They say we can't, but we say we can! Fairness trumps logic in the Privy Council.

Every judge dislikes constraints on jurisdiction that impede justice. One can be confident about that.

In our legal system – and perhaps in yours too – the greatest jurisdiction is given to the senior trial court, the High Court, while the appeal courts, the Court of Appeal and the Supreme Court, have jurisdiction that is limited by statute.

You might think that it would be sensible to give the final appeal court the greatest jurisdiction. But no, that is not the way that the legislature has decided to distribute jurisdiction. Admittedly, an appeal court should not need original jurisdiction, so that difference is understandable. But once an appeal court has a case before it, it should be able to do anything that another court could lawfully do.

Yesterday the Privy Council riled against a jurisdictional constraint and turned its face, by a majority, against a logically irrefutable limitation on its jurisdiction to order commutation of a death sentence to life imprisonment: Ramdeen v The State (Trinidad and Tobago) [2014] UKPC 7 (27 March 2014).

Justice overrode logic. The appeal was against conviction, and after lengthy delays during the course of judicial process [conviction 29 July 2008, appeals dismissed in T&T 26 February 2010, leave to appeal to the Board granted 18 March 2013, this appeal heard 23 January 2014], it was dismissed by this Board. Should the death sentence stand, notwithstanding that it had not been appealed? The prosecutor indicated no enthusiasm for its imposition.

Lord Toulson, with Lord Kerr [49], [58], [59] and, separately, Lord Neuberger [68], agreeing, held that the Board was seised of the criminal proceedings as a whole once it granted leave to appeal against conviction, and that as it was satisfied that carrying out the sentence would be unlawful in view of the inhumanity caused by the delay, it had the power to order commutation instead of requiring further proceedings to be brought on that issue. Fairness and convenience both pointed to this conclusion [69].

Lord Mance, with whom Lord Sumption agreed, dissented on logical grounds. They had no doubt that the appellant’s ordinary remedies in Trinidad and Tobago would be forthcoming.

Can technology make extradition for trial unnecessary?

If you need clarification of disclosure obligations in the context of extradition proceedings involving the “record of case” procedure, Dotcom v United States of America [2014] NZSC 24 (21 March 2014) should be of assistance.

The decision of the Court is in the joint judgment of McGrath and Blanchard JJ (delivered by McGrath J), the concurring judgment of William Young J, and the partially concurring judgment of Glazebrook J. See [153], [172], [177], [191], [194]; [213] – [217], [221] – [223], [228].

Where legislation permits a slightly more relaxed approach to treaty obligations, so that there is more room for fairness, the dissent of Elias CJ, and the partial dissent of Glazebrook J deserve consideration.

The central concept is the “duty of candour”, pursuant to which a requesting state must disclose to the defendant any information that [152] “destroys or very seriously undermines the evidence” on which the requesting state relies (adopting Lord Bingham in Knowles v Government of the United States of America [2006] UKPC 38, [2007] 1 WLR 47 at [35]).

Enforcing this duty of candour, in the absence of judicial powers to make orders, requires the court to rely on the candour of a party that may well not want to be candid. Of course the judges didn’t put it like that [177]:

“We accept that there will be exceptional cases where an extradition judge might want further information to be sought from the requesting state. Such concerns will usually be resolved through dialogue between the Court and counsel. In cases where that does not meet the perceived need, we also accept the view expressed in [Norris v Government of the United States [2008] UKHL 16, [2008] AC 920 at [107]] by Lord Bingham that where the relevant extradition treaty provides for government-to-government requests to be made for additional information or evidence, as art 12 of the Treaty does, that formal procedure may be availed of. The Court should inform counsel for the requesting party that the Court wishes to receive further information from the requesting state. Counsel must then bring the matter to the attention of the appropriate New Zealand Ministers so that a decision on whether to request the further information through diplomatic channels is made and given due effect.”

