Legal
terminology at common law can change over time.
For example,
exclusion of improperly obtained evidence is decided by what used to be called
a discretion, but which is now called an application of judgement as a matter of
law. The difference between exercises of judgement and exercises of discretions
is not always easy to see. Bail decisions are currently called discretionary,
but who knows whether they might come to be called exercises of judgement?
The only practical
difference is in how they are approached on appeal. This difference has arisen
because, during the latter part of the twentieth century, the common law
developed powers of review, applicable to all decisions affecting people’s
legal interests including decisions of judges in lower courts.
On review,
the correctness of the method applied by the decision-maker is determined, and
this involves looking to see whether certain kinds of errors occurred. These
errors are: erroneous application of principle, wrongly taking into account
irrelevant matters, not taking into account relevant matters, or being plainly
wrong. If one or more of those errors occurred the review court will usually
remit the issue back for determination in the correct way, and only
occasionally will the review court be in a position to make the determination
itself. The review court acknowledges the advantages that the decision-maker
had in seeing and hearing witnesses, or in having special expertise in the relevant
subject.
Review
applies to discretionary decisions. What is usually called “general appeal”
applies to exercises of judgement. On a general appeal the court will, if it
finds that an error occurred, apply its own view of the appropriate outcome.
There has to be a demonstrable error, and this is called the error principle.
On general appeal the court can hear evidence if necessary, but usually the
evidence taken in the court below is sufficient.
There will
obviously be overlap between errors that qualify to come within the error
principle and errors that qualify for purposes of review. Nevertheless, as the
law currently is, the difference in the form of proceedings can lead to very
different outcomes resulting from the same sort of errors. This makes the
classification of a decision as either discretionary (review) or a matter of
judgement (general appeal) rather important.
The point I
am making from all this is that the common law can create distinctions which
are difficult to apply and yet which have serious implications as to outcome.
The decision
to exclude improperly obtained evidence (now a matter of judgement but it used
to be a discretion) had developed at common law but is now, in New Zealand,
governed by statute and therefore will be elaborated in case law. By “case law”
I mean judicial interpretation of legislation, as opposed to common law which
is entirely judge-made. There are other ways of using the term common law, but
that is what I mean. The admissibility of improperly obtained evidence is
determined by applying a relatively clear decision model. I mean that the model
is clear, even if the result of its application in individual cases may not be
easy to predict. This model is a balancing of factors favouring admission
against factors favouring exclusion, the result being assessed in terms of the
need for an effective and credible criminal justice system. This need could be
imagined as a sort of scale to indicate the consequences of where the balance has come to rest.
That model,
or method for making the decision, is conceptually clear, although only lawyers
and judges and people who have made a study of the subject are likely to have
sufficient knowledge of the case law to understand what the balancing factors
are and how the scale distinguishes between admissible and inadmissible
evidence by using precedent to establish markers for future reference.
But,
significantly for what I will say below, the factors favouring admission of
improperly obtained evidence are dominated by the seriousness of the alleged
offending in the particular case. Therefore it is important to have a clear way
of deciding what is a serious offence. At common law the criterion was that the
starting point for sentencing would be in the region of four years’
imprisonment. Subsequent case law has followed that, but in 2011 some doubt was cast on that in the Supreme Court, arising from a different view expressed by
at least one judge with probably some support from one other, although the
decision of the Court does not seem to have been intended to make a change that would require overruling a large number of decided cases. That different view was that
seriousness should be measured by the maximum penalty for an offence.
Over the last
few years in New Zealand the courts have been particularly concerned with how
to decide whether to stay criminal proceedings. One difficulty that seems to
have been avoided is deciding whether a decision to stay is discretionary or a
matter of judgement. It seems to be the latter, although before the difference
in terminology emerged the cases may well have called it discretionary. But
what is the model for making the decision?
