Justifying the "implied licence" exception to trespass

Sometimes the common law recognises that uninvited entry onto another person’s (the occupier’s) private property is not trespass. An implied licence is given, in some circumstances, to strangers to enter on private property to speak to the occupier. This usually, in the suburbs, involves going through a gate, walking up a path to the front door, and knocking. In a more urban environment it can mean just entering a vestibule and pushing a doorbell intercom. Or even just pushing a button if there is no vestibule. It is the existence of the gate, path and front door, or the bell, from which the occupier’s permission to enter is implied.

 

This common law implied licence can be revoked by an occupier. A sign prohibiting entry may be displayed. The person may be told to leave. The occupier may simply not answer the door knock or bell push. If the visitor does not leave, a trespass is committed.

 

The traditional justification for the implied licence has been protection of the occupier’s property rights against undesired entry by everyone else, including officials of the state. Whether an implied licence exists has traditionally been determined according to what the visitor is seeking to achieve by entering. This is because permission to enter would not be implied if the occupier would not have wanted to receive a visitor who had an adverse purpose. In this sense it is a subjective assessment.

 

For example, an implied licence would not authorise an official, entering without any legislated authority, to coerce an occupier to give information. But a purpose of seeking the occupier’s voluntary cooperation would be within the licence.

 

Some revision of the legal basis for implied licences has occurred. Under this revision, implied licences exist for pragmatic reasons, not because of what an occupier would want, but because of the way society works today. This is an objective justification for implying the licence to enter.

 

A consequence of this revision is that where the person entering has both a traditionally legitimate reason for entering (that is, a reason to which the occupier would not object) and a traditionally illegitimate reason (that is, a reason that is objectively reasonable although not one that the occupier would have been assumed to like), the entry is not a trespass but is protected by the implied licence, subject always to revocation. To both check on well-being, and if the circumstances arise, to compel release of information, can be within an implied licence: Roy v O’Neill [2020] HCA 45 (9 December 2020).

 

The Court split 3-2 on this. Two majority judgments were delivered, by Kiefel CJ and jointly by Keane and Edelman JJ. The joint dissenters were Bell and Gageler JJ. The dissent was on both the law and the interpretation of the evidence.

 

Bell and Gageler JJ summarise what I have called the traditional or subjective basis for an implied licence:

 

“[37] The implied licence to ‘knock and talk’ is accordingly confined by reference to the ‘purpose’ of the visit, in the sense that the status of an uninvited visitor as either a licensee or a trespasser depends on what the visitor is seeking to achieve at my home by walking up my path, standing at my doorstep and knocking on my door. If the purpose is just to talk to me, and in talking simply to ask for permission to come inside or to go elsewhere on my land or simply to ask for my voluntary cooperation in pursuing some inquiry, the totality of the conduct is within the scope of the licence. If the purpose is just to coerce me, the totality of the conduct is outside the scope of the licence; it is a trespass.”

 

 

And as to visitors with mixed purposes,

 

 

“[40] ... the answer lies in identifying the limits of the permission granted by the implied licence to ‘knock and talk’. The preferable view is that a police officer who walks up my path, stands at my doorstep and knocks on my door exceeds the limits of the permission granted by the implied licence, and is therefore a trespasser, if the police officer has any conditional or unconditional intention of ordering me to do anything. That view is preferable because it is clear and workable and because it is consonant with contemporary community expectations. At this stage in the development of the common law of Australia, it is an appropriate resolution of the ‘contest between public authority and the security of private dwellings’ [citing Kuru v New South Wales(2008) 236 CLR 1 at 15 [45], quoting Halliday v Nevill (1984) 155 CLR 1 at 9.]”

 

The objective basis for the implication of a licence to enter private property was put by Keane and Edelman JJ as being akin to a presumption:

 

“[67] ... it is based upon ‘an incident of living in society’ [citing Halliday v Nevill (1984) 155 CLR 1 at 19], ‘the reasonable requirements of society’ [citing Tararo v The Queen [2012] 1 NZLR 145 at 172; [2010] NZSC 157 at [15]], ‘the habits of the country’ [citing McKee v Gratz (1922) 260 US 127 at 136], or ‘background social norms’ [citing Florida v Jardines (2013) 569 US 1 at 9].”

 

 

Plainly, citation of those authorities makes it appear that what I have called the revised or objective approach is really long-established. However, in Tararo at [11]-[12] the joint judgment by Blanchard, Tipping, McGrath and William Young JJ points out that originally the licence was based on the implied consent of the occupier (that is, it was what I am calling subjective), and more recently, to accommodate such things as undercover police operations, a “more satisfactory legal basis” is that the licence is implied by law to permit entry for reasonable inquiry, subject to revocation.

