was perverse.

Obviously, I must point to some authority in support of my criticism that the Supreme Court was not accurate at [9]. In R v Shipley (1784), 4 Dougl. 73, 99 E.R. 774, at p. 824 Lord Mansfield said:

"It is the duty of the Judge, in all cases of general justice, to tell the jury how to do right, though they have it in their power to do wrong, which is a matter entirely between God and their own consciences."

This was cited with approval by the Supreme Court of Canada in R v Krieger [2006] SCC 47, discussed here on 27 October 2006 where I also referred to the views of Lord Devlin and Geoffrey Robertson QC.

To those dicta I add Lord Judge's speech "Jury Trials" Judicial Studies Board lecture, Belfast, 16 November 2010, available at http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/speech-lcj-jury-trials-jsb-lecture-belfast.pdf. Lord Judge alluded there (p 2) to the power of the jury to return a perverse verdict:

"But even in a democracy, it is possible for the legislature to create potentially oppressive and unjust criminal laws. The very fact that such laws will be exposed to the scrutiny of a jury in the event of a prosecution may – and for my own purposes "may" is enough – cause the legislature to pause and reflect on whether it is wise to enact such a law. It is one small aspect of the very subtle relationships which govern the operation of our society and the well being of the community."

So yes, subtlety is everything on this point. But whether a sweeping statement like that at [9] of McKee can really abolish the power of a jury to perversely acquit may be doubted. Can the perversity of a jury's acquittal ever be eliminated? The prosecutor would need a right to appeal on the grounds that an acquittal was unreasonable, and obtaining that would be a rather ambitious law reform project, at least in a robust democracy.

[Update: In 2015 Lord Judge again referred to perverse verdicts as constitutional safeguards against barbaric laws in a discussion with Chief Justice Roberts on the 800^th anniversary of the sealing of the first issue of Magna Carta, available here on YouTube: view from time setting 37:58.]

For the notebook ...

One never knows when the following recent decisions of the High Court of Australia and of the Supreme Court of Canada may be useful:

Judges and witnesses

For some observations on how a prosecutor's decision not to call a witness may be dealt with by the judge at trial, see Diehm v Director of Public Prosecutions (Nauru) [2013] HCA 42 (30 October 2013) at [63]-[65], and on when a judge may call a witness, at [74].

These dicta may be useful in interpreting statutory powers that are not elaborated, for example s 113(3) of the Criminal Procedure Act 2011 [NZ].

Provocation

And for discussion of the partial defence of provocation in Canada, see R v Cairney, 2013 SCC 55 (25 October 2013), on the requirement for there to be an air of reality to the defence before it has to be considered, and R v Pappas, 2013 SCC 56 (25 October 2013) where although there was an air of reality to the objective element of the defence (that the conduct was capable of being provocative), there was not in respect of the subjective element (that it deprived the defendant of self-control).

Repeal of provocation as a partial defence has resulted in cases on provocation being of limited interest in some jurisdictions. However, provocation remains a mitigating factor, and a relevant question may be whether it has the same elements in that role as it had as a partial defence.

Oyez!

Of peripheral interest to criminal lawyers are a couple of recent decisions of the United Kingdom Supreme Court.

Prisoners and voting rights

Chester, R (on the application of) v Secretary of State for Justice [2013] UKSC 63 (16 October 2013) illustrates how an issue that should be resolved in favour of the applicant may not require a remedy. Previous decisions [18] of the ECtHR, including an appeal from the United Kingdom, had held that denying prisoners the right to vote is a breach of the Convention. The UK legislature is looking at this [19], and the Supreme Court therefore did not see that a declaration of incompatibility was necessary on the appeals in this case.

The relationship between national courts and the Strasbourg court was considered [27], and the Supreme Court rejected the respondent's submission that the difference here was over "some fundamental substantive or procedural aspect of our law" sufficient to justify departure from Strasbourg jurisprudence.

Indeed, the issue of removing prisoners' voting rights was [35] not "fundamental to a stable democracy and legal system such as the United Kingdom enjoys."

Ah yes, thank you Joni Mitchell ...

"Don't it always seem to go

That you don't know what you've got

Till it's gone

They paved paradise

And put up a parking lot"

That is, is the moral value of having the right to vote equivalent to the value of not having the right to vote?

It is difficult to stir up much public discussion about whether prisoners should be deprived of the right to vote. In New Zealand the Electoral Act was recently amended to further strengthen existing restrictions on prisoners' voting rights, so that now anyone detained in prison pursuant to a sentence of imprisonment imposed after 16 December 2010 does not have the right to vote. For an outline of the reasons this might not be appropriate, see the Report of the Law and Order Committee on the Electoral (Disqualification of Convicted Prisoners) Amendment Bill, particularly the New Zealand Labour Party minority view.