The weakness in this legislated scheme is obvious. The “state” seeking extradition is really a group of people whose jobs are to be prosecutors. They have allegiance to their country. They believe they have right on their side. So-called “states” do not treat each other with candour: if they did there would be a lot of unemployed spies.

Is the meaning of a “fair” extradition hearing different from the meaning of a “fair” trial? Fairness in extradition hearings requires impartial determination of the facts – in the sense of giving the evidence appropriate weight and determining issues without bias – in deciding whether a prima facie case has been established by the requesting state. There must be evidence, summarised in the record of case (where that procedure applies), on every element that the prosecutor would have to prove at trial. None of that evidence can be so unreliable that no fact-finder would accept it. The defendant must be able to challenge the reliability of the evidence, and that may require access to information that only the prosecutor may have. The prosecutor may be unaware of weaknesses in the case for extradition, or may not appreciate the magnitude of a possible weakness.

There is a point on which one might have reservations about the reasoning at [161] of the joint judgment (and concurred by William Young J at [228]). Disclosure, the judges seem to be saying, is not required when the defendant has independent knowledge of the facts. But the difficulty with this is that disclosure enables the defendant to know how the prosecutor intends to prove the facts needed to establish a prima facie case. It doesn't matter what the defendant knows, it's what the prosecutor knows, and how that knowledge was obtained, and whether it is admissible as evidence, that the defendant needs disclosure of, to challenge the assertion that there is a prima facie case.

It seems obvious that the statutory scheme for extradition where the record of case procedure is used does not meet the requirements of a fair hearing, because of constraints on disclosure of the prosecutor's case and the requirement that courts accept - although on a supposedly "rebuttable" basis - the candour of the prosecutor. You could hardly get a clearer example of the legislature requiring the court to take a biased stance. Yet the majority judges don't accept this. In considering whether the scheme complies with the requirements of natural justice [193], [229], [239] they - in effect - explain why it doesn't then they say that it does.

If there are questions about the power of the legislature to require courts of justice to act unjustly, resort will be had to the inherent powers of the court to act in the interests of justice. Elias CJ and Glazebrook J seek to advance this principle. The majority refer [181] to the court's ability to refuse extradition after a "meaningful judicial assessment of whether the evidence is sufficient to meet the threshold of a prima facie case", and the word "meaningful" may, one may speculate, encompass cases where there is a judicial sense that unacceptable unfairness has occurred.

Lord Devlin said something sensible in Connelly v DPP [1964] AC 1254, 1354, which I quoted in an article that, for reasons that now nearly escape me, I called "Criminal Equity" [2000] New Zealand Law Journal 427, a copy of which is available here.

In these times of technological sophistication, when trials do not really require the presence of defendants, or often even of witnesses, because they can participate remotely by audio visual links, extradition may only be necessary when a person is required to be present in court for sentencing.

Have you tried marine biology?

I’m told that there are some people who need to use little untruths to advance their chance of romantic success.

The most famous example I can think of is George Kostanza in Seinfeld, 5^th season, episode 14: “The Marine Biologist”. Being thought of as a marine biologist did indeed enhance George’s prospects, but it also led to a call to action of another sort.

In R v Hutchinson, 2014 SCC 19 (7 March 2014) Mr Hutchinson’s untruth was of a more mundane kind: it came down to saying, “This is a really good condom.”

In fact he had put pin pricks in it, hoping to make his partner pregnant but knowing she did not want that. The result was she did become pregnant.

Had the complainant consented to the sexual activity?

The Court was unanimous in dismissing the appeal, but for differing reasons. The majority said yes, she had consented but her consent was vitiated by the dishonesty. Consent had been given to the sexual activity in question, and consent does not have to extend to the conditions or qualities of the act, such as birth control measures. However there was dishonesty which resulted in serious bodily harm [67] – [70], and this constituted the fraud that vitiated consent.

