Tuesday, September 25, 2018

When "must" a jury find a defendant guilty?

It is wrong for judges to compose, for use by juries in reaching verdicts, question trails that include directions that a verdict of guilty must be returned. For example, a question might take the form, “if [this question is answered “yes”] find the defendant guilty.”

Why is this wrong? A jury may be told when they must acquit, but never that they must convict. This is a safeguard against unconscionable prosecutions, where, although strictly speaking, the jury might be satisfied that the prosecutor has proved all the necessary elements to establish guilt, nevertheless it would be morally wrong to find the defendant guilty. The safeguard is so important that it is sometimes described as having constitutional importance. I have discussed this on 20 December 2013, here, and see also my note of 27 October 2006, here.

Yet it is wrong, at common law, to mention this option to the jury. Counsel cannot ask the jury to ignore the law. The law allows, but does not refer to, conscience verdicts. The subject belongs to jury-room discussion, into which a court will not inquire (as distinct from some aspects of jury-room discussion that might be the subject of judicial inquiry, for example to ascertain whether the jury has been improperly influenced).

Little appears to be known at the bar about conscience verdicts. [Update: see the references in S (SC 36/2018) v R [2018] NZSC 124 at [76], noted here on 22 December 2018.] For example, in De Soto v R [2018] NZCA 366, where the appeals were properly dismissed, no one raised the issue about the form that the question trail had taken. I do not suggest that any consequence followed from this in the circumstances of this case, as there does not appear to be anything about it that would raise a moral question about the appropriateness of findings of guilt. So the omission was not an error, and counsel may well have considered the point but correctly decided not to raise it in this particular appeal.

I just have a niggle with the question numbered 8 in [15] of De Soto: why is the instruction, in the event of an affirmative answer, to go on to question 9? The questions follow those set out in Ahsin v R [2014] NZSC 153 at [140], but they are put in the way designed to emphasise the Crown's burden and standard of proof. Ahsin requires a reasonable possibility that each of the following exist: demonstration of withdrawal, steps to undo encouragement, those steps being all that reasonably could have been done, and those reasonable steps having been taken in a timely way. Absence of a reasonable possibility that any one of these requirements has been met is sufficient for the defence to fail.

Also of interest in De Soto is the availability of the defence of withdrawal when a defendant is charged with importation of a drug, notwithstanding that the defendant may have been a principal offender through instigating the importation by placing an order with an overseas supplier.