On the evidence: the verdict in Lundy

Don’t let me fall into the trap of getting into an argument about the Lundy verdict. By verdict I mean the verdict reached by the Supreme Court justices.

I don’t think an appellate court should ever have to reach a verdict. But when it does, it can illustrate how fact-finding should rationally be undertaken.

Appellate courts usually consist of three or more judges, and differences are settled by majority vote. The defendant at a jury trial that has gone wrong may therefore end up being convicted by a majority in the appellate court. Twelve jurors or two judges – which would you prefer?

That’s the broad picture. In Lundy the Supreme Court mentioned the Court of Appeal’s point that this was a case which did not turn on the credibility of witnesses [85]. If it had been, no doubt the Court would have recognised that it was at some disadvantage because it did not hear and see the witnesses, and the disadvantage might – although not necessarily - have been such that it would not be proper for the appellate judges to try to reach a verdict.

When appellate judges reach verdicts, the right to a jury trial is limited. This was recognised at [34], where the Court refers to observations of the High Court of Australia in Weiss v R [2005] HCA 81 at [30]. Essentially, and if I might be cynical for just a moment, this means that the right to a jury trial is a right to an attempt at a lawfully conducted jury trial.

This was an entirely circumstantial case. So was Bain, and we remember how the Privy Council rejected any temptation to come to its own verdict. Even with the apparent change in approach brought about in Matenga (being more permissive of appellate court verdicts), the Privy Council said that the result in Bain would have been the same. So this whole area invites controversy.

Objections to the Lundy verdict focus on the alleged unreliability of evidence that stains on Mr Lundy’s shirt contained central nervous system tissue (“brain tissue”). Let’s put that evidence to one side, and consider what the verdict would have been without it.

The presence of Mrs Lundy’s DNA in the shirt stains was incontrovertible. The stains were not tiny: 25mm x 10mm, and 30mm x 20mm (noted at [75]). They were visible. I doubt that most people would wear [strictly on these facts, have possession of] a shirt with that staining, especially as it contained blood. And, how common is it to have blood of that quantity and from one’s partner on a shirt that has continued to be worn? Even supposing that 20% of people wear shirts with such staining – and I take this as an absurdly high occurrence in favour of the defence – this evidence strongly favours the prosecution case.

Attention then turns to the other evidence: motive, timing of food consumption, the neighbour’s observation of the open door, the fuel consumption and odometer evidence, the surprising absence of DNA evidence in Mr Lundy’s car or at the motel, the apparent staging of the burglary, the paint, and the child victim’s blood specks on Mr Lundy’s shirt. Taking all that together could firmly support the prosecution case, or weakly support the defence case, depending on the various likelihoods that fact-finders could reasonably attach to the various items of evidence.

If this other evidence in combination firmly supported the prosecution case it would be reasonable to conclude that Mr Lundy was guilty (remembering that this is ignoring the brain tissue evidence). If it weakly supported the defence case, then guilt could not be proved on the (generous to the defence) assumption that 20 per cent of people have their partner’s blood on their shirts to the extent that Mr Lundy did. If this figure is “only” 10 per cent, then guilt would be proved beyond reasonable doubt.

How do we know? This is Bayesian reasoning with conditional probabilities. Never mind if you don’t employ that somewhat mathematical approach, because common sense should tell you the same. [1]

The brain tissue evidence resulted in considerable expense and delay in the proceedings, and you could wonder whether the prosecution was over-egging its pudding. But it didn’t know whether the defence was going to have a ready answer to the DNA presence in the stains. This could be seen as a compliment to the skills of defence counsel, but we could wonder whether, in seeking to prove its case to a certainty rather than merely beyond reasonable doubt, there was (to pursue another culinary metaphor) unnecessary icing on the cake.