The minority said no, there was no consent ab initio, because use of the condom was part of the sexual activity and the complainant had the right to determine how she was touched, how the sexual activity she engaged in was carried out. It was not necessary to look for a vitiating factor such as fraud, as there was no consent from the beginning.

The majority found some difficulties with the minority reasoning [45] – [53]. How are the boundaries of the sexual activity, the nature and quality of the act, defined?

If a complainant had thought she was being propositioned by a marine biologist (this is my example, not the Court’s), and if she wouldn’t have had sex with the real George, would she be consenting to the ensuing sexual activity? If so, would her consent be vitiated by fraud?

My goodness! Is that a gun?

For what would be accepted in the common law world as a conventional analysis of secondary liability insofar as it applied to the facts of Rosemond v United States, USSC No 12-895, 5 March 2014, see the judgment of the Court delivered by Kagan J (with significant agreement by Alito J, joined by Thomas J, in dissent).

It is the point over which the dissent occurred that is of interest to you and me.

The relevant offence was double-barrelled: committing a drug dealing offence, while in possession of a firearm. Does the secondary party, who assists or encourages the offence, have to help with both the dealing and the firearm possession? No disagreement here: it is only necessary that the defendant provides assistance or encouragement with some part of the offence. Does the secondary party have to know of all the circumstances – both the dealing and the firearm? Again, no disagreement: the defendant must know of all the circumstances of the offending.

But what if the defendant, present during the commission of the drug dealing, only becomes aware of the firearm after it is too late to withdraw from participation? The defendant may not be able realistically to say, “Everyone stop! No guns!” because that might risk the safety of other people or even of the defendant himself.

Here the dissenters say this is like the affirmative defences of duress or necessity: the defendant is saying he can’t withdraw because of forces beyond his control. He should, according to the relevant law (not universally applicable), have to prove those defences. They do not negate an element of the offence.

The majority disagreed with that (slip op, p 10 footnote 10). The question is one of fact: what did the defendant intend to assist or encourage? Evidence that he only learn’t of the firearm after the drug deal had commenced would be relevant to whether he intended to assist or encourage the firearm possession. His continuation with his participation could be consistent with him encouraging the gun element, or not: that is a matter the fact-finder would have to determine (see slip op, p 13, footnote 9). The prosecutor must, when such issues are raised, prove the necessary intent without a burden of proof passing to the defendant.

Defences like duress or necessity could, on relevant facts and subject to local law, be available, and again, subject to local law, may only require the defendant to raise them as live issues by pointing to some supporting evidence.

Normally, aside from in offences that include a proscribed purpose, the law does not concern itself with the motive behind an intention; Robin Hood was a thief. Where an intention existed because the defendant faced circumstances that it would be beyond normal human fortitude to endure, a defence of necessity might be available. But not necessarily. This is where policy limits on justifications and excuses operate. In Rosemond the Supreme Court majority lowered the moral hurdle for defendants by allowing a motive for an intention to limit responsibility even though the stricter requirements of an affirmative defence would not be satisfied.

I doubt that this would be a universally acceptable recognition of human frailty.

Hidden defences and concealed charges

Defence lawyers are familiar with the difficulty of deciding how to make the best of one defence while not losing a fall-back defence in the event that the first is unsuccessful. You can’t credibly build a case that “My client didn’t do it, but if he did he was forced to, but if he wasn’t he did it in self defence, but if he didn’t it was an accident.” Plainly the defence case is that the defendant didn’t do it. The judge, on the other hand, may have to consider evidence that if the defendant did do it, he acted in self defence, or that some other defence appears on the evidence to require to be considered.

“Discharge of the trial judge's role in ensuring fairness to the accused requires that the jury receives instruction on any defence or partial defence, provided there is material raising it, regardless of the tactical decisions of counsel [Footnote: Pemble v The Queen [1971] HCA 20; (1971) 124 CLR 107 at 117-118 per Barwick CJ.]. Among other things, this recognises the forensic difficulty of relying on inconsistent defences. The tactical decision not to rely on a defence or partial defence, whether objectively sound or otherwise, does not relieve the trial judge of the obligation to instruct the jury on how on a view of the facts a defence or partial defence arises.”

