Criminal process, compulsory interrogation, statutory construction, and the right to a fair trial

When might a statute impliedly compromise fundamental rights connected with criminal proceedings? This issue was at the heart of X7 v Australian Crime Commission [2013] HCA 29 (26 June 2013). The Court split 3-2.

The primary question for the Court was, put broadly, whether provisions (Div 2 of Part II of the Australian Crime Commission Act 2002(C'th)) that empowered an examiner to interrogate a person, extended to questioning a person who was subject to criminal proceedings. If the provisions did have that effect, a further question of their constitutionality would arise. The majority held that the provisions did not authorise examination of a person who was subject to criminal proceedings, so that the constitutional question did not arise.

The "right to silence" – not mentioned in the relevant legislation - could be thought of as a general expression, encompassing the right of a defendant not to answer questions put by the police or other persons in authority, and the right of a defendant not to be compelled to give evidence or to assist the prosecution in discharging its onus and burden of proof. That is broadly how the minority, French CJ and Crennan J, described the defendant's rights at issue here [39]-42], although they also mentioned – and recognised the importance of - the defendant's right to a fair trial [37]-[38].

The majority, Hayne and Bell JJ jointly, with Kiefel J concurring, drew from the accusatorial nature of a criminal trial the "right to silence" and the related "privilege against self-incrimination", applicable to defendants and suspects respectively [100]-[102], observing that although historically of relatively recent origin they are fundamental features of the accusatorial system of criminal justice [100], [102].

Whether a statute might, by necessary implication, compromise those features of the accusatorial process, depends on how much weight one is prepared to give them. The majority held these features are out of reach of implied compromise. They held that such an alteration would need to be made "clearly by express words or by necessary intendment" [118]-[119], or – Kiefel J – "must be expressed with irresistible clearness" [158].

The minority said [43] that a compromise of one of the two aspects of the right to silence that it had identified, while the other was left intact, was a legislative balance struck here between competing public and private interests. The minority found that a legislative intent to achieve this balance could be implied from the legislative history and the context of the provision in the overall Act including its provisions that protect defendants [24]-[30], [52]-[61].

Recognising that a trial must be fair, and that compelling a defendant to answer questions or to give opportunities for the obtaining of derivative evidence, could not be reconciled with a fair trial [54], the minority pointed to the existence of powers to suppress publication of evidence, and to control who was aware of the evidence, in order to protect the fairness of a trial, calling them safeguards that are capable of preventing an unfair burden on a defendant [57]. A trial judge's powers to prevent an abuse of process and to punish for contempt are also available to protect the fairness of proceedings [38], [59].

The majority denied that it was basing its reasoning on considerations of fairness, saying that the determinative question in this case was one of construction of the legislation [90]. Recognising that the requirement to answer questions after being charged would fundamentally alter the accusatorial process – which includes pre-trial inquiries and investigations (Kiefel J at [160]) - because the defendant would have to choose at trial a course in the light of any self-incriminatory answers that may have been compelled, and that this would prejudice the conduct of the defence [124], it held that such a result could only be achieved by clear words or necessary intent [125], which were absent in the legislation here [142].

Looking at this case in the round, one could say that, despite the majority's disavowal of fairness as the decisive criterion, the difference between the judges illustrates inconsistent perceptions of what "a fair trial" means. For the majority a fair trial is one in which the defendant may make decisions as to the conduct of the defence without being constrained by information he was compelled to provide to officials, or by information obtained as a consequence of his being under that compulsion. The minority, referring in general terms to the judge's powers to prevent abuse of process [38], only say that prosecutorial reliance on compelled information would be unfair [54], and they do not say how a judge would determine that the prosecution had obtained "an unfair forensic advantage" [59].

Current exploration suggests that an element of a fair trial is impartial determination of the facts, and impartial here means both without bias and without inappropriate weight being given to any item of evidence. Constraints on the presentation of a defence, arising from compulsory interrogation, endanger the appropriateness of the weighing of the evidence by the fact-finder, and thereby endanger the fairness of the trial.

Legislated schemes for compulsory interrogation vary, as one would expect, and can include a right to claim privilege against self-incrimination coupled with a right to refuse to answer a question (subject to judicial review), as does s 138 of the Search and Surveillance Act 2012 [NZ], although in that regime failure to answer questions outside of a claim of privilege appears to be an offence: s 173. In X7 the defendant was told he had a privilege against self-incrimination but he did not have an associated right to refuse to answer questions [12]-[13]. He subsequently claimed privilege and refused to answer questions, which was an offence.