What if the appeal had been heard under the new appeal criteria? How would the evidence be analyzed if the court simply had to ask itself whether the error at trial had created a real risk that the outcome of the trial had been affected? The error was material to one chain of evidence: stain – CNS tissue – (mRNA) – Victim1. Taking out this mRNA chain, the remaining chain was: stain – blood – DNA – Victim 1. Did the removal of the mRNA chain significantly weaken the link between the stain and Victim 1?
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[1] Oh alright, for you maths buffs: If the defendant was innocent, a huge coincidence had occurred: blood from each of the two victims was on his shirt. Such little information as there is online about transfer of blood to clothing suggests that about 3 per cent of people have blood from someone else on their clothing. This is much lower than the figures I assumed above. The ratio for the likelihood of the prosecution hypothesis to the likelihood of the defence hypothesis, the probability of finding the match given each hypothesis, would therefore be, for each of the blood sources (ie, the victims), 1 to 0.03, or 33.3 to 1. Combining these gives 33.3 x 33.3 = 1108.89 to 1. Assume, generously to the defence, that before considering this evidence we might expect that the probability of guilt compared to the probability of innocence could be, say, 0.2 to 0.8. This ratio is what is called called "the priors" combined with the other evidence in the case. On the blood evidence, and given this priors-in-combination assumption, the combined ratios are 1108.89 / 4 to 1 = 277 to 1. That is the ratio, given this evidence, of the probability of guilt to the probability of innocence. The probability of guilt would therefore be (converting the ratio to a fraction) 277 / 278 = 0.99. That is proof beyond reasonable doubt, on the basis of the assumption that was generous to the defence. Some people say, but you have just guessed at the priors, the whole thing is too subjective, where is the evidence? The answer is that the priors can vary a lot without having much effect on the result. If, instead of assuming priors combined with the other evidence of 0.2 to 0.8, we assume priors combined with the other evidence of 0.05 to 0.95 (very favourably to the defence, effectively an assumption of innocence), then the resulting probability of guilt after considering the blood evidence is 0.98. That is: (0.05 / 0.95) x 1108.89 = 58.36 to 1, so probability of guilt = 58.36 / 59.36 = 0.98.

Tempora mutantur nos et mutamur in illis - or do we?

Would the result in Lundy v R [2019] NZSC 152 have been the same if it had been determined under our current appeal provisions, s 232 of the Criminal Procedure Act 2011?

Applying the former law, the Supreme Court held that the wrongful admission of evidence at trial had not created a substantial miscarriage of justice because if the error had not occurred guilt would still have been proved beyond reasonable doubt, and the trial had not been unfair because the error was not fundamental. It was not necessary to consider the new law, or the extent to which the old law might be affected by the legislative change. But this is really the live issue for lawyers.

If the new law had applied to the Lundy appeal, s 232(4)(a) would be of central concern: did the error at trial create “a real risk” that the outcome of the trial was affected?

It is helpful to consider some dicta from the High Court of Australia in Baini v The Queen [2012] HCA 59. I have previously discussed this case here (December 13, 2012).  As a matter of interpretation, the Court had to ask what was the relevance of a former appeal provision (similar to our former one) to ascertaining the meaning of a new appeal provision. The new legislation considered in Baini is set out at [12], and although its form and language differs from ours, the difference is not presently material. The approach to its construction is described at [14]-[15]. The majority judges then made three observations:

At [29]:

“First, in many cases ... an appellate court will not be in a position to decide whether the appellant must have been convicted if the error had not been made. The nature of the error, irregularity or cause of complaint contemplated by [the legislation] will often prevent that conclusion from being reached by an appellate court on the record of the trial given the "natural limitations" [Footnote: See Dearman v Dearman (1908) 7 CLR 549 at 561; [1908] HCA 84; Fox v Percy (2003) 214 CLR 118 at 125-126 [23]; [2003] HCA 22.] that attend the appellate task.”

At [31]:

“If it is submitted that a guilty verdict was inevitable, an appellant need not prove his or her innocence to meet the point. An appellant will meet the point by showing no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt. As a practical matter, it will then be for the respondent to the appeal to articulate the reasoning by which it is sought to show that the appellant's conviction was inevitable.”

And at [32]:

“... the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open. (Whether the verdict was open is the question presented by [the equivalent of New Zealand’s s 232(2)(a)].) If it is said that a guilty verdict was

inevitable (which is to say a verdict of acquittal was not open), the Court of

Appeal must decide that question on the written record of the trial with "the

'natural limitations' that exist in the case of any appellate court proceeding wholly or substantially on the record” [Footnote: Fox v Percy (2003) 214 CLR 118 at 125-126 [23]]. That the jury returned a guilty verdict may, in appropriate cases [Footnote: See generally Weiss (2005) 224 CLR 300 at 317 [43]; Baiada Poultry Pty Ltd v The Queen (2012) 86 ALJR 459 at 466 [28]; 286 ALR 421 at 430; [2012] HCA 14.], bear upon the question. But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt [Footnote: cf R v Grills (1910) 11 CLR 400 at 431 per Isaacs J; [1910] HCA 68.] Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made.”