 

The move from subjective to objective justification for implication of a licence to enter private property accommodates the “mixed purpose” visitor, subject to express revocation (Kean and Edelman JJ at [72]-[73]).

 

Kiefel CJ accepts the objective justification for recognition of implied licences (at [11]). The law implies the occupier’s permission as a socially desirable limitation on the law of trespass. Importantly, the purpose of entry must involve “no interference with the occupier’s possession nor injury to the occupier” (at [13], [16]).

When does the seriousness of offending "cut both ways" in improperly obtained evidence admissibility decisions?

You don’t need me to point out that the law loves its metaphors. Most of all, the metaphor of scales: decisions are often described as balancing exercises. Justice with her scales. So it is with s 30(2)(b) of our Evidence Act 2006.

 

A decision whether to exclude improperly obtained evidence requires careful and clear reasoning, for a refusal to take account of credible relevant evidence is a serious matter. Section 30(3) lists matters to which the judge may have regard, although this is not an exhaustive list. But the message is that particularity is needed when explaining whether improperly obtained evidence should be excluded.

 

One imagines, therefore, that various considerations fall on one side or the other of the metaphorical balance. Depending on the circumstances, they will be given varying weights, on the side of the balance that is appropriate.

 

The need for judicial decisions to be predictable, and not arbitrary, reflects the need for litigants to be able to anticipate the outcome of their arguments. The balancing exercise must be as consistent as possible between cases. Some factors will always be on one side of the balance (favouring admission of the evidence) while others will always be on the other (favouring exclusion).

 

All well and good, in theory. But in practice things have got a bit muddled. There has been confusion over whether the seriousness of the alleged offending is always a matter that weighs in favour, to varying degrees, of admission of improperly obtained evidence. You would expect that the more serious the alleged offending, the more likely it is that evidence will be admissible notwithstanding that it was improperly obtained.

 

But there is a limit to that. It has been said that seriousness of the alleged offending “cuts both ways”. This introduces a sword (or perhaps a pruning saw) metaphor to combine with the scales metaphor. Accordingly, it is said that seriousness favours admission of the evidence, but where the seriousness is high it weighs in favour of exclusion, because in serious cases there is a heightened public interest in having law enforcement officials obey the law.

 

Let’s examine that. Is it the seriousness of the offending that weighs in favour of excluding the evidence, or is it the heightened public interest in having enforcement officials obey the law? Is the public interest in having law enforcement officials obey the law greater, the more serious the alleged offending? Isn’t official obedience to the law just as important in ordinary cases? The more technical an offence, the stricter should be compliance with the law by the authorities, surely. Why should (and here’s another metaphor) the pot be allowed to call the kettle black?

 

The idea that “there’s more at stake for the defendant” when the alleged offending is serious has been offered as a justification for recognising a heightened public interest in official obedience of the law. But, isn’t the public interest in bringing alleged offenders to trial greater, the more serious the allegation? Why is the defendant’s interest in having officials obey the law greater when the defendant was allegedly disobeying the law in a serious way?

The balancing model demonstrates that a "cuts both ways" approach amounts to double counting. It is one thing to remove a weight from one side of the scales, and quite another to then put that same weight on the other side.

 

Given that it is always nice to have enforcement officials obey the law, there must be some instinctive resistance to accentuating that desirability in cases of alleged serious offending. This might explain why senior judges can differ in the outcomes of their balancing exercises in a given case.

 

For example, our Supreme Court split 3-2 on the admissibility of improperly obtained evidence in a case this year. It currently (as far as I am aware) is subject to suppression orders, so I just call it R v [Name suppressed] [2020] NZSC 16 (5 March 2020), and I avoid discussing its facts. The majority judgment of Winkelmann CJ, O’Regan and Brown JJ, includes the following, which is an account of the law which I summarised above:

 

“... As has been noted on many previous occasions, the seriousness of the offending is “apt to cut both ways” [Footnote: Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305, at [230] and [244] per Tipping J. See also R v Chetty [2016] NZSC 68, [2018] 1 NZLR 26 at [67]; and Underwood v R [2016] NZCA 312, [2017] 2 NZLR 433 at [38]–[41].] If the offending is serious, that favours admission. However, if the offending is serious and the nature of the impropriety raises issues as to the quality of the evidence, that will tend to favour exclusion. That consideration does not apply in this case. But even where the nature of the impropriety does not impugn the quality of the evidence, there remains public interest in the careful and lawful investigation of offences, particularly serious offences. [Footnote: Underwood at [38]–[41].] As Tipping J said in Hamed, citing the Supreme Court of Canada in R v Grant 2009 SCC 32, [2009] 2 SCR 353 at [84]:

 

... while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, it also has a vital interest in having a justice system that is above reproach, particularly where the penal stakes for the accused are high.” [1]

 

I think this makes the mistake of treating the decision criterion (the need for an effective and credible justice system – s 30(2)(b)) as if it were a balancing matter. The decision criterion is a constant, applicable to every admissibility decision under this section. It is always, and not just in cases of alleged serious offending, necessary to have a justice system that is beyond reproach. The balancing matters, in contrast, some of which are set out in s 30(3), vary in significance and some may not be relevant at all in the circumstances of a given case.

 

In dissent, Glazebrook J – if I may summarise broadly - thought it was significant that alternative lawful means of obtaining the evidence had been available (so any impropriety was not particularly serious), and that there were sufficient lawfully obtained grounds for the issuing of the challenged search warrant, so the evidence should have been admissible. No suggestion here of a heightened public expectation that officials should obey the law.

 

Ellen France J dissented – again I summarise broadly, and paraphrase - in the application of the balancing exercise, giving greater emphasis than had the majority to the nature of the evidence obtained and the seriousness of the offending.

 

So, while the majority included what I might call the ‘reverse cut’ (a cricketing metaphor?) in carrying out the balancing exercise, the minority judges did not. Its presence or absence does not account for the judicial differences in conclusion, but it would take a bold person to deny that it played a part.

 

We could avoid any complicated arguing over whether the seriousness of alleged offending can weigh in favour of exclusion of improperly obtained evidence by simply recognising that sometimes official impropriety is so bad that it will always lead to the exclusion of evidence obtained as a result of it. The reason for exclusion lies in the degree of the impropriety, not in the seriousness of the alleged offending.

________________________

[1] There is an irony in the endorsement of this point. The majority joint judgment in Grant approaches the judge’s task of deciding how to maintain the good repute of the administration of justice by setting out a three-branched decision “tree” (!, at [86]). These “branches”, or “avenues” (at [71]) or “lines” ([at [85]) of inquiry are (1) the seriousness of the impropriety, (2) the impact of the impropriety on the defendant’s rights, and (3) society’s interest in the adjudication of the case on the merits. This third branch or avenue or line excludes the seriousness of the offending, because that “has the potential to cut both ways” ([84]), so as to be an unhelpful consideration. Charter rights operate independently of the type of crime for which the defendant stands accused.  So Tipping J in the above passage was quoting what was really a criticism of inclusion of the seriousness of the alleged offending, in the course of explaining how it should be included with the potential of affecting both sides of the balance. Like Deschamps J dissenting ([223]) we approach the decision by way of two-arm test in which factors favouring admission are balanced against those favouring exclusion, and it would be preferable for us to treat the seriousness of the offending as a factor favouring admission without seriousness ever favouring exclusion (see Deschamps J at [226]). I have commented on Grant here on July 18, 2009.

Update: For a diagrammatic representation of the decision process under s 30, see this note (8 January 2021).

Upholding a defendant's right to silence

A judicial direction to a jury which conflicted with a defendant’s right to silence – by suggesting that silence may make it easier for the jury to accept the evidence of a complainant – led to an order for a retrial in GBF v The Queen [2020] HCA 40 (4 November 2020).

 

It didn’t save the situation that the judge had, earlier in the directions, put the position correctly, when later on the jury were given an incorrect pathway to conviction.

 

“[22] ... Notwithstanding the earlier directions, why would the jury not take up the trial judge's invitation and find that the complainant's allegations were more likely to be truthful and reliable by taking into account that the appellant had not given evidence denying them?”

 

Nor was this situation saved by failure of all counsel to seek a redirection on the point. Sometimes appellate courts say, well, the mistake wasn’t thought significant by counsel at the time, so overall it didn’t matter. Sometimes that assessment will be accurate, but not here.

 

The effect of the judge’s impugned statement was critical: it invited the jury to engage in a false process of reasoning. This made it a miscarriage of justice.

 

“[23] Such a process of reasoning is false because it proceeds upon a view that the accused may be expected to give evidence. And in an accusatorial system of criminal justice, which places the onus on the prosecution to prove the allegation that it brings, rare and exceptional cases apart, there can be no expectation that the accused will give evidence.”