Update: The High Court, in Taylor v Attorney-General [2015] NZHC 1706 (24 July 2015) has declared that:

“Section 80(1)(d) of the Electoral Act 1993 (as amended by the Electoral (Disqualification of Sentenced Prisoners) Amendment Act 2010) is inconsistent with the right to vote affirmed and guaranteed in s 12(a) of the New Zealand Bill of Rights Act 1990, and cannot be justified under s 5 of that Act.”

Further update: On 9 November 2018 the Supreme Court confirmed the existence of the High Court's power to make a declaration of inconsistency with the New Zealand Bill of Rights Act 1990, and has dismissed the Attorney-General's argument to the contrary: Attorney-General v Taylor [2018] NZSC 104.

Another further update: On 25 February 2020 the government introduced a Bill to give prisoners serving less than three years' imprisonment the right to vote.

Oral hearings

Sometimes judicial decisions may be made "on the papers" filed by the parties, without the need for an oral hearing of argument. In Osborn v The Parole Board [2013] UKSC 61 (9 October 2013) the Supreme Court considered when an oral hearing would be required by common law procedural fairness.

The Court's press summary sets out the essential points, and they are also summarised in the judgment at [2].

See also R v Parole Board, ex parte Smith and West [2005] UKHL 1 (27 January 2005), discussed here on 31 January 2005 and see para [14] of Osborne for administrative developments, R (on application of Hammond) v Secretary of State for the Home Department [2005] UKHL 69 (1 December 2005), discussed here on 5 December 2005, and Ebanks v R (Cayman Islands) [2006] UKPC 16 (27 March 2006), discussed here on 28 March 2006.

Significantly, the tribunal must "guard against any temptation to refuse oral hearings as a means of saving time, trouble and expense" [2(viii)].

Appellate judges who have the power to deal on the papers with applications for leave to appeal will, no doubt, not need to be reminded of these considerations.

Unnecessarily attacking the fundamentals

Even the most robust of the fundamentals of the criminal law can be modified by statute. When that happens, the fundamental should retain its strength in all cases to which the statutory modification does not apply.

But sometimes a statute is not explicit on whether it modifies a fundamental of the criminal law, while its purpose seems to require such a modification. If a court accepts that this sort of statute does indeed modify a fundamental of the criminal law, there is a danger that it will support its conclusion by pointing to weaknesses in the fundamental. Those weaknesses may later be used in support of interpretations of other statutes to override the now weakened fundamental.

To bring these considerations into focus, consider Lee v New South Wales Crime Commission [2013] HCA 39 (9 October 2013). The relevant fundamental of the criminal law was the principle that the prosecution must discharge the onus of proof and cannot compel the defendant to give evidence to help discharge that onus: [176] per Kiefel J dissenting.

Lee concerns the civil procedure, under the Criminal Assets Recovery Act 1990 (NSW) (the "CAR Act") of compulsory examination of a person to establish whether assets were probably obtained through serious crime. The examinee was also subject to criminal proceedings, and this gave rise to the issue whether the examination should be delayed until the trial had been concluded, so as not to give the prosecution an unfair advantage.

This sort of issue has arisen before: X7 v Australian Crime Commission [2013] HCA 29 (26 June 2013), discussed here on 27 June 2013. In that case the conclusion reached by the majority (Hayne, Bell and Kiefel JJ) was the opposite of that reached by the majority in Lee (French CJ, Crennan, Gageler and Keane JJ). The new players are Gageler and Keane JJ, who delivered a joint judgment in Lee).

A focus on the judgment of Gageler and Keane JJ should therefore reveal the points that carried the day in Lee. The appellants' argument, as refocused in oral submissions, is summarised at [304]-[305]. The inherent prejudice in allowing an examination while criminal charges are pending is, according to this analysis [305]:

" ... the answers given and documents produced by the person in the examination would inevitably constrain the instructions on which the legal representatives of the person could act in the criminal proceedings: the legal representatives would be ethically bound not to lead evidence or cross-examine or make submissions to suggest a version of the facts which contradicted that given by their client on oath in the examination."

The assumption here is that the legal advisers know what the examinee had said during the examination. Normally, a client does not give instructions on oath, and a client's prior statements are not given on oath. A difficulty would only arise if answers given on oath at examination became admissible against the examinee as defendant at trial. So the constraint on instructions referred to at [305] can be avoided if answers at examination are not disclosed to the legal representative in the criminal proceedings, and if those answers are not admissible to rebut the defendant's defence at trial.

However instead of adopting this sort of harm-containment approach, Gageler and Keane JJ took a swipe at the principle of construction (that the legislature does not intend to alter the law beyond the immediate scope and object of a statute [308]) that fundamental rights are not altered by a statute unless that is expressly done. They adopted Gleeson CJ's view that in modern times the strength of that principle will vary with context [312]. But it is not necessary to qualify the strength of this principle of construction, to make the point that the clear intention of a statute may be to alter fundamental rights.

