Unfair trial or not unfair trial? Hewey v R (Bermuda) [2022] UKPC 12

Was the trial that was the subject of the appeal in Hewey v R (Bermuda) [2022] UKPC 12 unfair?

The judge’s summing up to the jury had not been a “model” of fairness and clarity (at [47]).

If that lack of fairness and clarity made the trial unfair, why did the Board not say that there was no question of applying the proviso? [1] Instead, the Board was merely “unable to conclude with confidence” that there had been no substantial miscarriage of justice (at [52]).

The lack of fairness involved exaggerating the probative value of prosecution evidence concerning particles that were alleged to have been gunshot residue, and reversal of the burden of proof by pointing out that the defendants had not provided any explanation for the presence of the particles (at [39]).

The issue was the identity of the driver of a motorcycle when its pillion passenger shot the victim. The particle evidence was allegedly physical evidence linking the appellant to the scene of the firing of the gun. Eyewitness evidence was challenged as unreliable, and the role of the particle evidence was to support the eyewitness. It was, in that context, of central importance.

Arguably, the two errors should have made the trial unfair, rather than simply being incidents of erroneous comments in the summing up. But alternatively, was this trial one where the departure from good practice was not so gross, persistent or prejudicial that the Board had no choice but to quash the appellant’s conviction?

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[1] Randall v R (Cayman Islands) [2002] UKPC 19, [2002] 2 Cr App R 17 per Lord Bingham at [28], saying that the question is whether “the departure from good practice is so gross, or so persistent, or so prejudicial, or so irremediable that an appellate court will have no choice but to condemn a trial as unfair and quash a conviction as unsafe, however strong the grounds for believing the defendant to be guilty.”

A lawful but contextually unreasonable search: R v Tim, 2022 SCC 12

For an example of circumstances where a lawful search was in breach of the defendant’s right not to be unreasonably searched, see R v Tim, 2022 SCC 12. Two unlawful searches, of the defendant and his car, were followed by a third, which was lawful but in breach of Mr Tim’s Charter rights, in particular the right to be secure against unreasonable search or seizure (clause 8); bringing into play consideration of the remedy of inadmissibility in clause 24(2).

Here, the third search was in breach because of its close temporal and contextual association with the unlawful searches (at [80]).

This was different, on the facts, from a causal connection with the unlawful searches. For readers in New Zealand, s 30 of the Evidence Act 2006 is the governing provision on admissibility of improperly obtained evidence in criminal cases. It sets out law which is not hugely different in its results from Canadian law on the point. Subsection (5) defines when evidence is improperly obtained, and its use of the words “obtained” and “in consequence” raises the question of whether a causal connection between the impropriety and the finding of the evidence is required.

Our courts have recognised that causation is not always necessary, as for example where a confessional statement is obtained from the defendant but after that the procedural error occurs of failing to get the defendant to read it through and to make any corrections before signing it. The statement can be held to have been improperly obtained. See Denney v R [2017] NZCA 80 at [31].

Political laughter at law: extradition, risk of torture and trial unfairness, and Minister of Justice v Kim [2022] NZSC 44

I must admit that I had a good laugh at the brilliant cartoon by the gifted Sharon Murdoch, published yesterday in Stuff (see the cartoon dated April 17, 2022 at https://www.stuff.co.nz/opinion/94869389/sharon-murdoch-cartoons ).

The Kim case has been slowly reaching its climax in New Zealand, and I have commented on it before, on June 12, 2019. Our Supreme Court’s latest judgment in the case is Minister of Justice v Kim [2022] NZSC 44 (13 April 2022). I will call this the second decision.

Just as with law cases, there is always another side to the story in political commentary. One may disagree with the Court’s decision if one looks at it from a political point of view, while agreeing with it from a legal point of view.

On the torture point, the legal question was whether there was a reasonable basis upon which the Minister of Justice could be satisfied that there was no real risk that Mr Kim would be subject to an act of torture if extradited to the PRC.

There were several reasons for the Court’s conclusion in its second decision that such a reasonable basis existed. The case is an ordinary one with no political importance to the PRC. Why, in other words, would the PRC authorities have resort to torture? Further, the investigation of the case in China had progressed to an advanced stage, so again, why resort to torture? And the trial would not be in a part of China where the authorities had a reputation for torturing criminal suspects. And, although an ordinary case, this one has attracted a good deal of international attention because it could be a precedent on the safety of extradition to the PRC. So, with everyone watching, why resort to torture if that would create difficulties in future cases? Here, torture would be irrational, so that there was a reasonable basis for the Minister to accept the assurances that had been obtained from the PRC (since the Court’s previous judgment in this case) and to conclude that there was no real risk that Mr Kim would be tortured.

So the legal decision on this point was sound. The Court was not making a political decision.