 

Some people might experience a great temptation to brush over errors of the kind that occurred here, because this was a sex case and no one wants to have a retrial in a sex case. It can be useful to be reminded that the fundamental requirements of the law of criminal trials must be upheld.

Clarifying copyright offences on the internet

Just as I was wondering when our Supreme Court’s decision in Ortmann v United States of America [2020] NZSC 120 would be delivered, here it is today! You can’t be quicker than that.

 

Some people grumble at how rich people clog up the courts with their interminable litigation, but I don’t. We have had a lot of legal issues decided in these proceedings, simplifying the law for future would-be litigants.

 

Most of these proceedings are concerned with the law of copyright and its application in the digital, and specifically, internet, environment. Largely fit for purpose, at least in the context of the issues in this case.

 

The Supreme Court decision held that as far as the substantive law is concerned, the way here is clear for an order for surrender for extradition on nearly all of the charges. As far as procedural law is concerned – and there can’t be a finding of eligibility for surrender if the procedure by which that determination was made was faulty, unless the faults were inconsequential – there is more to be decided, and more submissions from counsel were called for.

 

Some alleged procedural failures had been targeted when the District Court decision went on review to the High Court ([2017] NZHC 189): a failure of the judge to give reasons, peremptory dismissal of applications, criticism of failure of the defendants to prove matters when no opportunity had been given, failure to address an application for stay of proceedings, the jurisdiction to consider stay applications, and the test for abuse of process and stay applications. On appeal, the Court of Appeal ([2018] NZCA 233) said most of these issues were considered in the substantive appeal, but to the extent that they remained procedurally relevant on review they were without merit. However, the Supreme Court needed to decide whether the procedural challenges remained live issues, and if so, in which court – Court of Appeal or Supreme Court - they should be heard.

 

It seems ([588]) that review issues remaining may include procedural unfairness and breach of natural justice, errors of fact, unreasonableness, application for a stay of proceedings, and the residual discretion to intervene arising from cumulative errors.

Update 22 February 2021: The Supreme Court remitted the case to the Court of Appeal, to determine what the issues were and to decide them: Ortmann v United States of America [2021] NZSC 9.

Update 12 July 2021: The Court of Appeal determined that there were no outstanding issues: Ortmann v United States of America [2021] NZCA 310. 

Inquiring into alleged juror bias

When and to what extent should an appellate court, on an appeal against conviction, inquire into an allegation that a juror was biased? Should an appellate court hear the evidence of the juror and allow cross-examination?

 

These issues of principle were decided in Rolleston v R [2020] NZSC 113 (reasons judgment delivered on 19 October 2020).

 

If the power to order an inquiry is not specifically provided for by statute, the court has inherent power to address irregularities in its process by such means as may be necessary in the interests of justice (at [20]).

 

Because of statutory limitation, evidence may not be given about the deliberations of a jury (intrinsic evidence), except in exceptional circumstances giving compelling reason to allow such evidence: Evidence Act 2006, s 76(1). This is the “secrecy rule”, discussed at [22]-[27].

 

However, extrinsic evidence (that is, evidence not involving the actual deliberations of the jury) will be admissible if it is evidence of disqualifying juror conduct or knowledge (at [29]).

 

An inquiry into whether one juror’s attitude to the defendant may have affected other jurors would be an inquiry into intrinsic jury deliberations and would need to clear the high threshold in s 76(3): see [31].

 

Whether an inquiry should be conducted depends on the interests of justice, which depend on the circumstances of the trial and the various fair trial safeguards to ensure a fair trial (at [34], the safeguards are summarised at [36]-[40]).

 

Allegations that, if true, would be inconsequential, trivial, or irrelevant, or that relate to evidence that would be inadmissible, are insufficient to require an inquiry (at [42]). Further, a conservative approach to ordering an inquiry may be appropriate to protect jurors from fishing expeditions unsupported by credible evidential narrative (at [43]).

 

But an inquiry will generally be in the interests of justice where allegations relate to extrinsic evidence and are sufficiently credible to suggest an inquiry could reasonably establish that there has been a miscarriage of justice (at [44]).

 

On the facts here an inquiry was appropriate ([47]). The authorities are unclear on whether, if bias was established, it would necessarily have infected the whole jury (at [48], but Glazebrook J held that it would have: [77]). In any event, the inquiry here, conducted by senior counsel who interviewed and obtained a signed statement from the juror, did not disclose any bias.