And at [33]:

“...an appellate court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a "... miscarriage of justice" if the appellate court concludes from its review of the record that conviction was inevitable. It is the inevitability of conviction which will sometimes warrant the conclusion that there has not been a ... miscarriage of justice with the consequential obligation to allow the appeal and either order a new trial or enter a verdict of acquittal.”

There would be no “real risk” that the outcome of the trial had been affected by the error if the appeal court could be satisfied that the verdict was inevitable. That was the position in Lundy. The result would have been the same under our new law. On this view, our new law would continue the practice of sometimes allowing appeal courts to effectively act in place of a jury. It will be important to identify whether a case falls into the category mentioned at [29] of Baini, as opposed to the category mentioned at [31], and to decide whether this classification is determined by the respondent’s tactic in argument.

But the other view, and the one which I prefer, is (developing what is said at [31] above) that once the appellant shows a real risk that the verdict was adversely affected by the error, it is for the respondent to dispute that; the issue is not inevitability, just real risk. The appeal judges do not act as jurors; they just decide the real risk issue.

Update: A year later, on 18 December 2020, the New Zealand Supreme Court decided how appeals against conviction based on alleged error relating to a trial (ie not those involving allegedly unreasonable verdicts, unfairness or nullity) should be approached. Effectively, the Court read-in a proviso: if an error that is not immaterial or inconsequential is identified, and if it gave rise to a real risk that the result of the trial was affected, then the appeal court must decide whether it is satisfied of the appellant's guilt. The appeal will be allowed, provided (my word) that it will be dismissed if the appeal court is satisfied of the appellant's guilt: [Name Suppressed] v R [2020] NZSC 153. This is not the approach I have preferred. It amounts to a trial by appellate judges, in the appellant's absence, without witnesses appearing, and in reliance on the record of the trial in the lower court.

All in the way you look at it

De Silva v The Queen [2019] HCA 48 (13 December 2019) is one of those cases in which, for an uninvolved reader, the dissenting judgment is just as persuasive as the majority’s. Not to worry, no doubt you had to be there.

In determining whether the judge’s directions to the jury had been wrong, the majority pointed to the absence at trial of any request for clarification of them from defence counsel (at [35]).

I can’t help wondering whether it is overly ambitious to place weight on counsel’s failure to point to a perceived error. Counsel, being well versed in the law, will tend to hear the judge say what the judge means to say, even if the judge hasn’t said it. When counsel knows what the judge means, it is very difficult to misunderstand what the judge says in the way that a jury may misunderstand it.

Only after the event, when there has been time for considered reflection on how misunderstandings may have arisen, might errors become apparent.

Still, the case has some useful general points. Nettle J (dissenting in the result) mentions the standard direction on beyond reasonable doubt (at [47]). The majority emphasise that directions to juries should not include unnecessary matters (here, whether a statement was made, when it was obvious from the recorded interview that the statement was made) [33], and a Liberato direction (in NZ we call this a tripartite direction [1]) can, depending on the issues and the conduct of the trial, be given even if the defendant’s version of events only comes into evidence via a statement given to the police [13].

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[1] R v McI [1998] 1 NZLR 696 (CA) at 708, cited in R v MacDonald [2009] NZCA 428, (2009) 24 CRNZ 785 at [2], and Hazelwood v R [2013] NZCA 406 at [47].

New hardcopy edition of Misuse of Drugs

As any intelligent person knows, it is better to read about drug offences than to commit them.

With that in mind, it can only be helpful for me to point out that the new hardcopy edition of my textbook Misuse of Drugs can now be ordered here.

Suspicion

If you ever thought statutory interpretation could sometimes be a bit puzzling, take comfort from the High Court of Australia’s struggle in New South Wales v Robinson [2019] HCA 46 (4 December 2019). The Court split 4-3, and did well to limit itself to two judgments.

Of more general interest, something to add to your collection of dicta explaining what “reasonable grounds to suspect” means, see [55] of the minority judgment.

As Clive James said ...

Now that rain has stopped play at Seddon Park, let me share some of my favourite Clive James quotes:

From The Meaning of Recognition – New Essays 2001-2005:

“ ... she was talking too fast to hear herself think.”