Dissent on the Fifth Amendment, helpful judgment writing, and the permanence of grades

Pre-trial, non-custodial, silence by a voluntarily cooperating person, during police questioning, was the subject of a prosecutor's invitation to the jury to draw an inference adverse to that person who was subsequently the defendant, in Salinas v Texas USSC No 12-246, 17 June 2013.

The intricacies of the law on the Fifth Amendment can be left with people in the United States of America, although they are not particularly difficult. Surprising it is, therefore, to see the Court split: the majority, comprised of a plurality of Alito J, joined by Roberts CJ, and Kennedy J, with a concurring opinion by Thomas J, joined by Scalia J, appear to have all agreed that the defendant had not invoked the Fifth Amendment, and that without invocation the prosecutor was free at trial to invite an adverse inference from the defendant's silence. Thomas and Scalia JJ did not discuss invocation because they considered that a more direct solution was to ask whether the prosecutor's comments were in breach of the Fifth Amendment by compelling the defendant to give evidence, holding that the comments did not. But they did not disagree with the plurality reasoning, as Thomas J says in his first paragraph: " ... even if he [the defendant] had invoked the privilege ...".

The minority, Breyer J joined by Ginsburg, Sotomayor and Kagan JJ, held that express invocation of the Fifth Amendment is not required, and that invocation can be inferred from the circumstances, with it also being relevant to ask whether there is good reason to excuse the individual from referring to the Fifth Amendment, such as "inherent penalisation simply by answering."

The case makes me think of two general matters:

The organisation of the opinions is helpful to readers and could be followed by other appellate courts. The dissenters refer to points in the majority's reasoning with which they disagree, and they state why. Then – and this is the significant point – the majority in footnotes refer to the minority's points of criticism and answer them. The reader is left with a complete account of the debate, rather than having points left hanging.

The other thing is about the marking of student's examination papers. What if a contentious issue, such as that in Salinas, was the subject of an examination question before it was determined by the Supreme Court? Some students, like some of the justices of the Court, would reason to one conclusion, others to the opposite conclusion. The ones who agreed with their teacher's opinion would perhaps – indeed, would probably – get better grades that the others. But the teacher might be wrong. Once the teacher's error is revealed by a final determination of the highest appeal court, should the examination grades be re-assessed? The grades may have been very important for the students, denying some of them scholarships or employment prospects. Undergraduates and graduates are usually members of a university, and perhaps their university should have a duty of care to its members to get its grading right and to correct errors whenever they may be revealed. Why should an incorrectly marked examination paper produce a permanent grade?

When trials do not have to be “according to law”

Does a trial always have to be "according to law"? No.

Being in accordance with the law is not a sufficient condition for a lawful conviction. If an appellate court finds, in the facts of the case before it, circumstances that should amount to a new defence, and if the court then proceeds to recognise and define that new defence, we would expect the court to apply the newly recognised defence to the appeal before it and to allow the appeal against conviction. In such a case the trial was not according to law, in the sense that the defence was not applied, even though at the time of the trial the defence was not recognised and the trial was according to the law as it was then understood to be. Here, the trial although according to law, was defective.

Neither is being in accordance with the law a necessary condition for a lawful conviction. If an appellate court decides that a previously recognised defence has been incompletely defined, and that now, because of the circumstances revealed in the appeal now being considered, an additional matter is an ingredient of the defence, what should we expect the court to do? Should it apply the newly recognised ingredient to the present case and dismiss the appeal against conviction because at trial the defence had not included the new ingredient? Or should it say that the new law applies to future trials, but this one is to be judged according to the old law? Usually, where the substantive law is changed, a defendant has the benefit of whichever version is more favourable to him. So we would expect the appellate court to say that the old law applied to this trial. If the court does the opposite, and says that the new law applied to this trial even though it was then unknown, the court is saying that the trial could result in a valid conviction even though it was not in accordance with the law as it was at the time of the trial. This latter is what happened in R v Gauthier, 2013 SCC 32 (7 June 2013).

At issue in Gautier was whether there had been sufficient evidence at trial to give a defence of withdrawal from participation (what Canadians call abandonment) an air of reality sufficient to require it to be left to the jury. This turned on what the ingredients of the defence were. Fish J, dissenting, shows that the majority have added a new ingredient in relation to aiders and abettors – the taking of reasonable steps to negative the effect of participation – to those that had previously been identified, namely an intention to withdraw, communicated unequivocally to the other participants. Indeed, the majority do not conceal the development of the defence that they are now undertaking: [38], [49]-[50].