In addition to weakening the principle of construction, Gageler and Keane JJ weakened the fundamental principle of the criminal law that a defendant cannot be compelled by process of law to admit the offence, by saying it is "not monolithic: it is neither singular nor immutable" [318]. Some statutory inroads on the right to silence do not mean that the right is weakened where it does apply. It was unnecessary for the judges to suggest this weakening.

The more conventional part of this judgment addresses directly the interpretation of the CAR Act [326]-[335] and reaches the, no doubt sound, conclusion that [335]:

"The power conferred by s 31D(1)(a) does not authorise the making or implementation of an examination order where to do so would give rise to a real risk of interference with the administration of justice including by interfering with the right of the person to be examined (or any other person) to a fair trial. For reasons already given, however, the making of such an order does not give rise to a real risk of interference with the administration of justice by reason only that the subject-matter of the examination will overlap with the subject-matter of criminal proceedings that have commenced but that have not been completed."

And importantly, as to the way the discretion to order an examination should be exercised, [337]:

"The reasons for judgment of the Court of Appeal do not suggest that the CAR Act indicates a legislative intention that the Supreme Court should allow any proceedings under that Act to proceed if the circumstances of the case, other than the mere pendency of criminal proceedings against the examinee, were such as to reveal a real, as opposed to a speculative or theoretical, risk that the administration of justice would be adversely affected. The exigencies of criminal proceedings might well afford a ground for a refusal to make an order under s 31D(1)(a). For example, the timing of an application may be such as to prejudice the fair trial of a criminal charge because of the likely disruption of the preparation for, or conduct of, a trial which is imminent. As Beazley JA specifically noted [606], that possibility was not raised before the Court of Appeal as a consideration having a claim upon the discretion in the circumstances of this case. Had it been raised, it would obviously be a consideration which might properly be taken into account in exercising the discretion."

This conclusion could have been reached without suggesting that the rule of construction or the right to silence are in any general sense weakened these days. Lee required merely a conventional exercise in statutory interpretation.

A similar position exists under comparable New Zealand legislation: Criminal Proceeds (Recovery) Act 2009, s 107. In each case a careful analysis has to be made of the matters which the Commissioner wishes to examine the defendant about, and the likely impact of answering those matters on the subsequent criminal trial: Commissioner of Police v Wei [2012] NZCA 279 at [40].

Fresh evidence

Fresh evidence was a central topic in two decisions delivered within hours on opposite sides of the planet yesterday.

In refusing leave to appeal against sentence, the New Zealand Supreme Court addressed a submission that the applicant's cooperation with the authorities was a new fact relevant to penalty: Bland v R [2013] NZSC 93 (7 October 2013). The fact could have been used in submissions to the Court of Appeal, but was not, but after that appeal Mr Bland did give assistance to the authorities. He then asked the Court of Appeal to recall its dismissal of his sentence appeal so that this new fact could be considered. The Court of Appeal dismissed that application.

The Supreme Court said [6(a)]: "This Court does not usually entertain criminal appeals on grounds that, although available, were not raised before the Court of Appeal", citing Mankelow v R [2007] NZSC 57 at [2].

These Supreme Court decisions are dismissals of applications for leave to appeal and are not required to be given in detail: "The reasons may be stated briefly, and may be stated in general terms only": s 16(2) Supreme Court Act 2003.

The risk with these brief reasons is that they may be cited as if they were precedents, as with Mankelow, so that matters of policy are wrongly treated as legal rules. And legal rules may be stated inaccurately, in the effort to be brief, and this creates a risk of misapplication of the law in subsequent cases. This is illustrated in Bland at [6(b)], where the Court diminished the value of Mr Bland's assistance to the authorities, on the basis that it was "self-serving rather than motivated by a genuine desire to cooperate".

Motive for the giving of assistance has never been relevant. Motives for mitigating actions seldom are: for example, credit for early guilty pleas is given without asking whether they were motivated by remorse, and remorse has its own status as an independent mitigating factor: s 9(2)(f) of the Sentencing Act 2002. In R v Stark [2006] NZCA 190 the Court said at [10]:

" ... It is necessary to weigh the assistance given with the type and seriousness of the offending, the sentence that otherwise would be appropriate, the nature and value of the assistance, the situations in which it is given and the consequences. In the end the sentence must be that which is appropriate in light of all of the circumstances including any assistance to the authorities."

There is no mention of the motivation for the assistance in those considerations. Assistance has its own weight, and remorse may be an additional circumstance but its absence should not disentitle an offender from advancing assistance as a mitigating factor.

