When the right hand unfairly finds out what the left has been doing

If something can go wrong, it will, and there can't be many criminal defence lawyers who will be surprised that there has been a glitch in relation to compulsory interviews concerning proceeds of crime.

See the discussion of X7 v Australian Crime Commission [2013] HCA 29 here on 27 June 2013, and Lee v New South Wales Crime Commission [2013] HCA 39 here on 10 October 2013.

By oversight, transcripts in relation to which there had been a suppression order were released to the prosecution before a criminal trial in Lee v The Queen [2014] HCA 20 (21 May 2014).

This went to the fairness of the trial, because the prosecutor obtained information about how the defence might be conducted and was put in a position to prepare cross-examination in the event that the defendant gave evidence. This was a forensic advantage to the prosecutor for which there was no legislative authority and which undermined the fundamental premise of a criminal trial, namely that the prosecutor is not entitled to the assistance of the defendant in pursuing a conviction.

There was no occasion here for a policy balancing of interests, such as occurs when evidence is improperly obtained [51]. Here the issue was not admissibility, but abuse of process. There could be no thought of applying the proviso, as it were, and saying that there was no substantial miscarriage of justice, because here the trial had been unfair. This was an example [48] of the kind of "serious breach of the presuppositions of the trial" referred to in Weiss v The Queen [2005] HCA 81 (discussed here on, for example, 25 June 2007). 

A retrial was ordered.

Was the trial unfair? Not in terms of the definition that emerges from case law: a trial where the law is accurately applied to facts determined impartially. The case was not concerned with whether the legal elements of an offence were accurately applied to facts determined without bias or without improper weight being given to particular items of evidence. The issue was not substantive fairness, but procedural fairness.

Procedural unfairness can be thought of as a kind of abuse of process. Here it concerned a breach of a fundamental right. Attention is on what the officials did, not on what the defendant did.

Harmless lawbreaking by judges

There are times when judges fail to obey the law, in the conduct of trials, but that failure doesn't matter. For example, in Stout v R (British Virgin Islands) [2014] UKPC 14 (13 May 2014) the judge had not properly warned the jury about the dangers of reliance on hearsay evidence, yet, in the context of the trial, this did not affect the verdict and did not result in unfairness, and the Board upheld the conviction.

This does not mean that trial judges can ignore the law when they feel sure that the defendant is guilty and will be found guilty. The judicial oath requires of judges that they will administer and apply the law. The formal phrasing of the oath varies but typically contains the essential phrase "I will do right to all manner of people after the laws and usages of ... without fear or favour, affection or ill will".

So a judge who has failed to follow the law, but whose trial has survived an appeal, cannot simply relax in the coffee room and boast about getting away with it. The judge should feel a sense of shame and resolve to learn more about the law. And I don't know any judge who wouldn't.

The trial judge in Stout will learn that it is always necessary to explain to the jury that the absence of an opportunity to test the accuracy of the maker of a hearsay statement can be a significant disadvantage for a defendant [17]: 

"Hearsay evidence is indeed admissible, providing the necessary statutory conditions are met, and this evidence was admitted without objection. But it always suffers from the disadvantage that the jury cannot see the source of it and cannot see his accuracy tested. Of course, how far this disadvantage may affect the reliability of the evidence varies considerably from case to case, but it is important that the jury be confronted with the need to think about it."

And here there were two possible sources of error that the jury needed to be made aware of: the possibility that the original maker of the statement was wrong, and the possibility that the reporter of the statement was wrong.

"[17] ... The explanation or warning required is not of great complexity. In a case where the jury has seen other witnesses challenged and tested in their evidence it is usually simple to remind them of the process, to observe that a witness does not always leave the witness box with his evidence as secure as when he started and to invite them to remember that the hearsay evidence cannot be subjected to the same kind of examination."

There can be very good reasons why counsel in a trial may not object to the admission of hearsay evidence, as no doubt there were here - for example by using it to bring out inconsistencies in the prosecutor's case - but that does not absolve the judge of the responsibility to instruct the jury on the dangers and disadvantages of evidence of that kind.

Given that, as the Board concluded, the trial result was not affected by the judge's error, why was the trial fair if it was not conducted according to law? The answer is that none of the requirements of trial fairness were absent: the law (the elements of the offence of murder) was accurately applied to facts that were determined impartially. There was nothing in the trial that caused the jury to give inappropriate weight to any item of evidence to the extent that the jury could be called partial. Even if the jury had, as a result of not being adequately instructed on the dangers of hearsay evidence, given more weight than it otherwise would have to what the victim had reportedly said, there was sufficient other evidence in the case to make that error immaterial, in the sense that the same weight would have been given to the victim's statements in the light of other evidence.