As to fair trial, again the decision is particular to the circumstances of this case and the particular assurances offered. Is there a real risk that the trial would fall below the requirements contained in Article 14 of the ICCPR? These are minimum requirements, designed to accommodate different legal systems. But still, the question is particular to the individual trial under consideration. And the right to a fair trial is not to be balanced against a public interest in extradition, as the Court noted in [281] of its first decision in this case. (The right not to be tortured is also an absolute right, and I have reservations about the Court's inclusion of references to other interests in [40] of the second decision.) The issue is minimum standards, not best practice. Have assurances removed a real risk that the trial would be unfair? Together with assurances received from the PRC about trial procedure, the Minister could also consider the opportunities that would be given for monitoring of the trial by New Zealand officials (see [297] of the first decision). Diplomatic assurances between states provided in good faith amount to moral and political obligations on the state providing them (see [257]-[260] of the first decision). Such assurances as to trial fairness could be relied on for similar reasons that the assurances as to absence of torture could be relied on.

The issue came down to whether the Court, assessing the extent of the assurances given by the PRC about the fairness of the proposed trial, could conclude that those assurances did indeed cover the minimum standards required by the ICCPR, and that they did provide a reasonable basis for concluding that the trial of Mr Kim would be fair in that sense. There was no credible evidence, specific enough to be relevant here, to suggest the contrary.

True, cartoonists may have their own evidence about other cases, but apparently not about this one.

Proximity and fishing in safety searches upon arrest: R v Stairs, 2022 SCC 11

Attempts to codify the law - that is, to capture the whole of the law on a given subject in a statute so that it is not necessary to refer to sources outside the statute to ascertain what the law is, except that judicial decisions may explain how the statute applies in particular circumstances - usually fail.

Some people thought that our Search and Surveillance Act 2012 codified the law relating to that subject, and indeed it does have a comprehensive feel about it. But, as a recent case from the Supreme Court of Canada illustrates, not everything is covered.

On arresting a person, an officer may search that person for anything that could be used to cause harm to anyone or to facilitate the person’s escape: s 85. Let’s call that a safety search, There doesn’t seem to be any provision concerning a safety search of the arrested person’s immediate vicinity.

The Canadian case, R v Stairs, 2022 SCC 11, addresses the power of safety search where the arrest is carried out at the person’s residence. To what extent can a safety search occur - in the same room, or beyond that in another room in the residence? For example, the person may be arrested in a bedroom, but then may need to use the toilet. Or the arrested person may need to be escorted through the kitchen, a room that is normally full of potential weapons.

Under s 85 a safety search does not require any grounds: there is no need for the officer to have reasonable grounds to suspect that the arrested person is carrying any of the sorts of items covered by the section. As long as the arrest is lawful, and the search is carried out for the purpose of locating such items, and it is carried out in accordance with the actions described in the section, it will be lawful.

Some searches do require grounds, and these can be one of two kinds: where the officer has reasonable grounds to suspect that the items of the kind described in the search power will be found, and those where the officer has reasonable grounds to believe that such items will be found. The thresholds for lawfulness in this respect can be either suspicion or belief. The statute will say which applies. We are concerned with warrantless searches here, and when these require grounds, the threshold of belief applies.

For example, s 83, referring to warrantless search of a place for evidential material relating to an offence for which the person has been arrested, requires reasonable grounds to believe the specified things. The same threshold applies to search of a vehicle: s 84. Similarly, the threshold of belief applies to the more extensive search of an arrested person pursuant to s 88.

In Stairs, the common law equivalent of our s 85 is described at [34], although it is wider than our s 85 insofar as it includes search for evidence of the arrest offence in addition to safety items. Also, there is a third, and lowest, threshold: there must be some reasonable basis for the officers action, that is, it must in the circumstances seem reasonable to check for safety items: [37]-[38].

In the context of constitutionally protected rights, a balancing of privacy and police objectives for safety searches of a home was necessary: [55]. For arrests that occur in the arrested person's home, distinctions are drawn between areas of the residence that are within the physical control of the arrested person, for which the common law standard applies; those which are proximate to the arrest, a contextual and case-specific inquiry: [60]-[61], for which the threshold is reasonable suspicion [66] (applying Chehil, discussed by me here on 3 October 2013), [82]; and those in more remote areas which, without a warrant, are prima facie unreasonable: [50].

So, some potentially useful gap-filling to which our courts may have occasion to refer. But an important consideration will be whether the omission of the kinds of search mentioned in Stairs from the New Zealand legislation was deliberate. The Law Commission’s report Search and Surveillance Powers, R97 (29 June 2007) at [5.30] significantly rejected a power to search beyond the person of the arrestee:

“ … a vast array of items in any home could cause harm or facilitate escape, ranging from wine bottles to keys to cutlery. To allow an incidental search for these purposes is in effect to authorise a fishing expedition (no matter how narrowly defined in terms of proximity to the exact place of the person’s arrest), because it would authorise looking for virtually anything.”

Witness credibility, absence of cross-examination, and trial fairness: R v Samaniego, 2022 SCC 9

Reading R v Samaniego, 2022 SCC 9 (March 25, 2022), and its excellent summary by Henna Mohan at thecourt.ca , might leave you wondering about the extent to which defence counsel has a duty to obfuscate evidence tendered by the prosecutor.

First, some general observations will occur to readers in relation to the role of defence counsel in a trial.