The majority applied the new ingredient of the defence to the trial it was considering, and held that there was insufficient evidence of the taking of reasonable steps to negative participation: [62]-[64].

This means that the trial was not in accordance with the law that the Supreme Court was now recognising, but which was unknown at the time of the trial, yet the trial resulted in a valid conviction.

The rule of law requires that the law be ascertainable. This should mean that a person should be tried according to the law as it was ascertainable at the time of the alleged offending. See, for example, PGA v The Queen [2012] HCA 21, discussed here on 30 May 2012 (and referring to Christian v R (The Pitcairn Islands) [2006] UKPC 47 at [24], R v Rimmington [2005] UKHL 63 especially at [33], and Rogers v Tennessee, 532 U.S. 451 (2001)).

Another aspect of Gauthier is reliance on inconsistent defences. There is no rule against this, and all defences, whether raised by the defendant or not, for which there is sufficient foundation in the evidence, should be considered: majority at [34], Fish J agreeing at [97]-[99]. A "sufficient foundation" exists if there is evidence to give the proposed defence "an air of reality", in the sense that the evidence is reasonably capable of supporting the inferences necessary for the defence to succeed: majority at [60], and Fish J at [100] ("some evidence upon which a properly instructed jury could form a reasonable doubt").

Modifying, or applying, the law

Appellate courts sometimes have to extend, modify, or reshape existing law to recognise matters of public policy. More usually, they merely apply existing law. These contrasting roles are illustrated in two recent decisions of the Supreme Court of the United Kingdom.

When a statute is silent on the matter, how is a court to decide whether evidence should be ruled inadmissible because the way it was obtained departed from prescribed procedures? One criterion can be whether the error can be corrected by further investigation. If the test that was done destroyed a sample that cannot be replaced, the result of the test should be inadmissible.

This criterion was mentioned in Public Prosecution Service v McKee (Northern Ireland) [2013] UKSC 32 (22 May 2013). The difference between an unrepeatable test and a repeatable one is discussed at [13]-[15]: a sample collected by a breathalyser device is unrepeatable unless an error is immediately apparent (the machine fails to work properly), so if it is later discovered that an unapproved device was used the result is inadmissible. But if, as in this case, an unapproved electronic device was used to read the defendant's fingerprint, the error could easily be checked at any time by the defendant providing another sample for analysis by, for example, an independent expert. Where opportunities exist for checking a result by repeated testing, an error in the initial procedure should not require the initial result to be held inadmissible.

Well, one might wonder what has happened to the burden of proof here. The policy behind this shift is indicated at [17], and it seems that if the fingerprint was inadmissible here the implications for other cases would have been unacceptable, with limitations on the ability of the police to prove crimes and on the opportunities for defendants to exculpate themselves.

But still. Was the executive wasting its time when it made an Order for the prescribing of procedures for electronic reading of fingerprints? Has the prosecutor in effect asked the Supreme Court to repeal the procedures that were eventually prescribed? Could the Northern Ireland police in the relevant period (1 March 2007 to 12 January 2010) have used any fingerprint reading device they wished to? Apparently yes, for there was no approved device for the first two years of that period [3]. Obviously there was great pressure on the Court to find a solution and avoid the need for retrospective legislation.

Another recent decision of the Supreme Court of the United Kingdom finds the Court exercising its less adventurous function, that of applying established law, on two matters: when, for the purpose of measuring delay, is a person charged with an offence, and when does apparent bias exist arising from judicial comments adverse to the defendant: O'Neill v Her Majesty's Advocate (No 2) (Scotland) [2013] UKSC 36 (13 June 2013).

The law on when, for this purpose, a person is charged was established in Ambrose v Harris, Procurator Fiscal, Oban (Scotland) [2011] UKSC 43 (6 October 2011), discussed here on 7 October 2011. On the facts of O'Neill the defendants were well aware, at the time they now contended was when they were charged, that the police did not intend to charge them. They were like the defendant in Cadder v HM Advocate [2010] UKSC 43, discussed here, but without reference to the facts, on 27 October 2010, and absence of access to legal advice at that time was irrelevant because the defendant's knew their rights and exercised them [35]. So the first interviews, years before the later ones which was when the defendants were charged, was not the one from which time ran for the purpose of determining whether there was unreasonable delay in bringing them to trial.