Assessing reasonableness of suspicion

When can a tip-off provide the police with reasonable grounds to suspect that an offence has been committed? 

If the informant is not known to the police, what circumstances can provide sufficient assurance of reliability to establish reasonable grounds for this suspicion?

General rules providing for criteria of reliability may be difficult to apply uniformly in actual cases, and judges may differ in the same case, as is illustrated by the 5-4 split in Navarette v California, USSC No 12-9490, 22April 2014.

Thomas J and Scalia J differed here, the former giving the opinion of the Court and the latter the dissent. The central issue here was the grounds upon which the police stopped a vehicle on a road, which must be borne in mind in jurisdictions where the police can stop without grounds any vehicle for a routine licensing and roadworthiness check.

But more generally, Navarette illustrates how descriptions of requirements for reliability (was the informant an eyewitness, had there been time for fabrication of the report, would a false report carry risks that the informant would be called to account, did the reported facts indicate criminal activity, did subsequent police activity dispel the inference of reasonable suspicion?) can undermine the protection against unreasonable search when the facts are assessed.

Scalia J cogently reasoned that the police activity - following a suspected drunken driver for five minutes without observing anything irregular about the driving - dispelled suspicion. On his evaluation of the evidence there had been time for fabrication - "Plenty of time to dissemble or embellish" - and there was no evidence that the informant knew of any difficulties there may have been in locating her, and there could have been many innocent explanations for the driving behaviour she reported. Further, the driving was observed by the police to have been irreproachable and it gave rise to no suspicion of any criminal activity. A drunk driver cannot (necessarily) decide to drive carefully when he sees that he is under police observation.

The case focuses on the lawfulness of the stopping of the vehicle. A subsequent smelling of marijuana led to search and discovery of 30 pounds of that drug in the vehicle. The case is not concerned with the question of whether the evidence would be admissible if the search had been illegal. Here there was no police misconduct, but on the other hand the police should be deterred from relying on inadequate grounds for a search. Problematically, the distinction between belief and suspicion is difficult to apply in practice, and an erroneous belief that a suspicion is reasonably based can be a slight error compared to the public interest in detecting serious crime. Still, expansion of what is considered to be reasonable grounds for suspicion makes it less necessary to consider the admissibility consequences of police actions in good faith (Illinois v. Rodriguez, 497 U.S. 177 (1990), cited in Findlaw, Annotation 6 - Fourth Amendment, fn 224).

Dangerous indifference

Recklessness as to whether a complainant is consenting to sexual activity is not the same as recklessness as to why the complainant isn't consenting. The latter is not an element of the offence, whereas the former is, for offences defined in statutory provisions the same as or similar to those considered in Gillard v The Queen [2014] HCA 16 (14 May 2014).

Broadly, the legislation defined sexual offences that are committed in the absence of consent, and specified occasions where consent is deemed not to have existed, for example where consent has been caused by abuse by the defendant of authority over the complainant. Knowledge of the complainant's non-consent is sufficient for liability, as is recklessness as to whether the complainant consents.

In this context the High Court held that recklessness means indifference to the complainant's consent (applying Banditt v The Queen [2005] HCA 80). Here, indifference to whether the complainant consented was not to be equated to indifference as to whether an exercise of authority over the complainant may have caused a consent which the statute deemed not to be consent. Of course the existence of such authority could be evidence of the defendant's indifference as to whether the complainant consented, but that would depend on the circumstances.

Here the prosecutor, with the judge's apparent approval, had invited the jury to conclude that the defendant was reckless as to consent because he was reckless as to the cause of any apparent consent. That was incorrect reasoning and a new trial on the relevant counts was ordered.

Indifference here is not simply an emotional attitude. It is a state of mind warranting criminal liability when it causes harm. It is not merely being rash or lacking caution (see my comment on Banditt here on 24 January 2006, referring to Lord Bingham's dictum in R v G). It is a determination to have one's way regardless of the other person's wishes.

Paying for doing harm

For discussion of how to determine the amount of restitution (often in criminal law called reparation) a defendant should pay a victim whose online pornographic images he possessed, see Paroline v United States USSC No 12-8561, 23 April 2014.

The majority held that defendants should only be liable for the consequences of their own conduct, not the conduct of others. Courts must use discretion and sound judgment in fashioning restitution orders.

Roberts CJ, joined by Scalia and Thomas JJ, held that restitution could not be ordered here because the legislated standard for restitution left, in this case, the amount to be determined arbitrarily. Sotomayor J also dissented, holding that the legislation applied the tortious concept of liability of an individual defendant on a jointly and severable basis for the full amount of the victim's loss, and that accordingly an order for the full amount should have been made.