Friday, October 21, 2016

Proving propensity

Propensity evidence is evidence about the defendant’s conduct, not directly connected to the presently alleged offending, but which shows a propensity to act in a way that is relevant to an issue now before the court. To what, if any, standard must propensity be proved before it can be used in the process of determining the facts on the present allegation?
The United Kingdom Supreme Court has held that propensity must be proved beyond reasonable doubt before it can be taken into account in fact-finding: R v Mitchell (Northern Ireland) [2016] UKSC 55 (19 October 2016).
The Court noted that the common law had not settled this question, and legislation only covered admissibility, not standard of proof.
New Zealand common law has taken the position, almost as a mere assumption, that no particular standard of proof of propensity is required, but that instead admissible evidence of propensity is just circumstantial evidence that can be considered with all the other evidence in determining guilt on the present charge. For example, see R v Guy (1996) 13 CRNZ 589 (CA). And if the defendant had been previously charged with offending that would be evidence of a relevant propensity, but had been acquitted, evidence of the facts supporting that earlier allegation can, notwithstanding the acquittal, be given to prove the propensity: R v Degnan [2001] 1 NZLR 280, (2000) 18 CRNZ 319 (CA).
Is there necessarily an inconsistency here with Mitchell? That case only requires the propensity, not the evidence of it, to be proved beyond reasonable doubt. Its effect is that the method for determining facts if propensity evidence is relied on is to consider all the admissible evidence of propensity, to assess it and to decide whether propensity is proved beyond reasonable doubt. If it is, then it may be taken into account with the evidence of the present allegation. If it is not proved to that standard it must be ignored. It is not mixed with the other evidence in the case when the fact-finder is deciding whether there is a propensity.
This is inconsistent with the New Zealand approach. See for example R v Holtz [2003] 1 NZLR 667, (2002) 20 CRNZ 14 (CA), discussed here on 14 October 2004, where no standard of proof is required except for an ultimate conclusion of guilt. It is sufficient (at [39]) that the fact-finder “conclude” or be “satisfied” that the evidence of propensity establishes the relevant propensity. There the Court “rejected a general requirement that pattern or the like must be found beyond reasonable doubt before similar fact evidence may be used”.
The Mitchell rule requires the fact-finder to ignore evidence that is in reality highly probative. The judicial consideration of a variety of solutions to this problem in HML v The Queen [2008] HCA 16 (discussed here on 26 April 2008) was not mentioned in Mitchell. In Mohammed v R [2011] NZSC 52, [2011] 3 NZLR 145, (2011) 25 CRNZ 223 (discussed here) the focus was on other aspects of how juries should be directed on propensity evidence, so this point may still be open.

Tuesday, September 27, 2016

Error and injustice

In Booth v R [2016] NZSC 127 the Court changed the interpretation of the Parole Act 2002 to make some prisoners eligible for release earlier than they had been under the law as it had been understood and applied.

The Court did not decide whether any prisoners should get compensation.

When considering whether compensation should be given, there are several categories of prisoners to look at:
  1.      .     Some prisoners were released the day after Booth was decided.
  2.      .     Others will be released as soon as inspection of their files reveals that they should be released under Booth.
  3.      .    Other prisoners will have their release dates re-calculated in compliance with Booth.
  4.      .    And some prisoners have served their sentences under the law as it had previously been understood to have been, but if Booth had been applied to them they would have been released earlier.

Plainly, category 3 prisoners will be released on their correctly calculated dates and will not have been imprisoned longer than the law now permits. Compensation is not an issue for them.

Compensation is a live issue for category 2 prisoners whose release is delayed because of the time needed to ascertain their eligibility for release under Booth.

Less obvious, but still in my view fairly clear, is the position of prisoners in categories 1 and 4. These prisoners have all been in custody for longer periods that the law under Booth allows. But were they unlawfully detained? They were detained in compliance with the law as it had been understood to have been under a Court of Appeal decision (Taylor v Superintendent of Auckland Prison [2003] NZCA 159; [2003] 3 NZLR 752 (CA).) That case was not appealed (an appeal would have had to go to the Privy Council) and it was a long-standing precedent.

Does a change in the interpretation of legislation have retrospective effect? Courts have an inherent power to limit the retrospective effect of their decisions: Cadder v HM Advocate (Scotland) [2010] UKSC 43 at [58]. In Jogee and Ruddock v R [2016] UKSC 8 at [100] the principle of finality in litigation was referred to in the context of (what may be seen as more fundamental) the issue of convictions obtained under law which was subsequently held to have been wrongly understood:

“ … where a conviction has been arrived at by faithfully applying the law as it stood at the time, it can be set aside only by seeking exceptional leave to appeal to the Court of Appeal out of time. That court has power to grant such leave, and may do so if substantial injustice be demonstrated, but it will not do so simply because the law applied has now been declared to have been mistaken. This principle has been consistently applied for many years.”