 

Cross-examination of a juror may be justified, but leave to cross-examine will be rarely given (at [60]). The interests of justice will again be the criterion, and cross-examination may be necessary where an inquiry is for some reason insufficient. For example, the credibility of the juror’s account may be directly in issue (at [61]), but that was not the case here.

 

Counsel’s report did not contain anything to suggest the juror’s statement may have been unreliable, and there was no real conflict on the essential questions (here: the juror was staring at the defendant's brother who was in the public gallery for most of the trial; the juror had been bullied at school three years earlier by the defendant’s brother). The juror’ statement and the brother’s affidavit were in agreement, but the juror said that during the trial he did not remember the bullying (at [63]). He did not associate the bully with the defendant. An independent observer, knowing all this, would not perceive a realistic possibility that the juror was not impartial (at [68]). There was no good reason to require that the juror be cross-examined (at [69]).

Vagueness, stays, and fast-track: three recent decisions

A cluster of interesting cases occurred this week.

 

Vagueness

 

On handling broad statutory definitions of offences, and broad descriptions of conduct that comes within such definitions, see R v Abdirahman-Khalif [2020] HCA 36. The ways of being liable for the full offence included what would normally count as preparation so as to restrict potential liability to the attempt.

 

Stays of criminal proceedings for misconduct by officials

 

No stay was justified in Smith v R [2020] NZCA 499, but the Court extensively reviewed the common law on this topic. The New Zealand court would not question the lawfulness of a deportation order made by a foreign court (here, in Brazil) of competent jurisdiction.

 

No fast-track of an appeal against an interim order for name suppression

 

In a minute the President of the Court of Appeal declined to fast-track the (second) appeal against an interim order for name suppression in Director of the Serious Fraud Office v ABC and DEF.

 

You have to laugh at this one. Refusal of fast-track rendered the appeal moot, as a hearing on the question of an order (as distinct from an interim order) for name suppression would soon occur (or not occur if an order was no longer sought).

 

Personally – and this is just me, as the point hasn’t been raised in these proceedings – I don’t think there is any right of appeal against the making of an interim order for name suppression. The main point of an interim order is to allow an opportunity for preparation of an application for an order, and who would object to that? The media, of course.

My reasoning: we should note the terminology in the relevant provisions of the Criminal Procedure Act 2011. The terms concerning suppression are “order”: s 200(1), which may be “permanent” or “limited” in term or period: s 208, and “interim order”: ss 200(4), 206.

 

A Registrar may make an interim suppression order: s 206(1). This section describes an interim order as being made “under s 200(4)”. Similarly, s 200(5) refers to interim orders made “in accordance with subsection (4)”. These usages are consistent with orders being distinct from interim orders: the former are made under s 200(1) and the latter under s 200(4).

 

As far as appeals are concerned, the media may appeal under s 283(2)(c), and this section refers to orders. The interpretation provision relevant to this is s 282, which defines (for the purposes of appeals) “suppression order” as an order made under, inter alia, s 200. Consistently with the usage relevant to s 200, this would refer to orders but not to interim orders. Significantly, there is no right of media appeal against an interim order made by a Registrar under s 206.

 

It would be absurd to say that the media may appeal against an interim order for suppression made by a Community Magistrate or a District Court Judge, but not against an interim order made by a Registrar. Accordingly, there is no right of media appeal against an interim order for suppression.

There is a small complication, arising from s 200(5), which allows a court to “renew” an interim order. That can only be done where the same grounds exist as for an order, so I would say that a renewed interim order is really a limited order. [1] It may be renewed by a Registrar, pursuant to s 206(4), which reinforces its difference from an interim order which a Registrar may only make once and not renew: s 206(2) and (3).

 

There is little assistance to be gained on this topic from the NZ Law Commission’s Report No 109 (22 October 2009) “Suppressing Names and Evidence”, although at [6.4] the Commission notes that a Registrar should not have the power to make an order for suppression, and at [6.52] the importance of the media’s ability to report on the administration of justice is recognised, with a recommendation that the media be given appeal rights in respect of orders. The Commission proposed ([3.7] and [3.71]) that there should be a special process for applications for interim name suppression, to allow parties the opportunity to obtain legal advice and gather supporting evidence to make an application for name suppression. The possibility of an appeal against an interim order was not considered.

 

Nor is there any mention of the possibility of an appeal against an interim order in the report of the select committee on the Criminal Procedure (Reform and Modernisation Bill) 243-2, the precursor to the Criminal Procedure Act 2011.