“... there is a lingering aesthetic sense that appreciates a tall, slim female form draped in a black linen pants suit underpinned with strappy high-heeled sandals for the shapely feet, the toenails painted with the blood of slain lovers.”

“The concept was too subtle for her to grasp. It turned out that she was a lawyer. She can attack me as often as she likes, but I hope to God that she never defends me.”

“Those of us who have lost our hair find it hard to suppress the suspicion that it has been stolen in the night by those who have kept theirs.”

“... I found Moby Dick a hard read ...”.

“... academic politics in all their bitchy intricacy ...”.

“... you have to admire a country so democratic that a mentally handicapped man can become President.”

“As all you women in the audience know, the amount of hair on top of a mature man’s head is governed by the amount of testosterone he secretes, but the proportion is not direct. The proportion is inverse. Testosterone attacks the hair follicles. It fries and shrivels them like noodles in a wok of acid.”

From Cultural Amnesia:

“One famous compulsive fabulist, the Jeffrey Archer of his time, never recovered what was left of his credibility after Molnár said: ‘He’s such a liar that not even the opposite is true’.”

“As I write, the elite is in its last phase, where it begins to forget the car keys through the effort of remembering the door keys.”

“The hardest trick in an Italian poet’s book is to avoid rhyme ...”.

“He was the sort of writer who said ‘microphone’ when he meant ‘loudspeaker.’”

“... I became a scolding bore on the subject of the Cinquecento. On the Quattrocento, less hindered by academic assistance, I was capable of the odd independent judgement ...”.

“... a shock, as if Jane Austin had forgotten to mention money.”

“Written in an age when it was still assumed that children would not suffer brain damage from hearing a phrase they couldn’t immediately understand ...”.

“... the flouncing kick-line of the post-modern intellectual cabaret.”

“Expressing oneself clearly is the most complicated thing there is.”

“Like literary theory at a later time, however, analytical philosophy was a hard game to get out of after you had started drawing the salary.”

Appellate review to identify miscarriages of justice in conviction appeals

If you were ever worried about whether conviction appeals under s 232(2)(c) and (4) of the Criminal Procedure Act 2011 are determined by way of review or by rehearing, relax. Just by looking at Misa v R [2019] NZSC 134 you can see that the appeal court does not try to reach its own verdict (as it would if an appeal were to be heard by way of rehearing), so the approach is by way of review.

Just a wee cautionary note: don’t be confused by s 78 of the Senior Courts Act 2016, which provides that appeals to the Supreme Court are heard by way of rehearing. It just means a rehearing of the appeal in the court below, which was by way of review: see Sena v Police [2019] NZSC 55 (discussed here) at [25, fn 41] (referring to an identical earlier provision).

True, the Court in Misa does not declare itself to be conducting a review of what happened at the trial, but its focus was on substance rather than terminology. In substance ([48]): “the question is whether the error, irregularity, or occurrence in or in relation to or affecting this trial has created a real risk the outcome was affected. That, in turn, requires consideration of whether there is a reasonable possibility another verdict would have been reached.”

The second sentence elaborates the first which is a repetition of the statutory language of s 232(4)(a). That is, “real risk” equals “reasonable possibility” and “was” equals “would”.

On the facts, the proposed new evidence would not have made any material difference, so there was no error, irregularity or occurrence in or in relation to or affecting the trial that created a real risk that the outcome was affected (at [77]).

This conclusion was reached, not by the Court considering the whole of the evidence and reaching its own verdict, but by identifying the defence strategy at trial and assessing the effect of the proposed new evidence on that (at [74]). The defence strategy was to allege collusion as an explanation of the similarity of the evidence of two prosecution witnesses, thereby undermining them both. It was not to create differences between the witnesses. In the circumstances the chosen defence strategy was sound, and there had been no error of trial counsel in using it. Further, the proposed new evidence was not inconsistent with evidence that had been given at trial and it raised no new issues (see [76] and its references to the jury’s perspective).

But, you may say, won’t the Crown usually oppose the appeal against conviction by arguing that the conviction was inevitable on the evidence, so that to address that argument the appellate court will have to come to its own verdict? In other words, rehear the case on the record of the trial? That this is not precluded was recognised in Wiley v R [2016] NZCA 28 at [44], [49].

The Court in Misa did not have to address this aspect of Wiley, which was upheld in other respects (at [36]-[37]). Instead of arguing that the verdict was inevitable, the Crown here submitted, successfully, that the new evidence was inconsequential.