As to apparent bias, in O'Neill there were two trials: the first involving alleged sexual abuse and the second, the following week, murder. After the jury at the first trial convicted them the judge said to the defendants: "...it is clear that you are both evil, determined, manipulative and predatory paedophiles of the worst sort." The same judge presided at the second trial. The Supreme Court referred to the established law on apparent bias [47], [49], including Helow v Secretary of State for the Home Department [2008] UKHL 62 (22 October 2008), discussed here on 23 October 2008, and held that here the judge had done no more than it was his duty to do [53]-[55]. The comments were not gratuitous and were within the scope of the proper performance of the judge's duties, as a risk assessment was required and the defendants were entitled to some indication of what sentence they might expect. Importantly, no-one involved in the trials raised at the relevant times any objection to the judge's conduct:

"[56] ... the fair-minded and informed observer would take account of the fact that it did not seem to occur to those with the most obvious interest to do so, or their advisors, that the judge had trespassed beyond the proper performance of his duties when he commented on the appellants' character."

New book: Criminal Procedure in New Zealand

Those of you who need to pay attention to the criminal law of our small but picturesque country should be interested in a new textbook, shortly to be published by Brookers – Thomson Reuters:
Criminal Procedure in New Zealand

By Professor Jeremy Finn, Don Mathias, and Ron Mansfield.
It was written in anticipation of the commencement of the Criminal Procedure Act 2011 on 1 July 2013.

Getting good policy past the Fourth Amendment

Maryland v King
USSC No 12-207, 3 June 2013 illustrates how interpretations of the Constitution of the United States of America can distort perceptions of what is reasonable search. The Supreme Court split 5-4 over whether a statute was in breach of the Fourth Amendment's prohibition of unreasonable search insofar as it permitted the taking of a buccal swab from a person arrested for a serious offence, for DNA analysis and comparison with samples from the scenes of unsolved crimes.

The opinion of the Court was that this was reasonable and not a breach of the Fourth Amendment.

The dissenters, whose opinion was delivered by Scalia J, reasoned that the Fourth Amendment has always prohibited search without probable cause, and as the legislation in question permitted the search without even suspicion of the commission of an offence other than that for which the person had been arrested, it purported to authorise search without probable cause. The only relevant reason the challenged aspect of the statute allowed the taking of this sample was for comparison with DNA from unsolved crimes.

The majority held that a person who has been arrested may be searched, and that such a search is not based on probable cause but rather on reasonableness. Here the taking of the sample was reasonable because it involved minimal intrusion and the use of the DNA was a proper law enforcement interest. What the statute authorised here was not relevantly different from obtaining the fingerprints of an arrested person.

It is difficult to see how obtaining a buccal swab from an arrested person and using it for DNA analysis and comparison with DNA from unsolved crime scenes could be objectionable. There are competing interests: the arrested person's privacy, and society's need to promote law enforcement.

The privacy interest here could be analysed into two parts. First, the intrusion involved in providing the sample. This is relatively trivial and has little weight. Second – potentially far more important – the risk that a false positive match will be reported in circumstances where the analysis cannot be repeated because the sample from the crime scene is no longer available for further analysis, combined with the circumstance of the person not being able to rebut the false match with robust evidence of alibi. The coincidence of those two circumstances would be highly improbable, and this second part of the privacy interest should also be given little weight.

Society's interest in law enforcement reflects equality under the law. It is unfair that some offenders should go undetected while others have to face justice. In return for obeying the law we are entitled to insist that everyone else obeys the law. It is true that convictions of the innocent threaten equal justice, so the law must ensure they are kept to a minimum and when they occur redress is made. But overall it seems uncontroversial that society's interests outweigh the privacy interests of the arrested person in this situation.

Identification of the better policy is not difficult; the problem for the Court was to make that policy compatible with the Fourth Amendment.

The trend of legislation concerning the taking of body samples for DNA analysis is to diminish privacy rights. For example – and no doubt your own legislature has done this – in New Zealand the Criminal Investigations (Bodily Samples) Act 1995 has, over the years, been amended to increase the range of offences, arrest for which can trigger the taking of a sample. Amendments have also permitted the making of compulsion orders by officials of lesser rank than had originally been required. The general reduction of recognition of individual privacy rights has also occurred in relation to search and surveillance, with the threshold for most searches being reduced and there also being some reduction in the rank of the official who may authorise the activity. We are also authorising our security agency to gather intelligence (spy) on more people within our country than previously.

