Three quite interesting appeals:
Refraining from irrelevancies
There are times when, no matter how interesting a point is and how helpful it would be to decide it, an appellate court will not address issues that are irrelevant to the appeal before it. A recent example is Moss v R (Bahamas) [2023] UKPC 28 (25 July 2023). Whether duress is an available defence at English common law to a charge of conspiracy to murder where the murder is actually committed remains undecided, because in this appeal, arising from a trial in which the defendant (appellant) had been charged with and convicted of conspiracy to murder, there was insufficient basis in the evidence to establish a foundation for duress. The defence was that there had been no conspiracy. It had been correct for the defence at trial not to seek to rely on duress, and the judge had correctly not left it with the jury as a potential defence. The question was only raised on appeal, and the Court of Appeal of the Commonwealth of the Bahamas had correctly rejected it.
The Board differed from the Court of Appeal on whether there was some evidence to support some of the requirements for a defence of duress ([57]-[58]), but agreed with that Court on one of the requirements, namely that there was no assertion in the defence evidence that there was no reasonable evasive action that the defendant could have taken to avoid the harm threatened ([68]).
The refusal to decide the common law point in this case is at [53], where the Board leaves it to a case in which duress arises on the facts.
Behind this refusal is, firstly, the recognition that counsel should not be made to do work that will be of no relevance to counsel’s case. What client would willingly pay their lawyer to research and argue an issue that could not assist in deciding the case? Similarly for publicly funded litigation. Counsel might be reluctant to take on appeals if there was a risk of having to futilely argue a cluster of complex issues that would only divert their time and energy unproductively. A second reason for the refusal to consider irrelevant points is that a proper factual context will assist in deciding what answer is supported by policy. The common law has developed piecemeal, working out case by case what is the reasonable answer to the issues that have to be decided in reaching a conclusion. But, you may say, couldn’t the Board in Moss simply have imagined that the defendant had had no reasonable opportunity to take evasive action? This might weaken the second reason for refusing to consider the point, but not the first.
But a third reason for refusal to consider points that have no basis in the facts of a case is more fundamental because it is constitutional. The courts refuse to trespass on what is properly the domain of the legislature. Courts decide the issues that arise between the parties to a case, the legislature addresses proactively broad matters of policy. This is not to say that the courts will decline to address hypotheticals in the course of examining the potential consequences of decisions on properly raised issues.
Police photography of people in public
The New Zealand Supreme Court has given leave to appeal, and, in effect, to cross-appeal, in Tamiefuna v R [2023] NZSC 93 (leave granted). The Court of Appeal decision is of great interest: Tamiefuna v R [2023] NZCA 163. I say no more in public (at least, not before the appeal has been determined, as it is sub judice). Save to say, it is about whether there is a right not to be photographed in public by the police when the photography is not in the course of an active investigation or enforcement need, and about the admissibility consequences in this case if the photography was a breach of the appellant’s right not to be photographed.
The plea of previous conviction
Speaking of sub judice, what has happened to the appeal in Mitchell v Police? The appeal was heard in the Supreme Court on 10 May 2022 (SC116/2021). From the Court’s Report on delivery of judgments for 2022 we can infer that this appeal is not considered to be unreasonably delayed, and that therefore the issues it has to resolve are complex. I have commented on the Court of Appeal decision here, on 23 September 2021. Very exciting.
Update: Mitchell has since been decided, as noted here on 11 August 2023.