 

Well, wasn’t that interesting.

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[1]  Where the existence of a right of appeal is not in doubt, terminology tends to be used loosely, so that the expression “interim order” is used to include a limited order. See, for example, Standfast v R [2019] NZCA 666, a case memorable for its use of the splendid phrase “gangs and other religious groups” (at [35]).

Do you really want to be a judge?

Reading this article on the relative lack of diversity among New Zealand judges has made me wonder why anyone would want to be a judge. I write from the experience of having been a barrister in criminal law.

 

Do you really want to be a judge?

 

Consider the working conditions:

 

            Many hours spent sitting down ...

 

            ... in a poorly air-conditioned room ...

 

            ... probably with no opening windows ...

 

            ... full of people none of whom want to be there ...

 

            ... not everyone being free of contagious illness ...

 

            ... hearing tales of woe and nastiness ...

 

            ... listening to lawyers ...

 

            ... making predictable submissions ...

 

            ... poised to catch you out on any error and appeal your decision ...

 

            ... having very limited freedom of choice about what to decide ...

 

            ... few sentencing options ...

 

            ... having your working hours carefully monitored ...

 

            ... so you are forced to work as hard as is physically possible ...

 

            ... limited vacation time ...

 

            ... even if you think the pay is good, when can you spend it? ...

 

            ... letting the best years of your life pass by ...

 

            ... making an enormous sacrifice of personal freedom ...

 

            ... who is really the prisoner?

 

And, if you still want to be a judge, what are the obstacles?

 

            ... why should you have a better chance with a very good degree, when an ordinary one should              be quite enough?

 

            ... why should you need the “right” cultural or ethnic background, when people are just people?

 

            ... why be at the “top” of the profession, when ordinary lawyers do a lot of good for the   community just by helping people with their legal problems?

 

            ... but an inability to work hard should be an obstacle ...

 

            ... and a lack of judgement should also be an obstacle ...

 

            ... and a lack of wisdom should also be an obstacle ...

 

            ... and a lack of integrity should also be an obstacle.

 

 

Probative value and reliability - the evidence of prison informants

The idea of “probative value” in s 8 of the Evidence Act 2006 came under scrutiny, and was the subject of some disagreement, in Roigard v R [2020] NZSC 94 (14 September 2020).

 

My impression is that this case misses the critical thing about s 8 in this context: it should be all about whether admission of the challenged evidence would have an unfairly prejudicial effect on the proceeding.

 

The evidence will have probative value, otherwise it would be inadmissible under s 7.

 

Whether the probative value is “outweighed” by the risk of unfair prejudice is not a matter of balancing (a word not used in s 8 and one which, as I have argued, introduces an inappropriate metaphor). Outweighed here should mean that, in context, the risk of unfairness posed by admission of the evidence is unacceptable in the sense that it would not be overcome by appropriate cross-examination or by directions the judge could give the jury.

 

In Roigard only brief attention is given to unfair prejudice, identifying the danger as the risk that the jury would “overweight” the prosecution evidence: per Winkelmann CJ and Brown J at [156]. The Judges all agreed that in cases like this, where prisoners give evidence about confessions allegedly made to them by the defendant, it is necessary to formulate guidance for prosecutors and to keep a register of such witnesses’ convictions and rewards for giving such evidence.

 

The judicial disagreement was over the criteria for assessing probative value, with the result that the dissenting Judges would have excluded the evidence of one of the two challenged witnesses. Regarding the risk of unfairness as the same for each witness, the dissenting Judges considered that one witness was so lacking in credibility that the risk of unfairness outweighed the probative value of his evidence.

 

The disagreement in this case is all about probative value. The majority Judges took a narrower view of what reliability factors are relevant to assessing probative value under s 8 than did the minority.

 

But as I have said, it doesn’t matter how probative evidence is, if its admission would cause unfairness.

What is probative value, and does it include reliability?

 

A fact-finder in a trial must decide, when the time comes to reach a verdict, whether to accept a witness’s evidence. Is the witness reliable? Is the witness truthful, and, if truthful, nevertheless possibly mistaken? These considerations are matters of credibility.

 

If the fact-finder decides to accept what the witness says, the next question is how much probative value that testimony has. Probative value is a quality that attaches to evidence that is accepted. In a criminal trial, the probative value of evidence for the prosecution is a comparison of the extent to which the evidence is consistent with guilt or with innocence.

