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.