Still, the Court's real reason for refusing leave seems to be that Mr Bland's assistance to the authorities was of no particular consequence in the prosecution of co-offenders [6(c)]. Any appropriate sentence reduction would have been minimal and the sentence that was imposed was not outside the range of sentences available to the judge. There was not, therefore, a "substantial miscarriage of justice", which is one of the ways a case may come within the qualifying requirement that it should be in "the interests of justice" for the appeal to be heard: Supreme Court Act, s 13(2)(b). The phrase "substantial miscarriage of justice" is not defined.

Several hours later, in London, the Privy Council in Lundy v The Queen (New Zealand) [2013] UKPC 28 (7 October 2013) ordered a retrial because new evidence suggested that the appellant's convictions were unsafe [151], [164].

It is inappropriate for me to say much about this case, pending a retrial. However of legal interest is the Board's clarification of the requirements for the allowing of appeals against convictions on the basis of fresh evidence. There are three tests, to be applied in sequence [120]:

"The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh."

Here, "a risk of a miscarriage of justice" refers to the safety of the conviction.

Lundy was an appeal under what we can now call the old law. Now, the criteria for allowing an appeal against conviction are enacted in the Criminal Procedure Act 2011 ("CPA"), s 232. They do not specifically refer to fresh evidence. Cases of fresh evidence must therefore come within the phrase "miscarriage of justice", which is defined in subsection (4) as:

"... miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity."

The obtaining of new evidence can hardly be called an error or irregularity, but it may be "an occurrence ... affecting the trial". It might, also at a pinch, be put within the meaning of "an unfair trial" in the sense that the trial that happened involved assessments of the weight of items of evidence that have since been shown to have been inappropriate. The trial, although it seemed to have been fair when it was conducted, is now shown to have been unfair.

These ways of including cases of fresh evidence within the grounds for allowing appeals against conviction are a bit forced, and one might say that it was a legislative oversight to omit specific reference to fresh evidence in s 232. Certainly, the CPA does permit an appellate court to hear evidence (ss 334 and 335), and the Criminal Procedure Rules 2012 make provision for adducing fresh evidence: r 8.8, in terms which make it clear that miscarriage of justice encompasses fresh evidence.

The Board did not say that the trial had been unfair. It was not considering s 232, and Lundy should not be applied as if it were authoritative on the meaning of that section, but it would not be inconsistent to say that the better interpretation is that fresh evidence is an occurrence in relation to the trial.

But there is good reason to conclude that a substantively fair trial is one where the evidence is weighed properly, and that retrospective appreciation of unfairness in the light of fresh evidence is grounds under s 232 for allowing an appeal against conviction.

There are two more interesting aspects of Lundy that I can mention.

First, the Privy Council seized jurisdiction – without creating a precedent – just in the interests of being sensible [11]. Strictly, it is a breach of the rule of law for a court to do something and say it is not creating a precedent: compare John Gardner, Law as a Leap of Faith (OUP, Oxford, 2012) at 210 (reviewed by me here on 6 July 2013).

Secondly, the Board ordered a retrial rather than remit the case to the Court of Appeal. There is nothing particularly unusual in doing that, but the difficulties that have been experienced when appeal judges attempt to reach verdicts perhaps suggest that the Board considers that the approach recently favoured – under what is now the old law – by the New Zealand Supreme Court in Matenga v R [2009] NZSC 18, discussed here on 9 July 2009, is inappropriate. It is likely that under the new law (s 232) – see the digression by me on 19 August 2013 – the Matenga approach will not apply. Unfortunately however, the Board endorsed what it took to be the Matenga approach: [143]-[151].

On this topic the Board appears to be glossing over difficulties. How does an appeal court decide whether a conviction is safe? Does it (1) decide for itself whether there is a reasonable doubt about the appellant's guilt? Does it (2) decide what a jury would have concluded had the error at trial not occurred? Does it (3) do a bit of each – deciding for itself until it gets stuck, in which event asks what a jury would have done? These have all been tried at various times. Delivering the judgment of the Board, Lord Kerr endorsed [146] his own judgment, dissenting on the facts, in Taylor v R [2013] UKPC 8 (discussed here on 19 March 2013) taking the third (called the Pendleton) approach, but which was put by the majority in Taylor [20] as one of asking whether the jury might reasonably have come to a different conclusion as to whether the appellant was guilty; this, confusingly, looks like the second approach.

My own view is that this is rather silly. The focus in these sorts of appeals should always have been on whether the error at trial could have significantly affected the weight given to contested evidence on an issue central to the logic of the prosecution case. Under the new law, s 232(4)(a) is consistent with this, using the phrase "a real risk that the outcome of the trial was affected". Unfortunately, it is arguable that this phrase is also consistent with the other approaches, and it would be sad – so sad – if Lundy were taken to be an endorsement of the survival of Matenga in the new statutory environment.