 

There can be occasions where a witness gives evidence about the reliability of testimony. For example, a witness may say that the error rate in DNA testing is x%. The fact-finder will take this into account in deciding whether to accept the evidence of a match. This is different from deciding the probative value of the evidence of a match. The probability of a match may be very high, so the witness’s evidence that there was a match will be credible. But the significance of the match in the circumstances of the case may be much lower, as for example where there are innocent explanations for the presence of the defendant’s DNA at the crime scene. Here, the probative value of the evidence of a match would be lower than where there is no apparent innocent explanation.

The risk of error can be relevant to probative value. The error may exaggerate the consistency of the evidence with guilt and minimise its consistency with innocence. Reliability has two roles: first in relation to the credibility of testimony, and secondly in relation to the probative value of testimony that has passes the credibility threshold.

 

There are no standards of proof at play here. It is sufficient that the fact-finder is satisfied that testimony is credible and that it has a probative value which is for the fact-finder to assess. The verdict depends on whether the fact-finder decides that the combined probative values of the accepted evidence reaches the criminal standard of proof.

 

Applying these thoughts to Roigard: the testimony in question was that the defendant confessed guilt independently to each of the two witnesses while in custody awaiting trial. The first question for a fact-finder (juror) is whether the testimony is credible: did the defendant make the statements reported by each witness? Reliability considerations relevant here were ones of self-interest: what did each witness have to gain from testifying, and was each witness a truthful person?

 

It might have been quite unlikely that a fact-finder would accept any of the contested evidence here. But that would be for the fact-finder unless the evidence was so incredible that it would be irrational to believe it, in which event a judge could rule it inadmissible because it had no probative value and so was irrelevant in terms of s 7.

 

If a fact-finder did accept the evidence here as being credible, then the question of its probative value would have to be considered. A voluntary confession would have a high probative value. It would necessarily be reliable (unless made to protect another person, which was not an issue here), and it would be highly consistent with guilt and inconsistent with innocence. Note that here – where credibility is accepted - it is the reliability of the confession, not the reliability of the witness, that is relevant.

 

But where the fact-finder thinks the evidence was quite likely to be credible, but also possibly not credible, the acceptance of the evidence may be qualified or hesitant. The reduced reliability of the evidence could be reflected by a reduction in the fact-finder’s assessment of the probative value of the evidence.

 

None of these considerations directly address unfair prejudice to the defence. Unfair prejudice would exist to the extent that the defendant was unable to test the credibility of the witnesses by exploring the circumstances that gave rise to their self-interestedness and by examination of relevant previous convictions. Judicial directions, based where appropriate on psychological studies, could assist in reducing the risk that the fact-finder would too readily accept the credibility of the witnesses. The courts have not yet gone so far as to require that the fact-finder be satisfied beyond reasonable doubt that a confession was made. Unfair prejudice would also exist to the extent that the defendant was unable to properly challenge the probative value of the evidence, although here this is less important because a voluntary confession would necessarily have a high probative value. Even where the fact-finder discounts the probative value of a confession because of some doubts as to whether it was made, it would still have a probative value sufficient to affect the assessment of the overall strength of the prosecution case.

Trial and error: lessons for participants

A simple little appeal judgment can contain a lot of lessons. So it is with W (CA641/2019) v R [2020] NZCA 286.

 

The lessons? Here are the points I noted:

 

1. In a trial, don’t forget the elements of the alleged offence.

 

Here, the alleged offence was perjury, and the mental elements were both knowing the assertion (here, in a document) was false and intending by it to mislead the court. The trial judge thought the only issue was whether the defendant intended to mislead, whereas the real issue was whether the defendant knew the assertion was false. Closely related to this is the actus reus: swearing that the document was a true copy in the sense of it being unaltered from the original.

 

2. Be alert for ambiguity, and don’t assume a defendant is using words in their legal sense.

 

Here the ambiguous expression was “a true copy”. Lawyers understand this to be a matter of form, whereas it can also refer to substance. Here, a document was altered by the defendant, who claimed to have been correcting it, and then copied and presented to the court in other proceedings. In lawyers terms it was not a true copy because it had been altered from the original, but in the defendant’s terms it was a true copy because it was a copy that had been corrected from the original.

 

3. Don’t assume that an irritating witness is being dishonest.

 

Demeanour can be misleading and can result in judicial bias.

 

4. An appeal court, working from a transcript of the trial, customarily acknowledges the advantages that the trial judge had in seeing witnesses and deciding credibility, but those advantages can be over-stated.