All counsel have a duty not to mislead the court, but this does not mean that defence counsel must assist the court to recognise the truth of the prosecutor’s evidence. Not misleading  the court has a narrow meaning: not knowingly stating facts or points of law incorrectly; not suggesting something for which counsel has no proper grounds; not departing from the client’s instructions in order to present a better defence on invented facts. Given that counsel would recognise the impropriety of doing those things, the primary duty to the client does not detract from the duty to the court.

If, in cross-examination, defence counsel can make a witness’s testimony less clear or less intelligible than it appeared at first, counsel for the prosecution will have the opportunity to re-examine the witness and seek to restore clarity and intelligibility. It is, given that, not improper for defence counsel to attempt to “muddy the waters” in the interests of the client.

All this must be done within the confines of fairness, and that is a matter for the trial judge. Powers to exercise this sort of control may be statutory (for example in New Zealand we have s 85 of the Evidence Act 2006). Essentially, questions that are “improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand” must not be allowed.

Where the defence strategy is to obfuscate prosecution evidence, that must therefore, on this statutory formulation, be done without improper, unfair, misleading or needlessly repetitive questioning, and without using language that is too complicated for the witness to understand.

The exercise of judicial control over the questioning of witnesses is called, in Samaniego, an aspect of trial management.

Some questions must be disallowed if they seek to introduce inadmissible evidence, and that is a matter of law, not of trial management. The majority judgment at [25] sets out the different approaches on appeal to evidential rulings and to trial management decisions:

“Trial management decisions and the rules of evidence must generally remain separate issues on appellate review. The standard of review for evidentiary errors is correctness, while deference is owed to trial management decisions. Extricable evidentiary errors are held to a more stringent standard of review than trial management decisions. The trial management power is not a license to exclude otherwise relevant and material evidence in the name of efficiency.”

Experienced barristers will have noticed that the very best cross-examination is brief and to the point. Of course there may be exceptions to this, for example where a witness’s evidence has covered numerous topics, each of which contains material that has to be challenged. And there may be cases where aspects of a witness’s character that could impinge on the accuracy of testimony need to be exposed by careful probing. But generally, brevity is best.

“The art and skill of advocacy is ‘a highly refined one whose very best practitioners may manage to persuade in the face of facts…’ ” [ L. Zedner Criminal Justice (Oxford University Press, 2004) at p. 169, cited in Edward Johnston, “The Defence Lawyer in the Modern Era” at p 35]. 

If I were to criticise Samaniego, I would say this. We may wonder whether the Canadian appellate courts’ tendency to resort to deference is really appropriate. Deference is a weakness in appellate powers. To decline to review a decision, saying that the decider was in a better position to make the decision, is to deny a right of appeal. This has crept into the posited distinction between decisions of law and decisions concerning case management. Is this a material distinction? As indicated above, in New Zealand this sort of case management, determining what questions are allowed, is a part of the law of evidence, and is certainly not a discretionary matter (as the word “must” in s 85 indicates). Again, the Canadian courts in this regard seem to be withdrawing from their appellate role and denying rights of appeal.

Regardless of who caused the error in this trial, there was a failure to cross-examine on a matter directly relevant to the credibility of the only witness who gave evidence on the sole issue in the case. This amounted to a denial of the fundamental right to challenge evidence adduced by the prosecutor. It was a fundamental failure of trial process, and regardless of the likely effect of the error on the outcome of the trial, there had not been a fair trial and a new trial should have been ordered. It was wrong of the majority to say, at [35]-[36], on appeal we don’t consider what better decisions may have been made by counsel. That is another denial of appeal process. Case management should require trial judges to ensure trials are fair, and it seems odd that if a judge realised that counsel was making a mistake (here, thinking an inconsistency occurred between the witness’s second and third statements, when in fact the inconsistency was between those two and the first statement), the judge could simply keep quiet and let the error amplify, and that appellate judges could treat it as an error that was inconsequential.

I don’t ignore the apparently persuasive aspects of the majority judgment. But consider how a juror might have reacted had the witness’s inconsistencies been exposed. The witness identified in his second and third statements who had the gun initially, but in a first statement the witness didn’t know who had the gun initially. Is the witness a careful person who speaks with precision? Is the witness’s subsequent account an innocent invention? How reliable is the witness’s memory? Why did the statement change? Can we be sure the witness is accurate now?

So, while it is tempting to say that this is one of those rare cases where absence of cross-examination in relation to credibility did not prevent the appeal court from correctly deciding that the witness’s trial evidence was credible to the criminal standard of proof, in the context of the admitted animosity of the witness towards the appellant (in contrast to the admitted friendship between the witness and the co-defendant), there must, in my respectful opinion, be a reasonable doubt and the appeal should have been allowed, perhaps with a retrial being ordered.

There is nothing unusual about having strong dissenting judgments in final appeals. Law is just a numbers game. [1]

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[1] I must admit I thought I was being a bit cheeky in saying this, but later I came across this: "...In Fitzleet Estates Lord Wilberforce explained (p 1349) that doubtful issues have to be resolved and “the law knows no better way of resolving them than by the considered majority of the ultimate tribunal”. ": Chandler v The State (No 2) (Trinidad and Tobago) [2022] UKPC 19 (16 May 2022) at [63].