A free pdf of the first collection of entries on this site

As we drift gently towards August 2024, which will be the 20th anniversary of the start of this site, and will also be its termination, I am preparing collections of these entries for free download as pdf files. This is because we cannot be sure how long sites such as this one will continue to exist once they are no longer updated.

The first file covers entries from August 2004 to August 2009. It includes a Table of Contents and Index, and also copies of the draft papers linked on this site. It is best viewed in its A4 format.

Eventually, there will be another file for the remainder of the entries, and a separate Index file for all the entries.

Here is the link to the download for the first volume.

Jury directions as exercises in comprehension: Huxley v The Queen [2023] HCA 40

It is a commonplace observation that people who are good at reading might come to different interpretations of the same text.

Also, it is not unusual in a joint trial for different defendants to react differently to the evidence of a witness. The witness might give evidence that incriminates one defendant while exculpating another.

Both these points are illustrated in Huxley v The Queen [2023] HCA 40.

The trial judge had thought that it would be “madness … leading to total confusion” and “gibberish” [17] to require the jury to apply different standards of proof to the evidence of a witness depending on which defendant’s case they are considering.

The judge was so plainly wrong about that, I suggest, that it is surprising that the prosecutor (who would be just as concerned as defence counsel that the trial should be conducted according to law) did not offer a suggestion to avoid the possibility of any error by the judge when directing the jury.

The point was that when considering the evidence which was central to the prosecutor’s case the jury had to be satisfied of its truth beyond reasonable doubt, but when considering the same evidence as part of the case for a co-defendant they had only to ask whether it raised a reasonable doubt as to the guilt of that co-defendant.

The judge got the first requirement right, and this appeal was about the question of law as to whether the second requirement was satisfied upon a consideration of the summing up as a whole.

This comprehension exercise produced different answers, the Court splitting 2-3. The majority, Gordon, Steward and Gleeson JJ, held that the judge had made no error of law and the appeal was dismissed. The minority, Gageler CJ and Jagot J, considered that the error had been made and that there should have been a new trial. The majority placed significance on the absence of any request by defence counsel for a re-direction [92]ff. The point had been raised in chambers before the evidence in the trial had been concluded, and defence counsel may have thought the judge had ruled on the point [29].

It is at that early stage, when the potential difficulty was raised in chambers before the conclusion of all the evidence, that help from the prosecutor could have ensured a clear judicial direction and avoided the need for this appeal.

The use of question trails (setting out questions for the jury to answer among themselves as they work towards verdicts) could have helped avoid confusion here. Was the jury in a position to consider “as a whole” (heading at [68]) a summing up that lasted from the middle of one day to the late afternoon of the next day [18]? If not, is the more leisurely consideration of a transcript of the summing up - here extending to 93 pages - by appellate judges, relevant? Are juries better at comprehension than appellate judges? If five senior judges can't agree on understanding the summing up, should we expect 12 jurors to have agreed on it?

The admissibility consequences of a breach of rights: R v Zacharias, 2023 SCC 30

To what extent are rights a shield for offending?

Does a breach of the right not to be arbitrarily detained have admissibility consequences in relation to subsequent police activity such as search, arrest, further search, and further detention?  Is the propriety of these subsequent events tainted by the initial breach?

In R v Zacharias, 2023 SCC 30 the majority held, 4-1, that the need to consider “all the circumstances” (s 24(2) of the Charter) means that the subsequent events can be (what I call) tainted by the initial breach. However, the majority on this point split 2-2 on the application of this to the circumstances of the case under appeal. The result therefore turned on the decision of Côte J, who, although differing from her 4 colleagues on the taint question, agreed with Rowe and O’Bonsawin JJ on the application of the balancing test to determine admissibility. The appeal was accordingly dismissed, as the evidence had been correctly admitted at trial. Martin and Kasirer JJ dissented in the application of the balancing test and would have allowed the appeal.

The facts are summarised at [4]-[10]. The impropriety of official misconduct is described at [11]-[12], being in essence that the police officer only just failed to have the necessary grounds to detain (breaching s 9 of the Charter) and search (s 8), by way of sniffer dog, Mr Zacharias.

To appreciate the novelty of Zacharias in Canadian Charter jurisprudence, [1] it is useful to study the judgment of Côte J. Put starkly [102], it was the discovery of incriminating evidence that was the basis for all the police conduct after the improper detention, not the detention itself: “an arrest made on the basis of clear and reliable evidence of a crime is not “misconduct” from which the court should be concerned to dissociate itself.” She points out that in none of the Court’s jurisprudence has subsequent official conduct, not itself involving any further breach of rights, been taken into account when weighing the seriousness of the misconduct [78], [87], [97], [100].

Given the majority decision that a breach has relevance to police conduct after the discovery of incriminating evidence, the question becomes one of what is this relevance. While agreeing that the consequences of the breach are relevant to the issue of the impact of the breach on the defendant, Martin and Kasirer JJ gave this more weight in the admissibility determination because of rule of law concerns [109], [138]-[139], [143]-[151] (compare Rowe and O’Bonsawin JJ [70]-[73], with whom Côte J agreed [104]).

In New Zealand the legislation leaves less (or no) room for a moral decision on this issue, and the cases apply an attenuation analysis. [2]

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[1] I have previously referred here to some of the cases cited in Zacharias: Tim on 22 April 2022, Grant on 18 July 2009 and 19 July 2009 and  27 October 2011, and see also 11 November 2020, McColman 25 March 2023, Chehil and MacKenzie both on 3 October 2013, Stairs 13 April 2022, Kang-Brown on 28 April 2008, and A.M. also on 28 April 2008 .

[2] Evidence Act 2006, s 30, in which the references to consequence in subsection (5) and the use of the verb obtained are taken to invoke a causal analysis, although there are occasions where a more contextual analysis is used. Generally, see R v Shaheed [2002] 2 NZLR 377 at [10], [11], [180], [205], R v Pou [2002] 3 NZLR 637, R v Williams [2007] NZCA 52 at [79]-[103], [243], R v Rangihuna [2008] NZCA 230, R v Hsu [2008] NZCA 468, R v Rimine [2010] NZCA 462, Nicol v R [2017] NZCA 140, R v Bailey [2017] NZCA 211, R v Alsford [2017] NZSC 42 , Moore v R [2017] NZCA 577.