There is no
statutory guidance on this. It is purely a common law matter. In Wilson v R [2015] NZSC 189 (14
December 2015) the model devised in England was used. Unfortunately this law
uses the term “discretion” in an historical sense from before the review powers
developed to the extent that they have, so that discretion here means an
exercise of judgement:
“[51] ... a judge considering a stay application was required to
weigh the countervailing considerations of policy and justice and then to
decide in the exercise of his or her discretion whether there has been an abuse
of process ‘which amounts to an affront to the public conscience and requires
the criminal proceedings to be stayed.’” [footnotes omitted, here and
in the extracts quoted below]
Blanch
though we may at the “his or her”, it looks as though this reference to
public conscience is to a scale, of the sort I mentioned above in relation to
improperly obtained evidence. Countervailing considerations are weighed against
this scale.
Important among
the balancing factors:
“[54] ... the gravity of the alleged offence was a factor of ‘considerable
weight’ for a court undertaking the balancing process to determine whether to
stay proceedings on abuse of process grounds.”
And, of great
interest in clearing up any confusion over how to assess the seriousness of the
alleged offending, it is the starting point for sentencing, not the maximum
penalty, that is relevant. This follows from, as it turns out, the majority’s
resort to what was really the model applicable to the admissibility of improperly
obtained evidence, and their description of the offending here as “moderately
serious” [92(a)] although it included supply of LSD (maximum life
imprisonment).
Unfortunately
the model for deciding stays was significantly muddled by reliance on the
following common law dictum:
“[54]
... ‘The central question for the court in all these cases is as to where the
balance lies between the competing public interests in play: the public
interests in identifying criminal responsibility and convicting and punishing
the guilty on the one hand and the public interest in the rule of law and the
integrity of the criminal justice system on the other. Which of these interests
is to prevail?’”
The majority
judgment in Wilson concluded on this:
“[60] ... when considering whether or not to grant a stay in a
second category case [that is, one where the fairness of the trial is not in
issue], the court will have to weigh the public interest in
maintaining the integrity of the justice system against the public interest in
having those accused of offending stand trial. In weighing those competing
public interests, the court will have to consider the particular circumstances
of the case. While not exhaustive, factors such as those listed in s
30(3) of the Evidence Act will be relevant, including whether there are any
alternative remedies which will be sufficient to dissociate the justice system
from the impugned conduct. In some instances, the misconduct by the state
agency will be so grave that it will be largely determinative of the outcome,
with the result that the balancing process will be attenuated. The court’s
assessment must be conducted against the background that a stay in a second
category case is an extreme remedy which will only be given in the clearest of
cases.”
This has
changed what should have been the scale into a balancing factor. Plainly the integrity of the
criminal justice system should be an absolute requirement, not something that
can be traded away in the interests of prosecuting serious crime.
Once that is
accepted it follows that the model that should be used here is not the sort of balancing where
two competing interests are measured against a scale, but instead it is a
movement along a single scale of magnitude, going one way or the other and
reaching a resting point on that scale. It is like a thermometer, not a
balance. It isn’t really weighing anything, just measuring the intensity of the
wrongful conduct of officials and seeing if that reaches a point where the
integrity of the criminal justice system is compromised.
I think the
Chief Justice was right (dissenting on whether a stay should have been ordered but agreeing in the result of the appeal),
to emphasise, uncontroversially,
“[121] ... the critical question is not the strength of the prosecution
evidence or the weakness of the defence, but the effect of the defect on the
legitimacy of the trial.
...
“[123] ... the critical issue ... was whether the trial could be
legitimate given the serious irregularity.”
However she
did not distance herself to any marked extent from describing the decision
model as one of balancing, and instead retreated from clarity by adopting a
rather flaccid dictum:
“[133] ... general guidance on how the jurisdiction is to be
exercised is not useful when ‘an infinite variety of cases could arise’.”
Decision models are designed to deal with an infinite variety of cases. Overall the
issue of whether a stay should have been ordered in this case, which seems to conclude the Antonievic
saga, came down to a vote count, without much clarity being given for future
guidance. The majority’s application of the law to the appeal is really a
retreat to the issue whether exclusion of the evidence was appropriate (using
the conventional balancing exercise applicable to that decision) and then a
recognition that the impropriety here did not go beyond what could
appropriately be remedied by exclusion of some of the evidence.