To clothe these thoughts in respectable garb, one reaches for a book and, seemingly by chance, comes upon Jacob Bronowski's The Ascent of Man (1973). In Chapter 13 he said this:

"It is a tightrope that man walks, between his desire to fulfil his wishes, and his acknowledgement of social responsibility. ... We devise ethical strategies or systems of values to ensure that what is attractive in the short term is weighed in the balance of the ultimate, long-term satisfactions."

It seems that society accepts that individual privacy must increasingly yield to the needs of law enforcement. That is the climate of our times, and reasonable people do not place their own privacy interests above more pressing societal concerns. There must, however, in the context of DNA sampling, be adequate safeguards against erroneous convictions.

There are concerns with legislation that follows this pattern. What if the person was arrested wrongly, or was subsequently acquitted, but his DNA was found to match a sample from an unsolved crime? An innocent person would then have been subjected to the risk of incrimination that should more properly be borne by the convicted. And, more generally, why is this sort of legislation directed at finding matches only with unsolved crimes; shouldn't it also be developed to serve as a check against wrongful convictions of other persons? Can't a DNA sample be used to exonerate as well as to incriminate?

Pragmatism and lawfulness

State of NSW v Kable [2013] HCA 26 (5 June 2013) is a reminder of the law's foundation in pragmatism. To make the legal system serve its purpose of providing orderly resolution of conflicts, it is necessary that the orders of a court be treated as effective unless and until they are overturned on appeal. There would be chaos otherwise [39]-[40].

So an order of a court for detention of Mr Kable was effective even though the legislation on which it was based was subsequently held unconstitutional. The order had not been set aside during the period of his detention, and his detention was pursuant to lawful authority of the order. He had not been unlawfully imprisoned. The officials who enforced the court order were right to do so.

Leaving that decision to one side for the moment, we can reflect on other instances where the law has to be pragmatic. A judge, or any other official who makes legally binding rulings, may appear to be doing so in a routine way, until someone points out that he was improperly appointed. He did not lawfully hold the office he appeared to hold. What then of all the decisions he had made?

But an official's appointment need not appear to be routine. A usurper may seize power, as in a military coup, sack the judges and "appoint" new ones. Life must go on. Ordinary legal problems must be resolved, ordinary laws need to remain enforceable. The uncontroversial orders of the obviously unlawfully appointed judges need to be obeyed, simply to avoid a worse breakdown of the social order.

One way to determine the de jure validity of the acts of de facto officials is to ask whether the person was in fact competent to exercise the jurisdiction in question, and whether the act of the official ought to be recognised. Are there circumstances of reputation and acquiescence, sufficient to colour the appointment and the acts with validity? See, for example In re Aldridge (1893) 15 NZLR 361 (CA) where a person had been appointed to a non-existent judicial office and his appointment had been held by the Privy Council to have been invalid: Buckley v Edwards [1892] AC 387. The authorities concerning officials who appeared to have been validly appointed, but weren't, are reviewed in State v Carroll 38 Conn. 449 (1871). As to officials who have obviously been unlawfully appointed, and where colour of right does not apply, see Honoré, "Allegiance and the Usurper" [1967] Cambridge LJ 214, and for the law's need to take into account revolutions or coups d'etat, Madzimbamuto v Lardner-Burke [1969] 1 AC 645 (PC). See also Jarrett, "De Facto Public Officers: The Validity of Their Acts and Their Rights to Compensation" 9 Southern California Law Review 189 (1936), and Brookfield, "The Courts, Kelsen, and the Rhodesian Revolution" (1969) 19 University of Toronto Law Journal 326.

Old stuff, discussion of which has no doubt been the foundation of many academic careers. I only mention it here because I am being nostalgic. Basically it is all about when and how the law should catch up with reality. The answer is not necessarily confined to whether the official was validly appointed or whether the law was valid.

So too in Kable, the question was more complex than mere validity of the law: [22]. The position, long established in Australia, is that "the orders of a federal court which is established as a superior court of record are valid until set aside, even if the orders are made in excess of jurisdiction (whether on constitutional grounds or for reasons of some statutory limitation on jurisdiction)" [32]. The effect given to the order that was made without jurisdiction comes from the status of the court, not from the invalid legislation, and the effect of the order continues until it is set aside on appeal [36]. Here, the order detaining Mr Kable had been set aside by the High Court in 1996, but that was after he had been released from custody.

This was an unsuccessful action for damages for false imprisonment. Mr Kable's position may be likened to that of a person who has served a sentence of imprisonment but whose conviction was subsequently quashed. The remedy, if there is one (and states make their own – pragmatic - arrangements to deal with these situations), is not an action for damages in tort for false imprisonment, for the imprisonment was lawful.