 

Here, the Court of Appeal had the advantage (although it didn’t say so) of the objectivity gained by not being subjected to the stress and errors of judgment caused by the irritations of trial.

 

5. Bias can cause a judge to take sides, and to permit an objectionable style of cross-examination of a defendant.

 

Here, the Judge in his verdict described the prosecutor’s cross-examination of the defendant as “skilful and penetrating”, whereas the Court of Appeal saw it as “overall unfair and at times bullying.”

 

6. Failure at a first appeal (here, to the High Court) should not discourage counsel from seeking leave for a second appeal (as here, where it seems counsel wasn’t even slightly discouraged) when the result seems wrong. Even when the Court grants leave on some points, a more fundamental point may be discovered in the actual hearing where the Court has the benefit of argument.

Sixteen!

This blog has now existed for sixteen years.

Longer than Prime Ministers, Presidents, and most Chief Justices. 

Longer than much of the relevant legislation.

Longer than most prison terms.

Longer than most people stay in the same job. 

Longer than most people stick with a hobby. 

Longer than most marriages.

And, one hopes, longer than the pandemic will be with us.

(This is not a poem.)

Law and precision

This, my 701^st post, is about authority and precision as aspects of the rule of law.

 

Borrowdale v Director-General of Health [2020] NZHC 2090 is about some official statements that were made in the earliest days of our Covid-19 lockdown.

 

Were these statements law?

 

The Director-General of Health had the power to make statements of law, but this power was given by (the then) legislation to him alone. The Prime Minister did not have that power, so statements she made at media briefings were not law. Nor were interpretations of the Director-General’s statements of law, issued by various officials.

 

Unfortunately, the Director-General did not initially realise that it was all up to him to make law. He apparently thought that his role was advisory and that the PM and the Minister of Health could issue statements that were legally binding.

 

This could be what led to the Director-General speaking in terms that any lawyer, and most people, would regard as imprecise. It also led to the PM speaking vaguely, issuing encouragements (which would have been appropriate) but couched in mandatory terms (which were unlawful). These caused people to confine themselves to contacts with only a few people in their “bubble”, thinking that doing so was a legal obligation.

 

The Full Court of the High Court held that the unlawfulness was justifiable. That apparently means that no one is liable for the unlawfulness. Fair enough, of course, since things were done under urgency and the first consideration was public safety.

 

The Court said (at [291]), “The rule of law requires that the law is accessible and, so far as possible, intelligible, clear and predictable.”

 

There is a distinction between stating the law and interpreting it, and this is illustrated by the Court’s upholding of the lawfulness of the Director-General’s order that all but “essential businesses” must close, because "essential businesses" was defined in that order in a way that was “clear and fixed” (at [279]), notwithstanding that the list of such businesses, prepared by other officials and published online, changed from time to time. The list was legitimate interpretation, an executive function. The definition was “certainly broad, but we think it has parameters and was capable of being given an ascertainable and reasonable meaning in any individual case” (at [276]).

 

You can see that this is a rather delicate matter. I remain concerned about the limitations on people’s right to exercise, and the vagueness of the current requirement that places of exercise must be “readily accessible” (see my update at the end of this post). A readily accessible distance to walk for an athletic person may not be for a sedentary enforcement official or a sedentary judge.

Furthermore (grrr...) today we had an example of official confusion of advice and order, in the Minister of Health’s 1.00pm media update on the crisis. 

 

He is reported to have said, “stay in your bubbles, don’t go out unless you have to, and please wear a mask if you do have to go out. As the weekend approaches, those rules still do apply.”

 

It’s the contradiction between “please” and “those rules”: do we have to wear a mask if we “have” to go out, and what sort of restriction is not going out unless we have to?

 

The Minister’s interpretation of his own order is not part of the order itself. If he wanted to include those restrictions, he should have put them in the order. That is the clarity that the rule of law requires. There is, currently, nothing in the order to require people who go out to wear masks. Plainly, it may well be good sense to do so, and that is all the more reason to put the requirement in the order and so to make it law.

 

And as for “don’t go out unless you have to”, this is not the law. The order permits going out for “essential personal movement”, which includes “limited recreational purposes”. In ordinary language, recreation for limited purposes is not something one has to do. Recreation is not compulsory, but it is permitted, despite the Minister’s comment suggesting there is a rule prohibiting it.

 

That this sort of bumbling obfuscation should have occurred the day after the Borrowdale decision was published – when it must have been fresh in the Minister’s mind – is most unfortunate.