James v The Queen [2014] HCA 6 (5 March 2014) joint judgment at [31], and see Gageler J at [69].

Another aspect of the judge’s duty to ensure a fair trial for the defendant comes into play when a separate issue arises: should the judge leave open the opportunity for a conviction on another offence that may, on the evidence adduced at trial, have been committed? That is, by way of an alternative verdict. For example, a defendant may argue on an appeal against conviction that the trial court did not have the opportunity to consider a lesser offence in respect of which it may have preferred to find the defendant guilty.

In James the jury had found the defendant guilty of intentionally causing serious injury. There had been an alternative count of recklessly causing serious injury. On appeal he argued that the jury should have had the opportunity to consider the lesser offence of intentionally causing injury (that is, ordinary old injury). The defence case at trial had been that the defendant had caused the injury accidentally.

A tactical decision had been made at trial not to seek the alternative verdict of intentionally causing injury.

The defendant was understandably not, at trial, saying “It was an accident, but if it wasn’t I didn’t appreciate the risk of injury, but if I did, I didn’t mean to cause injury, but if I did, I didn’t mean it to be serious injury.” He wanted the jury to reject the serious allegation and to acquit him outright, without bothering itself over whether he may have committed the lesser offence.

On the facts of this case, where a car had allegedly been used to cause the injury, the majority, French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ, held that there had been no unfairness because it would be artificially subtle [47] to expect the jury to distinguish between an intent to cause serious, as opposed to ordinary, injury, and that the defendant could not have been prejudiced by the omission an alternative verdict [48]. Gageler J dissented on this issue. He regarded the distinctions between the degrees of injury as something that the jury could have considered when determining the defendant’s state of mind [88]. Since the defendant could have been convicted of the lesser offence, he concluded that there had been a substantial miscarriage of justice in not leaving it for the jury’s decision [89].

The judicial approach to alternative verdicts is summarised by the majority [37]:

“ ... At a trial at which neither party seeks to rely on an included offence, the trial judge may rightly assess that proof of the accused's guilt of that offence is not a real issue. In such an event, it would be contrary to basic principle for the trial judge to embark on instruction respecting proof of guilt of the included offence ... .”

But Gageler J considered [71] that the relevant statutory environment required the judge to direct the jury on alternative offences

“ ... whenever it was open on the evidence for the jury to find the accused not guilty of the offence charged but guilty of the alternative offence, unless the giving of the direction would be unfair to the accused in the particular circumstances of the case.”

He observed that this was consistent with the common law as stated by Lord Bingham in R v Coutts, discussed here on 21 July 2006.

The majority, however, put the focus on the real issues in the trial, assessed in the light of the prosecutorial decision as to what charges to prefer:

“[33] ... Where the prosecution does not seek the jury's verdict for an offence not charged, the circumstance that in law the evidence may support conviction for a lesser offence does not without more make guilt of that lesser offence an issue in the trial. Fairness in such a case may favour that the accused's chances of outright acquittal on the issues joined not be jeopardised by the trial judge's decision to leave an alternative verdict.”

And

“[37] ... The view that it is the duty of the trial judge to invite the jury to determine the accused's guilt of an included offence at a trial at which the prosecution has elected not to do so is incompatible with the separation of [the judicial and prosecutorial] functions. It is not the function of the trial judge to prevent the acquittal of the accused should the prosecution fail to prove guilt of the offence, or offences, upon which it seeks the jury's verdict. ...”

That is to say, judges shouldn’t be surrogate prosecutors. It is for the prosecutor to say at trial, and at a stage of the trial when it is fair to do so, whether conviction is sought for any included offence.