And in the same paragraph the Court added:

“Likewise in Mitchell (1977) 65 Cr App R 185, 189, Geoffrey Lane LJ re-stated the principle thus:

“It should be clearly understood, and this court wants to make it even more abundantly clear, that the fact that there has been an apparent change in the law or, to put it more precisely, that previous misconceptions about the meaning of a statute have been put right, does not afford a proper ground for allowing an extension of time in which to appeal against conviction.”

It is not the change in law that is the decisive point, but it is whether an exceptional substantive injustice can be demonstrated by a prisoner whose sentence was served under the old understanding of the law. Here the exceptional and substantive injustice is the detaining of prisoners in the Booth category for longer than they should have been as a result of not counting all their time on remand as part of the sentence served. Those who were released on parole at the earliest opportunity have therefore been detained for longer than was lawful because a proper allowance for time served was not made when calculating their parole eligibility dates. Similarly, those who were not released on parole but who had to serve their sentences until their statutory release dates were detained for longer than they should have been if the miscalculation of credit for time spent on remand meant that their statutory release dates were later than they should have been. It can not matter for this seriousness of impropriety that the unlawfulness was only recently discovered: the fact that the officials were obeying the misconceived understanding of the law is irrelevant.

That seems to me to be the legal answer. The policy answer will depend on the weight to be given to finality in litigation as against the need to ensure that those who enforce the law obey the law, particularly in relation to people - prisoners - who are otherwise without remedy against institutional abuse of power. Their vulnerability became entrenched at a time when the final appeal court - the Privy Council - was, as a matter of practicality, out of their reach. I think the policy answer will be consistent with the legal answer, that retrospective effect of Booth will be acknowledged, and that compensation should be paid. There will still be arguments about whether compensation can be given without discriminating in favour of those prisoners whose offences did not have victims, because of the Prisoners' and Victims' Claims Act 2005.

Thursday, August 04, 2016

Good to get that settled?

Ah yes, another report on the Bain case. I have added some comments to an earlier post (15 December 2012).

Saturday, April 02, 2016

Extended common purpose - correcting the common law on secondary liability

Well, interweb, if I’m going to do a post this year I had better get on with it.

Extended secondary liability has received attention on this site before, on Dec 22, 2011, and Dec 18, 2006.

The Privy Council, in a judgment delivered jointly with the Supreme Court of the United Kingdom, has corrected a long-standing (30 years) error in the law of this form of liability: R v Jogee [2016] UKSC 8 (18 February 2016).

The change, reverting to what had been the correct position, is that a secondary party must always intend that the offence be committed. The error had happened when the Privy Council gave judgment in Chan Wing-Siu [1985] AC 168. The Board had held that under the extended form of secondary liability intention is not required, but instead only foresight that commission of the offence is a probable consequence of the prosecution of an unlawful common purpose.

This is explained extremely clearly by Francis FitzGibbon in the London Review of Books, Vol 38, No 5, 3 March 2016.

Embarrassingly, the blame for all this is attributed to the then Sir Robin Cooke (later, Lord Cooke), who delivered the Board’s judgment in Chan Wing-Siu. If one is to place the blame in that way, one must assume that the other members of that Board were asleep: Lord Keith of Kinkel, Lord Bridge of Harwich, Lord Brandon of Oakbrook, and Lord Templeman. None of them tugged at Sir Robin’s sleeve and said “hang on a minute mate” (or whatever the equivalent English expression was).

From where did Sir Robin get his misunderstanding of the common law? As a New Zealand judge he would have been familiar with our s 66(2) of the Crimes Act 1961, which is the provision for this form of liability. An early interpretation of the (not materially different) predecessor of this - s 90(2) of the Crimes Act 1908 - was that the secondary party had to intend the commission of the foreseen offence: R v Malcolm [1951] NZLR 470, 485 line 33 (CA) where there is only a brief comment "Subsection 2 of s 90 requires a common purpose" [emphasis added]. However that was criticised in an influential textbook, Criminal Law and Practice in New Zealand (2nd ed FB Adams, 1971) at para 664, where it was said that “the whole point of s 66(2) [is] that something is done which may have gone beyond the common primary purpose.”

So, contrary to Malcolm, s 66(2) has subsequently (at least) been understood to mean that the secondary participant need not intend the commission of the offence, but that only foresight of it as a probable consequence of pursuit of the common purpose is required.

Regardless of why the mistake may have been made and why it had gone unnoticed for decades, the common law is now that intention is required. Foresight of a risk is evidence of intention, not a substitute for it. Can a provision like s 66(2) be interpreted consistently with that? I think it can. A “common intention to prosecute any unlawful purpose, and to assist each other therein” refers to a range of intended offences. Otherwise, the subsection would have said “common intention to commit an offence”. The phrase “known to be a probable consequence of the prosecution of the common purpose” functions to keep liability within the bounds of what was intended.

[Update: The Supreme Court has declined to modify the interpretation of s 66(2) to bring it into line with Jogee: Uhrle v R [2016] NZSC 64 (13 June 2016).]

[Another update: The High Court of Australia has refused to revise the common law insofar as it applies in Australian jurisdictions, and will not bring it into line with Jogee: Miller v The Queen [2016] HCA 30 (24 August 2016).]